Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-18] British Columbia. Supreme Court Jun 18, 1992

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 1876  Submission by Ms. Koenigsberg  1 VANCOUVER, B.C.  2 June 18, 1992  3  4  CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Thursday, June the 18th, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 THE COURT:  I'm sorry to keep you waiting.  I thought I could  11 accomplish more than could be accomplished in the time  12 available.  Yes, Miss Koenigsberg.  13 MS. KOENIGSBERG:  My lords, we left off yesterday, I had  14 completed taking you through the summary of reasons  15 why for cautions on anthropological evidence in  16 general, and that was at tab 416.  But before we leave  17 that volume and go to the next volume, at that tab,  18 416, at the back of the summary are some excerpts from  19 the judgment, and in particular those parts of the  20 judgment, it's the very last tab, the very last part.  21 Dealing with the trial judge's reasons in relation to  22 the evidence of Drs. Daly and Mills and Mr. Brody, and  23 I thought as a preface to my taking you through a very  24 brief highlighting of some of that evidence, it would  25 be helpful to have in mind what the Chief Justice said  26 and then to look at the evidence that I want to take  27 you through and try and make a connection.  And it  28 begins at page 169, and there's a little bit of a  29 glitch, and I can't remember the reason for it.  What  30 you will see is pages -- the front page of course of  31 the decision, and then you will see pages 169, 170 and  32 then 172, and then a yellow sheet, and then a front  33 page and page 171.  And I want to go through them in  34 their proper order actually, but if you will just bear  35 with me as we go, we'll flip back to 172 when we get  36 to it.  Starting at page 169 of the judgment,  37 beginning in the third full paragraph, the Chief  38 Justice said this:  39  40 "I must briefly discuss the evidence of Drs.  41 Daly and Mills and Mr. Brody, because of the  42 importance attached to it by the plaintiffs.  43 These anthropologists studied the Gitksan and  44 Wet'suwet'en people intensively.  Drs. Daly and  45 Mills actually lived with the Gitksan and  46 Wet'suwet'en for two and three years  47 respectively after the commencement of this 1877  Submission by Ms. Koenigsberg  1 action.  Their type of study is called  2 participant observation but the evidence shows  3 they dealt almost exclusively with chiefs  4 which, in my view, is fatal to the credibility  5 and reliability of their conclusions."  6  7 Now, the wording here is important, and I want to put  8 it in a certain perspective for you, and it's been the  9 subject of some comments, so I will just comment  10 myself here.  11 The Chief Justice is dealing with the conclusions  12 which, I'm going to try and show your lordships a  13 little bit later, are related to what these people  14 were told and by whom they were told it.  And, for  15 instance, there were some opinions that related to the  16 feast, and that the sons and daughters, or the labour  17 of the sons and daughters belonged to the house or the  18 chief, and they had to call on it, so to speak.  We'll  19 come to those quotes.  20 In my submission, it's exactly that kind of thing  21 that loses credibility as a conclusion if the only  22 persons that you got your information from are the  23 chiefs.  What about the people who are supposedly  24 subject to that; have you heard from them, is that  25 their perception?  That was absent.  And it's in that  26 context, I would suggest to you, that the Chief  27 Justice is -- that's the kind of thing the Chief  28 Justice is addressing himself to.  And it's not that  29 either Dr. Daly or Dr. Mills never spoke to a  30 non-chief, because of course they did, but they made  31 no notes of those kinds of things.  Those -- the  32 chiefs, by their own evidence, were the chief source  33 of their conclusions on how the society operated.  And  34 remember that the conclusions are that the chiefs are  35 the authority to which other people in that society  36 are subject.  37 Going on to the next paragraph, and I hope that  38 will become clear to you when we come to some actual  39 examples:  40  41 "This evidence was seriously attacked on various  42 grounds, particularly that they were too  43 closely associated with the plaintiffs after  44 the commencement of litigation, that Dr. Daly  45 produced no notes of his 'observations'" --  46  47 And again that is true, he did not produce notes of 1878  Submission by Ms. Koenigsberg  1 his observations.  His evidence was that he made  2 observations, that he tended to make no notes at the  3 time for a variety of reasons, some of which, in my  4 submission, and I will be coming to it, are very  5 important in terms of its credibility, and  6 incorporated his impressions into his word processor  7 as he was drafting the report.  Then:  8  9 "-- that Dr. Mills was more interested in  10 reincarnation than Wet'suwet'en culture."  11  12 And I don't take very much from that, quite frankly.  13 These are lines of attack that he is going through  14 here:  15  16 "-- and that they did not conduct their  17 investigations in accordance with accepted  18 scientific practices."  19  20 We will be going through that.  And it's the  21 objectivity, any tool being used to give more  22 objectivity to the participant observation technique  23 that was the subject of the attack and that we state,  24 and the Chief Justice seems to have found, was in fact  25 fatal to their credibility:  26  27 "With regard to Dr. Daly, he made it abundantly  28 plain that he was very much on the side of the  29 plaintiffs.  He was, in fact, more an advocate  30 than a witness.  The reason for this is perhaps  31 found in the Statement of Ethics of the  32 American Anthropological Association which Dr.  33 Daly cites at page 29 of his report as follows:  34  35 'Section 1.   Relations with those studied;  36 In research an anthropologist's paramount  37 responsibility is to those he studies.  38 When there is a conflict of interest, these  39 individuals must come first.  The  40 anthropologist must do everything within  41 his power to protect their physical, social  42 and psychological welfare and to honour  43 their dignity and privacy.'"  44  45 And just stopping there, there was no attack on that  46 as an ethic for the discipline of anthropology.  The  47 problem that it posed was that Dr. Daly was engaged in 1879  Submission by Ms. Koenigsberg  1 the dead centre of a conflict of interest.  That is,  2 carrying out his research in the midst of the trial,  3 giving evidence in support of a claim, when the very  4 people that he is studying to give a supposedly expert  5 objective opinion about, their sole interest is  6 furthering that claim.  That puts the anthropologist,  7 in my submission, in the most exquisite of conflict of  8 interest situations.  It's hard to imagine a more  9 difficult dilemma, and it doesn't matter, in my  10 submission, the kinds of conscious decisions one  11 makes, it's very difficult to see that that would not  12 have an effect on the conclusions that you come to.  13 And when you build in all of the other factors of  14 limiting those persons to whom you speak of having the  15 tribal council have some hand in the persons to whom  16 you speak, when your major informants are those  17 persons who spent eight to ten years researching the  18 claim, those are the accumulation of factors which  19 make small things very important.  What steps were  20 taken to show a consciousness of that conflict of that  21 dilemma?  What steps were taken to make the work more  22 objective?  And, in our submission, the trial judge,  23 and one which I believe he accepted and one which is  24 reflected in these reasons, the answers to the  25 questions "What steps were taken?"  None.  It simply  26 was a given that that was the situation.  27 Down to the next paragraph:  28  29 "Honestly held biases were not uncommon with  30 many of the professional witnesses, which is  31 not unusual in litigation.  I do not think it  32 is necessary to analyze the evidence of all the  33 witnesses, and I shall not even mention some of  34 them.  As Dr. Daly was an important witness,  35 however, I am constrained to say, with respect,  36 I have considerable difficulty with his  37 evidence for a number of reasons.  Throughout  38 his long report, 691 pages, about which he gave  39 evidence for about ten days, he seems to be  40 describing a society I do not recognize from  41 the evidence of the lay witnesses."  42  43 I'm going to bring you to some examples of that.  44 That, in my submission, is the very heart of the Chief  45 Justice's difficulty with the weight to be given to  46 the opinion evidence of Dr. Daly, that having heard  47 the lay evidence, that very often the opinions given 1880  Submission by Ms. Koenigsberg  1 by Dr. Daly could not be reconciled with the evidence  2 of the Chief Justice's verdict:  3  4 "In fact, I felt constrained to comment during  5 his evidence that one would almost think the  6 motor vehicle had not been invented.  Many of  7 his propositions are based on facts not proven  8 in evidence."  9  10 Now he gives us some examples:  11  12 "First, he placed far more weight on continuing  13 aboriginal activities than I would from the  14 evidence, although he recognized the  15 substantial participation of the Indians in the  16 cash economy."  17  18 The Chief Justice is showing here appreciation for  19 what the thrust of Dr. Daly's report was.  His report  20 was about the continuation of aboriginal traditional  21 life, that was its focus, that's what he was  22 explaining.  And the Chief Justice is saying "When I  23 match up the evidence with his conclusions, he put far  24 more weight on continuing aboriginal activities than I  25 would":  26  27 "For example, at page 95, he mentioned that  28 Gitksan and Wet'suwet'en persons regarded their  29 land as 'their food box and their treasury' and  30 young persons going hunting often say 'we are  31 going to the Indian supermarket, to our land'.  32 Yet many witnesses said the young people are  33 not interested in aboriginal activities.  At  34 page 118 he recognized 'Country food may not at  35 all times be a major source of food for all  3 6 families."  37  38 The Chief Justice says:  39  40 "I find it is seldom a major source."  41  42 And we'll come back to that again:  43  44 "Secondly, at page 145 Dr. Daly said the House  45 group, through its chief or senior matrons  46 'ensures that a substantial portion of House  47 members' income from small enterprises and wage 1881  Submission by Ms. Koenigsberg  1 labour is devoted to the proper conduct of  2 House affairs.'"  3  4 And it's this kind of thing, in my submission, that  5 has relevance to your major informants being chiefs:  6  7 "With respect, I think this confuses the  8 practice of chiefs making substantial  9 contributions to feasts in which they are  10 particularly interested with the day-to-day  11 life of these people.  While I assume they  12 regularly take part, it was not proven the  13 non-chiefs, of which only one or two gave  14 evidence, are supporting the feast as Dr. Daly  15 suggests."  16  17 Again, the phrasing and the context for these comments  18 is very important in terms of determining what did he  19 mean and did he miss something, did he disregard  20 something.  He is not saying that non-chiefs don't go  21 to feasts, he is saying the feast, as described by Dr.  22 Daly and perhaps by some chiefs in evidence, I don't  23 find is as described:  24  25 "The general practice of which he spoke was not  26 proven at trial."  27  28 And then if you will flip over to page 171, which is  29 the very last page in this reference, we're going to  30 come back to the last page there:  31  32 "Thirdly, on page 139 Dr. Daly said:  33  34 '...in economic terms the Houses own the  35 rights to the labour of their sons and  36 daughters, and of their daughters'  37 offspring, and they of course own lands and  38 river sites as well.'.  39  40 This was not proven at trial."  41  42 The Chief Justice says, "and I have no reason to  43 believe it is true."  44 In my submission, there was little evidence and  45 quite reasonably no credible evidence that that  46 statement is true or was true as a practical matter:  47 1882  Submission by Ms. Koenigsberg  1 "Fourthly, I found Dr. Daly's report exceedingly  2 difficult to understand.  It is highly  3 theoretical and, I think, detached from what  4 happens 'on the ground'.  There are many  5 passages which I do not understand, such as  6 this one from page 247" --  7  8 And I won't read it, I will leave it to your  9 lordships, and I would simply say that it is a  10 paragraph which is difficult to understand:  11  12 "Most significantly, Dr. Daly lived with these  13 people for two years, while this litigation was  14 underway, making observations on their  15 activities, listening and, I think, accepting  16 everything they said."  17  18 And there certainly was evidence through the  19 cross-examination which was hard to pull out in one  20 good quote, but in my submission there was ample  21 evidence through the examination and cross-examination  22 of Dr. Daly that at the very least he tended to accept  23 everything he was told, and without keeping any notes,  24 so that it became very difficult to really test it:  25  26 "Further, he was not aware of a comprehensive  27 survey of over 1,000 persons conducted by the  28 Tribal Council in 1979 which achieved an 80  29 percent return.  This survey disclosed, for  30 example, that 32 percent of the sample attended  31 no feasts and only 29.6 percent and 8.7 percent  32 engaged in hunting and trapping respectively."  33  34 And I discussed that with you yesterday, the  35 importance of that in assessing the weight to give to  36 Dr. Daly's report given all the factors and  37 participant observation, the inherent difficulty of an  38 anthropologist in that situation being able to assure  39 the court that they are able to give objective  4 0 evidence:  41  42 "A question arose about the admissibility of  43 this survey.  I doubt if the plaintiffs could  44 have adduced it without proving it was  45 conducted scientifically, but it was admissible  46 in cross-examination particularly for the  47 purpose of testing the sufficiency of an 1883  Submission by Ms. Koenigsberg  1 expert's data base."  2  3 And more, in my submission:  4  5 "Apart from admissibility as evidence of its  6 contents (for I have no way of knowing if the  7 survey is accurate or representative, although  8 some of its results tend to confirm the view I  9 obtained of present Indian life), its  10 significance is more in the fact that it was  11 kept from Dr. Daly.  Many of his views of  12 Indian life may have been markedly different if  13 he had access to this substantial body of  14 information in the possession of his clients.  15 For these reasons, I place little reliance on  16 Dr. Daly's report or" --  17  18 And then if you flip back to page 172, which is just  19 on the other side of the yellow sheet:  20  21 "-- I place little reliance on Dr. Daly's report  22 or evidence."  23  24 Now, here again, in my submission, and this is  25 important, he did not fail to admit it, he did not  26 disregard it; he put little weight on it, little  27 reliance for the kinds of reasons that he has  28 outlined.  And he goes on:  29  30 "This is unfortunate, because he is clearly a  31 well qualified highly intelligent  32 anthropologist.  It is always unfortunate when  33 experts become too close to their clients,  34 especially during litigation."  35  36 And then he goes on with Dr. Mills, and I'm not going  37 to read that to you at this point because I would like  38 to go back now and deal with some of the evidence  39 which in my submission amply supports the view taken  40 by the Chief Justice.  41 And if we can then -- we can put this volume aside  42 but not completely away, and go to volume 14.  43 LAMBERT, J.A.:  Sorry, before we leave page 172, I'm not sure  44 what you said about the paragraph:  45  46 "Again however, apart urging almost total  47 acceptance of all Gitksan and Wet'suwet'en 1884  Submission by Ms. Koenigsberg  1 cultural values, the anthropologists add little  2 to the important questions that must be decided  3 in this case.  This is because, as already  4 mentioned, I am able to make the required  5 important findings about the history of these  6 people, sufficient for this case, without this  7 evidence."  8  9 Is that a separate self-standing proposition, that is  10 that, in any event, the whole matter to which the  11 anthropological evidence was directed, no matter what  12 weight you attach to it, is comparatively unimportant  13 in what the Chief Justice saw as the questions that he  14 must decide, or is this a proposition that says  15 because it has so little weight I do not find that --  16 I'm not going to rely on it, but I don't have to  17 anyway, it doesn't mean there's a gap, there's other  18 evidence that I can rely on.  19 MS. KOENIGSBERG:  I believe they are connected, my lord, and I  20 think they're connected for this reason:  I think that  21 the test, as set out and explained, and I tend to  22 prefer the Wigmore version of this test, necessity and  23 trustworthiness as general principles that transcend  24 all the areas of testing of evidence applies equally,  25 in my submission, to expert evidence.  Anthropological  26 evidence -- and I think we see this precise difficulty  27 with anthropological evidence in this particular  28 instance of these three particular anthropologists, is  29 inherently weak as a legal evidence vehicle, but it  30 might be necessary, in which case, in my submission,  31 it's proper to admit it and to look at it and assess  32 it, and if you have no other evidence, then you still  33 can't put a lot of weight on it if it won't bear the  34 weight, but you certainly will be very flexible, in my  35 submission, in testing its trustworthiness and erring  36 on the side of, well, it's the best evidence we have.  37 And that, in my submission, is what the Chief Justice  38 did.  And there were two, if I can put it that way,  39 and I don't want to be too exclusionary here, but  40 there are two essential areas of evidence covered by  41 the anthropologists.  The first is the substitute for  42 and corroboration of the lay evidence, that of the  43 aboriginal people themselves.  And that is really --  44 that was really what participant observation was  45 about.  The second is to put that evidence, if you  46 will, in a context which is the subject of the  47 anthropological discipline to the extent the 1885  Submission by Ms. Koenigsberg  1 discipline is.  I might have some things to say about  2 that.  I do have some things to say about that.  And  3 to put it in that sense of "Is it a discipline and  4 what value is that to the judge", again is a question  5 of necessity.  And the reason it's a question of  6 necessity is because anthropology as a body of  7 information is almost antithetical to legal evidence.  8 Its very nature is to explain something from someone  9 else's point of view.  It isn't merely to describe it  10 in a factual way, that isn't what it's about.  That's  11 not to say it might not be relevant to understand  12 things from someone else's point of view, but that it  13 is -- we have to keep in mind that that's what it is  14 when we're looking at it as evidence, and that it is  15 inherently weak as legal evidence, because it's taken  16 from interested parties and because anthropologists'  17 whole study is those people and their interests, and  18 you see that reflected in the ethics.  That makes it  19 difficult to fit.  And you can also see its other  20 inherent weakness, it changes over time.  Of course it  21 changes over time, but it changes rapidly over time.  22 What is an anthropological theory today to explain  23 something may not be an anthropological theory that  24 anyone is going to hold their head up about ten years  25 from now, or even five years from now, and you will  26 see that debate reflected in the evidence.  27 Mr. Brody was a good example.  Mr. Brody was the  28 author of a report called "The Use and Occupancy  29 Report", and that dealt with Inuit people and it was  30 back in the '70's when use and occupancy were the  31 bywords of the definition of aboriginal rights.  But  32 they were found in law not to be sufficient for the  33 purposes of establishing rights which are being  34 sought.  Today Mr. Brody comes forward with his report  35 in this lawsuit and says it's wrong about use and  36 occupancy, it's ownership and jurisdiction, that's the  37 concept.  And there's nothing wrong with that in terms  38 of the academic community, that's what the academic  39 community is all about, but it's a problem in fitting  40 it in in terms of evidentiary weight in a courtroom.  41 And it's those kinds of questions, in my  42 submission, that the Chief Justice was wrestling with  43 in admitting and weighing anthropological evidence.  44 And, of course, as I've tried to point out to your  45 lordships, these three anthropologists really are at  46 the extreme end of the difficulty, not because there's  47 something inherently wrong with them, because the 1886  Submission by Ms. Koenigsberg  1 situation is a very difficult one.  And we see in the  2 evidence all three of those witnesses cross the line,  3 admittedly by themselves, crossing the line of  4 observing for the purposes of making a report to make  5 a culture intelligible to participating in the very  6 core of the endeavour, the litigation.  One can only  7 prove that in small ways participating in  8 demonstrations.  And you can say those are trivial  9 things, and they are, but they are indicia of having  10 crossed the line and having lost sight of the  11 importance that the anthropologist is there in a  12 difficult situation, in a professional situation,  13 where their professional integrity is at stake from  14 the court's perspective.  15 LAMBERT, J.A.:  When he says in the second line of the paragraph  16 that I read:  17  18 "Again, however, apart from urging almost total  19 acceptance of all Gitksan and Wet'suwet'en  20 cultural values, the anthropologists add little  21 to the important questions."  22  23 The anthropologists he is there referring to are the  24 three that he's been discussing?  25 MS. KOENIGSBERG:  Yes.  26 LAMBERT, J.A.:  Not the anthropologists whose work is in the  27 body of anthropological literature, such as Marius  28 Barbeau, Jenness, Drucker, Wilson Duff.  29 MS. KOENIGSBERG:  That's right.  30 LAMBERT, J.A.:  And so they then form a part of — a part of the  31 material he relies on to make findings about the  32 history of these people without the evidence of the  33 three anthropologists who gave contemporary oral  34 evidence.  