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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-01-09] British Columbia. Supreme Court Jan 9, 1989

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 10277  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  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  VANCOUVER, B.C.  January 9, 198?  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  REGISTRAR:  Order In court.  In the Supreme Court of British  Columbia, Vancouver, B.C. this Monday, January 9,  1988.  Calling Delgamuukw versus Her Majesty the  Queen, my lord.  COURT:  Mr. Rush.  RUSH:  Yes.  I think my friend wishes to advise the court  that he has an advisor in court.  COURT:  Yes.  WILLMS:  My lord, if it's agreeable with your lordship, Dr.  Robinson is sitting with us as an advisor.  COURT:  Well, I'm sure there's no objection, is there?  RUSH:  No.  COURT:  All right.  WILLMS:  Thank you, my lord.  COURT:  Mr. Rush.  RUSH:  Thank you, my lord.  I'm going to call the next  witness for the plaintiffs, Miss Sylvia Albright.  She's an archaeologist.  COURT:  For how long is this witness scheduled?  RUSH:  Five days.  COURT:  Five days?  Okay.  SILVIA LOUISE ALBRIGHT, A witness  herein called on behalf of the  Plaintiffs, having been duly sworn,  testifies as follows:  THE REGISTRAR:  Would you state your name for the record,  please, and spell your last name?  A  My name is Sylvia Albright, A-L-B-R-I-G-H-T.  THE REGISTRAR:  Thank you, you may be seated.  EXAMINED IN CHIEF ON QUALIFICATIONS BY MR. RUSH:  Q   My lord, I'm going to hand up a document book, there  are two document books that, in addition to the  opinion report and appendices to the opinion report  which I will be handing up to your lordship, and the  document book that I've handed up is volume 1.  My  lord, Miss Albright is an archaeologist and is being  called to give evidence in the following areas:  She  is being called to give evidence firstly of human  habitation and activity in the past based on the  physical remains or features at sites occupied or  identified by aboriginal people today or by the 10278  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  1 ethnographic record.  Secondly, she's being called to  2 give evidence of the age or period of use or  3 occupation of those physical sites.  Thirdly, she's  4 being called to give evidence of the analysis, study  5 and comparison of physical evidence to determine the  6 kind of activities they reflect and to determine  7 changes over time in activities and occupational  8 history of one or more sites.  And she's being called  9 to give evidence on the significance of the evidence  10 in a specific area of study in a larger regional  11 context.  Now, I would like to address your  12 lordship -- or at least move to the question of Miss  13 Albright's qualifications, and I would like to direct  14 your lordship to tab 1 at volume 1 of the black binder  15 in which there is located the Curriculum Vitae of  16 Sylvia Louise Albright, and if I may place that  17 document book before Miss Albright.  Thank you.  If  18 you look at tab 1, Miss Albright, can you identify  19 that the document at tab 1 is your Curriculum Vitae?  20 A   Yes, it is.  21 Q   And does this document set out your education and  22 membership in professional organizations?  23 A   Yes.  24 Q   And does it also indicate on page 2 the areas of your  25 research and work experience?  26 A   Yes.  27 Q   And does this document as well indicate on page 3 your  28 teaching experience?  29 A   Yes, it does.  30 Q   And on page 4 your publications?  31 A   Yes.  32 Q   And on page 5 your conference papers and unpublished  33 reports?  34 A   Yes.  35 Q   And on page 6 the journal subscriptions that you have?  36 A   Yes.  37 Q   You have worked with other archaeologists in the work  38 experience which you have illustrated in your  39 Curriculum Vitae?  40 A   Yes, I do.  I took my Batchelors Degree at University  41 of British Columbia where I worked with Doctor David  42 Pokotylo, and as well as Leonard Ham, and I did  43 graduate research at Simon Fraser University where I  44 studied with Dr. Brian Hayden, whose expertise is in  45 the area of theory and ethnoarchaeology.  At Simon  46 Fraser University I also worked with Dr. Knut  47 Fladmark. 10279  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  1 Q   Yes?  2 A  Who's worked extensively in British Columbia.  And I  3 also did research with Dr. Mark Skinner, who is a  4 physical anthropologist.  5 Q   All right.  In your Curriculum Vitae you indicated  6 that you were involved in an ethnoarchaeological  7 investigation in the Stikine River area of British  8 Columbia.  About approximately how long were you  9 involved in that research?  10 A   I spent approximately five years doing graduate  11 research and field work in the Stikine region of  12 British Columbia, and the focus of my research was an  13 ethnoarchaeological approach to understanding  14 traditional subsistence and settlement patterns and  15 establishing a model of subsistence and settlement  16 patterns that could be used to interpret the  17 distribution and nature of archaeological sites in  18 that region.  19 Q   Was that among the Tahltan people?  20 A   Yes.  The Tahltan, Athabascan speaking people.  21 Q   Now, you've mentioned that -- is it Dr. Brian Hayden  22 was involved in ethnoarchaeology?  23 A   Yes.  2 4 Q   And —  25 A   Dr. Hayden was my senior supervisor, and it's a  26 theoretical approach and methodology that he has used  27 extensively in research himself.  He's worked mainly  28 in carrying out for several years ethnoarchaeological  29 research in Mexico and Guademala, and much of that has  30 been published.  31 Q   All right.  And you indicated yourself that the  32 approach that you used whilst doing your research  33 among the Tahltan people in the Stikine area was one  34 which involved ethnoarchaeology.  Can you just explain  35 what that approach is, please?  36 A  Well, ethnoarchaeology is an approach which integrates  37 ethnographic information along with archaeological  38 evidence, and it involves -- is carried out by an  39 archaeologist who often works directly with native  40 peoples or aboriginal peoples in the area of study or  41 area of interest.  It involves carrying out  42 ethnographic research with aboriginal peoples on a  43 variety of traditional activities, and often an  44 archaeologist is concerned with documenting aspects of  45 cultural behaviour which often times traditional  46 anthropologists or earlier ethnographers have not  47 focused on particularly, and they tend to be areas 10280  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  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  which focus on material, culture or aspects of  subsistence and settlement patterns.  Q   And how is the ethnographic information used in the  field of archaeology?  A  Well, in some cases one may be interested in looking,  and which I did in the Stikine area, was to make  observations on the manufacturing of tools, stone  tools, which people are still using, making and using  for specific purposes.  In the Stikine I observed the  manufacture of stone tools used in hide work -- hide  processing.  THE COURT:  I'm sorry, in hide work?  A   Hide processing for softening hides for making of skin  clothing.  In other activities it would be fishing or  hunting activities that are still carried out looking  at -- at the patterns -- or patterns of behaviour that  are involved in those activities.  So although in many  cases the technology has changed, people are using  perhaps modern technology, that the process involved  in those activities are still carried out in the same  manner today as they have been for a long time in the  past.  MR.  RUSH:  Q  A  A  Q  A  And in terms of the ethnographic information or  literature, has that been used by you to direct you to  certain sites or locations or activities?  Yes.  I work directly with native informants myself,  and I also do consult with the ethnographic literature  that is available, made similar observations that I'm  interested in that have been made by anthropologists,  ethnographers, sometimes others in the past, and these  can be very useful observations for understanding both  patterns of behaviour, activity, as well as locations,  or for patterns I guess involved in the traditional  seasonal rounds of activities, how people use the  landscape and the resources available to them, where  they establish fishing camps or hunting camps, where  major villages are located.  So these provide a basis  for carrying out archaeological investigation.  And in respect of the archaeological investigation,  you have conducted archaeological investigations  yourself, have you?  Yes.  And whereabouts have you done those archaeological  investigations?  I worked for about a year on the Hat Creek project  directed by Dr. David Pokotylo doing field survey, a 10281  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  survey and locating and describing sites and their  location, excavation of a variety of site features,  and sites including house depressions and roasting  pits, and then I spent a considerable time during the  winter carrying out analysis of some of the remains.  Is this lab analysis or --  Yes.  Yes?  Laboratory analysis of the artefact collection from  the field season.  All right.  And you were also involved in excavation  work at Crescent Beach?  Yes.  Can you just describe your role and what you did  there?  In 1977 I worked on the Crescent Beach project with  Dr. Len Ham, who I guess -- it's a large midden  deposit at Crescent Beach south of Vancouver.  It has  a very complex site stratigraphy.  I was hired to work  as a supervisor on that excavation project.  And what did that excavation involve and what was your  role in that?  It was a block excavation 4X5 meters, had deeply  stratified deposits and a number of different layers.  I think it was more than 24, 26, I think I remember we  went through the alphabet in identifying the layers,  at least one full turn, so the site stratigraphy was  quite complex, and I remember Len put me in charge of  keeping track of and identifying the stratigraphy at  that site.  Were you involved in comparing and analysing the  materials recovered from the site?  I did limited lab work with Len on that.  That was a  research for his Ph.D., so as a matter of preliminary  cataloguing --  Excuse me?  Preliminary cataloguing of material, but my role in  analysis there was very limited.  All right.  And were you involved in survey work  after your involvement in the Crescent Beach area,  survey work of archaeological sites?  :  At Crescent Beach?  No, after Crescent Beach?  After?  I specifically direct your attention to the Pitt River  site?  1  2  3  4  5  6  Q  7  A  8  Q  9  A  10  11  Q  12  13  A  14  Q  15  16  A  17  18  19  20  21  Q  22  23  A  24  25  26  27  28  29  30  31  Q  32  33  A  34  35  36  Q  37  A  38  39  MR. RUSH:  40  41  42  THE COURT  43  MR. RUSH:  44  Q  45  A  46  Q  47 10282  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  Yes.  Besides my work in the Stikine I've also been  asked to work on a couple of other projects in --  based on the area of interest in ethnoarchaeology, and  preparing an ethnographic summary relevant for  interpreting the archaeological remains retrieved from  the Pitt River project.  So I've visited this site and  the excavations and looked at the stratigraphy and the  range of materials coming from the site, and also did  a review of relevant literature to help us  interpret -- to help interpretation of the site and  the materials retrieved.  Did that include ethnographic literature as well as  archaeological literature?  Yes.  :  Mr. Rush, I think I'm going to need a definition of  ethnoarchaeology.  Yes.  Well, if we can just direct you again, Miss  Albright, if you can give us a concise definition of  how you would define ethnoarchaeology?  Ethnoarchaeology involves the integration of relevant  ethnographic information from --  :  I'm sorry.  Integrates relevant ethno --  Ethnographic observations on cultural behaviour of the  aboriginal group of people living in a specific area  with archaeological evidence that -- from the same  area, or understanding the past occupation of that  same area.  :  All right.  Now, to go back one step further, I need  then a definition of ethnographic.  I thought I knew  what it was, but the context makes we wonder.  In terms -- we've been referring to the ethnographic  literature and ethnography, if you could just give his  lordship a definition?  Ethnography and ethnographic are, in a sense, the same  terms.  Yes?  Ethnographic being an adjective.  Ethnographic and  ethnography are recorded observations of cultural  behaviour.  And who would be the recorders of these -- of this  information?  That's a -- that's a common practise for recording  information within the general discipline of  anthropology.  And the culture behaviour that you're referring to is  1  A  2  3  4  5  6  7  8  9  10  11  12  Q  13  14  A  15  THE  COURT  16  17  MR.  RUSH:  18  Q  19  20  21  A  22  23  THE  COURT  24  A  25  26  27  28  29  THE  COURT  30  31  32  MR.  RUSH:  33  Q  34  35  36  A  37  38  Q  39  A  40  41  42  Q  43  44  A  45  46  47  Q 10283  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  1 the culture behaviour of aboriginal peoples?  2 A   Yes.  Although we might do -- sociologists might  3 also -- is a related discipline in which one might  4 also do ethnographic -- make ethnographic  5 observations, and as part of a study we might make  6 ethnographic observations on procedures within a  7 courtroom or contemporary behaviour, contemporary  8 aspects of society.  