35 MS. KOENIGSBERG:  He could have relied upon parts of it, and  36 there would be no basis for saying that he could not,  37 if that's what your lordship is driving at, yes.  38 LAMBERT, J.A.:  I'm really — I'm just making sure that we both  39 understand that when he talks about the  40 anthropologists there, he's not talking about all  41 anthropologists, he's just talking about the three who  42 gave evidence.  43 MS. KOENIGSBERG:  That's correct.  But if I may caution your  44 lordships again, it comes up here, to select out any  45 one anthropological study that's not directly involved  46 with these people and say "Oh, they say X, they say  47 Northwest Coast people or related people own or have a 1887  Submission by Ms. Koenigsberg  1 system of land tenure", and to take that out of its  2 context, in my submission, is very dangerous.  I don't  3 say you don't look at it, I don't say you don't weigh  4 it, but in my submission it's very difficult to pull  5 it out, and for your lordships, in the absence of  6 weighing all of this evidence together, to put much  7 reliance on it.  There are advanced theories of  8 probable social organization, and we may as well  9 refocus on what we're talking about here.  We're not  10 talking about are the Gitksan and Wet'suwet'en people,  11 did they have a social organization and a system for  12 dealing with land use, that's a given.  Every  13 anthropologist says that, that is so.  Our difficulty  14 in this courtroom is the extent of it geographically  15 and the extent of it in a legal system sense, not that  16 it has to be our legal system, but a system sense, the  17 extent of it, and what is the evidence for it.  So  18 that when Wilson Duff or Marius Barbeau, or I don't  19 think Jenness actually says it, but use words like  20 "ownership" or "jurisdiction", we have to be just as  21 careful in weighing what they might mean, what their  22 context is for that, because it's easy to understand  23 in the anthropological sense what is -- we can  24 understand what is meant by ownership.  Chief  25 Gyolugyet says she owns these territories.  There is a  26 meaning to that word, it's not a blithe off-the-cuff  27 remark, it has a meaning in that culture.  And  28 anthropology generally, I might say, history and  29 common sense generally, tell us that that has to do  30 with the use and the rules for the use of the lands  31 that are said to be owned.  So we still have to go  32 into that inquiry of what in these circumstances is  33 that use and what is -- is its extent, and it's an  34 inferential activity.  And any anthropologist, any  35 historian is of some but limited value in assisting  36 with that particular endeavour.  I'm not sure I've  37 addressed the gravamen of what your lordship is  38 getting at.  39 LAMBERT, J.A.:  You addressed the problem much more precisely,  4 0 thank you.  41 MS. KOENIGSBERG:  I'm going to descend to the material here, and  42 I would like to again preface the actual evidence with  43 a quick review of the Lavallee decision, and you will  44 find it at tab 417.  So we are in volume 14, tab 417,  45 and the Lavallee case is found at sub-tab paragraph 5.  46 It's PEF tab 5, paragraph 5, sixth tab in from the  47 front.  The reason I go to this case is the 1888  Submission by Ms. Koenigsberg  1 proposition put to your lordships by the Appellants, I  2 believe it was my friend Mr. Grant, that the trial  3 judge -- I took him to say the trial judge has no  4 discretion, but I'm sure he didn't mean to go that  5 far, but at least the trial judge's discretion is  6 severely circumscribed in terms of accepting or  7 rejecting expert evidence of this kind.  I'm going to  8 suggest to your lordships that that has no basis  9 whatsoever in law, or common sense, for that matter,  10 and that the Lavallee decision, which my friend relies  11 upon, does not assist him in that regard but does  12 assist us, in fact, in understanding the weighing  13 process in relation to admissibility and weight.  14 And I put the whole of the decision in, and I  15 would like to turn to Mr. Justice Sopinka's  16 discussion, which begins at page 131.  And I'm going  17 to suggest to your lordships, just before I read it,  18 that even Justice Wilson's decision, and in particular  19 the part at 130 and 131, do not support the  20 proposition that a trial judge must accept, give  21 weight to, an expert opinion.  It really is dealing  22 with the issue of admissibility in the first place and  23 weight in the second place.  But on page 131, Mr.  24 Justice Sopinka is dealing with what arises out of an  25 analysis of Abbey, which is an inherent contradiction,  26 and he attempts to resolve it.  In my submission, it  27 is a very helpful analysis of the law, and apposite in  28 this circumstance.  He notes that Abbey has been  29 roundly criticized, and this is the beginning of the  30 first full -- second full paragraph of this part of  31 the judgment.  He says:  32  33 "Abbey has been roundly criticized. ... The  34 essence of the criticism is that Abbey sets out  35 more restrictive conditions for the use of  36 expert evidence than did previous decisions of  37 this court, i.e. City of St. John, and Wilband  38 and Lupien.  Upon reflection, it seems to me  39 that the very special facts in Abbey, and the  40 decision required on those facts, have  41 contributed to the development of a principle  42 concerning the admissibility and weight of  43 expert opinion evidence that is  44 self-contradictory.  The contradiction is  45 apparent in the four principles set out by  46 Wilson J. in the present case, which I  47 reproduce here for the sake of convenience. 1889  Submission by Ms. Koenigsberg  1 1.  An expert opinion is admissible if  2 relevant, even if it is based on  3 second-hand evidence."  4  5 And the Chief Justice in this case so found and  6 applied:  7  8 "2.  This second-hand evidence (hearsay) is  9 admissible to show the information on  10 which the expert opinion is based, not  11 as evidence going to the existence of  12 the facts on which the opinion is  13 based."  14  15 This goes to some of the kinds of evidence that was  16 relied upon by the experts, and in particular Dr.  17 Daly.  There were interviews done by others which he  18 read and incorporated in some fashion into his  19 opinion.  To that extent, in my submission, those are  20 not facts that can be applied to a conclusion of law,  21 they are facts for the purposes of grounding the  22 opinion and to the extent that those facts either are  23 not proven or can be shaken and shown to not jive with  24 other evidence, it weakens the opinion:  25  26 "3.  Where the psychiatric evidence is comprised  27 of hearsay evidence, the problem is the  28 weight to be attributed to the opinion."  29  30 Again, it is a question of weight:  31  32 4.  Before any weight can be given to an  33 expert's opinion, the facts upon which the  34 opinion is based must be found to exist."  35  36 And then he notes:  37  38 "The combined effect of numbers 1, 3 and 4 is  39 that an expert opinion relevant in the abstract  40 to a material issue in a trial but based  41 entirely on unproven hearsay (i.e. from the  42 mouth of the accused, as in Abbey) is  43 admissible but entitled to no weight  44 whatsoever.  The question that arises is how  45 any evidence can be admissible and yet entitled  46 to no weight.  As one commentator has pointed  47 out, an expert opinion based entirely on 1890  Submission by Ms. Koenigsberg  1 unproven hearsay must, if anything, be  2 inadmissible by reason of irrelevance, since  3 the facts underlying the expert opinion are the  4 only connection between the opinion and the  5 case.  6 The resolution of the contradiction inherent in  7 Abbey, and the answer to the criticism Abbey  8 has drawn, is to be found in the practical  9 distinction between evidence that an expert  10 obtains and acts upon within the scope of his  11 or her expertise (as in The City of St.  12 John)" --  13  14 And there you will recall it's comparable in a real  15 estate transaction:  16  17 "-- and evidence that an expert obtains from a  18 party to litigation touching a matter directly  19 in issue."  20  21 And, in my submission, that's the kind of evidence  22 that was the basis of a very large part but not all of  23 the opinions of these three anthropologists:  24  25 "In the former instance, an expert arrives at an  26 opinion on the basis of forms of inquiry and  27 practice that are accepted means of decision  28 within that expertise.  A physician, for  29 example, daily determines questions of immense  30 importance on the basis of the observations of  31 colleagues, often in the form of second or  32 third-hand hearsay."  33  34 But, my lords, I would just point out here, the  35 physician's colleague's interests are not involved in  36 the least to which that opinion is relevant, and that  37 is the essential distinction between that kind of  38 hearsay and the kind of hearsay we're dealing with,  39 which is where it is the very plaintiffs' evidence  40 itself:  41  42 "For a court to accord no weight to, or to  43 exclude, this sort of professional judgment,  44 arrived at in accordance with sound medical  45 practices, would be to ignore the strong  46 circumstantial guarantees of trustworthiness  47 that surround it, and would be, in my view, 1891  Submission by Ms. Koenigsberg  1 contrary to the approach this court has taken  2 to the analysis of hearsay evidence in general,  3 exemplified in Ares and Venner and Jordan, a  4 case concerning an expert's evaluation of the  5 chemical composition of an alleged heroin  6 specimen, Anderson J.A. held, and I  7 respectfully agree, that Abbey does not apply  8 in such circumstances; see also Zundel, where  9 the court recognized an expert opinion based  10 upon evidence "...of a general nature which is  11 widely used and acknowledged as reliable by  12 experts in that field."  13  14 This, in my submission, assists when we're talking  15 about the kinds of anthropological studies which form  16 the basis of the anthropological field contributing to  17 the various debates, and which these anthropologists  18 in part rely.  They fall into that category, in my  19 submission, of being evidence of a general nature  20 which is widely used and acknowledged as reliable by  21 experts in that field.  22 Then the inquiry is how reliable, but at least it  23 is a form of evidence which is of general enough  24 nature that's been the subject of discussion within  25 that profession.  But, again, that's distinct from the  26 evidence of the plaintiffs themselves.  Then he gets  27 to the nub of the plaintiff's evidence themselves in  28 this case:  29  30 "Where, however, the information upon which an  31 expert forms his or her opinion comes from the  32 mouth of a party to the litigation, or from any  33 other source that is inherently suspect, a  34 court ought to require independent proof of  35 that information.  The lack of such proof will,  36 consistent with Abbey, have a direct effect on  37 the weight to be given to the opinion, perhaps  38 to the vanishing point."  39  40 Stopping there, in my submission, that does not mean  41 having two more people talking to the same plaintiffs  42 saying "They said X", so that we now have an  43 accumulation of the exact same inherently weak  44 evidence and say "Well, that's the corroboration or  45 independent proof.  That's not, in my submission, what  46 we're talking about, but it must be recognized that it  47 will only be very rarely that an expert's opinion is 1892  Submission by Ms. Koenigsberg  1 entirely based upon such information with no  2 independent proof of any of it:  3  4 "Where an expert's opinion is based in part upon  5 suspect information and in part upon either  6 admitted facts or facts sought to be proved,  7 the matter is purely one of weight.  In this  8 respect, I agree with the statement of Wilson  9 J. as applied to circumstances such as those in  10 the present case:  11  12 'As long as there is some admissible  13 evidence to establish the foundation  14 for the expert's opinion, the trial judge  15 cannot subsequently instruct the jury to  16 completely ignore the testimony.  The judge  17 must, of course, warn the jury that the  18 more the expert relies on facts not proved  19 in evidence the less weight the jury may  20 attribute to the opinion.'"  21  22 In summary, taking that analysis and applying it  23 to the situation of the anthropological opinion  24 evidence, it would be admitted, and, in my submission,  25 it was admitted.  The basis upon which it rests is  26 weighed to the extent that the evidence is not proven  27 it -- the weight of that -- those opinions may go to  28 the vanishing point to the extent that it's partially  29 proven or inferentially proven or can be stacked up  30 with things that are admissible and assist it in some  31 ways as in general anthropological theory.  It's  32 entitled to be looked at and weighed, but, in my  33 submission, this case does not stand for the  34 proposition that weight must be given to it, rather,  35 that it must be weighed.  And if good reason --  36 HUTCHEON, J.A.:  Well, the criticism of Dr. — Mr. Adams was it  37 wasn't weighed at all.  He points to, at page 169, the  38 use by the trial judge of the word "fatal".  39 MS. KOENIGSBERG:  Yes.  40 HUTCHEON, J.A.:  And that he says wasn't weighing the evidence.  41 MS. KOENIGSBERG:  Well, in my submission I've attempted to deal  42 with that.  I think you have to put it in context.  43 The Chief Justice goes on and he gives us a lot of  44 reasons, and he is showing that actual weighing  45 process in the reasons that he gives us between pages  46 169 and 172, in my submission, and he has looked at a  47 huge amount of evidence.  He's looked at evidence 1893  Submission by Ms. Koenigsberg  1 which goes to the opinions which rested on the  2 plaintiffs' evidence, of which there was a substantial  3 amount, 691 pages, of Dr. Daly's report.  And, in my  4 submission, that comment at best goes to the opinions  5 that are based on the lay evidence which came only  6 from chiefs and which support a particular conclusion.  7 And, in my submission, it was appropriate for the  8 Chief Justice to find, having weighed it, that it was  9 entitled -- that it was fatal to the credibility of  10 those particular opinions.  11 You see, my lords, we're not dealing here with a  12 simple opinion.  I give the opinion, you know, in one  13 page or ten pages, we're talking about an enormous  14 document which encompasses many many many opinions,  15 and the Chief Justice had to weigh them all, and, in  16 my submission, he did.  But to say that because he  17 said it was fatal in one paragraph relating to one  18 specific type of thing and then goes on for three more  19 pages to tell us the kinds of things that he looked  20 at, his concerns about the weight to be given in other  21 respects, is not consistent with saying, well, he just  22 threw the whole thing out as soon as he said it's to  23 be given no weight.  24 Now, if we can turn over to -- turn to tab 5,  25 paragraph 8, that's just three more tabs.  And we're  26 not going to read through these, but I just want to  27 take you through this so that at least if you're going  28 to go back and look at this you will note from where  29 you come.  We begin with Dr. Daly at this tab, and  30 note that he heard a lot of evidence before Dr. Daly's  31 report came in.  And looking at a few of these, and I  32 read these out to you already so I won't read them  33 again, the trial judge, referring to this passage:  34  35 "In my opinion this indicates that while both  36 features exist in the Gitksan and Wet'suwet'en  37 mixed economy, the market factors have not  38 eclipsed the subsistence factors.  To the  39 extent that people engage in the sale of  40 resources they concern themselves economically  41 not with turning a profit, but rather with  42 using cash, as a medium of exchange, to obtain  43 items necessary to the continuing life on the  44 land, including feast payments."  45  46 That was an opinion of Dr. Daly's.  47 And when Dr. Daly -- turning over to the next tab. 1894  Submission by Ms. Koenigsberg  1 When Dr. Daly was asked how he came to that  2 conclusion, he said:  3  4 "Well, obviously I've talked to a number of  5 people about what it is that is evaluated and  6 what the meaning of the objects which are  7 exchanged in feasts, what their meanings are."  8  9 And the reference is there for your lordships, we  10 won't go to it now.  And the Chief Justice said to Dr.  11 Daly at that point in time in his evidence:  12  13 "You say, 'The market factors have not eclipsed  14 the subsistence factors'.  Is that the way you  15 want your evidence to stand?"  16  17 And Dr. Daly said, turning over to paragraph 12:  18  19 "Yes.  In terms of the on-the-ground, every-day  20 activities that people engage in, at one level  21 of analysis they are heavily involved in the  22 market sector.  But their involvement in the  23 market sector is very much like tribal peoples  24 in other parts of the world where you go in  25 with a target in mind:  You don't want to be a  26 worker in a factory all your days or an  27 executive in an office.  You go there with a  28 certain objective which is to gain values which  29 are useful in what is most meaningful to you,  30 which is your -- the interests of your kinship  31 grouping."  32  33 You might say that most of us recognize that as being  34 universal value.  35 Turning over to the next paragraph, it was in the  36 light, we say, of this and similar exchanges that the  37 trial judge observed that Dr. Daly's evidence and  38 report that "one would almost think the motor vehicle  39 had not been invented".  And that's going to become  40 clearer to you, I promise.  It doesn't to me exactly  41 tie up, but there are lots of intervening steps.  42 And then we can skip over the submissions that  43 were made and come to paragraph 17.  And I've added a  44 reference here, and here is where -- and I guess it's  45 almost time for the break -- but here is where I would  46 like to take you into the evidence, and I just want to  47 tell you before the break, I've added in, not very 1895  Submission by Ms. Koenigsberg  1 elegantly, a series of references to exhibits in the  2 evidence, and I'm going to take you through them in  3 detail, and it will be my submission that they  4 illustrate the frailties of the evidence, the kinds of  5 things that I have been saying about anthropology in  6 general and Dr. Daly in particular in that situation,  7 and support the trial judge.  And I'm not going to  8 take you through this exercise with the other  9 witnesses, I'm going to ask you to accept that if you  10 read all of that evidence it would be apparent that  11 the same was true there.  And I see it's time for the  12 morning break and maybe it would be a useful place to  13 break.  14 THE COURT:  All right.  We'll take the break and come back with  15 the evidence.  16 THE REGISTRAR:  Order in court.  Court stands adjourned.  17  18 MORNING RECESS  19  20 THE REGISTRAR:  Order in court.  21 THE COURT:  Yes.  22 MS. KOENIGSBERG:  This is part of that patch work of which I  23 warned you, but tab 17, and that's subparagraph 17, if  24 you're with me --  25 WALLACE, J.A.:  It's tab 5, isn't it?  26 MS. KOENIGSBERG:  Yes, it's called tab 5.  It's tab 5 in the  27 Province's earlier factum.  You see "PEF", it means  28 "Province's Earlier Factum", and then subparagraph 17.  29 And then to further complicate matters, the part I  30 want to go into, because it deals in detail with the  31 evidence of Dr. Daly, is a part of Appendix 1.  And  32 you will see that when you turn over the page, at the  33 top of the page it says Appendix 1, page 46.  Now,  34 this was a bit of a change and from what I thought I  35 was going to do as a result of the concerns that your  36 lordships had expressed, and this is -- it is my way  37 of trying to address that particularly.  Therefore, we  38 have not had a chance to pull out every reference  39 because we weren't going to do this part, and you  40 don't have yet all the references in support of the  41 paragraphs that I've pulled out.  And I've got them  42 starting from page 46 to 52.  We will do that and  43 provide it to your lordships, we wouldn't want you to  44 be without another binder.  It will probably take  45 another binder to correct those.  46 I have, however, collected a small group of them  47 to make my point, and those you're going to find 1896  Submission by Ms. Koenigsberg  1 'behind pages 1-46 to 1-52, and it begins with Exhibit  2 860-A16, and it is the front page of the John Adams  3 monograph that you heard about called the "Gitksan  4 Potlatch", and I think -- they were all clipped  5 together so you could easily find them.  I'm going to  6 go through them, but I want to do a little bit of  7 preface first, but that's the material we're going to  8 go through in some detail.  9 But coming back now to page -- Appendix 1-46, I  10 would like to go through this briefly, and I'm going  11 to give you some more references or tell you the  12 references that are apposite to some other points  13 which I am not going to go into in detail.  14 The paragragraph begins:  Dr. Daly's evidence has  15 virtually no value in determining resource use in the  16 pre-historic period.  First, "the bulk of the data  17 pertaining to his report has been gathered by means of  18 participant observation", largely undocumented,  19 conducted since the commencement of this lawsuit.  20 You've heard me say many things about that, and I will  21 say a few more.  Dr. Daly's observation was conducted  22 in a different manner than he had conducted it before.  23 And there's a description of that in the transcripts,  24 the change between what he did when he studied the  25 Iroquois and what he did here.  Dr. Daly accepted what  26 he was told uncritically, apparently without testing,  27 and he "received some information during his research  28 which he consciously decided not to incorporate into  29 his report".  And there are the references, and I will  30 give them all to you, but with regard to the issue of  31 the non-note taking and what it relates to, and I will  32 tell you generally what it relates to.  33 WALLACE, J.A.:  Excuse me, madam registrar, could we get  34 somebody to stop the noise in here.  35 MS. KOENIGSBERG:  The reference to the non-note taking or the  36 unorthodoxed note taking is found, among other places,  37 but precisely at transcript 194, and you will see  38 that.  Look at the very -- the series of references  39 there, the third line from the bottom, you will see  40 transcript 194 page 12645, line 29, to page 12654.  