9 Q   Now, I think that you've identified ethnoarchaeology  10 as an approach within archaeology, is that correct?  11 A   Yes, it is.  It's a theoretical approach and  12 methodology for conducting research which has been  13 used extensively in areas such as Africa, Richard  14 Gould and White are two names that come to me, people  15 who have conducted ethnoarchaeological research  16 extensively with aboriginal peoples in Australia, and  17 Yellen is an example of ethnoarchaeological research,  18 the Kung bushmen in Australia.  19 Q   And the approach of ethnoarchaeology, has that been  20 utilized by other archaeologists in British Columbia  21 other than yourself, and I think you said Dr. Brian  22 Hayden?  23 A   Yes.  It's become -- it's become a well accepted  24 approach to archaeology that's gained in popularity in  25 British Columbia.  Brian Hayden is perhaps the first  26 one who has encouraged the use of ethnoarchaeology as  27 such.  Ethnographic information has been used by  28 archaeologists for a considerable period of time, but  29 as an approach to research and a basis for methodology  30 Dr. Hayden has presented it in British Columbia and  31 has used it in his own research, and Dr. David  32 Pokotylo at U.B.C. has -- has been using  33 ethnoarchaeology in recent years.  He's been working  34 most recently in the Northwest Territories using such  35 an approach.  36 Q   Now, I want to ask you if this approach was -- and  37 perhaps I've already asked you this -- if it was  38 utilized by you in your Stikine study in the five-year  39 period you were working with the Tahltan people?  40 A   Yes.  41 Q   And your Curriculum Vitae indicates that you're also  42 in 1981 -- this is on page 2 -- you were involved in  43 ethnographic research on 12 ethnolinguistic groups in  44 B.C., in 1981?  45 A   Yes.  46 Q   And that's for the Points West Heritage Consulting  47 Ltd.? 10284  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  1 A   Yes.  2 Q   All right.  And did that involve an  3 ethnoarchaeological approach?  4 A   Yes.  I was in -- took on a review of available  5 ethnographic literature, and there was a review of  6 historical literature by someone else, and then I -- a  7 review of previous archaeological research, and the  8 three areas of information were combined to give an  9 assessment of archaeological sites and possible impact  10 to archaeological or heritage sites along B.C. --  11 proposed B.C. Hydro transmission lines.  12 Q   All right.  13 A   From the Stikine and Liard -- proposed Stikine and  14 Liard damages.  15 Q   Thank you.  And in 1982 you were involved in the  16 research of, you say, anthropological, historic, and  17 archaeological evidence relevant to Kaska-Dena Land  18 Claim Commission?  19 A   Yes.  20 Q   That would involve a similar approach, would it?  21 A   Yes.  There, I myself, I reviewed -- I myself worked  22 on that project and reviewed available literature in  23 those three areas to assess -- to give an assessment  24 of the Claim submission.  25 Q   And in '87 and '88 you indicate that you are presently  26 involved as an archaeologist or invoking the  27 ethnoarchaeological approach with the Boyd(sic) Band  28 and the Alliance of Tribal Nations?  29 A   Yes.  Boothroyd Band.  30 Q   Boothroyd Band, excuse me?  31 A   Yes.  I've -- I have been working directly with native  32 informants, and conducted survey, reviewing  33 archaeological records for sites previously recorded,  34 review of archaeological literature.  35 Q   And you have taught archaeology and --  36 A   Yes, I have.  37 Q   Northwest Community College, the Caribou College and  38 the Fraser Valley College?  39 A   Yes.  40 Q   And that's from 1985 through 1987?  41 A   Yes.  I had three semester positions.  42 Q   Um-hum.  43 A   Teaching.  44 Q   And you've been working as an archaeologist for the  45 past 13 years?  46 A   Yes.  47 Q   And you're presently engaged, as you've indicated? 10285  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  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  re Qualifications  A   Yes.  I've just completed a report on the summer work,  and I'm continually -- I'm working at the present  time.  Q   All right.  And just in terms of the work that you  have done as a working archaeologist, can you explain  some of the techniques that are used in respect of  archaeological investigation?  Yes.  Can you do that, just explain some of the ones that  you've used over those 13 years?  Oh.  In addition to what you've already mentioned?  Well, survey and locating of archaeological sites,  identifying and recording information on them, and  mapping.  I'm sorry?  Mapping, plotting of the sites, excavation in a  variety of contexts, review of the archaeological  literature, review of ethnographic literature,  artefact analysis and description, and interpretation  based on comparison of materials from one site or one  area with research done at other sites or other areas,  so it -- in perhaps larger research projects one has  an opportunity to actually interpet the results and  their significance.  A  Q  A  Q  A  THE COURT  A  MR.  RUSH:  Q  A  Q  A  Q  A  Q  A  MR. RUSH:  THE COURT  And are you familiar with the current literature, both  in archaeology and ethnoarchaeology, with respect  to —  With respect to the area that I --  Northwest Coast Indians people?  Yes.  With respect to the areas that I work in.  And do you attend conferences relating to  archaeological study and research in the area in which  you are --  Yes.  Familiar?  Yes, regularly, not every year, depending on my  research schedule, but I regularly attend the annual  conference of the Canadian Archaeological Association,  and that is our Canadian professional organization.  Thank you.  I would like to tender Miss Albright as  an expert witness, my Lord.  :  Mr. Willms.  CROSS-EXAMINATION BY MR. WILLMS:  Q   Miss Albright, your first publication in 10286  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 ethnoarchaeology was your Master's thesis at S.F.U.?  2 A   Yes.  I published -- my Master's thesis was accepted  3 for publication in the department series, and I also  4 published an article, a short article on that research  5 in The Midden, which is a British Columbia publication  6 which archaeologists publish locally.  7 Q   Did you publish at all any work at all in  8 ethnoarchaeology prior to your Master's thesis?  9 A   No.  That was a result of my graduate research, that  10 publication.  11 Q   And that was published, was it, 1981?  12 A   It was defended December '82 and it was published in  13 '84.  14 Q   Now, would you say that the field of ethnoarchaeology  15 is consistent, that is different experts regularly  16 give the same answers to questions central to the  17 discipline, or is there any conflict about questions  18 central to the discipline of ethnoarchaeology?  19 A  Well, each archaeologist or ethnoarchaeologist is  20 interested in a particular area of research, either  21 geographical area or perhaps particular research  22 problems.  I think that's common to all disciplines.  23 One has a specific interest in the discipline, and I  24 think within any discipline there are -- there may be  25 differences of opinions.  26 Q   Is there agreement about the appropriate procedures  27 for an archaeologist to gather ethnoarchaeological  28 information?  29 A  Again, the procedures and type of information gathered  30 would depend on the focus of the research, the  31 research problem that one is interested in.  32 Q   So that —  33 A   So one archaeologist may not use exactly the same  34 approach as another.  35 Q   So are there any --  36 A   In terms of focussing on the kind of information they  37 would gather and perhaps how they might gather.  38 Q   Are there any texts or authorities which set out an  39 approach to the appropriate procedures for gathering  40 information?  41 A   There are a number of papers written and volumes on  42 ethnoarchaeology and approaches that are -- or  43 methodologies that are outlined that have been found  44 successful and may be adopted by other researchers.  45 Q   Can you give some examples?  46 A   The work of Stanislawski, I believe it's 1974, is one  47 of the earlier -- an earlier discussion of 10287  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 ethnoarchaeology and methods that I recall reviewing  2 as a graduate student.  3 Q   Do you recall any publications, for example,  4 disagreeing with Stanislawski's approach?  5 A   I can't recall offhand, no.  6 Q   When you review the work of another ethnoarchaeologist  7 can you proceed from there to gather further  8 information, or is it necessary to duplicate some of  9 the work that the other ethnoarchaeologists had done?  10 Can you build on the work of other ethnoarchaeologists  11 for further study?  12 A   Yes, I could.  13 Q   Now, it is true that ethnoarchaeology is a relatively  14 new approach to understanding the nature of past  15 cultural adaptation?  16 A   I wouldn't say it's very recent, it's developed in the  17 1960's.  Along with a lot of other methodologies that  18 are methods for field work and research and  19 interpretation in the discipline.  20 Q   Well, in the discipline is the 60's relatively new?  21 A  Well, it's 20 years ago.  22 Q   Um-hum?  23 A  Archaeology in British Columbia, archaeology as  24 compared to other areas of knowledge, archaeology as a  25 discipline, as a scientific discipline, is recent  26 compared to physics or chemistry.  27 Q   Well, archaeology is not a recent discipline  28 world-wide, is it?  I mean archaeology has been  29 carried out since the 1800's?  30 A   Yes, classical archaeology, but in terms of as  31 scientific methods and technique, using a scientific  32 approach some of the early work in the 1880's was in  33 terms of antiquities, was -- a lot of the work was not  34 carried out in a scientific manner in terms of  35 excavation procedures.  36 Q   But as a different approach compared to the time depth  37 of archaeology you will agree that ethnoarchaeology is  38 a relatively new approach to understand the nature of  39 past cultural adaptation?  40 A   Yes.  I guess 20 years is recent relevant to a hundred  41 years.  42 Q   Now, what texts or authorities in the field of  43 ethnoarchaeology did you read before you were retained  44 to give evidence in this case?  45 A   In specific preparation for this case?  46 Q   No.  Just generally, what texts or authorities in the  47 field of ethnoarchaeology did you read at sometime 10288  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 prior to you being retained to give evidence in this  2 case?  3 A   I did a fairly extensive review of ethnographic  4 literature under Dr. Brian Hayden during my graduate  5 work at Simon Fraser University.  I reviewed some of  6 the literature by Gould, Richard Gould, on his work in  7 Australia, and the work of Yellen in Africa, White in  8 Australia.  9 Q   Now, are those ethnographic works or  10 ethnoarchaeological works?  11 A   No.  Those are ethnoarchaeological works.  Yes.  12 They're concerned with integrating ethnographic and  13 archaeological information.  14 Q   Now, are those the works that you consider to be  15 authoritative in the field, or are there other works  16 which are authoritative in the field of  17 ethnoarchaeology?  18 A   Yes.  I think they're quite -- they're accepted, the  19 work outlined is accepted and widely known, yes.  20 Q   All right.  You don't cite any of those in your  21 report, do you?  22 A   No.  They're concerned with research in other areas,  23 although they are cited in my published thesis in the  24 Stikine area and discussion of the theoretical  25 approach that I've reviewed and used.  26 Q   Well, which of —  27 A  And that —  28 Q   Which of the references cited in your report do you  29 consider to be authoritative in the field of  30 ethnoarchaeology?  31 A   In the -- in my report I cite literature that is  32 relevant for understanding and interpreting the data  33 within the area of study.  At that point it's not  34 necessary -- it was not necessary to give a long  35 discussion of -- I didn't feel it was necessary to  36 give an explanation of -- of the theoretical approach  37 that was used.  I was asked to deal with a certain  38 problem and I went ahead and did it.  39 Q   In fact, the only work that you cited with  40 ethnoarchaeology in it -- in your report is your own  41 paper, Tahltan Ethnoarchaeology; isn't that the case?  42 A   It's work in -- within the northwest region, and the  43 approach there was felt to be appropriate and  44 successful in terms of attempting to understand  45 subsistence and settlement patterns, and on the basis  46 of that research it appears to be an appropriate  47 approach and methodology for interpreting land-use 10289  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 patterns and in a nearby area.  2 Q   One of the aspects that's essential or central to  3 ethnoarchaeology is ethnography, is that correct?  4 A   Yes.  5 Q   And that's -- ethnography, ethnicity all deals with  6 the cultural background of human habitants in a  7 particular area, is that fair?  8 A   Yes.  9 Q   Do you attend the -- have you ever attended the  10 conferences of the Archaeological Association of the  11 University of Calgary?  12 A   Yes.  I have on a couple of occasions.  13 Q   And I'm showing you a proceedings of the 18th annual  14 conference.  Did you attend that conference?  15 A   No.  I did not attend this one.  16 Q   Have you ever seen or reviewed any of the papers  17 contained in that conference?  18 A   I haven't reviewed the specific articles in this  19 paper.  