41 That reference will give you a discussion which  42 includes the canvassing of note taking in the  43 methodology textbooks on anthropology, canvasses the  44 kinds of notes that were taken, whether they were  45 Tuveaf?), and that because of the court case he did  46 the note taking differently.  And those references are  47 found at those pages and I'm not going to take you 1897  Submission by Ms. Koenigsberg  1 through them because we don't have time.  2 TAGGART, J.A.:  I take it the first number is the volume number  3 and the remainder is the usual pagination and line  4 numbers?  5 MS. KOENIGSBERG:  That's right.  6 TAGGART, J.A.:  So if we called up a disk we will find it right  7 there on the disk?  8 MS. KOENIGSBERG:  That's right.  It will be transcript volume  9 194.  And I'm not going to precisely go into anymore  10 of those, I've pulled out some different references.  11 Then if we just turn over to paragraph 83:  Dr.  12 Daly completed -- completely discounted Dr. Adams'  13 work, work that was done over a period of thirteen  14 months in the mid-1960s, prior to community  15 litigation.  And, of course, it was done with the  16 Gitksan people.  The Gitksan observed by Dr. Adams did  17 not "reflect the world he saw".  And that is a quote  18 from Dr. Daly, and I'm going to take you to that.  Dr.  19 Adams' informants were hereditary chiefs who were  20 succeeded by Dr. Daly's informants.  Dr. Daly recorded  21 interviews with chiefs (Simgiget) and not with  22 commoners (lixgiget).  While it may be that Dr. Daly  23 truly believed what he was saying, the beliefs of an  24 anthropologist as to the prehistoric resource use and  25 economy in the Claim Area are not helpful in a court  26 of law.  And the references again are there, and we  27 will provide them to you.  It is this particular area  28 that, in my submission, it focuses and I hope will  29 throw light on the whole of the difficulty with doing  30 anthropology, doing its study of people during the  31 course of the litigation.  32 And if we can now then -- it's in support of that  33 paragraph, but as an illustration of all the things  34 that I have been saying to your lordships about  35 anthropologists and there usefulness in this  36 endeavour, and I would like to turn to the series of  37 references that I've given you that are clipped  38 together.  And because there wasn't a neat place in  39 the transcripts with Dr. Daly to take you to who Dr.  40 Adams was and what his qualifications were, I've  41 included the front cover, of course, and the preface  42 to his study.  It was marked as Exhibit 860-A16, and  43 part of it was -- part of this exhibit was put to Dr.  44 Daly, and you will find that at volume 191 of the  45 transcript, page 12470.  I don't think much turns on  46 that, but it's not that he was unaware of it.  He was  47 very well aware of this work.  You will see that if 1898  Submission by Ms. Koenigsberg  1 you turn over this page, there's a description of the  2 author:  3  4 "John Adams majored in history as an  5 undergraduate at Princeton and completed a year  6 of graduate work in economic history at Johns  7 Hopkins before receiving his Ph.D. in Social  8 Anthropology in the Social Relations Department  9 at Harvard.  Together with his wife, Alice  10 Kasakoff, who also has a Ph.D. in Social  11 Anthropology from Harvard, Dr. Adams did  12 fieldwork in Tesuque Pueblo in New Mexico  13 before undertaking his research among the  14 Northwest Coast Indians.  In addition to  15 teaching at Harvard and at Fordham University  16 in New York, Dr. Adams served as Northwest  17 Coast Ethnologist at the Museum of Man in  18 Ottawa, where he and his wife now reside."  19  20 That's at the time of publication.  21 TAGGART, J.A.:  Give me the date of publication again.  22 MS. KOENIGSBERG:  I was worried you were going to ask me that.  23 HUTCHEON, J.A.:  '67, I think.  24 MS. KOENIGSBERG:  He carried out his work between '65 and '67.  25 I believe it was published in the very early '70s.  26 MS. KOENIGSBERG:  '73.  I think it's also helpful —  27 LAMBERT, J.A.:  Thank you.  28 MS. KOENIGSBERG:  Because it became an issue with Dr. Daly, and  29 you will see that in the transcript, the parts of the  30 preface, so I think it's worthwhile going through it.  31 He says:  32  33 "This book is written in the form of an  34 argument about the nature of potlatching and  35 the ethnographic data has consequently been  36 restricted and simplified in order that the  37 reader may have enough background to follow the  38 discussion in chapters 4 and 5 without having  39 to consider too much detail.  A definitive  40 account would require a book several times the  41 present length, not to mention an immense  42 number of footnotes, in order to encompass all  43 the variation and complexity.  However, it  44 would probably be of interest only to a small  45 group of specialists.  Such a work is in  46 progress, but will take several years to  47 complete.  Meanwhile, it seems both useful and 1899  Submission by Ms. Koenigsberg  1 important to present a few of the immediate  2 findings to the general reader who is  3 interested in anthropology.  4 My fieldwork began with the intention of  5 studying the relation between the mythology of  6 the Gitksan and their society.  It was inspired  7 by Levi-Strauss' paper on a Tsimshian myth, Le  8 geste d'Asdiwal, as well as by the booklet on  9 Kitwancool, published by Wilson Duff, 1959,  10 which promised that much ethnography could  11 still be collected from a Tsimshian group.  The  12 problem of the fieldwork, designed to focus  13 initially on the social organization, was how  14 to construct a systemic account of a Northwest  15 Coast tribe.  This task seemed essential, given  16 the nature of the published data on the area,  17 which from Boas' work onwards had tended to  18 ethnographic particularism.  Despite its  19 profusion, there were key questions raised by  20 current theories of social organization - such  21 as the nature of corporate groups and marriage  22 alliance - which could not be clarified because  23 of the fragmentary data on them.  24 My wife, Alice Kasakoff, originally  25 intended to study child-rearing, but, as the  26 problems of that research became apparent and  27 as my own data began to accumulate, we split  28 the topic of social organization, she taking  29 marriage alliance, I taking the corporate  30 groups, which meant the potlatch.  My research  31 was originally designed to answer two sets of  32 questions, one relating to the actual mechanics  33 of the potlatch, the other about general facets  34 of social organization.  However, the two sets  35 soon merged, for the answers to one often  36 served both.  I quickly learned that the proper  37 question after a feast was not 'Did everybody  38 have a good time?' but 'Who got the name?' and  39 'How much money was collected?'  These feasts  40 are business meetings at which a person sits in  41 a place assigned to him by a 'potlatch man',  42 familiar with everybody's Indian name and rank.  43 Such details are of vital importance in a  44 culture where each man, woman and child 'has  45 his place', and every Gitksan has information  46 on these matters of protocol.  47 A shortage of housing on the reserves 1900  Submission by Ms. Koenigsberg  1 forced us to live in a nearby White community  2 from which we commuted each day to one of the  3 seven Native villages:  we did the bulk of our  4 work in Kitwanga, gitsegyukla, and Kispiox with  5 only occasional visits to Cedarvale,  6 Kitwancool, Hazelton (except for mail and  7 supplies) and Glen Vowell.  In all, we spent a  8 total of thirteen months in the field over the  9 period from July, 1965 to May, 1967.  10 Given the fact that Northwest Coast  11 societies are institutionalized as sets of  12 statuses which have 'perpetual names' and the  13 fact that insufficient data existed on who the  14 actual people were who held the names, one of  15 the first requirements was an adequate census  16 together with as full a set of genealogies as  17 possible.  Fortunately, an abundance of Church  18 Records and Indian Agency lists were available  19 so that we could avoid bothering our informants  20 with unnecessary questions.  Later on, we took  21 sample genealogies from them and were able to  22 link up the names on our lists with the  23 particular resource-owning groups to which they  24 belonged by inquiring where everybody sat at  25 feasts.  26 We collected all the trapline registrations  27 current for the Gitksan in the spring of 1967  28 from the Game Wardens of Smithers, Terrace and  29 Prince Rupert who share jurisdiction over the  30 lines held by Gitksan.  I also collected  31 information about changes and deletions in  32 registrations from the files going back to the  33 beginnings in the late 1920's.  In addition, my  34 wife drew copies of the official maps of all  35 the registered lines.  Chris Harris of Kispiox  36 arranged for me to record descriptions of  37 trapline holdings on maps published by the  38 government.  He served as informant for Kuldoe,  39 Simon Wright for Kisgagas, and Jonathan Johnson  40 and Moses Morrison for Kispiox."  41  42 And these all become important and were important in  43 terms of criticisms that Dr. Daly had of Dr. Adams'  44 work:  45  46 "At the same time, these men gave me the names  47 of the Houses in each of these villages 1901  Submission by Ms. Koenigsberg  1 together with the principal Indian names within  2 them (ranked) as well as the English names of  3 the people currently holding them.  I would  4 include all this documentation here, but I was  5 asked by the Fish and Game Branch not to  6 publish it as a condition of my being allowed  7 to make the copies.  The map collected from  8 Chris Harris, et al is apparently now being  9 accepted by the Game Warden as the correct map  10 of the holdings of those villages."  11  12 And we've seen other of Chris Harris' work appear  13 through the work of Neil Sterritt, and it appears as a  14 map in these proceedings:  15  16 "Chiefs are very conscious of etiquette.  My  17 questions were requested in advance of our  18 interviews and they undoubtedly resented the  19 unexpected additional questions which I hoped  20 would follow up the different lines of inquiry  21 opened by their answers.  But they never seemed  22 to doubt the value of my interest; in fact,  23 quite a few Gitksan were themselves inquiring  24 about the same details and were pleased to  25 compare findings with me.  Still, there is  26 undoubtedly much that may appear offensive  27 prying.  Mihla and luuhlim are secrets not to  28 be told outsiders, and disutes are never to be  29 discussed once they are settled.  But it seemed  30 imperative to investigate conflict, not only  31 because it was so often mentioned in previous  32 ethnographies as a prominent theme of Northwest  33 Coast societies, but because of its importance  34 in revealing how this, or any, society  35 operates.  Several informants expressed extreme  36 displeasure with my investigation of this  37 topic.  38 Interviews were always conducted in  39 English.  My wife and I are in no sense  40 adequate in phonology, but we were able to  41 develop a way of spelling Gitksan words which,  42 when placed in the context of the topics under  43 discussion, enabled us to pronounce words which  44 our informants recognized and would elucidate  45 for us."  46  47 Then he tells us a little bit about the linguistics: 1902  Submission by Ms. Koenigsberg  1 "That such an intricate social organization  2 should be maintained among Gitksan was a  3 considerable surprise to many of the local  4 Whites with whom I talked.  To them, the  5 Natives often seem to be lost in between the  6 old ways now irretrievably gone and the as-yet  7 unassimilated new ways of the Whites.  To an  8 anthropologist, however, the Gitksan seem to  9 have been able to preserve important features  10 of the old ways and to combine them  11 successfully with such opportunities as the  12 Whites have provided.  Out of what often  13 appears to be a 'cultureless flux' of 'don't  14 give-a-damn Indians' who 'let their children  15 stay up all night' emerged a coherence and  16 innate dignity unsuspected by many of the  17 Whites who drift in and out of the region 'just  18 like DPs', the Gitksan say, 'people living off  19 someone else's land.'  20 In addition to the fieldwork carried out by  21 my wife and myself, this research has also  22 utilized manuscripts collected by Marius  23 Barbeau and William Beynon from 1915 to 1956  24 which are deposited in Ottawa."  25  2 6 And then he gives some other acknowledgements there:  27  28 "I would like to thank R.G. Cooper (who was the  29 Indian Agent in Hazelton during our stay there)  30 and his staff for their kindness and help."  31  32 And just dropping down to the next paragraph:  33  34 "Sally Hindle, Wallace Morgan, and Sarah  35 Marshall put up with 'the concrete jungle' to  36 visit us and with unending patience put us  37 straight on our facts."  38  39 It was established they are members of the Gitksan  40 community:  "Bruce Rigsby", and he was a linguist who  41 did a report for this trial:  42  43 "-- and John Randall checked out some important  44 terms and even loaned us fieldnotes.  45 Since beginning this project, I have  46 consulted with the following people who have  47 helped me with advice and criticism; many have 1903  Submission by Ms. Koenigsberg  1 read parts or entire drafts of this book in its  2 different stages."  3  4 And he gives a very long list here, which you will see  5 includes the vast majority, if not all, of the  6 ethnographers doing work in surrounding or similar  7 areas:  Marius Barbeau, Helen Codere, Phillip Drucker,  8 Wilson Duff, Viola Garfield, and I won't go through  9 them all.  10 LAMBERT, J.A.:  Well, that doesn't have the — I mean I don't  11 know what you're reading it for, but it's a very funny  12 way to put it:  13  14 "I have consulted with the following people who  15 have helped me with advice and criticism; many  16 have read parts or entire drafts of this book  17 at different stages."  18  19 You can't say that any one of these people has read  20 any of the book or given advice.  The total  21 contribution of perhaps the most imminent of the  22 people is one stinging sentence of criticism, and they  23 are still entitled to be included in this paragraph.  24 MS. KOENIGSBERG:  I don't think he's — I didn't read it for the  25 purpose of saying therefore they all agree with it, he  26 doesn't say that.  27 LAMBERT, J.A.:  No, of course not.  28 MS. KOENIGSBERG:  What I'm getting at here, and because it has  29 relevance to this weighing process, that there is a  30 body of ethnography or ethnology which has relevance  31 to this area and the understanding of the social  32 organization, and it is gone to and referred to by all  33 anthropologists working in this area, including John  34 Adams.  And the last pages just happen to be part of  35 the exhibit and is not of relevance.  36 Now, I would like to turn, if we could, to the  37 first of these excerpts from mostly cross-examination,  38 because I'm introducing it.  This first extract deals  39 with part of the cross-examination which was getting  40 at objectifying one's results, the problem facing Dr.  41 Daly in terms of collecting data and giving it some  42 objectivity.  And he -- I don't have time to take you  43 to all of it.  He was somewhat resistant to the many  44 suggestions put to him about means of objectivizing,  45 standardizing questionnaires.  And you will see that  46 in the part I have given you the reference for,  47 standardizing questions, even if you don't have a 1904  Submission by Ms. Koenigsberg  1 formal questionnaire, taking notes and including in  2 your notes the whole of a sentence which -- in quotes  3 rather than your impression of what the person said,  4 those kinds of things which are small tools but  5 important tools in allowing anyone who wishes to  6 critique your work or build on your work to verify  7 your conclusions.  And I begin, and the quote is of  8 some importance.  I put this quote to him and I've  9 gone through a debate in anthropology:  10  11 "Some anthropologists now argue that  12 anthropological field techniques must be more  13 carefully structured (and described) than they  14 have been in the past.  For complex holistic  15 community studies it is impossible (and  16 unnecessary) to develop rigorous methods for  17 documenting every piece of information that  18 makes up a monographic description.  19 Nonetheless, a framework of carefully  20 operationalized evidence is necessary.  Methods  21 for the study of complex values, attitudes and  22 cognitive orientations must be developed that  23 will make possible the objective, replicable  24 testing of the hunches and intuitions of field  25 workers.  Furthermore, readily observable data  26 such as houses and furnishings, vehicles,  27 animals and other material possessions,  28 occupations, and many aspects of social  29 relationships should be studied by means of  30 techniques that include carefully constructed  31 sampling procedures that can provide  32 quantifiable bases for empirical  33 generalizations."  34  35 I can tell you, and I'll recommend it to you, if you  36 really are going to venture into trying to evaluate,  37 there is a very interesting debate in anthropology  38 which is illustrated by a famous contretemp between  39 Dr. Redfield and Dr. Oscar Lewis, took place in  40 Mexico, the end result of which, and you will see the  41 discussion of it in cross-examination should you  42 venture so far, where they went and studied the same  43 village in Mexico 17 years apart, and the descriptions  44 of that village by those two imminently qualified  45 anthropologists are completely different.  And it's  46 not accounted for by the 17 years.  They're quite  47 aware, they published a paper about the differences, 1905  Submission by Ms. Koenigsberg  1 and the differences were attributed, they're different  2 observers going to look for different things.  They  3 look at the same thing, the social organization, the  4 attitudes and values, they come to opposite  5 conclusions.  That formed the basis for a debate in  6 anthropology, as you would expect.  If this is the  7 case, how useful is it to have a study that can't be  8 replicated there applied validated --  9 HUTCHEON, J.A.:  What does the trial judge use?  10 MS. KOENIGSBERG:  Excuse me?  11 HUTCHEON, J.A.:  What does the trial judge use?  12 MS. KOENIGSBERG:  You mean when he's faced with such a debate?  13 HUTCHEON, J.A.:  Well, if he has to come to some conclusion is  14 he in a better position than the anthropologist?  It's  15 puzzling to me what is happening here.  You know, the  16 trial judge says this and that without saying on what  17 bases his conclusions, that's -- I mean he may do it  18 elsewhere, I don't know, but he didn't do it in those  19 passages, and when you cite two examples of people who  20 study a village and came to different conclusions, it  21 immediately brought to me what does the trial judge  22 do?  23 MS. KOENIGSBERG:  Well, in my submission, if they're engaged in  24 one sense in quite different activities, and it points  25 up the problem that we discussed briefly this morning  26 about the justiciability of values and social  27 organizations.  However, they're parallel in another  28 sense, and that is that the rules of evidence are the  29 means by which a trial judge, and I would submit to  30 you, the only means by which a trial judge can make  31 intelligible the basis for accepting and rejecting  32 evidence.  And an anthropologist who is reporting for  33 any purpose that has to do with his profession on the  34 work he does must go by a set of identifiable rules, a  35 methodology which allows someone else coming along  36 behind to say "Well, the reason why you came to that  37 conclusion is what this person said and what that  38 person said, and this observeable data which you've  39 told us about and so on, the description, the  40 operational description, not the abstract conclusion".  41 If you have that kind of data, then you can compare  42 and you can make a judgment, right or wrong.  You need  43 to have an indication of what it is that you've done,  44 and that's, in my submission, why methodology is  45 essential to -- and I mean objective methodology is  46 essential to call something a discipline, and all --  47 in order to say that something of a report is 1906  Submission by Ms. Koenigsberg  1 sufficiently objective to be of assistance in  2 resolving legal issues, the methodology is the only  3 way that that professional has of demonstrating the  4 basis so that it can be tested.  If you can't test  5 something, in my submission, you can't accept it.  And  6 this quote follows on that debate in the literature.  7 And I say to Dr. Daly:  8  9 "Q   Would you agree that that would be a  10 reasonable description of an appropriate  11 approach to an anthropological study?  A  12 A   That's one approach, and it's not new here  13 in 1970.  This is in the British notes  14 and queries on anthropology back into  15 the 20's.  It's one of the approaches  16 certainly.  17 Q   And would you agree that if the goal  18 is to come as close as possible to the  19 natural science analogue for doing research  20 and, most importantly, making it  21 replicable, that methods like those  22 described in that paragraph are necessary?  23 A   No, not necessarily, because -- well, the  24 testable hypothesis which replicates  25 natural science are rather difficult to  26 apply to living, changing social relations  27 and society.  It is very helpful to have a  28 statistical format say for backing up your  29 findings, but I --"  30  31 He's not here, to be fair to him and to my  32 cross-examination, talking about any particular -- any  33 form of counting or measuring is sufficient:  34  35 "But I would argue that this is rather  36 putting the cart before the horse; that  37 it's something that should be undertaken at  38 late stages in your investigation.  To have  39 a set procedure to follow, like a white rat  40 experiment, if you like, in psychology or  41 in a university lab, it does an injustice  42 to the subject matter that we're looking  43 at.  And there are outcries all over the  44 world these days by people who have been  45 subject to anthropological investigation,  46 that they do not recognize themselves and  47 their way of life in the accounts that are 1907  Submission by Ms. Koenigsberg  1 taken.  So there is an effort by people --  2 and this is another trend.  I'm not saying  3 that all anthropologists' accounts distort  4 the people, but there is a trend throughout  5 the history of our discipline to listen to  6 what the people have to say, to immerse  7 yourself in their culture as if you were  8 trying to be a member of that society.  