20 Q   I note that some of the people that you do cite in  21 your report presented here, for example?  22 A   I have probably read an earlier draft of Magne and  23 Matson.  24 Q   That's the one I was referring to.  25 A   Yes, I have.  I haven't read this volume, but I  26 believe the paper is probably very similar.  27 Q   If you could turn to page 1, there is a description at  28 page 1, "Folk Generalizations and Expert  29 Generalizations About Human Differences", by  30 Professor -- I believe it's Professor Hatt.  Are you  31 aware of Dr. Hatt?  32 A   No.  I don't know him.  33 Q   You don't know him?  There's a proposition that --  34 A   You do realize that you've given me a volume that's  35 dated 1987, and I prepared my -- I did my field work  36 for this particular case in 1985 and completed my  37 report in 1986, so these were subsequent.  38 Q   I'm not suggesting that this was a document that you  39 overlooked in preparing your report, Miss Albright,  40 but I would like to --  41 A   Then I would not have been aware or been able to refer  42 to them in the preparation of my work.  43 Q   Yes?  44 A   In the Skeena area.  45 Q   Have you referred to any other information other than  46 what is set out in your report before coming to give  47 evidence in court today? 10290  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 A   I don't understand.  2 Q   Well, have you kept up with the reading since the time  3 you prepared your report in the discipline, have you  4 kept up with the writing in the discipline?  5 A   Yes.  I attempt to keep up as much as I can.  I  6 attended the Canadian Archaeological Association  7 meetings this year when -- and because it was held at  8 Whistler there were a number of papers given on  9 British Columbia archaeology.  10 Q   Can you turn to page 2 of the article on Folk  11 Generalization and Expert Generalizations of Human  12 Differences by Professor Hatt.  In the right-hand  13 column part way down there's a paragraph that starts:  14  15 "That ethnography is selective and that it reflects  16 a good deal of what the ethnographer brings to the  17 field" --  18  19 He suggests that ethnography is selective and it is a  20 good deal of what the ethnographer brings to the  21 field.  Do you agree with that?  22 MR. RUSH:  You should just finish the sentence.  23 MR. WILLMS:  "Is, of course, not news".  I didn't want to know  24 whether it was news or not, I wanted to know if the  25 witness agreed with the proposition.  2 6 THE COURT:  I haven't found the sentence you're talking about.  27 It's on page 2?  Oh, yes.  28 MR. WILLMS:  Page 2, my lord.  2 9 THE COURT:  Oh, yes, I've got it.  30 MR. WILLMS:  31 Q   He says:  32  33 "That ethnography is selective and that it reflects  34 a good deal of what the ethnographer brings to the  35 field is, of course, not news."  36  37 And what I'm suggesting to you is is it the case that  38 ethnography is selective and that it reflects a good  39 deal of what the ethnographer brings to the field?  40 A   It can be if one is interested in a specific research  41 problem.  42 Q   Now, if you go to the bottom of the page, that  43 paragraph that starts at the bottom, and this is a  44 comment by the author:  45  46 "How may ethnographies start out by srupulously  47 pointing out how the boundaries of the people or 10291  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 tribe under study are fuzzy and indeterminate, how  2 the people on the edges in fact have more traits  3 in common with their immediate neighbours (who are  4 excluded from the study) than they do with members  5 of the 'same' group far away (who are included in  6 the study) - tacitly acknowledging the  7 arbitrariness of the delimitation of the group  8 whose social system or culture is going to be  9 expertly analyzed, but then, a couple of dozen  10 pages later lapse into treating the society or  11 culture as if it were a distinct species,  12 separated from other members of its genus as  13 robins are separate from bluebirds."  14  15 Now, is that a difficulty with many ethnographies that  16 you've become aware of?  17 A   I would see this as an editorial comment on  18 ethnography papers this individual has read, I don't  19 see it as a problem.  20 Q   Well, perhaps if you turn further down the column, I  21 think he suggests again at the paragraph "Anyone who  22 has ever done an ethnographic survey"; do you have  23 that?  24 A   Oh, yes.  25 Q  2 6 "Anyone who has ever done an ethnographic survey on  27 a continental land mass knows the problem.  That  28 world out there is not so neatly patterned as the  29 world of published ethnographies."  30  31 Now, have you found that to be the case in your review  32 of published ethnographies; do you agree with that?  33 A  Well, this individual is -- apparently is very  34 critical of ethnographic work that he's reviewed.  And  35 it depends on what literature he's -- the individual  36 has read, and I don't know what literature he's  37 reviewed or he's referring to.  38 Q   Well, do you recall reviewing any ethnographic  39 literature which you thought was subject to that  40 criticism?  41 A   I think a lot -- most of the literature that I've read  42 has specified what they were -- the ethnographers  43 stated what they were able to observe.  I think -- I  44 tend to feel that anthropologists are aware that  45 they're dealing with human populations and cultures  46 which change over -- which change over time, and --  47 Q   Well — 10292  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 A   So ethnographies might -- some ethnographies might  2 refer to a group of people or their occupation and  3 behaviour at a specific point in time, but  4 anthropologists recognize that human cultures are  5 dynamic and change over time, and one aspect of  6 integrating ethnographic and archaeological  7 information is that we have a diachronic view of  8 people over time.  In other words, we can see them as  9 a dynamic changing culture over a period of time.  10 Q   But getting back to the ethnographic basis, I think  11 you said earlier that that was usually gathered by  12 anthropologists, the ethnographic material?  13 A   Sometimes other travellers or historians make  14 observations that we consider ethnographic, but  15 generally anthropologists and archaeology is a  16 discipline within anthropology, and related  17 disciplines such as sociology also use ethnography as  18 a technique for recording observations, they're  19 observations made at a given point in time.  If an  20 individual is able to carry out research over an  21 extended period of time, then the range or fullness of  22 that information is going to expand.  23 Q   Can you just turn back up on page 3, it's in the --  24 just after the "robbins are separate from the  25 bluebirds" that I read, and it continues on by saying  26 this:  27  28 "Most ethnographies, I think, have this syndrome  29 of lapse-into-reification in them.  It is an  30 occupational hazard of ethnographers.  Though  31 starting off with a sophisticated awareness  32 of the construct or artificial status of their  33 entities of analysis (societies,  34 cultur-bearing-units or whatever) it is all too  35 easy to slip into thinking that one has 'found'  36 what in fact one has created."  37  38 Now, is that a problem with ethnographies that you've  39 noticed in your review of ethnographies?  40 A  Again, I don't see it as a problem.  I do think that  41 anthropologists or researchers do become very  42 interested in the area that they are working, and they  43 may feel it is more special than some other area that  44 they're not familiar with.  I think we all -- everyone  45 tends to have some bias in terms of their own interest  46 in the area that we're working in, but I don't see  47 that as a problem in that with the ethnographic 10293  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 literature as archaeologists and anthropologists going  2 out to do research, I don't -- I review the literature  3 that I'm reading with a certain sense of trying to  4 understand the depth of the work that went into the  5 research, and so maybe some pieces -- some pieces of  6 work or some descriptions may be limited in focus.  7 Q   Isn't it the case --  8 A  And other pieces of research may be very detailed and  9 quite broad in its range of topics and the quality of  10 the data that's confirmed by a variety of different  11 sources, so again in reading any piece of literature I  12 myself would evaluate that piece of literature.  13 Q   Would you evaluate it against other pieces of  14 literature reflecting the ethnography of the same  15 area?  16 A   Yes.  17 Q   So you would attempt to be as exhaustive as possible  18 in reviewing the ethnographic literature of a  19 particular area, is that correct?  20 A   Yes.  21 Q   Is it true that very rarely have archaeologists made  22 use of the information contained in oral histories for  23 interpreting a history of a particular region?  24 A   I would say generally, yes.  I think anthropologists  25 have -- archaeologists have quite frequently made use  26 of the ethnographic summaries that are available in  27 the area they're working, tend not to use it as  28 extensively as a basis or approach to the research  29 they may be doing and tend not to recognize the oral  30 histories, so ethnographic descriptions of an area are  31 often used, but in terms of going into any depth in  32 terms of understanding oral histories themselves.  33 Q   So that certainly in ethnography descriptions of what  34 the ethnographer saw the people doing would be  35 something that other ethnographers might use and  36 archaeologists might use?  37 A   Yes.  38 Q   And descriptions of not only actions of the  39 individuals but whatever material culture was existent  40 at the time of the observation, that's something that  41 an ethnographer, another ethnographer, might use and  42 also an archaeologist?  43 A   Yes.  44 Q   But the information contained in an oral history of a  45 particular people is something that is very rarely  46 used by an ethnographer or an archaeologist?  47 A   I wouldn't say it's rare, but in the area that I have 10294  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 been working on in the Skeena and the  2 Gitksan-Wet'suwet'en area, George MacDonald of the  3 National Museum has made extensive use of oral  4 histories.  He's probably -- of anyone working in the  5 Skeena area, northwest area, I believe he's probably  6 made more extensive use of the ethnographic literature  7 and oral histories than the other archaeologists, but  8 for a lot of standard -- a lot of work in British  9 Columbia it's not standard practise to use extensive  10 use of oral history.  11 MR. WILLMS:  I'm -- I've got the report that was served by my  12 friends and I'm looking at page 1-2 at the bottom  13 paragraph, and it says --  14 MR. RUSH:  Sorry.  What report are you referring to?  15 MR. WILLMS:  This is the report that was served on us.  16 MR. RUSH:  Oh, yes, I'm sorry.  17 MR. WILLMS:  18 Q   And at page 1-2 you say:  19  20 "Very rarely have archaeologists considered or made  21 use of the rich and detailed information contained  22 in the oral histories for interpreting the history  23 of a particular region."  24  25 Now, that is true, isn't it?  26 A   Yes.  27 Q   Have you heard of Dr. Bruce Trigger?  28 A   Yes.  29 Q   Have you ever read his book "Time and Traditions,  30 Essays in Archaeological Interpretation"?  31 A   Yes.  I believe -- I recall reviewing this at one  32 point in my studies.  33 Q   If I can -- there is an article in -- starting at page  34 122 entitled "Race Language and Culture", and it's at  35 page 126, and on that Dr. Trigger discusses cultural  36 history, and what I would like to put to you is on  37 page 127, the paragraph "Another source of information  38 about the past", it's in the middle of the page, all  39 right, and Dr. Trigger says:  40  41 "Another source of information about the  42 past is the stories" --  43  44 A   Sorry, I still haven't found it.  45 Q   Line 127, I think it's —  46 A   Oh, 127, I thought you said 126.  47 Q   Let me pull this -- sorry. 10295  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 "Another source of information about the  2 past is the stories living peoples tell about  3 their own history.  This is often referred to as  4 oral tradition."  5  6 And then a reference to Vansina and McCall.  Are you  7 aware of either of those two authors, Vansina or  8 McCall?  9 A   Not those two.  10 Q  11 "Such traditions frequently reflect contemporary  12 social and political conditions as much as they do  13 historical reality, and even in cultures where  14 there is a strong desire to preserve their  15 integrity, such stories unconsiously may be  16 reworked from generation to generation."  17  18 Now, as an ethnographic statement, do you accept that  19 as accurate?  20 A   I as an archaeologist myself, I don't agree with the  21 statement.  It may be true as far as, you know, the  22 opinion of this author, but I tend not to agree with  23 it.  24 Q   Are you aware of other anthropologists or  25 ethnoarchaeologists or archaeologist who share Dr.  26 Trigger's view?  27 A   I can't think of anyone that I know.  28 Q   At the bottom of page 127, it's the last sentence  29 before the paragraph at the bottom of the page, Dr.  30 Trigger says:  31  32 "Hence it is no wonder that many anthropologists  33 doubt the historical reliability of all oral  34 traditions."  35  36 Are you aware -- do you accept that statement as  37 accurate?  