9 When you get the general contours of the  10 situation, then you are in a position  11 perhaps to test things in the statistical  12 fashion."  13  14 Then he goes on:  15  16 "One of the problems with the work of  17 John Adams, for example, who has written on  18 the Gitksan potlatch, is that a lot of his  19 statistical description of the -- of the  20 House groupings and the articulation of the  21 feasting seems to have been engaged in  22 prior to a real immersion in the community.  23 People have told me that if he had sat with  24 the people who are actually the -- in the  25 centre of the feasting, for example, who  26 are the most authoritative people in the  27 community, his -- his analysis would have  28 reflected the actual situation more  29 clearly.  And he tends, because he stresses  30 the systemization and, as you would say,  31 the propositions which are easily testable,  32 he tends to go overboard.  33 For example, he states that a high  34 chief receives $20 and a wing chief  35 receives $10 in the feast, and he has a  36 symoblic sort of explanation for this  37 because of the ten fingers and the ten toes  38 and the possibility of 20 being the maximal  39 limit of a decision-making group in a house  40 group.  Well, this sort of thing just  41 doesn't wash because today, with inflation,  42 the amount that the chief puts in the pot  43 is not $20, it's considerably more, but it  44 is scaled in relation to the social values  45 of the overall system.  46 So I would submit that if he had  47 immersed himself and listened to what -- 1908  Submission by Ms. Koenigsberg  1 it's extremely important to listen to what  2 the people are saying.  You're not taking  3 it at face value because of your training.  4 It's going to be filtered through all sorts  5 of systems.  But this sort of severe error  6 could be avoided.  7 Q   Well, let's just take John Adams, since  8 that's where we've landed.  He did -- to  9 your knowledge he was a  10 participant-observer in the community,  11 living and working in the community, for  12 over 13 months; that's correct?  13 A   He didn't actually live in the community.  14 He did interviews in the community.  He  15 lived in New Hazelton, not in any of the  16 native villages.  17 Q   You mean he didn't live on a reserve?  18 A   He didn't live on a reserve.  No.  19 Q   And he lived surrounded by reserves?  20 A   No, he lived in what's known as the white  21 part of Hazelton, the new town.  22 Q   When I say 'surrounded', he was in close  23 proximity to the people that he was  24 studying?  25 A   Yes, he was.  2 6 Q   And he —  27 A   But he wasn't -- he wasn't living in the  28 Indian villages.  29 Q   And he attended many feasts?  30 A   I don't know how many feasts he attended,  31 but -- I know it's sort of hearsay, but  32 I've heard it wasn't very many.  It was two  33 or three feasts."  34  35 And I warn him about hearsay and we have a little  36 dynamics going on there with counsel, and we go over  37 to the next page:  38  39 "Q   John Adams, you say, did insufficient  40 living with the people?  41 A   That's my impression.  Yes.  42 Q   Yes.  And you assume that on the basis of  43 what the people have told you about what  44 they didn't like about his results?  45 A   No, not just that.  It's also that -- the  46 way he portrays even the transactions  47 within the feast.  It belies a lack of 1909  Submission by Ms. Koenigsberg  1 understanding on the complexity of all of  2 the exchanges that go on there.  3 Q   John Adams had informants, did he not?  4 A   He had informants.  Yes.  5 Q   And persons who were knowledgeable in the  6 community?  7 A   In certain areas, but not necessarily in  8 feasting.  9 Q   Do you know what the persons from whom he  10 received information about the feasts that  11 he was observing were not knowledgeable  12 about the feasts?  13 A  Well, they were -- some of his informants  14 were rather peripheral to the feasting.  15 Q   How would you know that?  16 A   I know it because of the vehemence with  17 which the organizers of feasts have  18 described some of the people that he relied  19 on.  He was not particularly -- no, I won't  20 say anything.  It's sort of hearsay, but he  21 was not particularly popular in the  22 community."  23  24 And we'll come back to it, and I've got the quotes.  25 The informants -- many of the informants that John  26 Adams lists were hereditary chiefs, who were the  27 elders, the relatives of the many of the informants of  28 Dr. Daly:  29  30 "Q   Yes.  He nevertheless did conduct  31 participant observation 20 years ago?  32 A   Yes, he did.  33 Q   In this community?  34 A   Yes.  35 Q   And he utilized informants in that  36 community whose names we would recognize,  37 you know that?  Excuse me one moment."  38  39 And then we postpone getting to it because I don't  40 have the part of the book.  And I say:  41  42 "But you don't doubt for a moment that he  43 had persons who were informants who were  44 members of the community and who were  45 elders in the community in several  46 instances?  47 A   That's right. 1910  Submission by Ms. Koenigsberg  1 Q   You say that his reliance on statistical  2 analysis somehow made him unable to see  3 what was beyond what you could count; is  4 that a fair way to summarize what you were  5 just saying?  6 A   I think I would go back to the street  7 corner society of whites that I mentioned  8 at the beginning on participant observation  9 where he is describing -- he points out  10 that when he was doing his work back in the  11 war years, he started to systematize and  12 schematize and ask a lot of questions as  13 soon as he got into this slum environment  14 where he was working, and he wasn't getting  15 much information until the gang leader told  16 him to just be quiet and listen until you  17 get the lay of the land.  18 Q   Yes.  19 A  And my impression, overall impression -- I  20 mean, I don't totally discredit his work."  21  22 He's now talking about Adams:  23  24 "He is a colleague and there are items of  25 value in it, but he -- it seems to me he  26 began his systemization sort of at the  27 moment he got off the plane.  28 Q   Do you know that?  29 A  And this is -- this is -- well, it's -- it  30 comes through from the reading of his  31 results.  32 Q   Do you actually --  33 A   That example I gave you is one of the  34 more ludicrous ones, but there are others  35 of that nature.  36 Q   Well, we can deal with the feast somewhat  37 later in the cross-examination, and we'll  38 come back to that, but let me ask you, you  39 say that his -- it's your impression that  40 he gathered statistics before he got the  41 lay of the land.  Do you know what his  42 timing was?  43 A   No, I don't.  44 Q   Let's look at some of your conclusions, for  45 instance, on page 141 of your report.  You  46 are dealing with marriage in the  47 community.  You say in the first full 1911  Submission by Ms. Koenigsberg  1 paragraph:  2 'There are Houses which to the  3 present day intermarry regularly with  4 certain other specific Houses.  There  5 are striking examples in all the  6 Villages.'  7 And then you give some examples.  Did you  8 attempt to quantify or verify those  9 statements?  10 A  Well, the statements are based on  11 investigating here -- selectively here and  12 there --  13 Q   Yes.  14 A   -- certainly, who people regularly  15 intermarried with.  And people would tell  16 me that in order to control a certain area  17 of land through the generations we make  18 strategic marriages."  19  20 This is pretty important to his opinions:  21  22 "In terms of the statistical work to back it  23 up, no, I can't do everything, not in -- I  24 was supposed to be working for six months.  25 So I didn't do that, no.  26 Q   Okay.  Suppose that you had done such  27 a count, devised a method of determining  28 the appropriate house populations for  29 picking marriage preferences, and found  30 that in fact statistically they were not  31 significant?  32 A  Well —  33 Q   What would that have done to your  34 conclusion is my question?  35 A   That would have been very interesting  36 because this -- this situation comes up  37 quite often in anthropology where it  38 becomes obvious that the -- the description  39 of the kinship relations and marriage  40 relations that the people have is not borne  41 out statistically by the -- by the -- in  42 some cases by the actual blood ties and  43 marriage ties.  So then you get into the  44 whole discussion of what -- if that's the  45 case, why is it -- why does it remain the  46 ideology of the political and social  47 system.  And it's really irrelevant in 1912  Submission by Ms. Koenigsberg  1 terms of my argument here whether the --  2 whether there is a high statistical  3 incident of marrying into your father's  4 side, say, so long as you see on the ground  5 that this is an enduring tie and people  6 perceive it as a way of controlling their  7 territories and their resources.  So it has  8 both an on the ground reality or it may  9 not, but it -- in people's heads it's the  10 system for justifying and legitimizing  11 their claims and counter-claims.  It's the  12 body of laws in the system that they  13 operate in.  14 Q   I take it that you would agree with me that  15 it poses another interesting question when  16 what actually happens differs from what  17 people perceive is happening?  18 A   Yes.  19 Q   And —  20 A   I won't say it's another.  It is a very  21 very fascinating question.  22 Q   Yes.  And when an anthropologist does  23 quantify things, testing what people have  24 said, then part of your job is to go on and  25 analyse what it means that what people  26 think is happening or believe is happening  27 is not happening, and what that means in  28 terms of their relationships and  29 institutions; would you agree with that?  30 A  Well, the thing is that what the people  31 perceive as happening generally is  32 happening, but it's happening in a more --  33 in a broader context than this simple, what  34 I would call positivistic, correlation  35 between the -- they say we marry this way,  36 but there's only a statistical average  37 of a small percentage that verifies that."  38  39 And he goes on:  40  41 "But you may find that the few instances  42 where it is the case, are in the chiefly  43 lineages, and they persist over alternate  44 generations.  It may be very spotty, but  45 those are crucial links.  And if you're  46 just doing a straight statistical analysis,  47 this sort of information doesn't come up. 1913  Submission by Ms. Koenigsberg  1 Q   Well, just dealing with that statement,  2 certainly you wouldn't suggest that when  3 you do a statistical analysis you can't  4 determine where phenomena are occurring as,  5 for instance, if you do a statistical  6 analysis -- and let's not dress it up --  7 when you count marriage preferences --  8 A   Uh-huh.  9 Q   -- so that you can determine whether  10 they're statistically significant or not,  11 and by that we mean that they happen more  12 commonly than by chance, then we couldn't  13 determine where they happen in the society  14 and how they happened."  15  16 In other words, I'm saying to him you can do that,  17 statistical analysis doesn't prevent you from doing  18 that:  19  20 "A   Yes.  Well, it's — I would — one of the  21 leading statisticians for social sciences  22 is Blalocke, who's written a book on  23 statisical influence" --  24  25 And he means "inference":  26  27 "-- inference, sorry, and he makes the  28 point throughout that statistics is only as  29 good as the overall appreciation of the  30 society that informs it.  31 Q   Yes.  32 A   So what you're saying, in the best of all  33 possible worlds, the interpretation of this  34 data can show the social significance of  35 it, but quite often lamentably it becomes  36 a numbers game which doesn't reflect the on  37 the ground situation.  38 Q   Of course it has -- the statistical  39 analysis in the area that you're describing  40 has one decided advantage:  Properly done,  41 at least we know what it is that a person  42 is basing their conclusions on, and we then  43 can criticize as to whether it has been  44 done properly or not properly?  45 A  Well, I see your point because it has  46 become an issue among anthropologists --  47 they're bringing out articles now on land 1914  Submission by Ms. Koenigsberg  1 claim research, and what is the best way of  2 verifying data.  There were a number of  3 studies, for example, done on the MacKenzie  4 Valley situation, on the proposition of  5 people not using the land today.  So  6 anthropologists did numerical counts and  7 put cash values on it, and so on.  But, in  8 my estimation, this again does injustice to  9 the cultural values and the view of the  10 people from the areas."  11  12 And I'm just going to stop there, because he's now  13 talking about an inquiry which has to deal with, at  14 least in one area, damages and anthropological  15 evidence going to that, which would involve numerical  16 counts:  17  18 "But, in my estimation, this again does  19 injustice to the cultural values and the  20 view of the people from the areas.  It --  21 because they say our economy is partly the  22 traditional cycle and it's partly the cash  23 economy, and it's all related to the land  24 and the land uses, so we need some sort of  25 model which is broader than this.  So I  26 think when we get into these nice  27 statistical correlations, it looks very  28 nice in our white world, but it quite often  29 does an injustice to the reality of the  30 overall social relations in the community  31 that we studied."  32  33 And he's here I think commenting on the impact of  34 statistically verifiable information on the values  35 held in the community, a concern for anthropologists  36 which, quite frankly, typifies the reason why that  37 activity is inimical to the legal situation:  38  39 "Q   Let's look at just one other area where you  40 have utilized a conclusion about a practice  41 occurring of the cross-cousin marriage, and  42 that's at page 195 of your report.  You say  43 there:  44 'To an outsider, it may look as though  45 the Gitksan and Wet'suwet'en pass  46 land from father to son in many  47 instances.  But this impression is 1915  Submission by Ms. Koenigsberg  1 incorrect because the apparent  2 father-to-son succession to land is  3 frequently made legitimate when the  4 sons practice cross-cousin marriage  5 or are adopted into the owning  6 House.'  7 And you go on to discuss what cross-cousin  8 marriage is.  Would you agree that it would  9 be helpful to know, in analysing the  10 situation which you have drawn conclusions  11 about, whether cross-cousin marriage  12 actually occurs in the society in which  13 you're saying that it is a means by which  14 an inheritance practise is to be analysed  15 and understood?"  16  17 And here again is an example of what I was talking  18 about yesterday:  19  20 "A   This is a bit too constrictive here,  21 cross-cousin marriage, or -- marriage into  22 your father's side in general.  It's -- it  23 doesn't have to be specifically a  24 cross-cousin marriage.  Well, it does  25 occur.  That's quite obvious.  The  26 incidence -- I may not have the statistical  27 data to know -- to know that at this point,  28 but it certainly does exist.  And if you're  29 going to have a statistical thing showing  30 land going from father to son, totally  31 uninformed by the actual kinship system and  32 the relationship between the social  33 group -- the kinship groupings, you get an  34 entirely different picture that doesn't  35 jive with the on the ground use of the land  36 and the interactions between people in  37 relation to it.  38 Q   Okay.  You have just stated you don't have  39 the statistical analysis, but cross-cousin  40 marriage does exist.  Let me understand  41 what you mean.  Do you mean that you can --  42 you know of an instance or several  43 instances of it or do you mean it exists in  44 the perception of the people?  45 A   I know instances of it and it exists in the  46 perceptions of the people.  47 Q   And when you say you know of instances 1916  Submission by Ms. Koenigsberg  1 of it, therefore it exists, do you mean it  2 exists at a level which would not happen  3 merely by chance?  4 A   Yes.  If it existed by chance, it wouldn't  5 be -- it wouldn't be so institutionalized,  6 so built into the very value system of the  7 society.  8 Q   Okay.  Then would you agree with me that  9 it would be helpful to know whether in fact  10 it does occur more than by chance?  11 A   It would be helpful.  Yes.  12 Q   Are you aware of Alice Kasakoff's thesis on  13 the Gitksan dealing with the explicit and  14 implicit marriage rules and of her  15 statistical analysis of cross-cousin  16 marriage and its incidence?  17 A   I'm aware of it.  Yes.  18 Q   And you're aware that she concluded, on the  19 basis of the particular analysis that she  20 did, that cross-cousin marriage occurs less  21 than by chance in that community?  22 A   Yes, but that's irrelevant because it is  23 extremely important ideologically for  24 the -- for the operation of the system, and  25 again, the same criticism I made of her  26 husband applies to her work.  It's -- she  27 wasn't inside any of the families."  28  29 And I will just stop there and go back, and in my  30 submission this is exactly an illustration of the  31 difficulty of separating perception and reality, and  32 when it's important and when it's not important, and  33 what it is you're studying and what it is you base  34 your conclusions on.  35 What Dr. Daly says in a lot of instances has a lot  36 of truth in it.  It is important what people perceive  37 beyond whether it's really true or not.  And it has  38 importance, it tells us a lot about the culture, and  39 it doesn't necessarily mean that they make things up  40 and that that's somehow an incident, but rather that  41 it informs the values.  But if you base a conclusion  42 about a law, which he's doing here, and on the basis  43 that it's -- it's been described by somebody else who  44 didn't understand it, because they didn't understand  45 that the resolution of this apparent conflict was  46 cross-cousin marriage, and earlier in my question he  47 acknowledges that it's helpful to know if it really 1917  Submission by Ms. Koenigsberg  1 occurs and, in fact, you can't make the conclusions  2 that he makes if it doesn't occur more than by chance.  3 And -- but when I point out to him that it doesn't  4 occur more than by chance --  5 HUTCHEON, J.A.:  I'm sorry, I'm not with you on that.  6 MS. KOENIGSBERG:  Well, it is pretty complicated.  What Dr. Daly  7 is saying is --  8 HUTCHEON, J.A.:  I know what he says.  9 MS. KOENIGSBERG:  People's perception is more important than  10 what happens on the ground.  11 HUTCHEON, J.A. :  Where does he say that?  12 MS. KOENIGSBERG:  Well, he says it when we get down here after I  13 point out to him that it doesn't happen on the ground,  14 and that's -- he said it before, my lord, but at line  15 30 I say to him:  16  17 "Q   You're aware that it happens less than by  18 chance."  19  20 He's just told me that in his view it happens more  21 than by chance, and I say to him but there's a  22 statistical analysis that shows that it happens less  23 than by chance, and he says:  24  25 "A   Yes, but that's irrelevant because it is  26 extremely important ideoligically for the  27 operation of the system, and again" --  28  29 And then he criticizes Alice Kasakoff's work because  30 she didn't spend enough time, in his view, living on  31 the reserve, she lived off the reserve.  And he is  32 saying for some purposes perception is more important.  33 HUTCHEON, J.A.:  I don't think that's the — all right, it's a  34 matter of interpretation, I guess.  35 MS. KOENIGSBERG:  I don't think we can resolve that one.  I  36 would ask your lordship to, and it's tedious, to go  37 back over it.  I think he says it very clearly that  38 perception is more important.  He then disagrees with  39 me that it's only perception and not reality in terms  40 of the incidence of cross-cousin marriage.  41 TAGGART, J.A.:  Couldn't be perception only, that wouldn't make  42 any sense.  His proposition was that they intermarry  43 to control certain areas of land, that's what he said,  44 that was his proposition.  45 MS. KOENIGSBERG:  Yes, yes.  That's his proposition.  46 HUTCHEON, J.A.:  That perception wouldn't help him there, and he  47 doesn't say so. 1918  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  Well, in my submission he does.  He has no  2 statistical data, he hasn't counted --  3 HUTCHEON, J.A.:  Statistics doesn't matter, I don't think.  In  4 this area statistics wouldn't matter if Mrs.  5 Roosevelt -- Mrs. Rockefeller married somebody, it was  6 the other person could be said that was by chance, but  7 the other person may marry her for her money,  8 statistics wouldn't come into the matter at all.  9 MS. KOENIGSBERG:  Well, I think, my lord, what he's getting at  10 here is that within this system, if you look at an  11 inheritance between what fathers -- what appears to be  12 inheritance of a trapline between father and son, that  13 violates the rule.  The rule is matrilineal.  You  14 don't have inheritance from father to son, you have it  15 through the mother's line.  16 HUTCHEON, J.A.:  Yes.  17 MS. KOENIGSBERG:  So statistically we will be misled if we count  18 up -- we simply count how many instances we have of  19 devolution through from father to son, and there are  20 many, and Dr. Daly says but that's the limitation.  21 You can't just look at that it's father to son,  22 because you have to understand that these people  23 legitimize that activity, apparent contradiction by  24 cross-cousin marriages.  In other words, they marry in  25 order -- not in order --  26 HUTCHEON, J.A.:  That's his point, I quite get his point.  27 Perception doesn't come into that at all.  28 MS. KOENIGSBERG:  Well, my lord, perception does come into it if  29 in fact people don't marry their cross-cousins.  30 LAMBERT, J.A.:  No, but there — sorry, there could be all kinds  31 of situations where cross-cousin marriages would have  32 no effect on property.  33 MS. KOENIGSBERG:  Yes.  34 LAMBERT, J.A.:  And it may be that they don't have cross-cousin  35 marriages even less than -- much less than  36 statistically in those areas, but in areas where it  37 does affect property, then perhaps they have important  38 cross-cousin marriages.  39 MS. KOENIGSBERG:  Yes.  40 TAGGART, J.A.:  Have you eliminated that as a possibility?  41 MS. KOENIGSBERG:  My lord, this is the difficulty with this  42 whole thing.  Dr. Daly can't tell us that because Dr.  43 Daly doesn't count, okay.  