38 A   No, I don't.  39 Q   Carrying on at the bottom of the page, Dr. Trigger  40 says:  41  42 "The scientific study of oral traditions is  43 obviously an exacting task and requires a careful  44 evaluation of the reliability of sources, the  45 identification of stereotyped motifs that may  46 distort historical evidence, the checking of the  47 stories told by one group against comparable 10296  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 information supplied by others, and, finally, the  2 checking of these stories against independent  3 sources of information such as archaeological  4 evidence."  5  6 Now, did you do any of the prior to checking against  7 archaeological evidence, did you evaluate the  8 reliability of the sources that you reviewed?  9 A   Yes, I did.  10 Q   And how did you do that?  11 A   Using as many and as varied sources as were available  12 to me, and also comparing -- in cases comparing  13 sources from the Gitksan-Wet'suwet'en area with  14 traditions recorded in other areas, in adjacent areas.  15 Q   Did you conduct that research yourself?  16 A   Yes, I did.  17 Q   Some of it or all of it?  18 A  Well, as much as I felt was necessary to fully  19 interpret and feel confident in the references that  20 were useful to me that were -- that I had.  21 Q   Were the -- was the ethnographic data that you  22 reviewed and relied on in writing your report supplied  23 to you by another person?  24 A   No.  I did my own -- I did my own research in that  25 area, and I have been reviewing ethnographic  26 literature for the northwest over a number of years  27 and for several projects that I've worked on, so some  28 of the literature was familiar to me, or access to the  29 literature was familiar to me before I started the  30 project.  31 Q   Have you heard of Franz Boas?  32 A   Yes.  33 Q   B-O-A-S.  You know Boas was an anthropologist who  34 carried out investigations in northwestern British  35 Columbia?  3 6 A   Yes, I am.  37 Q   You haven't cited any of Boas' work in your report,  38 have you?  39 A   No.  I cite materials that are directly relevant to  40 the topic of investigation.  41 Q   Um-hum.  So you haven't read Tsimshian Mythology?  42 A   Yes.  I have reviewed it.  43 Q   It's not in your report?  44 A   No.  Because it was -- I focused directly on  45 references that are relevant to the focus of the  46 investigation.  47 Q   All right.  And — 10297  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 A  And I've read a lot of literature in evaluating the  2 sources that I have used, although I have not made  3 references to them.  4 Q   Did you review the Barbeau or Baynon field notes?  5 A   Yes, I have.  6 Q   In preparing this report?  7 A   Yes, I have.  Not -- they're voluminous, I haven't  8 gone through all of them, but I have reviewed their  9 various files.  10 Q   And why didn't you cite that in your references?  11 A   Some of them are cited in the appendix in preparation  12 of chapter 3.  13 Q   Well, I have a copy of your references here, and if  14 you will see, there is no cite of the field notes  15 underneath Marius Barbeau.  16 A   I think there were several references used in the --  17 presented in the appendix that did not get put in the  18 final bibliography.  19 Q   And you will agree with me that Baynon isn't in your  20 reference list?  21 A   No.  It's not on the bibliography.  I believe there  22 are a number of items that -- I think there are a  23 number of items that are listed in the appendix B that  24 weren't in the appendices, that weren't put on the --  25 this list of references.  2 6 Q   Are you aware that a gentleman named Harlin Smith took  27 collection notes in the area in 1925 and 1926?  28 A   Yes.  I'm aware that Smith worked in the area.  29 Q   Did you review those notes?  30 A   Not his field notes.  31 Q   Um-hum.  32 A  Although I've made reference in chapter 3 to his  33 survey of the area and he located a number of sites  34 along the Stikine while he was doing his work.  35 Q   You referred to someone else's reference to Harlin  36 Smith, that's what you referred to.  In other words,  37 you read someone else describing that Harlin Smith did  38 investigations, and that's what you reported in your  39 report?  40 A   Yes.  41 Q   All right.  You haven't checked to see whether Harlin  42 Smith actually did the investigations, did you?  43 A  Well, I'm aware -- I'm aware of his work and field  44 notes, but in terms of the research that -- I was not  45 interested in the specific field notes for the areas I  46 was focussing on.  47 Q   Are field notes important in gathering the ethnography 10298  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 of an area?  2 A   Yes, they are.  3 Q   In fact, it's in the field notes that you find what  4 the ethnographer or anthropologist as best as he is  5 able or she is able at the time writing down what they  6 see and what they've been told, is that --  7 A   Yes.  8 Q   And that would be the firsthand building block  9 information for the ethnography of the area, wouldn't  10 it?  11 A   Yes.  My -- the focus of my research was not  12 specifically the anthropology or ethnography, I used  13 that data in -- as background to my own field  14 investigation, and I didn't have -- and I was limited  15 by time in terms of the extent to which I could review  16 all of the field data that had been collected in  17 earlier years.  As I indicated, the Barbeau-Baynon  18 field notes are extensive, and obviously I didn't have  19 the time or the resources are limited for me to review  20 all that when my area of the specific task that I was  21 asked to do did not require me to review all of that  22 literature.  23 THE COURT:  Mr. Willms, can we take the morning adjourn?  24 MR. WILLMS:  25 Q   If I can ask one question, my lord, I just want to  26 finish with Dr. Trigger, and it's over onto page 128.  27 It's after the extract that I've quoted, and then Dr.  28 Trigger says:  29  30 "Used in this way, oral traditions may supply  31 valuable information about the not too distant  32 past."  33  34 A   Sorry, I've lost the place again.  35 Q   Page 128 at the very top of the page, I'm just  36 continuing on from the extract that I read to you a  37 minute ago.  38 A   Yes.  39 Q  40 "Used in this way, oral traditions may supply  41 valuable information about the not too distant  42 past.  Used uncritically, however, they can be a  43 source of much confusion and misunderstanding in  44 prehistoric studies."  45  46 Now, is that an accurate assessment of ethnographic  47 use of oral tradition? 10299  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 A  Anytime one wants to evaluate the ethnographic  2 literature that one is using.  3 Q   That's accurate?  4 A   Yes.  I guess it is accurate.  One wants to evaluate  5 the literature one uses, yes.  It says "If used  6 uncritically".  Well, anytime an archaeologist -- I  7 would think that an archaeologist would want to  8 evaluate the sources that they are using for the basis  9 of their research.  One does not start with the  10 premise that this -- one need not start with the  11 premise that this is absolutely true.  One is using  12 that as the basis or the focus for their research, and  13 as an archaeologist one is integrating that with  14 archaeological evidence so in that both kinds of  15 information are used together.  One evaluates the  16 literature one uses.  17 MR. WILLMS:  Well, this would be an appropriate time, my lord.  18 THE COURT:  Thank you.  19 THE REGISTRAR:  Order in court.  20  21 (MORNING RECESS TAKEN AT 11:20)  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein transcribed to the  26 best of my skill and ability  27  28  29  30  31 Graham D. Parker  32 Official Reporter  33 United Reporting Service Ltd.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 10300  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 xh2 S.L. Albright (for Plaintiffs)  2 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  3  4 THE COURT:  Mr. Willms.  5 MR. WILLMS:  6 Q   Miss Albright, are you aware that Dr. Trigger - and I  7 referred you to the essays, the Time and Tradition  8 essays - that he is a professor of anthropology at  9 McGill University?  10 A   Yes.  11 Q   And have you read -- and this is a recent publication.  12 I am not suggesting that you read it in preparing your  13 report, but have you read his book "Natives and  14 Newcomers, Canada's 'Heroic Age' Reconsidered"?  15 A   Yes.  I have this volume and I have briefly reviewed  16 it.  I haven't read it from cover to cover, but I have  17 glanced at it.  18 Q   Is Dr. Trigger a respected anthropologist in Canada?  19 A   Yes.  20 Q   Can you turn in that to page 167 to the first full  21 paragraph on 167 where Dr. Trigger says:  22  23 "The use of oral traditions to understand  24 historical events requires a detailed  25 understanding of their derivation and a critical  26 comparison of alternative versions of the same  27 story."  28  29 Is that correct?  You accept that as being accurate?  30 A   Yes.  31 Q   And he continues:  32  33 "While oral traditions may provide a valuable  34 record of former beliefs and values, caution is  35 needed in interpreting that sort of information  36 historically."  37  38 Do you accept that as an accurate statement?  39 A   Yes.  40 Q   Now, there is a discussion of various traditions that  41 have been assessed in North America, but if you drop  42 down to the paragraph at the bottom of the page, he  43 says:  44  45 "The small populations of tribal societies, and  46 their general lack of concern with the inheritance  47 of private property, tend not to produce the 10301  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 systematic variations in oral traditions that are  2 useful for evaluating their historical  3 authenticity."  4  5 Do you accept that as an accurate assessment?  6 A   That may be true in some situations, but I wouldn't --  7 I wouldn't accept it as true for all groups of people.  8 Q   How would you know which groups it was true for and  9 which groups it wasn't true for?  10 A  Well, I would not agree with -- fully with this  11 statement in terms of lack of concern with inheritance  12 of private property.  That is not my understanding  13 from reading a lot of the ethnographic literature that  14 I am familiar with.  So that might be -- might be true  15 among certain -- some cultural groups in different  16 parts of the world, but it is certainly not -- I would  17 not consider that a valid generalization for all  18 culture groups.  19 Q   Now, Dr. Trigger carries on:  20  21 "The recording of oral traditions as well may be  22 suspect.  The few committed to writing in eastern  23 Canada prior to the late nineteenth century were  24 done in an extremely cursory fashion and from  25 poorly identified sources."  26  27 Now, just stopping there.  Is it the case that the  28 recording of some oral traditions may be suspect?  29 A   He's referring here to -- to recordings in eastern  30 Canada and that may be true for eastern Canada.  I am  31 not familiar with the literature for eastern Canada.  32 I have worked in the northwest.  33 Q   How would you know which were true and which weren't?  34 What methodology would an ethnographer use to  35 determine --  36 A   That would depend on the detail of information record  37 and corroborating of different sources from different  38 informants, the amount of time and the detail and care  39 that has been taken in recording information.  40 Q   Dr. Trigger carries on and says:  41  42 "At least some of these oral traditions appear to  43 have been heavily influenced by White historical  44 narratives, missionary propaganda, and even  45 anthropological publications."  46  47 Now, that's an accurate general statement respecting 10302  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 oral traditions, isn't it?  2 A   I wouldn't say that about oral traditions, no.  I  3 could say that the recording may be influenced by  4 other factors.  But I don't think he was referring  5 here to the traditions themselves, but the manner in  6 which they are recorded.  7 Q   But you referred to the recorded oral traditions in  8 preparing your report, didn't you?  9 A   Yes.  10 Q   So that record may have been influenced by the items  11 listed by Dr. Trigger?  12 A   No.  Most of the -- I wouldn't agree in a blanket way  13 to the statement.  I think it depends on the  14 references themselves and who recorded them, under  15 what circumstances.  I think --  16 Q   You do agree with the last statement on that page  17 where Dr. Trigger says:  18  19 "In general, some kind of independent verification  20 is required before such traditions can be accepted  21 as accurate historical accounts."  22  23 MR. RUSH:  My lord, aren't we straying from the issue of  24 qualifications?  Isn't this a cross-examination that  25 may be directed to the witness on the substance of her  26 report?  27 THE COURT:  Are you going to be submitting at the end of your  28 cross-examination, Mr. Willms, that I ought not to  29 hear the evidence?  30 MR. WILLMS:  I am going to be submitting at the end of my  31 cross-examination, my lord, that you should hear the  32 archeological evidence, but that you should not hear  33 any of the linking of the archeological evidence to  34 the oral traditions that is replete in the written  35 report that has been presented.  And the reason for  36 that is that ethnoarcheology in its use of oral  37 history is first of all fraught with difficulties and  38 is not a scientific discipline, and secondly is a  39 matter for your lordship and that is where I am going  40 on the first point right now.  And that's what I am  41 exploring with the witness, the relevance of the oral  42 histories as part of the ethnographic background.  43 Your lordship hasn't had the opportunity to see the  44 report, but I can tell your lordship that the report  45 and the opinions of the witness are replete with oral  46 tradition.  And that's the focus of this  47 cross-examination, my lord, and I will be making that 10303  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  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  submission, yes.  MR. RUSH:  Well, if I may just add to what I interjected before.  I think the nature of my friend's justification for  this line of cross-examination supports the contention  that I -- gives rise to my objection and that is that  my friend has something to say about the content of  the report and this cross-examination is really  directed at what he considers to be a weakness in the  report.  And I think that goes to the report and you  may well hear him on that.  But in my submission it  has very little to do, if anything, with the  qualifications of Miss Albright and I think that the  cross-examination should be directed to that -- to  that focus.  THE COURT:  Well, I tend, Mr. Rush, to agree with what you are  saying, but if Mr. Willms is going to be submitting  that I shouldn't receive in evidence a portion of the  report, then it seems to me that I can't anticipate  confidently that he won't land a knock-out punch  before his cross-examination is over.  It's got to go  that far.  He's got to satisfy me that it's not a  matter of weight but a matter of admissibility.  And  it won't be enough, it seems to me, to show that  eminent authorities, if they are, such as Dr. Trigger  take an unfavourable view.  I don't think that would  be enough.  But I am not sure that your friend isn't  going to deliver a knock-out punch.  I don't think he  is, but he might.  I don't see how I can stop him  subject only to the general or inherent jurisdiction  of the court to say that he's gone on long enough on  the same subject.  I don't think we have reached that  point.  I think I have to allow him to proceed.  I  tend to -- I tend to view with some favour the  objection, but it's not really something I think I can  act upon.  Try once more, Mr. Willms.  MR. WILLMS:  Thank you, my lord.  Q   I had asked you, Miss Albright, about the last  sentence on page 167, that is:  "In general, some kind of independent verification  is required before such traditions can be accepted  as accurate historical accounts."  You accept that, don't you?  A   That is where the value of an ethnoarcheological  approach is very useful for understanding history of  human occupation in an area, and provides a means for 10304  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 verifying oral histories.  So --  2 Q   What —  3 A   So in a sense archeological evidence is an independent  4 means of verifying -- can be used as an independent  5 means for verifying oral history.  6 Q   And in fact, in your report what the structure of the  7 report is to use the archeology to corroborate the  8 oral history, to verify the oral history?  9 A   The way I've used oral history or ethnographic  10 information in my work is to use that ethnographic  11 information as a basis for investigation, so it  12 provides a framework, a basis for survey and  13 archeological investigation of specific sites.  14 Q   Well, I thought you just said that when I was speaking  15 about independent verification, you spoke about  16 archeology?  17 A   Yes.  The ethnographic information and archeological  18 data are two independent -- can be two independent  19 bodies of data that can corroborate each other, can be  20 corroborative.  21 Q   Now, I have one last reference on oral tradition.  22 Have you heard of Jan Vansina or read Vansina's work  23 "Oral Tradition as History"?  24 A   I haven't seen this publication.  25 Q   And you have never heard of Jan Vansina?  26 A   I have heard the name, yes.  27 Q   Yes?  Are you aware of Vansina's reputation in the  28 anthropological field?  29 A   I'm not familiar with the details of her work.  30 Q   Can you turn to page 190, and this is in a section if  31 you refer back -- I am sorry.  The start of the  32 section starts at page 187 and 186.  There is an  33 assessment of oral tradition and then on 186, "The  34 Limitations of Oral Tradition and Outside Sources,"  35 and then a chapter entitled "Chronology and  36 Interdependence" which carries on 187 and then carries  37 on.  And it's at 190, the end of that particular  38 section that I'd like to refer you.  And Professor  39 Vansina says:  40  41 "Chronology and lack of independence are real  42 problems for oral traditions.  They can be  43 overcome or alleviated in some cases by outside  44 evidence, but because the contents of outside  45 evidence tend not to be congruent with the  46 contents of oral tradition such cases will remain  47 the exception rather than the rule." 10305  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1  2 Now, just pausing right there.  You have already  3 spoken about archeology as being outside evidence that  4 can corroborate oral tradition?  5 A   Yes.  6 Q   What other evidence are you aware of corroborative of  7 oral tradition?  8 A   Geological evidence in some cases.  Generally I -- a  9 preferable approach is to see a number of lines of  10 evidence being drawn together and that would be  11 ethnographic information, oral history information,  12 geological environmental data, historical documents,  13 ethnographic material and archeological evidence  14 together.  15 Q   Did you review any historical documents against the  16 oral traditions in verifying them or attempting to?  17 A   Not -- not specifically in this case.  I'm aware of  18 some of the general outlines of historical events in  19 the area, but not -- not as a part of my area of  20 direct expertise.  21 Q   Now, —  22 A   I think the last sentence in the paragraph is quite  23 apt in that it suggests to me that the author is quite  24 in favour of using various lines of evidence in  25 corroborating oral history.  26 Q   In fact, she's hopeful that they will eventually be of  27 assistance?  28 A   Yes.  29 Q   You are aware that a number of archeologists and  30 ethnographers have questioned the reliability of oral  31 traditions as proof of the facts contained in them?  32 A   Yes.  Many archeologists.  33 Q   And is it because of that that it is unusual for  34 archeologists to use the information contained in oral  35 history to interpret archeological data?  36 A   No.  I think that a lot of archeological work that has  37 been done recently in the province tends to have  38 limited terms of reference which does not allow the  39 researcher to make extensive -- as extensive use of  40 ethnographic literature and oral history as they might  41 be able to, depending on the nature of the work that's  42 being done.  43 Q   Are you saying that it's the work that defines the  44 investigation?  45 A   It's the -- it's the focus of the re -- the specific  46 research project.  47 Q   So that — 10306  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 A   That's being carried out.  2 Q   The reason why ethnoarcheological research may be  3 recent is because nobody is doing it or they are only  4 doing it recently?  5 A  Well, it's becoming -- becoming much more popular  6 in -- as an approach when one has interest, time and  7 resources to develop a research design that would  8 incorporate an ethnoarcheological approach or  9 extensive use of ethnographic environmental historical  10 documents.  Not all research projects have that  11 option.  A lot of the work in the province is  12 concerned with assessment of impact on specific sites  13 that might be located in specific areas.  14 Q   You defined ethnoarcheology earlier, and I am  15 referring to your publication "Tahltan  16 Ethnoarcheology," page 6, if I can just find --  17 somewhere here you have --.  Oh, I see.  Stanislawski  18 is someone that you referred to earlier on  19 ethnoarcheology?  20 A   Yes.  21 Q   And you see that you say in your publication:  22  23 "He defines ethnoarcheology as the study from an  24 archeological point of view of the form,  25 manufacture, distribution, meaning and use of  26 material culture in its institutional setting  27 among non-industrial societies for the purpose of  28 constructing better explanatory models to aid  29 archeological interpretation and inference."  30  31 A   Yes.  32 Q   All right.  Now, you quoted Stanislawski there.  Do  33 you accept that as a definition or the definition of  34 ethnoarcheology?  35 A   Yes.  I accept that as a useful definition.  36 Q   And essentially what ethnoarcheology seeks to do is to  37 look at the material culture that you may have  38 excavated or discovered from the archeological  39 investigation and turn to the ethnographic data to  40 explain that material culture?  41 A   Yes.  To provide a basis for interpretation.  42 Q   And when I spoke of material culture, I mean the use  43 of tools and tool kits?  44 A   Uh-huh.  45 Q   Yes?  46 A   Yes.  47 Q   The explanation of other remnants that you may find, 10307  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 like artistic artifacts?  2 A   Yes.  3 Q   Perhaps animal or if there are any vegetative remains  4 in the site?  Is that correct?  5 A   Yes.  6 Q   Those are the -- are there any other aspects of  7 material culture that ethnography would be useful in  8 explaining?  9 A   The context in which material -- material items are  10 used, material culture refers to the -- also to the  11 context in which situations in which materials,  12 physical materials are used.  And that would include  13 construction of houses and other facilities as well as  14 their location, the process of activities in which  15 material culture is -- material items be used.  The  16 patterning that we see in that -- in the physical  17 items.  So patterning both in the material culture  18 itself, but also in the context in which it's used.  19 Q   But the archeological research that you do yields  20 material culture?  21 A  Material —  22 Q   Evidence of material culture?  23 A   Physical items, yes.  24 Q   Physical items.  And what you want to try to do is  25 explain what those physical items were used for in the  26 societal context, is that correct?  27 A   Yes.  And also another aspect of that research is to  2 8 understand where and when and how and who used that --  29 those items.  It's not limited to the items  30 themselves, but how they were used, when, where, why.  31 Q   And it's important that the ethnographic data is not  32 used for the purpose of finding the answer to a  33 problem, but rather to obtain suggestions for possible  34 solutions to problems of archeological interpretation?  35 A   Yes.  36 Q   Does the accuracy of recorded oral history depend in  37 part on who records it?  38 A   Yes, I would say.  39 Q   And does the accuracy of recorded oral history depend  40 in part on who reports it?  41 A   Generally that tends to be the same.  42 Q   Are you aware of any oral histories collected in  43 respect of the plaintiffs, the Gitksan or Wet'suwet'en  44 which may not have been influenced in any way by  45 European contact?  46 A   I don't understand the question.  47 Q   Are you aware of any oral histories collected in 10308  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 respect of the Gitksan or Wet'suwet'en which may not  2 have been influenced in any way by European contact,  3 that is contact between the Gitksan and the  4 Wet'suwet'en?  5 A   Contact between the Gitksan-Wet'suwet'en or --  6 Q   No.  The Gitksan and Wet'suwet'en.  7 A   Oh, European contact?  8 Q   Yes.  9 A  Many of the -- many oral tradition recount events  10 which occurred before European contact.  I don't  11 understand why European contact would affect the  12 relating or the recording of those -- of those -- of  13 those traditions at all.  14 Q   You didn't think that would have any impact at all?  15 A   I can't see any influence in -- obvious impact in many  16 of the traditions that I have read gathered by  17 Barbeau -- Beynon Barbeau.  18 Q   Now, you have already said that you didn't read any of  19 Boas' works?  20 A   I said I had.  21 Q   Oh, you had.  You just didn't refer to them?  22 A   I don't have a direct reference.  23 Q   A direct reference.  But you have referred to them,  24 you have combined them with the ethnographic data that  25 you did refer to to see whether they were consistent?  26 A   Yes.  In my reading I noted that Boas records a number  27 of traditions among the Coast Tsimshian peoples  28 towards the mouth of the Skeena River that are very  29 similar to traditions, Gitksan traditions recorded by  30 Barbeau.  31 Q   How about Barbeau's publication "Tsimshian Myths" in  32 1961, did you review that?  33 A   Yes.  Briefly.  I have made more extensive use of his  34 1929 volume on "Totem Poles of the Gitksan."  Many of  35 the house histories are outlined in a concise synopsis  36 that's very easy to use, and are based on his direct  37 field notes, which I have also seen reference to.  38 Q   Did you review any of Swanton's work on Tlingit,  39 T-1-i-n-g-i-t myths?  40 A   I have read some of Swanton previously, yes.  41 Q   However, in the references to your report you'll agree  42 that there are oral histories of the region that you  43 haven't cited in your reference list?  44 A   They are cited in the appendices to my report.  45 Q   And it's your evidence that you've reviewed all of  4 6 them?  47 A  All of the references that are cited, the references 10309  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  re Qualifications  1 as cited in the appendices.  And they come from a  2 variety of sources.  