Dr. Daly considers it  44 irrelevant whether it actually occurs or not.  He  45 believes it occurs because the people believe it  46 occurs, and that's a sincere belief.  They believe it  47 occurs. 1919  Submission by Ms. Koenigsberg  1 LAMBERT, J.A.:  They believe it occurs, but nobody has counted  2 it.  3 MS. KOENIGSBERG:  Well, Alice Kasakoff counted it.  4 LAMBERT, J.A.:  Well she counted it -- my perception of her is  5 she counted the whole community for cross-cousin  6 marriages.  7 MS. KOENIGSBERG:  It's extremely complicated, my lord, and the  8 study is in evidence.  I don't say it's beyond  9 reproach either, it's an incredibly complicated thing  10 to do, but she certainly is highly qualified, she  11 certainly was there and living in that community, and  12 she certainly had qualifications that specifically  13 went to her ability to methodologically be able to  14 justify whether you can test for actual cross-cousin  15 marriages which count, that is in certain lineages.  16 Her conclusion was it happens less than by chance.  Of  17 course it happens, but if it doesn't happen more than  18 by chance, we can't conclude that the activity takes  19 place in order to legitimize the inheritance, we  20 simply can't.  We're not beyond the belief and the  21 impression.  And it's startling, in my submission,  22 that Alice Kasakoff looked at that very question.  She  23 is looking at the social organization, she's not  24 ignorant of the social organization.  It's not that  25 she doesn't understand about lineages, she's  26 participating in the research with her husband,  27 another eminently qualified anthropologist, in looking  28 at those very lineages and looking at what they term  29 "corporate groups", which are the House lineages and  30 an inheritance and all of those things, and it's in  31 that context that she does the study.  Could the study  32 be wrong?  Could be, it could, but the interesting  33 thing is Dr. Daly, he doesn't say it's wrong, he  34 doesn't say "I've looked at it and it's wrong", he  35 says it's irrelevant.  36 WALLACE, J.A.:  Can you assist me, why would it be necessary to  37 be inside the families in order to do statistical  38 studies?  39 MS. KOENIGSBERG:  Well, my lord, this criticism, and it goes on  40 and -- this criticism is of the Adams', who were  41 there.  42 WALLACE, J.A.:  I appreciate that, but just on this question, is  43 there any advantage when you're doing a statistical  44 analysis to be inside the -- living inside the  4 5 families?  4 6 MS. KOENIGSBERG:  Well, I don't think you can do a very  47 sophisticated analysis that would be very meaningful 1920  Submission by Ms. Koenigsberg  1 if you didn't understand the structure so that when  2 you're counting, when you make up a population to  3 count from, the population has to have relevance to  4 the values that you're testing.  So, for instance, if  5 you want to make up marriage preferences you have to  6 know how everybody is related to everybody else, and  7 if they're not related by kin, are they related in  8 some other way, so that when you count you're counting  9 the right things.  So yes.  10 WALLACE, J.A.:  But you have to live inside the families?  11 MS. KOENIGSBERG:  Well, inside the family, in my submission, I'm  12 not sure what he meant by that.  I took him, and he  13 goes on a bit about it, I took him to mean they were  14 insufficiently incorporated into the community to --  15 they weren't sufficiently immersed.  16 WALLACE, J.A.:  I thought that physically they should be on the  17 reserve --  18 MS. KOENIGSBERG:  Well, he thought —  19 WALLACE, J.A.:  -- living with the band members.  20 MS. KOENIGSBERG:  He thought that it was somehow relevant that  21 they lived off the reserve than that they lived on the  22 reserve.  Now, we're talking about a small community,  23 Hazelton.  New Hazelton is part of Hazelton, and we're  24 talking about a few miles, and that's why I read the  25 preface to you.  They didn't live on the reserve  26 because they didn't want to live on the reserve, but  27 because there was a shortage of housing and so on.  My  28 submission will be to you, and we'll go through a bit  29 more of this, my submission to you at the end is going  30 to be that you look at this for a lot of reasons, but  31 the one thing you will not find in all of the  32 criticism that Dr. Daly makes of Adams, you will not  33 find it having been expressed by him that the way that  34 when -- what might account for the difference between  35 what Dr. Adams reports and what Dr. Daly found and the  36 vehemence or the lack of popularity of Dr. Adams by  37 the time Dr. Daly gets to the community is because  38 litigation is going on, and Dr. Adams has already  39 published his work and it doesn't fit.  That never  40 entered Dr. Daly's mind.  And, in my submission, it is  41 an explanation for the difference.  He is not  42 otherwise able to explain that difference, except to  43 say they're not popular, or they didn't live there  44 long enough, or the people that they talked to didn't  45 know enough.  And that, in my submission, informs the  46 credibility of Dr. Daly.  He didn't look at his own  47 situation and say "I'm in the middle of a lawsuit, 1921  Submission by Ms. Koenigsberg  1 these people are very interested in my coming to  2 certain conclusions, I should put some checks and  3 balances in this situation, I should be -- have a  4 critical faculty here, I should weigh this".  He  5 didn't do that.  He's buffaloed by the difference  6 between what 2 0 years before Dr. Adams saw and  7 reported on and what he saw and reported on.  We will  8 get to those differences and then we'll get to the  9 evidence that was at trial which supported Dr. Adams'  10 view.  11 TAGGART, J.A.:  Will it be convenient to adjourn until two  12 o'clock?  13 MS. KOENIGSBERG:  Yes.  14 THE REGISTRAR:  Order in court.  Court stands adjourned.  15  16 LUNCHEON RECESS  17  18 I hereby certify the foregoing to be a true  19 and accurate transcript of the proceedings  20 herein transcribed to the best of my skill  21 and ability  22  23  24  25  26 Graham D. Parker  27 Official Reporter  28 United Reporting Service Ltd.  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1922  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 TAGGART, J.A.:  Yes, Ms. Koenigsberg.  4 MS. KOENIGSBERG:  My lord, I know you'll be sorry to hear that I  5 think we can move on from cross-cousin marriages,  6 although we could go back and examine it for a while  7 longer.  8 I'd like to move over to the next set of  9 transcripts, and that is -- just go over to the yellow  10 page there, and the transcript volume is 191, the page  11 number is 12458, and let me introduce you to this --  12 this one.  This deals with Dr. Daly's response to Dr.  13 Adams' description of the society as this is not as I  14 saw it.  And I want to take you to that, and it deals  15 specifically with some of the quotes that the Chief  16 Justice included in some of the problem areas as he  17 saw it when he weighed it that are set out on pages  18 170 and 171.  If you turn to about line 18.  19  20 "Q  I want to deal with descriptions of the society  21 for an economic analysis and look at, as we've  22 been doing, and look at John Adams' monograph  23 or a short excerpt therefrom relating to the  24 topic we've been talking about."  25  26 And I've given the name of it, The Gitksan  27 Potlatch and so on.  28  29 "-- and it is the work we have been discussing.  30 Do you recognize that?  You have read it, have  31 you?  32 A   Yes.  33 Q   And if you look at the excerpt I've pulled out,  34 it's pages 16 and 17, and it deals with a  35 description -- well, it deals with -- jobs and  36 education is the part that I want to deal with.  37 And this study the, the field work was  38 conducted in 1965 through 1966; is that true to  39 your knowledge?  40 A   Yes.  41 Q   It says:  42  43 'Aboriginally the food and skins which were  44 exchanged at these feasts were supposed to  45 have come from the territories of the  46 donors.  Nowadays, people contribute food  47 bought in the local stores and Canadian 1923  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 dollars.  A few people keep vegetable  2 gardens, but most buy their food from  3 stores, some of which the Natives run.  4 Housewives continue to put up salmon in the  5 summer; many men go downriver to work in  6 the canneries, often with their wives and  7 children.'.  8  9 Next paragraph.  10  11 'If a man wants a deer, he just 'goes  12 anywhere without asking permission,' though  13 he is still supposed to give a piece of the  14 meat to the owner of the land he shot it  15 on.  Money which formerly would have into  16 the potlatch is used to buy such goods as  17 station wagons, freezers, TV sets, and  18 travel-vacations, all made available to the  19 Gitksan by their participation in the  20 Canadian cash economy.  Except for an  21 occasional deer shot in the fall, some  22 berries, some smoked or canned salmon, and  23 a few potatoes, the bulk of daily  24 consumption comes from store-bought goods.  25 What few subsistence goods there are,  26 though, are not exchanged for cash, but  27 must be bartered.'"  28  29 And that is a description from John Adams'  30 monograph.  And if you look at in particular, and I'll  31 just make this quick reference for you, the Chief  32 Justice on page 170, the very last paragraph, is  33 quoting from Dr. Daly and he's saying this is  34 different from what I heard, and this is an area I  35 think he's just not being realistic.  He says quoting  36 from Dr. Daly:  37  38 "Dr. Daly said the house group through its  39 chief or senior matrons insures that a  40 substantial portion of house members' income,  41 small enterprises and wage labour is devoted to  42 the proper conduct of house affairs."  43  44 And so we can see that in a sense we're talking  45 not completely and utterly about the same thing, but  46 very close, and that the descriptions are quite  47 different.  I say to Dr. Daly after reading to him 1924  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 from Dr. Adams' monograph:  2  3 "I'm going to stop there."  4  5 And what he goes on to say, and I will go on and  6 read it in a moment, he specifies specific occupations  7 and then income from a particular source which he's  8 identified.  9  10 "But if we just stop there, would you agree  11 with me that John Adams is dexcribing what he  12 saw through his participant observation and  13 what he was told by informants in 1965-'66, and  14 at that time he is describing subsistence  15 activities as a very small part of the  16 economy?"  17  18 And you'll remember again that's another area  19 where the Chief Justice found such a dichotomy  20 between -- or so much distance between what Dr. Daly  21 was saying about the relative amounts of market versus  22 subsistence that the Chief Justice garnered from  23 listening to the lay witnesses.  That is Dr. Daly said  24 the subsistence is not eclipsed by the market, and he  25 said other things to that effect.  And here Dr. Daly  26 is saying something quite different.  27 LAMBERT, J.A.:  You could put this in better focus for me.  I  28 understood whether the -- it's your position that the  29 scope of the aboriginal right in relation to land is  30 determined as of 1846 or as of 1990 or as of some  31 other time in between, and if there's a difference  32 between the scope of the aboriginal right in 1846 and  33 the scope in 1990 and it hasn't -- the 1846 right  34 hasn't been extinguished where does it stand in 1990?  35 MS. KOENIGSBERG:  Well, your lordship has hit on a very complex  36 question, in my view.  There are a number of parts to  37 it, if you will.  The definition or the content of an  38 aboriginal right, in our submission, is determined by  39 looking pre-contact.  But no specific date, just an  40 attempt to get at that which was part of a regime  41 prior to the imposition of sovereignty in 1846.  42 However, in my submission, the only question before  43 your lordships is not that particular definition, but  44 also your lordships have to concern yourselves with  45 the effect of sovereignty, settlement, government,  46 government activity on the aboriginal society on those  47 rights as they are progressively expressed between 1925  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 contact and today.  2 And you have to look at that for a number of  3 reasons.  One, to determine at the end of whether it's  4 been extinguished, whether it's been modified, whether  5 the two can live together.  But also to determine, for  6 instance, if you were to accept my friend Mr. Taylor's  7 argument on provincial power, in my submission it does  8 become very important to look at those activities  9 which are central and measure them against those  10 activities which are not.  And, in my submission, you  11 have to engage in that inquiry unless your lordships  12 were to find that in fact and in law aboriginal rights  13 bear the stamp of sovereignty themselves, which we say  14 they do not and cannot.  But if they did this inquiry  15 would be irrelevant.  16 LAMBERT, J.A.:  Yes, I understand.  We haven't heard much, if  17 anything, about a theory of diminution of aboriginal  18 rights or attrition of aboriginal rights, and if there  19 is such a theory going to be advanced then I would  20 like to start thinking about it and look forward to  21 hearing about it.  But much of this evidence tends --  22 seems to me to show that no matter what the aboriginal  23 rights were in pre-contact they aren't being exercised  24 in 1990.  25 MS. KOENIGSBERG:  My lord, the relevance of this material, the  26 Dr. Daly Dr. Mill's evidence, you will recall the  27 point of this evidence, the reports are called  28 continuity.  And of course it was alleged by the  29 appellants, the plaintiffs, that their rights  30 continued, that their laws had never changed.  And it  31 wasn't solely because at that time they thought they  32 might have the burden of proving that, though I  33 believe at the time they probably did, and I think  34 it's become accepted that they may not have that  35 burden.  That if they had aboriginal rights, let's say  36 a certain aboriginal right was being exercised in 1870  37 or 1880 or 1900 and for some reason it doesn't amount  38 to abandonment, the government stopped them from doing  39 it, that that doesn't mean that the aboriginal right  40 is gone unless it's extinguishment.  So that time  41 period isn't so important.  But the continuity has  42 another function, and it's this back streaming  43 function.  In other words, we're making inferences  44 about what the rights were pre-contact and we're  45 making inferences in particular about the system that  46 was in place, and it is this evidence that is germane  47 to those inferences.  Are they valid inferences?  Do 1926  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 we assume from what we see today or what an  2 anthropologist tells us is there today that it was the  3 same?  Is it an old or a new institution?  4 And the laws, for instance, I mean this particular  5 one, if a man wants a deer he just goes anywhere  6 without asking permission.  Well, now, that's in  7 direct contrast to the law as we're told it was and  8 has always been.  That there are these discreet  9 territories and they belong in the ownership sense to  10 a chief on behalf of a particular group of people  11 called this house or her house.  And that that is  12 exclusive possession of that territory and if you go  13 and shoot a deer you must have permission or you're  14 breaking the law.  That's an important factor in  15 weighing whether there was a territory with those  16 boundaries and exclusive possession.  And, in my  17 submission, this evidence was led by the appellants,  18 Dr. Daly's evidence in part, to make that argument.  19 And the cross-examinations of this material went right  20 to that point.  21 To what extent were these laws then and to what  22 extent are they laws.  In other words, you can have a  23 law even if it's breached because it's like a  24 regulation.  The breach can prove the law.  But if  25 somebody says there's a law, that nobody pays  26 attention to it, then we kind of wonder if it really  27 is.  And so it's weighing and that's what we're at on  28 this material.  29 LAMBERT, J.A.:  Yes.  30 MS. KOENIGSBERG:  And it will be our submission — and I think  31 you may have this submission, but just so it's clear.  32 It will be our submission that the Gitksan  33 Wet'suwet'en had a social organization that related to  34 the use of land.  It grew out of that social  35 organization in the regime sense of that word, but it  36 was confined to the areas that the Chief Justice found  37 it was confined to, more or less the villages in the  38 contiguous areas.  That once you get outside those  39 areas you do not see any of the necessary indicia of  40 the system.  The allocation of rights intersay, and  41 those rights if they had an expression beyond the  42 group as against another group, is not apparent once  43 you're in --  44 LAMBERT, J.A.:  And you infer therefore that it wasn't apparent  45 in 18 — pre-1846?  4 6  MS. KOENIGSBERG:  That's right.  And we say that the Hudson's  47 Bay material is very consistent with that.  And we say 1927  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 that ultimately you will have been taken very briefly  2 through a massive amount of evidence on boundaries  3 that don't -- I mean, the boundaries kept changing.  4 The -- we say even though the appellants no longer  5 appeal the internal boundaries that evidence is  6 important in an assessment of the loss.  7 LAMBERT, J.A.:  If we are going to get into -- if you are ever  8 going to get into a theory of a diminution of rights,  9 modification of rights or loss of rights by attrition  10 or failure to exercise them I would like to know.  We  11 have heard no mention of that.  And from your  12 explanation you're not really saying that there is any  13 such thing.  14 MS. KOENIGSBERG:  I think there is, but I think that I may  15 mislead your lordship if I say it's much more than --  16 it almost becomes a semantic exercise, but I'll give  17 you an example.  I think Horseman is a good example of  18 the problem with extinguishment and modification or  19 diminution.  When I use those words, and I think we  20 have to make distinctions, I'm not -- I'm talking  21 about extinguishment in the sense that an aspect of a  22 right, something that has been diminished, the  23 diminished part is gone.  It doesn't -- it's not  24 suspended and it's not going to come back again.  In  25 law it's gone and in that sense it bears that hallmark  26 of extinguishment.  27 However because, in our submission, aboriginal  28 rights are varied not only in activity, but in the  29 incidence of the right, everything we say from  30 exclusive possession as an aboriginal right to  31 something that is only in relation to land but not  32 attached to land, certain kinds of -- the largest part  33 of hunting rights, we say that almost spans the  34 spectrum of rights in relation to land from almost  35 like a fee-simple to having no relationship except  36 that you're walking over land and using it in that  37 sense.  And therefore activity of the government which  38 is proper activity will have different effects.  But  39 as in Horseman you had a right, a treaty right, to  40 hunt and it was unlimited in that it included  41 commercial aspects and non-commercial aspects.  It was  42 modified in the extinguishment sense.  The aspect of  43 that right commercial was extinguished by the transfer  44 agreement and so found by the Supreme Court of Canada.  45 And, in my submission -- and they use the word  46 extinguishment in other parts of that judgment.  But  47 it is also properly seen as a modification of the 1928  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 right, because aspects of that right are still there  2 and still being carried on.  And we say that it's  3 demonstrated very well with hunting.  If we're not  4 dealing with an area that we would say was the subject  5 of exclusive hunting rights, but we were dealing with  6 land over which people roamed without regard,  7 non-exclusive use completely.  I went where the game  8 went.  And there's evidence of that from the  9 appellants.  Those rights, if you put a mine or well  10 let's say a fee-simple, a farm where someone used to  11 go let's say on a fairly regular basis but in a  12 non-exclusive way I would say you have not  13 extinguished that person's right to hunt, you've  14 extinguished that person's right to hunt on black  15 acre.  So, in my submission, you modified the right,  16 you've diminished the right, but you have not done  17 away with it.  18 And I think that is more or less in our factum.  19 It's in that sense that I say there is such a thing,  20 and in fact it's quite important.  And I'd like to be  21 able to skip over all of this material, but in my  22 submission you can't overlook the fact the appellants  23 rely very heavily on this material and they didn't  24 lead it out of just an abundance of caution if they  25 had to prove continuity.  26 MACFARLANE, J.A.:  And as you say they rely on it in respect of  27 two issues, one ownership and the other  28 self-government.  2 9  MS. KOENIGSBERG:  Yes.  30 MACFARLANE, J.A.:  And they rely on it specifically in attacking  31 the trial judge's finding that the aboriginal right in  32 respect of land was limited to the village sites and  33 areas about them.  And so it goes to that.  34 MS. KOENIGSBERG:  Yes.  35 MACFARLANE, J.A.:  It's very interesting what one ought to do  36 about diminution of rights and extinguishment,  37 specific extinguishment.  I understand that the  38 appellants and the province don't want us to get into  39 that issue on this appeal but to leave that for them  40 to negotiate.  Is that Canada's position?  Just yes or  41 no.  I —  42 MS. KOENIGSBERG:  Just yes or no.  43 LAMBERT, J.A.:  My understanding is that isn't the province's —  44 it isn't the appellants' position either, it's the  45 province's position.  But I don't understand that the  46 appellants don't want us to get into specific  47 extinguishment, but I may be wrong. 1929  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  I'll be frank with your lordships.  I don't  2 understand either one of those positions.  3 MACFARLANE, J.A.:  I am sorry.  I am wrong about that because  4 Mr. Rush stood up the other day in the middle of the  5 remedies arguments and said we don't agree with that.  6 That's quite correct.  But quite aside from that the  7 purpose of this argument is not to talk about  8 diminution of rights.  It's really to talk about the  9 central core of the appellants' case here, and that  10 was that the trial judge was wrong in limiting these  11 rights to village sites.  And on the basis of these  12 anthropologists, had it been accepted, it should have  13 been found that those rights extended far beyond the  14 villages and into the whole of the territory that we  15 claim.  16 MS. KOENIGSBERG:  Yes.  17 MACFARLANE, J.A.:  And that they also show by their evidence if  18 it were accepted that there were laws which were in  19 place that related to the use and control of the land  20 in succession to the land --  21 MS. KOENIGSBERG:  Yes.  22 MACFARLANE, J.A.:  — and that those laws were part of the  23 aboriginal society and that they ought to be  24 recognized today.  25 MS. KOENIGSBERG:  That's right.  26 MACFARLANE, J.A.:  And that's what you're — and I take that  27 your whole submission is to support the trial judge's  28 finding --  29 MS. KOENIGSBERG:  That's right.  30 MACFARLANE, J.A.:  — in those respects.  31 MS. KOENIGSBERG:  That's correct.  32 MACFARLANE, J.A.:  Well, at least I understand that.  33 MS. KOENIGSBERG:  I couldn't have put it better myself.  34 I can give you the outline of our position, that  35 is the most outer perimeter of our position on the  36 remedies that will help your lordships at this point.  37 WALLACE, J.A.:  It will help me to continue to develop your  38 argument without going into another area, unless it's  39 necessary.  40 MS. KOENIGSBERG:  No.  I would rather leave it if it's not.  I  41 would like to try and get through this by three  42 o'clock.  43 I want to bring you back to why we're on this  44 particular subject.  And this is the contrast now  45 between John Adams who was there prior to litigation  46 doing work with these people and Dr. Daly who was  47 there during the litigation.  And I'm putting this to 1930  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 you to show you that the trial judge had good reason  2 to not put reliance on Dr. Daly.  And he had good  3 reason specifically in relation to the things that he  4 enumerated.  And so I've just given you the quote  5 from -- it's from the Adams' piece and I was asking  6 Dr. Daly about this, and I say to him -- I go with him  7 that he was told this by informants in '65 and '66 and  8 at that time he is describing subsistence activities  9 as a very small part of the economy.  10  11 "A   It certainly doesn't reflect the world that I  12 saw."  13  14 Well, we've been waiting for that quote.  15  16 "Q   Would you agree with me that a fair reading of  17 it, just as you read it, is that subsistence  18 activities were small at that time?  19 A   That's his assessment, yes.  20 Q   Okay.  We'll go on.  21  22 'The main sources of employment recently  23 have been at the pole yards in Kitwanga and  24 the Hazeltons, construction work on the  25 highways, a few jobs with the railroad, in  26 addition to the fishing at the coast in  27 summer.  Other occupations include school  28 janitors, storekeeping -- '"  29  30 And he goes on through a long list and I'm not  31 going to read them all.  Then he gets to:  32  33 "'Trapping, though still prestigious, is a  34 source of income for no more than half a  35 dozen men because of the depressed market  36 for fur.  It is no better than being on  37 welfare.'"  38  39 That's in quotes from an informant presumably.  40  41 "'Nevertheless, family allowance,  42 umemployment, disability, old age , and  43 welfare payments make up a large portion of  44 Indian income.'  45  46 A   I don't know where he got all those things in  47 quote marks from.  I never heard anything of 1931  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1  2  3  4  5  6  7  A  that nature.  Have you never read anything like that in any  of the interviews which you took or which you  reviewed?  There were -- there were occasional statements  consistent with this in the land claim  transcripts."  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  WALLACE,  MS. KOENI  WALLACE,  MS. KOENI  WALLACE,  MS. KOENI  WALLACE,  MS. KOENI  And I'll just remind your lordships, the land  claim transcripts were transcripts of interviews with  the appellants by the appellants or persons working  for the tribal council.  J.A.:  I'm sorry.  Give that to me again?  GSBERG:  The land claim transcripts refers to a body of  transcripts of interviews with the appellants,  persons -- the plaintiffs, the Gitksan and  Wet'suwet'en people.  J.A.:  Yes.  GSBERG:  By people hired by the tribal council, usually  other plaintiffs.  J.A.:  To assimilate or get the statements?  Yes.  That's right.  I see.  Thank you.  GSBERG  J.A. :  GSBERG  "Q  Yes.  Those were interviews conducted in the  early '80s?"  I say to him.  And he says:  "A   Yes.  But they didn't -- they didn't talk about  for example, all of the -- the wealth that  would have gone into the potlatch is used to  buy station wagons, freezers, et cetera.  Very  little wealth, for example, goes into the  actual potlatch of which he calls potlatch and  I would call feast because I would reserve the  word potlatch for the competitive  status-seeking potlatches at a specific point  in history.  Q   You're now quarrelling with his terminology,  not that you were both witnessing the same  feasting?  A   It's not a question of terminology; it's a  whold view of reality.  Q   No.  I'm sorry.  A  And this is the sort of view you get when  you're on the periphery of the society --" 1932  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1  2 He's referring to Dr. Adams.  3  4 "-- and you're not immersed in it, in the core  5 of it.  And I don't care how many numbers you  6 roll out as a result of your sophisticated  7 pre-packaged analysis before you even get  8 there."  9  10 I'm going to stop there and tell your lordships  11 that this is exactly the same kind of thing, I'm not  12 saying you can't get it from transcript, I hope you  13 did, that pervades the evidence.  My submission on  14 that answer after what we've just seen is that Dr.  15 Daly is expressing a fair bit of emotion and  16 deprecation on the basis of not any scientific or  17 anthropologically correct criticism.  He's already  18 said I thought he'd started his statistical analysis  19 before he got off the plane.  I say to him:  Well, do  2 0 you know what his timing was?  No.  Now, we've come  21 back and this is his answer to the description which  22 doesn't match his description.  And I say to you it  23 shows a lack of objectivity, an emotional response,  24 and not one based on anthropologically appropriate  25 criticism.  26 And then he goes on and he says it's just out of  27 accord with reality.  28  29 "Q   With the reality that you perceived in 19 --  30 A  As far as the employment goes, I think.  31 Q   Mr. Daly, just a moment.  I just would like to  32 ask you a question about what you said just  33 before you go on.  You said it's out of accord  34 with reality.  Do you mean the reality which  35 you observed in 1986 through 1988?  36 A   Yes, and the complaints that I heard about the  37 data he was collecting in the '60s while I was  38 collecting in the '80s as well.  39 Q   Yes.  40 A   There is a difference.  People don't go to the  41 coast to work in canneries any more because the  42 cannery is virtually shut down.  43 Q   Yes.  44 A   But some families do go for commercial fishing.  45 Q   Many do go for commercial fishing, don't they?  46 A  Many do, yes, many go for commercial fishing.  47 But many stay home now much more -- much -- 1933  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 many more families stay home in the summers now  2 than they did in the '60s because of the lack  3 of cannery work.  4 Q   For instance, the quote that you seem to  5 quarrel with -- the first quote is at the top  6 of page 17.  7  8 'If a man wants a deer, he just goes  9 anywhere without asking permission...'.  10  11 Surely you were --  12 A   Yeah, I would dispute that too.  13 Q   Did you not come across such statements by  14 chiefly elders?  15 A   That you just go anywhere?  16 Q   Yes.  17 A   No.  18 Q   No?  19 A   You can go in certain areas, but you at must at  20 some point inform the owners that you gone on  21 or you're going, and you -- you make some --  22 some gesture or payment or do a favour for  23 them.  24 Q   Okay.  25 A   The way he's phrasing it here in these quote  26 marks, it's as though this is just something  27 that people are telling him off the cuff to --  28 that there's no reality and no passion to it,  29 that it's not at the core of their very social  30 interaction."  31  32 This is what he saw and this is what Dr. Daly  33 perceived.  Now, I'm not going to go on because we're  34 really low on time, but I'm going to take you over to  35 the next part because it relates precisely to that.  36 Just over to the next yellow page.  It begins -- it's  37 Volume 192, page 12552.  Go down right to the bottom  38 of that first page, and it's line 41:  39  40 "MS. KOENIGSBERG:  Yes.  I am going to hand up a  41 group of intervies and we can go through them  42 and -- transcripts.  Sorry.  43 Q   We talked about, I believe yesterday we were  44 looking at page 17 of John Adams monograph on  45 the potlatch and you showed some surprise at  46 his use of a quote relating to being able to  47 hunt without permission.  Do you recall that? 1934  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 A   Yes.  2 Q   And I did ask you if I would be able to find --  3 A   Being able to hunt without permission is  4 surprising.  Hunting without permission is  5 engaged in quite often.  But as a customary  6 practice, it is highly frowned upon.  7 Q   If we look at the first --  8 A  And —  9 Q   -- transcript.  10 A   Sorry.  11 Q   If we look at the first transcript it's  12 cross-examination on the affidavit of Solomon  13 Jack --"  14  15 And I'll tell your lordships Solomon Jack was a  16 hereditary chief.  17  18 "-- and at page 36 beginning at line 26:  19  20 "'Q   And your fishing activity, you've mentioned  21 you've been a fisherman and you've  22 mentioned about the two years of fishing at  23 the coast.  Is there any other fishing you  24 have done?  25 A   Sport fishing.  26 Q   Okay.  Where would you do that?  27 A   Oh, around Hazelton.  28 Q   Any particular spot?  29 A   Oh, places.  All the rivers and lakes  30 around Hazelton.  31 Q   Is there any particular territory, chiefs'  32 territory, where you would sport fish or  33 are we talking about around the village of  34 Hazelton?  35 A   That's mostly chiefs' land around there so  36 I must be fishing in different chiefs'  37 territory.  38 Q   All right.  Would you ask permission of any  39 particular person?  40 A   No.  The only time I ask permission is from  41 the white people on their farm, go walk  42 through the field.  43 Q   Okay.  44 A   But the Indians don't stop you.  45 Q   You mentioned hunting is one of your  46 activities, would you hunt on a yearly  47 basis every year? 1935  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 A   Just when the white man opened the season,  2 that's the only time I hunt.  3 Q   Okay.  And you hunt for big game?  4 A   Yes.  5 Q   You mentioned hunting on Tommy Jack  6 mountain?  7 A   1940 or '39.  8 Q   And when was the -- where else have you  9 hunted big game?  10 A  Around Kispiox Valley and around Hazelton,  11 up the Skeena.  12 Q   Any particular chief's territory that you  13 can think of?  14 A  Well, I was on Muluuluk's territory.  15 Q   Okay.  16 A  And I hunted on Gwoimt.  17 Q   Gwoimt?  18 A   Lots of chiefs' territory.  I can't name  19 them all.  20 Q   Okay.  Do you ask permission of that chief  21 before you go hunting in their territory?  22 A   No.  We hunted on the road so we don't ask  23 their permission.'"  24  25 And then we discuss -- we discussed this one.  And  26 over on to the next page -- I recommend that you read  27 it all, but in the interests of time.  28  29 "Q   Do you know Solomon Jack?  30 A   I know who he is.  I don't know him personally.  31 Q   Do you know he is a hereditary chief?  32 A   Yes, I do.  33 Q   Let's turn to the next one, it's Pete Muldoe."  34  35 And Pete Muldoe, of course, is a hereditary chief.  36  37 "'Q   You had a mill on the west side of Kispiox  38 river?  39 A   Yes."  40  41 I think that's the mill, not a million, across on  42 the west bank of the Kispiox River.  43  44 "'Q   And your mill across on the west bank of  45 the Kispiox River was in Ma'uus' territory?  46 A   Yes.  47 Q   Number 48 on the plaintiffs' list.  And you 1936  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 did not seek his permission to cut the  2 trees for the timber limit?  3  4 Going down to line 35:  5  6 Q   You did not seek permission from Kliiyem  7 lax haa to cut timber in those days, did  8 you?  9 A   No.'"  10  11 Now, Kliiyem lax haa is number 35 on the  12 plaintiffs' list.  13  14 "'The only thing you had to do was to go to  15 the forest service and apply when you  16 needed timber?  17 A   Yes.  18 Q   Yes.  It was all controlled by the  19 government in those days.  2 0 A   Yeah.  21 Q   The provincial government?  22 A   Pardon?  23 Q   The provincial government?  24 A   Provincial government, yes.'"  25  2 6 And then I say:  27  28 "And I am going to come back and ask you a  29 question about that, but to save a little time  30 perhaps if you turn over to the next one, it is  31 a transcript from the examination for discovery  32 of Sylvester William --"  33  34 Whose chief's name is Hagwilnegh, by the way.  And  35 he's now deceased, yes.  36  37 "'Q   Did you have William Caspit's permission to  38 trap on that trapline?  39 A  When he passed away that is when the game  40 warden passed it on to me.  41 Q   And who became Caspit after William Caspit  42 passed away?  43 A   Jimmy Thomas took the name and after he  44 passed on Stanley Morris took the  4 5 name.  46 Q   Did you ask Jimmy Thomas's permission to  47 trap on that trapline? 1937  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 A   No.  The game warden took it upon himself  2 to register me there.  3 Q   From your point of view, Mr. William, that  4 was good enough to permit you to trap  5 there; is that correct?  6 A   He told me was I was old enough and he  7 gave -- registered the territory to me.  8 Q   And then you began trapping there?  9 A   Yes.  10 Q   Did you trap for many years?  11 A  About 15 years.'"  12  13 And so on down to the next one.  It's Walter  14 Joseph.  15  16 "'Q   And where do you hunt, Mr. Joseph?  17 A   You mean for game?  18 Q   Yes, I mean for game.  19 A  Well, anywhere in Hazelton area, Telkwa or  20 at the Babine -- Babine Trail.  That's up  21 towards the 24 mile, eh.  22 Q   And that's east of Hazelton as you  23 described to us?  24 A   Yes.  25 Q   Do you know in whose territory you hunt?  26 A   No.  If you're hunting for game, you know,  27 you can -- I can go hunt anywhere, but if  28 you had a trap and then it's a different --  29 you have to have permission before you go  30 in there.  31 Q   I see.  So you don't need to ask permission  32 nor hunting game, you just chased the game?  33 A   No.  34 Q   Pardon me?  35 A   You just go wherever it takes you.'"  36  37 And then on to Roy Morris, and he is Chief Wo'os.  38 And we go through who is related to whom.  And he's a  39 contractor.  And about line 29:  40  41 "'Q   So you were just taking your work from the  42 contractor?  43 A   Yes, yes.  44 Q   Did you personally seek permission from  45 Kasmir William?  46 A   Not that I recall, no.  47 Q   Based on your knowledge of Wet'suwet'en law 1938  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  should you have had his permission before  you went on that land?  A  Well, there again you are asking me a  question.  It's the government.  They don't  get permission from the person who owns the  territory.  Q   And you do not remember if you did in  this --  A   No.  Q   -- case either?  A   No.  Q   What I wants to know is, should you have?  A   No, I, I was working there for Carl.  That's all I know.  Q   You cannot tell me under Wet'suwet'en law  you should have asked permission?  A  Well, they might have done.  I don't know.  Again I told you that before, it's the  forestry.  Don't ask the person who owns  the trapline, they just go ahead and sell  the timber to the white people and just go  ahead and log.'"  And I say, stopping there, and I've given him four  examples, and I say:  "Stopping there and dealing with the evidence,  can we fairly summarize that as --"  And he cuts in and says:  "I think it's unfair what you're doing.  I am  not the lawyer for these people.  I don't know  how representative this is of the overall  cross-examinations of all the witnesses.  Q   Do you doubt that these people said these  things?  A   No, I don't doubt that they said these things.  Q   Is it inconsistent what you observed and heard  yourself?"  And then he gives a long oration on the law of  trespass, which of course is different from what we've  just heard.  Now, if we just go over to the next part and I'll  come back and briefly summarize this.  It's Volume  192, pages 12572 to 12577.  And Mr. Daly had taken — 1939  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 Dr. Daly had taken -- one of his criticisms of -- of  2 Dr. Adams was that the informants were not  3 knowledgeable and other people in the community didn't  4 like the informants.  That is 20 years later.  And so  5 I take him to who those informants were.  All right.  6 And it's line 32, page 12572.  7  8 "Q   Now, Chris Harris was one of Mr. Adams'  9 informants?  10 A   Yes.  11 Q   And you know that he held the name Luus?  12 A   Yes.  13 Q   And he was the immediate predecessor of Jeff  14 Harris senior in holding that name?  15 A   That's right.  16 Q   And Jeff Harris senior is, of course, one of  17 your informants?  18 A   Yes."  19  20 And you'll remember that Dr. Daly is telling us  21 that one of the major sources of communication for  22 information about how the system works is from the  23 family through the elders, the chiefs.  You get your  24 training that way.  25  26 "Q   And Moses Morrison was another one of his  27 informants, John Adams' informants?  2 8 A   Yes."  29  30 And we go over to the next page.  31  32 "Q   He also was a head chief and held the name  33 Gitludahl?  34 A   Gitludahl.  35 Q   And he was the immediate predecessor of Pete  36 Muldoe?  37 A   Yes.  38 Q   We already talked about Wallace Morgan.  39 A  Well, in the next paragraph he explains that --  40 he indicates, in my reading, that the chiefs  41 were rather cautious about what he was doing."  42  43 And he's now referring to John Adams.  44  45 "I didn't understand what he was involved in,  46 because he says:  47 1940  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 "My questions were requested in advance of  2 our interviews, and they undoubtedly  3 resented the unexpected additional  4 questions that I hoped would follow up the  5 different lines of inquiry opened by their  6 answers.'  7  8 I have no -- I have no hesitation about their  9 qualifications to talk to him, but I just  10 wonder how much information they actually were  11 able to impart."  12  13 And I won't take you to it, but I'll promise you  14 it's in the evidence, Dr. Daly talked about similar  15 constraints.  There are things that the chiefs don't  16 want to talk about.  There are things they won't talk  17 about.  And he acknowledged that it was because he was  18 hired for the lawsuit that he probably got more  19 co-operation in what he was told.  So again when we  20 look at these things they all in my submission are  21 highly relevant in assessing the weight that we give  22 to Dr. Daly's evidence.  23 And the last -- the very last quote or part of the  24 transcript I want to take your lordships to in this  25 part is Volume 193, and that's over the next yellow  26 page, at page 12631, and line 12.  And here we're at  27 the core of Dr. Daly's -- one of Dr. Daly's opinions,  28 which is his opinion about the centrality of the feast  29 and its antiquity and its functions.  And I read to  30 him from his earlier evidence at 12464 and I say:  31  32 "It happened to be in response to my suggestion  33 to you that they don't trap in the same way  34 anymore, and down about line six your answer  35 was this:  36  37 'These issues are -- are concerning their  38 land and what's happening to it and how  39 they can't carry on with their hunting and  40 trapping, and their fishing is being  41 interfered with.  It's a litany that's gone  42 on right back since the early settlement  43 period.  As well as the -- people haven't  44 turned their back on the land.  If they  45 had, I'm sure they wouldn't be carrying on  46 with all of this feasting.  If they were  47 just living in little villages, it would -- 1941  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 and existing on the basis of wage labour,  2 and transfer payments, and welfare and so  3 on, there would be no -- I could see no  4 necessity for continuing.'  5  6 And I suggest to you you meant feasting,  7 continuing feasting?  8 A   Yes.  9 Q   Yes.  And I would suggest to you that another  10 reason for the continuation of feasting has  11 been suggested by John Adams in his monograph  12 on the potlatch, and I would refer you to page  13 12.  You'll get one of your own --"  14  15 Never mind.  Mr. Grant was looking over my  16 shoulder.  17  18 "A   I've practically memorized page 12."  19  20 That's what Dr. Daly says.  I say:  21  22 "Q   I figured you probably had.  And about midway  23 down he says -- well, the first full paragraph:  24  25 'The Indians of British Columbia have signed  26 away very little territory over the  27 years -- mostly to the railroad or to the  2 8 Highway Department -- and have never signed  29 a general treaty with the Government.  They  30 are now claiming practically the whole  31 extent of British Columbia of which the  32 Gitksan claim approximately the area  33 registered with the Game Warden, together  34 with whatever land within that general area  35 still registered to white trappers.  As  36 sources of revenue today the lines are  37 almost worthless, but the land values they  38 symbolize, especially timber and mineral  39 rights, are considerable.  Interest in  40 these rights is intense, and provides more  41 than sufficient reason for the Indians to  42 continue feasting to maintain the rights  43 among themselves.  That the potlatch  44 survives today in a state of considerable  45 complexity is undoubtedly due to its value  46 in the Natives' eyes as a means of  47 furthering their land claims against the 1942  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  government, but it is also a touchstone of  Indian identity in a world increasingly  dominated by the Whiteman's values.'.  Would you disagree with that as a  reasonable explanation of why the feast  continues today with the complexity that it  has?  A   I would disagree.  I think it is a very  ethnocentric non-native view.  