3 Q   See, the —  4 A   I guess perhaps it was an oversight that some of those  5 in the appendices did not get listed as references in  6 the list of references.  I apologize for any  7 inconvenience there.  8 Q   Dr. Hayden's primary area of interest is Central  9 America?  10 A   He's worked extensively in Mexico and Guatemala, yes.  11 Q   Dr. Fladmark is primarily British Columbia?  12 A   Yes.  He specialized in British Columbia research and  13 has a number of major publications out.  14 MR. WILLMS:  Those are all the questions that I have, my lord.  15 THE COURT:  Mr. Macaulay?  16 MR. MACAULAY:  I have no questions.  17 THE COURT:  All right.  I suppose I should hear you first, Mr.  18 Willms.  I am sorry, any re-examination?  19 MR. RUSH:  Well, there was one or two questions --  2 0 THE COURT:  Yes, I am sorry.  21 MR. RUSH:  -- that might be of assistance to your lordship, and  22 thank you for asking.  23  24 RE-EXAMINATION BY MR. RUSH re Qualifications:  25 Q   Reference was made by you in your cross-examination to  26 George MacDonald and you indicated --  27 A   Yes.  28 Q   -- that Mr. MacDonald made extensive use of oral  29 history.  Dr. George MacDonald, can you just tell us  3 0 who he is?  31 A   Yes.  He's quite a renowned archeologist in Canada.  32 He's worked extensively -- he's done a considerable  33 amount of work in the northwest region, upper Skeena,  34 the Prince Rupert harbour area, the Queen Charlottes,  35 archeological fieldwork excavation, and he has done  36 quite extensive review of the ethnographic literature  37 and oral histories recorded by Barbeau, and actually  38 several years ago referred me to some of the  39 literature relevant to the Gitksan at that time.  40 Q   Did his -- do his published works deal with the  41 investigations among the Gitksan area?  42 A   Yes.  His '79 and '84 publication based on -- two  43 publications based on research at Kitwanga, the hills  44 that -- hill fortress, the Dawdzep at Kitwanga, and  45 his '79 publication under the auspices of Parks  4 6 Canada.  47 Q   And did he do work at Hagwilget? 10310  S.L. Albright (for Plaintiffs)  Re-exam by Mr. Rush  re Qualifications  Yes.  In 1966, he began an extensive program, I think  it was called the Northwest -- Northwest Prehistory  Project, and in 1966 involved survey along the Skeena  and the vicinity of Hagwilget and as well as other  areas of the Skeena.  At Hagwilget Canyon he carried  out test excavations there.  And --  What position does Dr. MacDonald hold today?  He is head of the National Museum of Canada.  I am sorry?  He is chief of the National Museum of Canada.  Thank you.  And do you make reference or rely upon his work in the  course of your studies and investigation that led to  your opinion?  Yes, I do.  And is he a respected archeologist in the field?  Yes.  Very much so.  Thank you.  Thank you, my lord.  Thank you.  Mr. Willms?  :  My lord, as I said earlier, I do not -- I accept  the witness' qualifications as an archeologist and I  accept archeology as a proper natural science upon  which expert evidence can be given, but my submission  will be that this court should not accept the use of  oral histories for interpreting the archeological  history of a region.  And that I am going to suggest  that the matter of science -- that there is no matter  of science involved in that.  That's a matter for your  lordship.  That's simply a matter of corroboration for  your lordship whether or not the archeological  evidence supports the oral histories.  Now, the other way around, and your lordship has  heard the oral histories from the witnesses who have  come to give evidence in this case, but to turn it the  other way around is to convert something into what it  is not.  It is not a science.  And the reason why I  suggest that, my lord, and this is -- my lord, there  is a book of authorities, the black book of  authorities respecting opinion evidence, and this is  to be tab 16, and I will be referring to a couple of  the other --  Tab 16 in what?  :  This will be tab 16.  There was a black book that I  handed up on the very first day.  Oh, yes.  :  Of the plaintiffs' experts.  1  A  2  3  4  5  6  7  Q  8  A  9  THE  COURT:  10  A  11  THE  COURT:  12  MR.  RUSH:  13  Q  14  15  16  A  17  Q  18  A  19  MR.  RUSH:  20  THE  COURT:  21  MR.  WILLMS  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  THE  COURT:  44  MR.  WILLMS  45  46  THE  COURT:  47  MR.  WILLMS 10311  Submissions by Mr. Willms  re Qualifications  1 THE COURT:  Yes.  All right.  2 MR. WILLMS:  And this will become tab 16, and there is in there  3 a revised index and the article that I'd like to start  4 with, my lord, is an article from the Law Quarterly  5 Review by Mr. Kenny, Master of Balliol College, on the  6 "Expert in Court."  And in the discussion, my lord,  7 the author deals with the very issue which I suggest  8 is before your lordship and that -- and he deals with  9 it in detail starting at page 205, and this is a  10 general discussion about basically how far have the  11 courts gone in letting various evidence in in various  12 areas, sciences, natural sciences and not sciences at  13 all.  And on page 205 he says this on the right-hand  14 column, my lord, right after the discussion of Lord  15 Mansfields dictum of "Men of Science." In the middle  16 of the page it says:  17  18 "What are the criteria for deciding whether  19 something is or is not a science?  Any philosopher  20 would tremble at the prospect of giving a simple  21 answer to such a question; but I will hardily  22 venture four criteria which are necessary  23 conditions for a discipline to be scientific.  24 First, the discipline must be consistent.  25 That is to say, different experts must not  26 regularly give conflicting answers to questions  27 which are central to their discipline."  28  29 Now, I just pause there, my lord, to suggest that what  30 the witness is attempting to do here is to meld  31 ethnography and archeology and in particular oral  32 histories and archeology.  And I'm -- Dr. Trigger was  33 someone that the witness acknowledged as a professor  34 of anthropology, somebody who has written in the  35 field, and Dr. Vansina is someone that the witness has  36 heard about.  She accepted that there is a  37 disagreement in the field about the value of oral  38 histories in terms of assessing time depth in  39 ethnographic data.  And it is my submission that oral  40 histories as a portion of ethnographic data fail the  41 first test; the discipline is not consistent.  There  42 are conflicting answers that are being given by  43 experts in the field.  And the experts in the field in  44 my submission say that they are unreliable.  Now,  45 second, the discipline, and this is the next  46 paragraph, the discipline must be methodical.  There  47 will be agreement about the appropriate procedures for 10312  Submissions by Mr.  re Qualifications  Willms  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  gathering information within the discipline.  Now, the witness acknowledged that it depends on  the investigation, the approach taken and each  investigation differs depending on what's being  investigated.  Now, in my submission that's not  methodical at all.  There is no standard; it's not  like doing a ballistics test on a bullet to  determine -- I mean there are procedures that are  followed to determine whether or not the bullet is  fired from the gun.  But here -- and they don't vary  every time with a different gun.  There are standard  procedures laid out.  We will hear there is a  different procedure with each ethnoarcheological  investigation.  So it's not methodical.  "Thirdly, the discipline must be cumulative, that  is to say, though any expert must be able to  repeat the results of others he does not have to:  he can build upon foundations that others have  built."  And it's on this point, my lord, that I refer to the  materials that the witness has not read.  There were  materials, ethnographic materials that the witness  hadn't referred to, weren't in her list of references,  but that she hadn't referred to such as the field  notes of Barbeau and Beynon, the field notes of Harlan  Smith.  MR. RUSH:  If I can just say, I don't want to interfere with the  argument, but I think in fairness to the witness there  was a distinction between refer and read.  COURT:  She said she read most of Barbeau Beynon.  RUSH:  And did not refer to them in her references.  COURT:  Yes.  RUSH:  And I just think that is a point of fact which my  friend tried to drive at his cross-examination which  in the answers does not warrant it.  WILLMS:  My recollection, I may be wrong, was that she had  read some of them, not most them.  COURT:  Well —  WILLMS:  Because she said --  COURT:  She qualified herself and I wouldn't be surprised --  I am not surprised that she did.  Surely one isn't  disqualified because he or she hasn't read everything  there is to read in a particular subject.  WILLMS:  We'll, my lord, my suggestion here is when what you  read is the basis, what the factual basis for the  THE  MR.  THE  MR.  MR.  THE  MR.  THE  MR. 10313  Submissions by Mr. Willms  re Qualifications  1 opinion that you are going to give, the only way for  2 the science, if it's a science, to be cumulative, that  3 is for other people to be able to work off your work,  4 is if you have been exhaustive, if you have been back  5 to the original data.  In other words, if she is going  6 to refer to an oral history, she should go back to the  7 record of the history that was taken by Barbeau or  8 Beynon.  Not somebody's report on that oral history.  9 Because it is that -- that is the building block,  10 that's the factual building block.  And if that  11 factual building block is absent from and if that's an  12 accepted practice in the discipline of  13 ethnoarcheology, then it isn't as the author suggests  14 cumulative.  The discipline isn't cumulative.  You  15 have got to reinvent the wheel depending on each time  16 you do it.  17 Now, the fourth point is that "the discipline must  18 be predictive, and therefore falsifiable.  It need not  19 necessarily predict a future.  But it must predict the  2 0 not yet known from the already known."  And it's my  21 suggestion, my lord, that the best -- and this leads  22 into my second submission, the best that this can  23 predict is whether or not the archeology of the area  24 corroborates the oral history.  That is the only  25 predictibility on an item by item basis.  And the  26 reason why that leads into the second part of my  27 submission, my lord, is that is something for your  28 lordship.  Your lordship has heard the oral histories.  29 Your lordship will hear the archeological evidence  30 within the region.  And if at the end of the day and  31 your lordship, having heard an oral history of where  32 Temlaxham was located and heard the archeological  33 evidence of investigations in that area, come to the  34 conclusion that that was Temlaxham, that is for your  35 lordship.  That is not for this witness and that is  36 what this witness does in her report.  And Temlaxham  37 is one small sample of the report and the opinions of  38 the witness going to confirm oral tradition to  39 corroborate oral tradition.  A matter which is for  40 your lordship and your lordship only in this case.  41 Now, my lord, the -- it's in the references that I  42 handed up to your lordship and I know you don't have  43 them with you.  My friend doesn't have them with him  44 either.  I did want to briefly refer to the Saanichton  45 case where Mr. Justice Meredith did not hear the  46 evidence of an anthropologist, where the  47 anthropologist was interpreting historical documents 10314  Submissions by Mr. Willms  re Qualifications  1 and giving -- attempting to give some meaning for a  2 historical document which his lordship said that he  3 was in as good a position to do as the witness.  That  4 is the historical documents could be placed before his  5 lordship, and there was no expertise involved in  6 interpreting what the document meant or what the  7 document said or whether the document was true or  8 false.  And my suggestion is that should apply a  9 fortiori where it's not a document that's being placed  10 before your lordship which the witness seeks to  11 corroborate or explain, but an oral tradition.  Now --  12 THE COURT:  But didn't the witness say that in this case there  13 weren't oral -- there weren't historical documents?  14 MR. WILLMS:  Well, this witness hasn't referred to historical  15 documents.  I think that's what she said.  16 THE COURT:  Yes.  17 MR. WILLMS:  No, no.  My suggestion, my lord, Saanichton was a  18 historical document case.  19 THE COURT:  Yes.  20 MR. WILLMS:  And that's a case where there is a document that  21 either says what happened at the time or a letter from  22 somebody.  23 THE COURT:  Isn't there a distinction?  Wasn't that for the  24 purpose of determining legal consequence?  I haven't  25 read that case for a long time and I am not sure that  26 I have ever read it unless it's included in the main  27 judgment, the ruling on the admissibility, but I can  28 well understand why a judge would jealously resist a  29 witness telling him what the legal effect of a  30 historical document is.  But if an archeologist is  31 giving -- is using a document for the purpose of  32 explaining an archeological fact or conclusion, then  33 would different considerations not arise?  34 MR. WILLMS:  My lord, if that was what the report was doing then  35 I would have the simple objection that corroboration  36 is for your lordship.  But -- and your lordship hasn't  37 seen the report.  The report goes far, far beyond  38 stopping at merely corroborating oral tradition.  