For one thing,  he's referring to the traplines as traplines.  He's not even talking about the territories of  the chiefs and what their significance is even  in terms of the feasting."  I'll just pause there.  And I can't recall now if  that evidence has been put to your lordships, but the  very first claim made to the Federal Government and  the instructions to Neil Sterritt in putting that  together was to outline the territory in terms of the  traplines.  And there is a remarkable correspondence  between the house territories and the trapline  territories.  It's not perfect, but there's remarkable  correspondence.  And if you go right through from 1975  when the instructions were given to Neil Sterritt by  the hereditary chiefs to begin investigating and  researching a claim, and it was in response to the  Nishga claim which was in what they considered to be  their territory, it was based on traplines.  That was  the conception of the hereditary chiefs in 1975.  But  Dr. Daly is taking -- is disputing Dr. Adams having  been talking about traplines in that sense.  "He's not even talking about the territories of  the chiefs and what their significance is even  in terms of the feasting.  He is imputing a set  of motives to the people which is quite  consistent with his own society, but is quite  foreign to the way people regard their land and  their obligations -- their kinship obligations  in their communities."  Then I say:  "Q   You're unaware that the Gitksan people ever  defined the territory that they were claiming  in their land claim by the boundaries of the 1943  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 traplines, registered traplines?"  2 The way this is worded -- we'll skip over it, but  3 he was -- I say were you aware that they made such a  4 claim.  And at the end of all of this I say this  5 illustrates a number of things that are of general  6 application.  In the first place I say that those  7 extracts demonstrate that Dr. Daly did not see what  8 Dr. Adams saw.  And the reason he didn't see what Dr.  9 Adams saw can be explained at least in part by the 20  10 years difference.  And the 20 years difference had to  11 do with pre-land claims lawsuit and post-land claims  12 lawsuit.  13 The emphasis of how people said things and what  14 they said changed in my submission, and there was  15 ample evidence for it.  But this explanation as a  16 reasonable explanation for that difference never  17 occurred to Dr. Daly.  To him Dr. Adams must have made  18 it up.  He couldn't have heard or seen these things.  19 He couldn't have seen a system which still had  20 features of the subsistence traditional live, but was  21 dominated by the market existence.  Dr. Daly is saying  22 he couldn't have seen that.  He just didn't get into  23 the community.  And I suggest to you that Dr. Daly  24 resisted on uncritical grounds Dr. Adams' work which  25 was done on the same people at a time when they were  26 far less interested and focused on framing their  27 perceptions of their culture to suit a particular  28 lawsuit.  Because you see, of course, the strands,  29 they're similar, but the focus is different.  And Dr.  30 Daly's resistance to following methods which could be  31 replicated, methods which could be validated and  32 criticizing Dr. Adams for using those methods, in my  33 submission, weakens his work.  34 One of the hallmarks of a discipline, which  35 anthropology purports to be, is that the work that is  36 done is replicable and can be validated and it builds.  37 I can count on anthropologist Adams having done it  38 properly.  Once I know what he did I don't have to go  39 back and do it over.  I can build on it.  But Dr. Daly  40 didn't build on it.  He accepted, I say, uncritically  41 the criticism of Dr. Adams' work by the people in the  42 community who are working on the land claims.  Those  43 are the people he's talking to.  44 And I would simply at this point recommend to your  45 lordships that you have a look at -- I'm not sure I  46 put down the tab number.  There's an article, and I'll  47 find you the reference.  It's in a law journal and 1944  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 it's excerpted in the materials, and I've just lost  2 the reference, about the use of expert evidence in a  3 lawsuit.  And its focus is psychiatric evidence but  4 it's of general application.  And that is that in  5 order to be probative evidence opinion evidence must  6 conform to the discipline.  And the hallmarks of the  7 discipline are replication and validation.  Some form  8 of objectivity.  9 And finally with regard to Dr. Daly, I remind your  10 lordships that he gave evidence in the van der Peet  11 case and the trial judge, Justice Scarlett, in his  12 reasons did not prefer Dr. Daly.  I'll just read to  13 you from those reasons, and they're in your materials  14 from before, and it's at page 2203, probably of the  15 appeal book.  16  17 "Dr. Richard Daly was called by the accused and  18 accepted as an expert in the field of social,  19 cultural anthropology, qualified to give  20 opinion evidence as to the social structure of  21 the Sto:lo and their culture.  Culture was  22 defined to include philosophy, morality,  23 spirituality and rules of law.  The summary of  24 his evidence was marked exhibit twenty-eight in  25 this proceeding.  His opinions were based upon  26 personal interviews with Sto:lo, reading the  27 interviews conducted by others and reviewing  28 scholarly material.  He felt that the Sto:lo  29 were a tribal as opposed to a band society.  30 Through the agency of siem or prominent  31 families trading salmon was effected throughout  32 the region and with neighbouring peoples.  His  33 opinion that the present sale of salmon caught  34 under food fish license was consistent with  35 aboriginal practice.  This opinion was strongly  36 disputed with other witnesses called in  37 rebuttal by the Crown.  38  39 It was noted, too, that his opinion seemed to  40 overstate the evidence given him in interviews  41 with Sto:lo.  For example, Annie York as found  42 in exhibit twenty-seven, tab six, page seven  43 and I'm quoting, 'Today there's money.  When  44 it's just for money and greed that's not the  45 Indian way, but most of the time it's like  46 someone gives fish.  The other person give  47 money.  Later that guy or lady gives something 1945  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 and you give money.  If it's like this it's  2 okay.  Even those who sell, they take only  3 enough for their needs.  They don't waste  4 anything.  That's the Indian way.'.  5  6 Dr. Daly felt that in aboriginal times fish had  7 been stored in pits in the Fraser Canyon --"  8  9 And so on.  I say to your lordships that in  10 this -- in these reasons his opinion was not accepted  11 when it was contradicted by the other experts called.  12 And I say that for this very reason, and a very  13 similar reason to that which the Chief Justice found.  14 I say that —  15 HUTCHEON, J.A.:  Did the trial judge mention Dr. Adams?  16 MS. KOENIGSBERG:  Oh, yes.  I can find you the reference, but  17 not off the top of my head.  18 We don't have the time to take your lordships  19 through Dr. Mills and Mr. Brody.  I say that the  20 submissions that I made with regard to Dr. Daly  21 highlighted, however, as they were by specific  22 references to the transcript to attempt to give you  23 the flavor, to attempt to tell you, to illustrate to  24 you the importance of sifting and evaluating the way a  25 person gives evidence as against -- and I say that the  26 trial judge is in a unique position.  And the very  27 difficulty that counsel has before you of somehow  28 collapsing months of transcript evidence of all of  29 these people to give you the flavor that the Chief  30 Justice got day after day after day illustrates the  31 difficulty that your lordships face if you -- if you  32 adopt a test different from that of overriding error.  33 No reasonable evidence upon which the trial judge  34 could have come to his conclusions in the weight that  35 he gave to this evidence.  I say that his findings in  36 regard to weight are overwhelmingly supported in the  37 evidence.  38 And you will find similar instances throughout the  39 Mills' transcripts.  And that material is dealt with,  40 and I'll just tell you where it is, because of course  41 it's all in these materials we've given you.  Dr.  42 Mills is dealt with then beginning at tab -- it's PEF  43 tab 5, paragraph 19.  It just follows on after Dr.  44 Daly.  And the same for Mr. Brody, you just keep on  45 going and you will find paragraph after paragraph.  46 You will not find the extensive use of transcripts  47 that I used with Dr. Daly.  Though if you go to 1946  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 Appendix 1, which I've taken you to part of, you will  2 find detailed references.  And we will provide those  3 for all of Dr. Daly, Dr. Mills and Mr. Brody.  Those  4 are the references in Appendix 1 of the province's  5 earlier factum which we did not pull all the  6 references for.  We'll provide --  7 HUTCHEON, J.A.:  You'll agree that the trial judge didn't  8 discuss Mr. Brody's evidence?  9 MS. KOENIGSBERG:  He did not.  And, in fairness, I will say that  10 I don't think -- I think it was in part because Mr.  11 Brody's evidence was -- seemed to be of less  12 importance to the appellants' case.  I don't say it  13 was of less importance to the appellants.  Mr. Brody  14 did very little original work.  You could -- almost  15 every opinion he gave was given by someone else.  It  16 was nothing new.  And I will provide to your lordships  17 in the references -- it was in the objections to the  18 admissibility of Mr. Brody's evidence that I had  19 excerpted out of his 200 page report about ten pages  20 of quotes to demonstrate what I submitted was  21 argument, polemical discussions and irrelevancies.  22 The judge did admit the material, but essentially it  23 was not new.  It was simply, I would characterize it,  24 as a more poetical way of putting the same thing that  25 was in the other reports.  And, of course, Mr. Brody  26 was the author of On Indian Land and the film maker of  27 the film On Indian Land which was related to and  28 discussed specifically the lawsuit and was the subject  29 of much debate as to whether he was a publicist rather  30 than an anthropologist.  And I mean not in terms of  31 qualifications but in function.  32 Now, it's just after three and I'm going to have  33 to simply give you the highlights of the balance of  34 the argument and tell you where it is.  And maybe I  35 should do that after the break.  36 TAGGART, J.A.:  All right.  37 THE REGISTRAR:  Order in court.  This court stands adjourned for  38 a short recess.  39  4 0 (SHORT RECESS)  41  42 TAGGART, J.A.:  Yes.  43 MS. KOENIGSBERG:  My lords, I don't think I could do much more  44 than to tell you where to find specific parts of the  45 balance of the argument on evidentiary issues and to  46 highlight one or two points.  If you turn to -- and  47 we'll need Volume 1 -- 11, first volume. 1947  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 LAMBERT, J.A.:  Is this the only one we're going to need?  2 MS. KOENIGSBERG:  No, my lord, unfortunately not.  I'm going to  3 have to dance through.  You will need 11, 12 and 13,  4 but you won't need 14 because we've done 14.  And  5 it's -- we can start at tab 387.  6 We conveniently tell you what we are going to do  7 in the balance of the three volumes.  And there is  8 quite full argument presented in these volumes on each  9 of these topics; reputation evidence, oral histories,  10 of course anthropological and ethnographic evidence  11 where I've spent the bulk of my time, genealogical  12 evidence and the historical opinion evidence.  13 You will find if you turn over to tab 390 the  14 intervening tabs are our support for the trial judge  15 having admitted reputation evidence for the purposes  16 of proving use -- land use --  17 TAGGART, J.A.:  What was that tab number?  18 MS. KOENIGSBERG:  — and genealogical —  19 TAGGART, J.A.:  Tab number again?  20 MS. KOENIGSBERG:  If you turn over those tabs are tabs 388 and  21 389 where we simply say that the trial judge was  22 correct in applying the evidentiary rules and  23 admitting reputation evidence in support of claims for  24 land use in particular, and genealogical evidence.  25 TAGGART, J.A.:  Okay.  26 MS. KOENIGSBERG:  At 390 we incorporate a brief argument on  27 territorial evidence which I will not take you  28 through.  The territorial affidavits were a form in  29 part of reputation evidence, some of which the Chief  30 Justice admitted and some -- well, he admitted it all.  31 Some of which he relied on and some of which he said  32 was inadmissible at the end.  But I will tell your  33 lordships that the argument, and you will find if you  34 read through each paragraph, the argument is  35 essentially premised on the notion of the feast.  The  36 reputation evidence not without exception, but  37 primarily, rests on the function of the feast.  The  38 feast forms the basis for establishing a reputation.  39 It is the place where the community as defined by the  40 appellants, and we say that's not the right community  41 necessarily, hears the evidence, sifts it, and a  42 concensus is formed all of which in our submission is  43 necessary for reputation.  And it's -- and that's in  44 relation to territorial boundaries.  And it's premised  45 on the notion that the territorial boundaries are  46 recited in the feast through the oral histories and if  47 anyone disagrees they will say so.  And it is that 1948  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 forum upon which the reputation depends.  And it is  2 that forum and those functions which is attacked by  3 the respondents and which the Chief Justice did not  4 accept.  And he didn't accept it, and all of this has  5 gone through in a relatively orderly fashion in each  6 of these tabs, on the basis of all of the evidence  7 that he heard which was contrary to that.  8 And if we skip over to paragraph 395 you will see  9 that we there recite that:  10  11 "The appellants claimed that the feast system  12 confirmed the trustworthiness of the alleged  13 reputation as to boundaries and ownership of  14 specific territories.  However, the evidence  15 indicates that house oral histories were only  16 recited upon the elevation of a new head chief  17 of the house or a similar event.  Mary  18 McKenzie, head chief of the House of Gyolugyet,  19 testified that she last told the ada'awk of her  20 house at a feast in 1963.  A description of the  21 boundaries of Gyolugyet's territories is in  22 part of the ada'awk.  However, Mary McKenzie  23 never visited the territory she claimed and her  24 knowledge of the boundaries of the territories  25 was minimal at best and contradicted in part by  26 other evidence."  27  28 That's one example, and the references for that  29 are at that tab.  We go on to point out the frailties  30 of this system as a system provable of -- that proves  31 territorial boundaries.  32 396 deals with evidence contrary to Mary  33 McKenzie's description that the oral histories telling  34 territorial boundaries are always told in the feast.  35 And it is the evidence of another hereditary chief who  36 says that they're not.  And that is paragraph 396.  37 If you turn then over to the next paragraph, which  38 is PEF Appendix 9, paragraph 45, you get a summary of  39 a lot of evidence.  It's a brief summary of the types  40 of evidence referred to by the trial judge which  41 undermines the credibility of a reputation for  42 boundaries.  And that is the following kinds of  43 things -- and this is paragraph 45 from Appendix 9.  44 Ada'awks or the oral histories are seldom told at  45 feasts.  And the excerpts from the evidence -- some  46 excerpts from the evidence are there.  Martha Brown,  47 who was Kliiyem lax haa said Edward Sexsmith, her 1949  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 predecessor in title, never told the ada'awk at a  2 feast.  Fred Wale of the House of Gwoimt when asked if  3 he had heard the ada'awk in a feast said we don't like  4 to tell it outside of the house, but it is told within  5 the house.  Vernon Smith, Sakxum higookx, head chief  6 of the Eagle Clan has never heard his ada'awk told at  7 a feast.  8 Now, the system as we're told it operates is that  9 when the name is taken the territory is described and  10 the territory goes with the name.  And that the  11 ceremony is one in which the boundaries are told in  12 the ada'awk at the time of the taking of the name of  13 the feast.  The evidence, in my submission, calls that  14 very much into question as a regular practice.  If you  15 have persons who are taking names or who hold high  16 chief's names who have never heard the oral history  17 told in a feast.  18 The second point, there is little likelihood of  19 dissent.  Important parts of the ada'awk are kept  20 secret.  You'll see that B2.  Correction of errors  21 occurs only at a subsequent feast, and even then only  22 rarely.  But an important part of the necessary  23 evidence to support the trustworthiness of a  24 reputation is that it will be discussed and dissent  25 will be aired.  One instance out of all of the  26 evidence was given of dissent in a feast in relation  27 to the telling of an oral history, and that was in  28 1984 after the conduct of this litigation again.  29 That's referred to in B3.  30 Feasts are said to be generally conducted in the  31 native language and the ada'awk told in the native  32 language.  Many native people, however, do not speak  33 those native languages.  This really has much more to  34 do with the continuity of the issue.  But, for  35 instance, it's significant that Neil Sterritt, who  36 was -- was president of the tribal council, who gave  37 extensive evidence, and is very knowledgeable and was  38 the person who did the maps of the territories and  39 participated heavily in determining the boundaries for  40 mapping purposes, did not speak the language.  I'm  41 sure that he has a very good command of the Indian  42 language for place-names at this point in time.  In  43 fact I know he does having sat at discoveries with him  44 and at commissions with him, but he is not a person  45 who speaks that language fluently.  46 And then finally at B5 the ada'awk or kungax --  47 the kungax is the name -- the Wet'suwet'en name for 1950  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 the history -- were alleged to describe the territory  2 claimed by the house.  And that's referred to in the  3 reasons at page 164.  However, it was clear from the  4 evidence at trial that many house chiefs could not  5 dexcribe the territory claimed by their houses, and  6 therefore any description of the territory in ada'awk  7 or kungax could be neither confirmed nor denied.  In  8 other words, if you don't know the history of your  9 house, and many of the chiefs did not know, have never  10 heard it told at a feast, how can you deny that  11 someone else telling where their boundaries are  12 whether they're true or not.  And, of course, many  13 witnesses acknowledge that boundaries are not  14 described in the feast.  15 Now, if we go over to paragraph 401 and the  16 intervening paragraphs are a further depiction with  17 references of the things I've been describing, of the  18 summary that I've just gone through.  19 Paragraph 401, many of those witnesses who had the  20 most extensive knowledge of territorial boundaries  21 were also those who were most intimately involved in  22 the lands claims research process during the late  23 1970s and early 1980s; Alfred Joseph, Neil Sterritt,  24 Stanley Williams and Peter Muldoe.  It's our  25 submission that this strongly affects the weight and  26 reliability of their evidence as reputation evidence.  27 And it also is another example of how important it is  28 to have an appreciation of all of the evidence because  29 these persons were the major informants for the  30 anthropologists who did participant observations.  And  31 these are the persons, and the references are here,  32 who were engaged in land claims research.  That is  33 going around for years talking to the chiefs to  34 establish the territorial boundary maps which were  35 incorporated into interrogatories and then eventually  36 into the maps.  37 402 through the balance of this tab -- of this  38 volume deals with the issue of the ante litem motam  39 rule and its application.  And in our submission it is  40 a very important rule.  Its application is most  41 pronounced in relation to the number of things that  42 were going on in contemplation of this litigation, not  43 in contemplation just of a dispute, though the rule  44 goes that far, but in contemplation of this  45 litigation.  The evidence was very clear.  The  46 appellants were engaged in intensive research on  47 boundaries from 1975 for the purposes of making such a 1951  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 claim.  First as a declaration to the Federal  2 Government comprehensive claims policy and then the  3 lawsuit was begun in 1984.  That finishes that  4 particular volume.  5 Volume 12 is mostly taken up with the issue of the  6 external boundary and the overlaps.  And if we begin  7 at tab 403 we say, with respect to the external  8 boundary of the claimed territory there is evidence  9 before the court of numerous claims filed by  10 neighbouring aboriginal groups claiming boundaries  11 substantially different from the external boundaries  12 alleged in this case.  This evidence does not purport  13 to establish that the neighbouring group's version of  14 the boundary is right and the appellants' version is  15 wrong.  It does establish, however, that as between  16 the appellants and a particular contiguious  17 neighbouring group there is no reputation as to what  18 the correct boundary is.  There is a dispute about  19 what the correct boundary is.  And if you -- 403 is --  20 the references are the specific documentation of the  21 claims made to comprehensive claims.  I'm not going to  22 take you through them.  My colleague Ms. Russell will  23 take you through a few of them for the purposes of  24 acquainting you both with the nature of the  25 documentation and the supporting and corroborating  26 documentation, because in saying that there's no  27 reputation we, of course, do not rely solely on the  28 declaration made to the Federal Government, though it  29 clearly is relevant.  30 There also is evidence which has been canvassed  31 and has been referenced in these materials that shows  32 the awareness of specific chiefs that disputes from  33 neighbouring groups that there were disputes in  34 relation to claims being made.  