It  39 goes on to express some opinions which are at the  40 heart of the plaintiffs' case, section of the  41 statement of claim.  But I am just turning back to the  42 Saanichton case.  The plaintiffs' tender Dr. Lane, the  43 anthropologist in that case to give opinion first that  44 native rights and fisheries are protected by law, that  45 is the treaty has the force of law, and that's the  46 point your lordship just mentioned, and that the  47 fishing rights of Indians are unlimited, that is the 10315  Submissions by Mr. Willms  re Qualifications  1 traditional right to fish means to fish without  2 limitation.  And Mr. Justice Meredith points out that  3 her conclusions are drawn from direct record  4 statements of the matters made at the time by the  5 various authors.  Now, to the extent and it's  6 throughout the report to the extent that conclusions  7 are drawn by this witness about the meaning of oral  8 histories and it's beyond -- and this is a part that  9 goes beyond merely corroborating -- having the  10 archeology corroborate the ethnography, but there are  11 statements where the ethnography is interpreted,  12 especially in the appendix, where some of the  13 ethnography is interpreted away.  All of it being  14 based on something that is before your lordship in the  15 only form in my submission that your lordship can  16 consider, that is your lordship has heard each of the  17 witnesses who gave evidence on oral traditions, on an  18 oral tradition or on several oral traditions and those  19 are the oral traditions that my friends are seeking to  20 corroborate in this case by this witness, for example,  21 and other witnesses, and in my submission it is not  22 for this witness to express the opinions on  23 corroboration nor to express any other opinions on the  24 oral histories.  It is not a discipline.  It is an  25 aspect of ethnography that is the subject of much  2 6 debate.  And I have already gone through the four  27 items in the article, my lord.  28 The last legal point, my lord, is a reference to  29 the Kelleher case which I referred your lordship to  30 earlier, and the Emil Anderson case, the two Emil  31 Anderson cases, and your lordship's own decision in  32 Sengbusch and Mazur and Port Moody.  Where the witness  33 is going to tell your lordship that the archeology  34 that she has found corroborates an oral history, in my  35 submission that is beyond the scope of expertise of a  36 witness.  That is having an expert archeologist give  37 opinion evidence.  That's not expert archeological  38 evidence.  And in addition, my lord, it is because of  39 the choice of venue here by the plaintiffs is a matter  40 solely for your lordship and not for any witness.  So  41 that I don't dispute that this witness can say that  42 she did various studies in various areas and what the  43 results of those studies were in those areas  44 archeologically, but to tie the oral history to the  45 archeology in my submission is solely for your  46 lordship and not for this witness.  47 THE COURT:  Thank you.  Mr. Macaulay, do you wish to make a 10316  Submissions by Mr.  re Qualifications  Willms  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  submission?  MR. MACAULAY:  I have no submission to make.  THE COURT:  All right.  Well, I don't need to hear you, Mr.  Rush.  Mr. Willms has raised a serious question about  the admissibility of this evidence, but I do not  propose to rule on the objection.  I propose to hear  the evidence and hear counsel at another time on what  effect can be given to it.  I do that with some  reluctance, because I don't think it is good judicial  practice.  But in a case where disciplines are merged  or are treated in an interdisciplinary way and the one  part is admitted to be admissible, the other part is  said not to be admissible, and I have no doubt that  there will be argument on that.  It seems to me that  the course of wisdom dictates that I hear the evidence  and rule on that question after -- at the end of the  trial, not just after the witness has given her  evidence but at the end of the trial, because it seems  to me that this matter may arise again and other  evidence may bear on the question that I am now  considering.  That being so, I will not need to hear  you, Mr. Rush, but -- at this time, but I am going to  hear the evidence subject to the admission, because I  think there is a substantial problem here that we'll  have to consider in detail at the argument stage of  this trial.  My lord, just before you break for lunch, do I take  it then that subject to what your lordship has just  said that you concur with my motion to have Miss  Albright qualified as an expert?  COURT:  Yes.  RUSH:  In the areas that I have indicated?  COURT:  Yes.  RUSH:  Thank you.  COURT:  2 o'clock, please.  (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  ADJOURNMENT)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley,  Official Reporter,  United Reporting Service Ltd.  MR. RUSH  THE  MR.  THE  MR.  THE 10317  S.L. Albright (for Plaintiffs)  In chief by Mr. 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  (PROCEEDINGS RESUMED AT 2:00)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Rush.  MR. RUSH:  Thank you.  My lord, I'm going to pass up to you two  volumes, one entitled "Archaeological Evidence of  Gitksan and Wet'suwet'en History", which is the  opinion of Miss Albright, and the second of which  which is entitled "Archaeological Evidence of Gitksan  and Wet'suwet'en History (Appendices)", and there are  two volumes.  This is the original and contains  original photographs, it's the only set that does.  And your lordship may want to review those and I know  the witness will need to refer to some of it during  the course of her testimony, and I have a separate  copy for the witness.  THE COURT:  All right, thank you.  All right, we'll just do  the -- I'll defer them for the present.  MR. RUSH:  And as well, my lord, I'm going to pass up to you a  black binder containing some references, and the  witness will make periodic reference to these.  These  are references that she makes in her report to  published works and in some cases unpublished works.  THE COURT:  Can I interrupt you just for a minute, Mr. Rush and  go back to Mr. Willms.  Mr. Willms, the documents you  handed up this morning and which are to be inserted in  your expert's book or collection was tab 16.  What is  it that's supposed to be tab 16?  My lord, you should have, I hope, a book entitled  Authorities Respecting Opinion Evidence".  Yes.  I have that in front of me.  The last item I  have in it is Justice Bouck's judgment in Peterson  and Degelder.  WILLMS:  What should be tab 16 is the article on The Expert  In Court that I handed up.  It should be with the tab.  COURT:  All right, yes, all right.  WILLMS:  And there should also be a revised page 2 of the  index.  COURT:  And that's all?  WILLMS:  And that's all.  COURT:  All right.  Can you give me the tab and index, and I  think I've caught up.  Thank you, Mr. Rush, go ahead,  please.  MR. RUSH:  Now, you should have in front of you a thin black  three-ring binder which I've termed volume 1, a large  three-ring binder containing references which I will  call volume 2, and then two Zerloxed bound volumes,  MR. CLARK  THE COURT  MR.  THE  MR.  THE  MR.  THE 1031?  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 one the opinion, the other the appendices of Miss  2 Albright, in total four volumes.  3 THE COURT:  Yes.  4 MR. RUSH:  And I will be making reference for the most part to  5 the opinion.  But before I do that I'm going to make  6 reference to the thin three-ring binder, and if that's  7 in front of the witness --  8 THE REGISTRAR:  Yes, it is.  9 MR. RUSH:  10 Q   We'll proceed, thank you.  I would ask you, please,  11 Miss Albright, to turn to tab 2 of the three-ring  12 binder that's in front of you.  You were contacted by  13 the Gitksan-Wet'suwet'en Tribal Council through Mr.  14 Overstall to submit a research design for a proposed  15 archaeological investigation in the Land Claims area?  16 A   Yes, I was.  17 Q   And you submitted a proposed research design and  18 budget on April 25th, 1985?  19 A   Yes.  20 Q   And is that the document that's contained at tab 2?  21 A   Yes, it is.  22 Q   All right.  This document was submitted along with the  23 researcher by the name of Linda Burnard-Hogarth.  Who  24 was she?  25 A   She's a colleague, another archaeologist who received  26 a Master's Degree from U.B.C. in 1987, and Linda  27 Hogarth was working in the area, she was living in  28 Kitwanga at the time where her husband was teaching,  29 and she was conducting research in that area towards  30 her graduate thesis.  31 Q   What was her role to have been in respect of this  32 proposed design?  33 A  Well, we wrote the proposal together based on her  34 previous -- some of her previous knowledge and  35 research in the area, and she acknowledged at the time  36 that she would like to be involved in the project in a  37 limited way.  38 Q   And what was the reasons for that?  39 A   She had a small baby at that time, and she could only  40 put a limited amount of time into this project and in  41 terms of field work, but she agreed to participate in  42 a lesser capacity by doing background research.  43 Q   All right.  Without going through the proposed  44 research design chapter and verse, could you just  45 summarize for his lordship what it is that was  46 proposed to be done for this archaeological  47 investigation? 10319  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  A  2  3  4  5  6  7  8  Q  9  10  A  11  THE COURT  12  MR. RUSH:  13  THE COURT  14  MR. RUSH:  15  Q  16  17  18  19  20  A  21  22  23  24  Q  25  A  26  Q  27  28  29  A  30  Q  31  32  33  34  A  35  36  Q  37  A  38  Q  39  A  40  Q  41  42  A  43  Q  44  45  46  47  A  Yes.  We proposed to attempt to locate sites at  locations for ancestral villages as noted in the  literature and noted by Gitksan and Wet'suwet'en  peoples in an attempt to locate archaeological  evidence and retrieve if possible material remains  that would reflect the age of occupation or period of  occupation of those sites.  And were those four village sites Gitanka'at,  Temlaxam, Gitangasx and Dizkle?  Yes, they were.  :  What is the fourth one again?  Dizkle, D-I-Z-K-L-E.  :  I should know what that is, but I've forgotten.  That is an ancestral village referred to in the oral  history of the Moricetown or Wet'suwet'en people, and  it's been identified as a place at Mosquito Flat.  Now, were you to have done any other work in relation  to this proposed research design?  Yes.  If time allowed we were to look at other fishing  sites or villages as time allowed over the summer, so  the schedule was left somewhat flexible, depending on  what we were able to find in the field.  All right.  And your proposal was accepted?  Yes , it was.  And I just direct you to tab 3, please, a letter from  Mr. Overstall dated May 24th, 1985 to yourself and  Miss Burnard-Hogarth?  Yes.  And attached to that letter is an agreement for  consultant services which names yourself and Miss  Burnard-Hogarth as consultants.  Was a contract ever  entered into with Miss Burnard-Hogarth?  No, because of the reason I mentioned before, she had  limited time for field work.  An agreement was entered into with you?  Yes.  And that's to be found at tab 4, is it?  Yes, it is .  All right.  And that agreement at tab 4 is dated May  30th, 1985?  Yes.  Now, I just direct you to paragraph 2 on page 2 of the  agreement at tab 4.  Does that paragraph state what  you understood to be the objectives of your  archaeological investigation?  Yes, it does. 10320  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  Q  2  3  4  5  A  6  Q  7  A  8  9  10  11  12  13  Q  14  15  A  16  Q  17  18  A  19  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  28  A  29  30  31  32  Q  33  A  34  35  36  37  38  Q  39  A  40  THE COURT  41  42  A  43  THE COURT  44  45  MR. RUSH:  46  Q  47  And following the entering into of this agreement did  you then set to the task of doing the field work or  investigations which were called for in your  agreement?  Yes, I did.  And what did you do?  I carried out field work from June, July and August,  and before actually going into the field Miss  Burnard-Hogarth had done a preliminary review of the  literature and which we discussed together, and that  the references were used as a basis for focussing our  research.  All right.  And the June, July and August that you're  referring to is in the summer of 1985?  Yes.  And did you hire any persons to assist you in your  work?  Yes.  I hired two field archaeologists who assisted  me.  Who are they?  They are Diana Ludwich and Richard Brawley(phonetics).  And did they work under your direction?  Yes, they did.  Now, in terms of your research investigations and  objectives, after you entered into your contract with  the Tribal Council were your objectives altered during  the course of the summer of '85?  Yes.  We were requested to have a brief -- do a brief  investigation in the Kisgagas area, and we did, we  proceeded to carry on a three-day reconnaissance in  that area, and --  Go ahead.  We were also requested by Richard Overstall to have a  look at backhoe trenches that had been opened up by  the Moricetown Band on the east bank of the river  where the band was developing or upgrading campground  facilities which they have there.  Was that located on the Moricetown Reserve?  Yes , it was.  :  I'm sorry, the place where you were requested to do  a brief was?  Kisgagas.  :  All right.  I want to make sure, I haven't  these  spellings always confuse me.  That's K-I-S-G-A-G-A-S.  