There's an analysis of  35 all of that evidence that's going to be put before  36 your lordships.  And that takes you through to 404.  37 Paragraph 404 deals with the argument relating to  38 community.  In other words, are the neighbouring  39 groups the appropriate community for determining  40 reputation.  We say, of course, that they are.  In  41 fact they are an essential feature.  The community, in  42 summary we say, are those persons interested in the  43 boundary.  44 Now, paragraph -- perhaps I should stop here.  45 You've been tantalized with the notion of an overlap  46 which happens to fit onto the judge's series map which  47 roughly approximates the boundaries claimed or the 1952  Submissions by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 lands claimed in the -- in these overlapping claims,  2 what are referred to as the overlapping claims.  My  3 friends have advised that they have concerns about  4 your lordship having this -- this overview.  And I'll  5 let them deal with that, but I want to say this:  It  6 was not marked as an exhibit.  It is not an exhibit.  7 It is, in my submission, a proper aide-memoire with  8 the proper restrictions on your lordship.  It is no  9 more than an approximation of the lands claimed in the  10 declarations.  And it can be checked against another  11 map which is simply very hard to read.  It's known as  12 the Magwood map.  And the Magwood map is Exhibit  13 1177-2, and I'm told it's that large map at the end of  14 the courtroom to my right.  That is the Magwood map.  15 It is very difficult to read.  That it because of the  16 background and the colouration isn't very clear.  In  17 no way could the overlap -- and I'll just show it to  18 you.  It's very pretty.  19 WALLACE, J.A.:  Does the overlap represent what you submit in  20 your argument are the boundaries of the adverse  21 claims?  22 MS. KOENIGSBERG:  They are an approximation.  23 WALLACE, J.A.:  Could it be a physical representation of your  24 argument?  25 MS. KOENIGSBERG:  It's a physical representation.  It could be  26 put in by counsel; I drew this on and it's my best  27 estimate, but look at this document for any  28 verification.  29 LAMBERT, J.A.:  It's quite different from what's shown on  30 Exhibit 101, which is called "Wet'suwet'en Territories  31 Affected by the Carrier-Sekani Overlap".  32 MS. KOENIGSBERG:  My lord, in fact it corresponds quite nicely.  33 This is all of the overlap.  That's only the  34 Carrier-Sekani overlap.  And the Carrier-Sekani  35 overlap is the one in black.  It's like this.  And  36 you'll see it -- it's roughly the same shape and you  37 have to look at it on the map on the overlay to look  38 at specific points and each one of these lines.  And  39 the reason why this is helpful, quite frankly, is  40 because of the boldness of the colour.  But you cannot  41 take it as establishing a boundary.  It in no way  42 purports to establish a boundary.  It does purport to  43 represent an approximation of the land claimed.  And I  44 say to your lordships that -- and it would be useful  45 to your lordships because you can see it, but also  46 that your lordships should you be disposed to look at  47 it for the purposes for making any decisions can check 1953  Submissions by Ms.  Submissions by Mr.  Koenigsberg  Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  it landmark for landmark against the actual exhibit.  And you will find in some instances -- in my  submission, you'll find that the Tahltan line, which  is the yellow one here, is not very close at all to --  and it shows much less land verging into the Gitksan  Wet'suwet'en claims than would seem apparent from  the -- from the materials.  Specific landmarks are  mentioned, Bear Lake or something like that.  So if  you put this over a map like the judge's series map  you can see Bear Lake and you can look at this line  and you can tell how close it is.  But it is of no  more use to you than that.  And it is in that sense of  getting a sense of the extent of the claims that I  think your lordships would find it useful.  I also would note that there is extensive  reference throughout the evidence which we are putting  before you which is in our materials that shows  specific acknowledgement by specific chiefs in  relation to specific lands that they know that a claim  is being made.  Again it won't tell you the exact  boundary, but it will tell you that it's in this  particular territory.  And it is on that basis that I  would offer it to your lordship, but I would say my  friend has some concerns about that and so I won't  hand it up until you've heard from them.  LAMBERT, J.A.:  I have a question in relation to the overlap,  but it might be better if we heard the submissions.  It might be more orderly to do that to decide whether  this is in or out.  KOENIGSBERG:  Yes.  MS  MR. RUSH  TAGGART,  MR. RUSH  I'll speak to that, my lords.  J.A.:  All right.  The reason why this wasn't tendered at trial is  because it wasn't proved at trial.  There is evidence  that was proved at trial, and more importantly was  subject to cross-examination on this very issue, and  it's the Magwood map.  And my friend attempts to put  in through an overlay what is an unproved, second  class rendition of what was proved and is in a better  form, and more importantly for my purposes, having  been subjected to cross-examination in the form of the  Magwood map.  Mr. Magwood was expressly asked for an  opinion on the subject as a land surveyor, asked by  the province.  His opinion evidence is before you.  The underlying documents are before you.  He tells you  what he did.  He tells you what the problems are in  the mapping.  Most of the documents that he mapped are 1954  Submissions by Mr. Rush  Submissions by Ms. Koenigsberg  1 the ones that my friend relies upon but which I say  2 are not accurately mapped on the document which she  3 seeks to hand up to you.  And your lordships can see  4 by a quick purusal that Mr. Magwood had some  5 difficulty in mapping some of the lines.  He has a  6 line running out 70 miles which runs directly across  7 the whole of the territory which is not shown on the  8 overlay.  And I think that the question that if  9 there's going to be any reliance on these types of  10 claims advanced to the ONC then it ought to be  11 properly mapped by someone who was qualified and  12 cross-examined to do so.  I say that your lordships  13 are better served by having Exhibit 1177-3 in front of  14 you rather than the overlap -- the overlay.  15 TAGGART, J.A.:  How did this overlay come into existence?  Who  16 prepared it?  17 MS. KOENIGSBERG:  We asked for it to be prepared for our  18 purposes, and because it was so convenient.  And the  19 same people who prepared the rest of these overlays  20 prepared it.  21 WALLACE, J.A.:  On counsel's instructions?  22 MS. KOENIGSBERG:  Yes.  Oh, yes.  And did — does not purport to  23 be boundaries.  There's no question about that.  I  24 will say this if it would be of any further  25 assistance:  The map that -- the Magwood map which Mr.  26 Rush has held up, the --  27 LAMBERT, J.A.:  That's the same as this one over here?  28 MS. KOENIGSBERG:  Yes, but it's in a size — it's on — that  29 scale is the same as this scale.  And in fact though  30 it has no standard to hold it you could put the  31 Magwood map up against this and put this overlay on  32 top of it and you would be able to see where this map  33 is different from the Magwood map and how approximate  34 those things are.  And it simply in my submission  35 underlies -- underscores, rather, the approximateness  36 of these boundaries.  And in the absence, I would say,  37 of any knowledge whatsoever on the appellants' part  38 that that such claims were being made, one would be --  39 I think the court would be very reluctant to even look  40 at it, but we don't -- there is no such absence.  The  41 appellants were aware, and there is evidence, and  42 where they're not aware that evidence is there as  43 well.  And so I don't think that there's much  44 prejudice, but I would say to your lordships it is an  45 important exercise to take the Magwood map and to put  46 this overlay on top of it and then you can see that,  47 for instance, this yellow line is quite a bit further 1955  Submissions by Ms. Koenigsberg  1 north than on the Magwood map.  This yellow line --  2 these lines do not purport to be partly -- they don't  3 show the difficulties, that is areas where you are  4 less sure of the line than others.  The Magwood map  5 does do that.  But since it doesn't purport to  6 establish a boundary in any event I frankly don't see  7 what the difficulty is.  8 MR. RUSH:  In my -- my lords, I would -- my rejoinder is brief.  9 Why go with an approximation when you don't have to.  10 TAGGART, J.A.:  We'll take it under advisement and let you know  11 in due course what our view is about that overlay.  12 LAMBERT, J.A.:  Can I come back to my question then.  To the  13 extent that it might be thought that the aboriginal  14 rights are proprietary rights, rights in rem, doesn't  15 the existence of those overlapping claims no matter  16 what their boundaries are make it impossible to make  17 an order about that the proprietary rights, if they  18 are proprietary rights, extend over the territory that  19 we're considering when the other claimants aren't  20 parties.  I can see that as between the parties to  21 this litigation we could make an order and it would be  22 binding between them about the nature of the  23 aboriginal rights if the rights are not rights in rem.  24 But if we are declaring proprietary interests it just  25 doesn't seem to make sense if we have competing  26 claimants to the proprietary interests, acknowledged  27 competing claimants who are not before the court.  28 Maybe you can put this into perspective for me.  I  29 realize it's the appellants' problem and not yours,  30 but maybe you understand it.  31 TAGGART, J.A.:  I think you could surely at this stage — at  32 this stage of the proceeding only do so, if I may say  33 so, with reference to those issues that the province  34 and the plaintiffs wish us to deal with and those they  35 wish us not to deal with.  36 Also, I think you have to put it in this context  37 that the -- we have been referring to the outer  38 boundaries of the territory which are of course borne  39 by in part the boundaries of each house, but the  40 appellants have said they do not wish us to deal with  41 the issue of the house boundaries, the internal  42 boundaries.  And they have expressly -- as I recall  43 Mr. Rush I think he said expressly he was not going to  44 address that problem, that that will have to be taken  45 care of in due course.  Though the competing claims,  46 of course, are claims by others than the parties to  47 these proceedings, I take it. 1956  Submissions by Ms. Koenigsberg  1 MS. KOENIGSBERG:  Yes.  2 TAGGART, J.A.:  And that's what causes the — causes the  3 difficulty.  Now, I don't know where that subject  4 falls in the division of issues which has been  5 submitted to us by the province and by the plaintiffs  6 jointly, as I understand it, as guiding the things we  7 are to do and the things we are not to do.  8 MS. KOENIGSBERG:  I would certainly like to defer anything  9 definitive until Monday when we will deal with what  10 small contribution we can make to the discussion of  11 remedy.  But I can say this much, that it has always  12 been our position that the overlapping claims have at  13 least this much relevance, that is that they assist in  14 establishing that if there are aboriginal rights of  15 any kind in the outlying areas, and essentially we are  16 talking about the outlying areas, they are  17 non-exclusive in nature.  And that relates directly,  18 in our submission, to the assertion of ownership based  19 as it is in our submission upon exclusive possession  20 of the appellants, and that your lordships do have to  21 deal with that issue if you are going to make  22 declarations that -- that relate to ownership.  23 LAMBERT, J.A.:  Well, I don't see how an unsubstantiated claim  24 can prevent you from saying something about exclusive  25 possession as long as the right is not a right in rem  26 in this litigation.  You could say it in this  27 litigation.  You could say as between these parties it  28 is a right of exclusive possession that isn't a right  29 in rem.  30 MS. KOENIGSBERG:  Yes.  If your lordship divorces — your  31 lordship could do that if your lordship divorces the  32 right from its antecedents.  33 HUTCHEON, J.A.:  From its?  34 MS. KOENIGSBERG:  Antecedents.  From whence it came.  We say  35 that you must look at was it a right having the  36 incidence claimed in aboriginal times.  Let's not get  37 hung up on which year it is.  38 LAMBERT, J.A.:  Yes.  We can look at the evidence of that case  39 and reach a -- in this case and reach a conclusion  40 about that, but we surely can't draw an inference from  41 the fact that there is claim that is not being dealt  42 with in this litigation.  And all we know about it is  43 that there is such a claim.  All we know about it in  44 this litigation is that there is such a claim.  That  45 can't prevent us from doing anything which we could  46 otherwise do, but it makes it impossible I would think  47 for us to say that we are extinguishing that claim by 1957  Submissions by Ms. Koenigsberg  1 asserting once and for all that the exclusive  2 possession of this land is in Gitksan or the  3 Wet'suwet'en as a proprietary matter.  4 TAGGART, J.A.:  If we did I should think there might be a valid  5 basis for a citizen's arrest.  6 MS. KOENIGSBERG:  I think that is a real difficulty.  We've  7 always thought it was a difficulty and we have tended  8 to deal with it primarily as a matter of evidence.  9 That is what does it tell us.  Where can it take us  10 given that the rights are circumscribed.  Yes, I think  11 that your lordships cannot declare a boundary.  And,  12 of course, that -- an external boundary.  But, in my  13 submission, it goes much further than just not being  14 able to draw the line.  15 TAGGART, J.A.:  How did the evidence of the overlapping claims  16 come in, did somebody speak to that subject or is it  17 only the map that arises --  18 MS. KOENIGSBERG:  It came in as business records.  Well, it came  19 in in a variety of ways.  In part it came in with the  20 filing as business records pursuant to an affidavit  21 which my friends -- I can't remember if they actually  22 did cross-examine on, but they had the opportunity to,  23 of the person who keeps these records for the Federal  24 Government when they come into the comprehensive  25 claims office.  And the only parts -- there are large  26 files, of course, in relation to these.  The only  27 parts that were marked were the actual declarations  28 and the acceptance of them because, of course, some  29 claims are not accepted.  There was also evidence  30 before the trial judge that came in in a variety of  31 ways that in relation to some of these claims prior to  32 acceptance there is a prima facie at least assessment  33 by an anthropologist or archeologist as to the  34 legitimacy.  But it's not yes, you have it.  It's a  35 yes, we'll negotiate.  And that material is all in the  36 records.  The balance of it -- oh, yes, the actual  37 assessments themselves, with the exception of two  38 which came in in an odd way, we did not put in because  39 they are confidential documents and they -- it's just  40 the point of whether they're assessed or automatically  41 accepted by having a declaration made.  They are not  42 automatically accepted and I think that part was in  43 evidence.  44 Coming back to these maps, if I can, the desk size  45 map of the Magwood map, that one which Mr. Rush has  46 told you about and says you should look at, is in  47 Volume 15 of our references.  And I think it's been 1958  Submissions by Ms. Koenigsberg  1 handed up to your lordship.  I'm not positive.  It is  2 a volume made up of maps.  3 HUTCHEON, J.A.:  Can I have the reference in again?  4 MS. KOENIGSBERG:  It's Volume 15 of the references.  It looks  5 just like this.  It's number 15, the Magwood map.  6 HUTCHEON, J.A.:  And number 15?  7 MS. KOENIGSBERG:  Yes.  That's Exhibit 1177-2.  Oh, I'm sorry.  8 TAGGART, J.A.:  1177-3.  9 MS. KOENIGSBERG:  I'm sorry.  I'm told that looking at the index  10 to tab 15 it's the third from the end.  I don't know  11 if that's 15 or not.  12 TAGGART, J.A.:  1177-3.  13 MS. KOENIGSBERG:  1177-3.  14 TAGGART, J.A.:  The small map is 1 to 500,000 version of the  15 Magwood map.  16 MS. KOENIGSBERG:  That's right.  Sorry.  I can't read notes very  17 well.  And if you're looking in your map book you  18 might make a note that Exhibit number 102 is the  19 traditional boundaries of the Gitksan Wet'suwet'en to  20 put with the Magwood map, but since one isn't an  21 overlay for the other you won't get much out of it.  22 And 101, which is that map there, the  23 Carrier-Sekani map, is the sixth map in Volume 15.  24 In three minutes or less I'd like to try and tell  25 you what's in the rest of this material.  If you turn  26 to tab 405 it is our summary of what's gone before and  27 it deals -- it simply summarizes that, of course, the  28 problem with reputation evidence is the large amount  29 of evidence of dispute which shows internally the  30 dispute shown by the overlaps and the lack of  31 knowledge of individual chiefs of their territories.  32 And then there is the further fact that the  33 boundaries put forward during the course of this  34 litigation have constantly changed.  This is  35 especially true of the internal boundaries.  And we go  36 through that and enumerate the types of evidence, and  37 Mr. Wolf will be dealing with that after Ms. Russell  38 does her part.  But the summary of that material is in  39 tab 404 or 405.  We say that there can be no  40 reputation for -- that becomes admissible at the end.  41 You have to admit it to hear it all, but at the end  42 there can be no reputation for a boundary if there is  43 no consensus as to what the boundary is.  44 The balance of this volume deals with the issue of  45 the law in relation to declarations by deceased  46 persons.  And I recommend it to you.  47 Finally, Volume 13 deals with the evidence of the 1959  Submissions by Ms. Koenigsberg  1 ada'awk themselves and the use of the ada'awk.  And  2 that begins at tab 413.  And I highly recommend that  3 you read all of this material for this reason:   It is  4 my submission that this is what it shows; it shows  5 that there is a lively and ongoing debate in academic  6 circles as to the use of oral histories.  That they  7 have use.  That they are valuable in examining a  8 culture is beyond dispute, but what kind of use they  9 can be made of them which makes them evidence in a  10 legal proceeding is the subject of a very lively  11 debate.  And the Chief Justice gives you examples of  12 the competing views, but essentially it revolves  13 around whether oral histories in their function can be  14 reasonable indicators of time depth in terms of when  15 things happened.  It's our submission that they are  16 not, and that's not their function in this society,  17 and there are authorities that say that.  That they  18 very often are not reliable linear history.  And if  19 they are not those two things, in my submission, they  20 can't be used to support evidence of those things.  21 There, however, is a use, a very important use for  22 them, and Dr. Daly demonstrated that.  And I'm not  23 sure where that tab is, but Dr. Daly actually took a  24 very large body of oral histories and did a chart.  25 And it's in this material.  And he did a chart and he  26 said:  I'm going to look for resource use, reference  27 to a moose, reference to a ground hog, reference to  28 all kinds of hunting, trapping, all kinds of  29 activities, and if the oral history tells me where the  30 location is I'll make a note of it.  And he's got a  31 chart which ultimately would allow you to assess a  32 culture materially.  Not in every way.  And it's an  33 indicator and it's useful.  34 And, in our submission, we are in no way saying  35 oral histories are not valuable, nor are they lacking  36 in value in telling us about a culture, but they are  37 not reliable in terms of boundaries, in terms of  38 linear history, and in terms of time depth.  And there  39 is a great deal of material in this volume that  40 supports, in my submission, what I've just said to  41 you.  The Daly chart is tab 415 in this volume, volume  42 13.  43 Now, before I sit down even though it's past time  44 I'd like to say one thing about another of the experts  45 that I forgot to say, but which is quite important,  46 and that is the Heather Harris genealogical evidence.  47 Mr. Grant is chuckling.  He's worried I'm going to do 1960  Submissions by Ms. Koenigsberg  1 adoptions.  It's something like cross-cousin  2 marriages.  I'm not.  3 What I do say to you is this:  My friends, the  4 appellants, have said that Heather Harris' evidence  5 generally was accepted by the trial judge, and they  6 rely on it in terms of social organization.  And in my  7 submission Heather Harris was not relied on.  None of  8 her material was accepted by the trial judge except  9 the genealogical charts for the purposes of showing  10 the relationships of people and how far back they  11 went.  The judge -- and I will provide your lordships,  12 I think it's probably in this material, but I'll  13 provide you with a neat little reference page to where  14 the Chief Justice actually makes his specific remarks.  15 But what he does do is to point out that he does not  16 rely on it for time depth.  They're not reliable.  And  17 he comments on Heather Harris' lack of qualifications,  18 she did not at the time of the trial even have a  19 Masters degree, and she was a plaintiff, for going  20 beyond the actual charting which was a monumental task  21 of the genealogies.  And the submissions on Heather  22 Harris and the use to which her work can be put are at  23 tabs 420 to about 426 in Volume 14.  And I will  24 provide your lordships with the references to the --  25 TAGGART, J.A.:  Can I have those tab numbers again?  26 MS. KOENIGSBERG:  416 did I say?  420 to 426 in Volume 14.  27 TAGGART, J.A.:  Thank you.  28 MS. KOENIGSBERG:  I'll provide the references in the judgment  2 9 tomorrow morning.  30 TAGGART, J.A.:  All right.  We'll adjourn now.  Ten o'clock.  31 THE REGISTRAR:  Order in court.  Court stands adjourned.  32  33 (PROCEEDINGS ADJOURNED TO JUNE 19, 1992 AT 10:00 a.m.)  34  35 I hereby certify the foregoing to  36 be a true and accurate transcript  37 of the proceedings transcribed to  38 the best of my skill and ability.  39  40  41  42  43  44 Peri McHale,  45 Official Reporter,  4 6 UNITED REPORTING SERVICE LTD.  47

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