I believe it was one of the  villages that your lordship -- 10321  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  THE  COURT  2  3  MR.  RUSH:  4  THE  COURT  5  MR.  RUSH:  6  Q  7  8  9  A  10  MR.  RUSH:  11  Q  12  13  14  15  A  16  17  18  19  20  21  22  23  24  25  26  Q  27  28  29  A  30  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  42  43  44  45  46  Q  47  :  Yes, I want to make sure it's different from the one  that was included in the proposal.  Yes.  It's additional, it's a fifth one.  :  All right, thank you.  It's similar to Gitengasx, which was the third one,  and I think your lordship also stopped and flew over  that site as well?  Yes.  I have trouble keeping them straight.  I do too, my lord.  Now, in terms of the site at the  Moricetown Reserve or where there had been a trench  opened up, what did you do in respect of that site, to  begin with?  We looked at the terrace where the trenches had been  opened up, and along the trenches we were able to  identify buried cultural deposits, deposits which  extended nearly all across the terrace, and they  appeared to be thickest at the edge of the terrace  adjacent to above the Bulkley, and we felt that it was  while the trenches were open that we should carry out  some investigation there.  There were up to a meter of  deposits, stratifying deposits, and they appeared to  have some antiquities, and the -- so it was felt that  she should have a look at those.  And on the basis of that preliminary assessment, did  you then dedicate a period of time in the summer of  1985 to examining those trenches?  Yes.  Richard Overstall instructed us to go ahead and  carry out some excavation at that site.  And about how much time did you spend there?  Approximately three and a half weeks.  All right.  And in respect of additional or altered  objectives, did you do any other investigations, apart  from the two that you have mentioned already?  No.  That was the focus of the work.  Did you do any further work with regard to the review  or assembling of ethnographic and archaeological  literature?  Yes.  In the spring of '86, that's after having  reviewed the physical evidence itself, I expanded my  research to a review of the ethnographic and  archaeological literature in order to interpret the  significance of the data we had recovered and to put  it into some kind of original context.  Okay, all right.  I will just ask you to set this  volume aside for a moment, and may I have the two blue 10322  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 volumes, please.  Thank you.  First, direct your  2 attention, Miss Albright, to a document entitled  3 "Archaeological Evidence of Gitksan and Wet'suwet'en  4 History", January 1987, prepared to by Sylvia  5 Albright.  Does that document set out your opinions?  6 A   Yes, it does.  7 Q   All right, thank you.  And the second document is  8 entitled, and I quote "Archaeological Evidence of  9 Gitksan-Wet'suwet'en History", and in parentheses  10 "Appendices".  Are these appendices related to your  11 opinion evidence?  12 A   Yes.  13 Q   Now, there are three appendices in this volume, and I  14 just like to refer to each one in turn.  Appendix A,  15 who prepared that?  16 A   That was prepared by myself.  17 Q   And can you just briefly describe what that is,  18 please?  19 A   Yes.  This is a description and discussion of the  20 artefacts or the finished artefacts, finished tools  21 that we recovered from our own investigations in the  22 Hagwilget and Moricetown Canyon.  23 Q   Thank you.  And with regard to Appendix B, that's in  24 that volume?  25 A   Yes.  26 Q   Who prepared that, please?  27 A   Linda Burnard-Hogarth prepared Appendix B.  28 Q   And she prepared Appendix C as well, is that correct?  29 A   Yes.  30 Q   Was that done under your direction?  31 A   Yes.  Appendix B was done under my direction.  32 Q   And Appendix C?  33 A  And these are references that we've used as a basis  34 for field work.  Appendix C is a summary which Miss  35 Hogarth did, a summary of all previous archaeological  36 research which had been done in the area of study  37 prior to our work in 1985, and also lists  38 archaeological sites and maps their location,  39 archaeological sites which had been recorded up to our  40 field work.  41 Q   Yes, all right.  And was that prepared under your  42 direction as well?  43 A   That was prepared in preparation for our field work.  44 Q   My question was is it under your direction that it was  45 prepared, was it under your direction that this  4 6 Appendix C was prepared?  47 A   No.  It was prepared before our -- 10323  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  Q  2  A  3  Q  4  5  A  6  THE COURT  7  A  8  9  THE COURT  10  11  A  12  MR. RUSH:  13  Q  14  15  16  17  A  18  19  20  Q  21  22  23  24  A  25  26  27  28  29  Q  30  31  32  33  34  A  35  36  37  38  39  40  41  42  Q  43  44  45  A  46  47  I see.  Our proposal.  Okay.  Now, do you adopt the contents of Appendices B  and C?  Yes, I do.  :  Sorry, it was prepared before your proposal?  It was prepared just before we submit -- jointly  submitted our research proposal.  :  That is that she prepared -- it was to be part of  her portion of the proposal then?  Yes, um-hum.  All right, thank you.  Now, I just direct your  attention for a moment with regard to the ethnographic  references that are contained in Appendix B.  Did you  make any assumptions with regard to those references?  Yes.  As a group of references which we retrieved from  various sources, I made the assumption that the  references were accurate.  All right.  And I want to ask you about Appendix C.  Did you make any assumptions with regard to the  information contained in the literature review that is  set out in Appendix C?  Yes.  With respect to the work carried out by previous  archaeologists and the recording of information by  those archaeologists on forms that are held by the  Heritage Conservation Branch in Victoria, I assume  that that data is correct.  All right.  The -- on page 19 you will note that  there's a heading "Index to Archaeological Sites  Recorded Within Gitksan-Wet'suwet'en Territories".  These sites are specific site references in the  archaeological literature?  Yes.  These are all sites, except we have included  here sites that we recorded during summer of '85, but  all of the sites, these include sites that have been  reported in the study area up to 1985 that are on file  at the Heritage Conservation Branch in Victoria, and  we retrieved information from the Heritage  Conservation Branch, which they sent to us on computer  printout.  And what does the -- there's a list of many hundreds  of sites here, several hundred at least, 239.  What  does this list demonstrate?  These sites have been plotted on several topographic  maps, and the -- these are archaeological sites that  contain evidence of occupation and use at a variety of 10324  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  THE  COURT  6  7  MR.  RUSH:  8  THE  COURT  9  MR.  RUSH:  10  Q  11  12  13  14  15  16  17  18  A  19  Q  20  21  22  A  23  24  25  26  27  Q  28  A  29  30  31  MR.  RUSH:  32  THE  COURT  33  A  34  THE  COURT  35  MR.  RUSH:  36  37  38  39  THE  COURT  40  MR.  RUSH:  41  Q  42  43  44  45  46  47  locations and on the Skeena-Bulkley drainage, and so  in plotting the sites on the topographic maps we see a  distribution of archaeological sites that have been  recorded to date.  :  I'm sorry, Mr. Rush, have you been talking about the  sites described on pages 19 to 49?  That's correct.  :  All right, thank you.  And there are maps reduced to the 1/250,000 scale maps  that contain back listing of that listing, my lord,  where the witness has made reference to the  distribution and plotting on maps.  One further  question here, Miss Albright, there are no -- there  are no numbers attached to the additional sites which  were recorded from pages 49 through to 54 of the  appendix; do you see that?  Yes.  Can you explain that to his lordship. Why have you  not been able to ascribe a number and determine the  site?  The -- a number of those sites were not plotted on the  topo maps.  The sites listed in this section were  recorded by Dr. Charles Borden during a survey of  Tweedsmuir Park in -- along several lake shores in  advance of the construction of the Kenney Dam.  And why could you not plot these?  The actual site location information was too vague to  plot on contemporary maps because those sites have all  been inundated by flooding from the dam.  All right, thank you.  :  What is this word, P-R-O-V-E-N-I-E-N-C-E mean?  Provenience?  That refers to location.  :  Thank you.  I'm going to be referring your lordship to a number  of technical terms such as that in the context, and I  was just about to direct Miss Albright's attention to  chapter 1 of the report.  :  In the other volume?  Yes.  I just ask you to set aside the appendix.  And  Miss Albright, I direct you now, please, to page 1-3  under the heading "The Nature of Archaeological Data",  and about the tenth line down through the first  paragraph you make reference to tool kits or  assemblages.  Would you just explain to his lordship  what that refers to? 10325  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 A   Yes.  A tool kit or assemblage is a group of tools  2 which have been used in a complex of activities.  3 Since a tool kit, we might refer to the variety of  4 tools that might be used in woodworking activities  5 such as stone axe, or hammers, scrapers, so a variety  6 of tools that are used in a set of activities might  7 refer to -- for a particular type of activity might  8 refer to as a tool kit.  Assemblage refers then to a  9 group of tools that are found together either at one  10 site or in a specific soil layer within a site that  11 has stratified deposits in it.  12 Q   Is there any significance to the fact that it is an  13 assemblage?  14 A   Yes.  An assemblage of tools will have a variety of  15 tool types or classes of tools in it that will reflect  16 the variety of activities that are taking place at  17 that location, at that site.  18 Q   All right.  Now, is this an example of the type of  19 data to which you made reference in the course of your  20 investigations that led to this opinion?  21 A   Yes.  22 Q   And without again going into all of the types of data,  23 but could you tell his lordship what other data did  24 you make reference to?  25 A   Besides --  26 Q   The tool kit?  27 A  Artefacts or tool kits?  We also retrieved information  2 8 in the form of animal remains, faunal remains, plant  29 remains that are preserved referred to as floral  30 remains, a variety of features, pit features, hearth  31 features where a camp fire or cooking fires are  32 located, which often contain carbon and charcoal and  33 charcoal of which can be used for dating, and then  34 observations on the nature of the soil deposits that  35 materials are found in.  36 Q   Now, on page 1-3, you there set out in somewhat  37 greater detail the type of archaeological data to  38 which you have made reference?  39 A   Yes.  40 Q   All right, thank you.  My lord, I'm going to direct  41 the witness' attention now to page 2-19, at the top of  42 the page, and I direct your attention, Miss Albright  43 to the leading -- first paragraph there.  And it says:  44  45 "Archaeological investigation of sites in the  46 Moricetown and Hagwilget Canyons confirm long term  47 occupation of this part of the Skeena drainage as 10326  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 noted in the oral histories of the Gitksan and  2 Wet'suwet'en peoples.  Diagnostic artifacts and  3 radiocarbon dates indicate occupation of  4 Moricetown and Hagwilget Canyons by 6,000 years  5 ago.  This research suggests that the middle  6 Skeena watershed was occupied at least as early if  7 not earlier than Prince Rupert Harbour at the  8 mouth of the Skeena.  Archaeological evidence in  9 the form of faunal remains associated with birch  10 bark and storage pits as well as artifact  11 materials also suggests that salmon fishing was an  12 important part of the economy during the early  13 period occupation."  14  15 Now, Miss Albright, is this the opinion which you  16 express in respect of the archaeological  17 investigations which you conducted at Moricetown and  18 Hagwilget?  19 A   Yes, it is.  20 Q   All right.  I would like to first direct your  21 attention, please, to the investigations which you  22 undertook at the Moricetown site.  And you've  23 indicated that your investigations were conducted by  24 you in the summer of '85 in the upper bench of the  25 Moricetown Canyon, is that --  26 A   Yes.  That's the upper terrace on the east side of the  27 river.  28 Q   All right.  I'm going to just ask you, if you will, to  29 turn -- I would ask your lordship to turn to figure 1,  30 which is after page 2-2 in the opinion.  All right.  31 Now, I wonder if you could explain to his lordship,  32 does this figure indicate where the 1985 excavation  33 was done?  34 A   Yes, it does.  35 Q   And can you just site his lordship for us where was  36 the excavation and where is it in relation to known  37 points?  38 A   Okay.  The excavation itself is on the right-hand side  39 of the map on the upper terrace that is labelled  40 Gg St2, and it has a small road running in a circle  41 around that terrace, so the -- the excavation was  42 conducted on both sides of the backhoe trench.  43 Q   And that's indicated on the map or figure here?  44 A   Yes.  45 Q   Now, am I correct, Miss Albright, in suggesting that  46 the apparent road that crosses what appears to be the  47 Bulkley River is the Bulkley River Bridge at 10327  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  2  A  3  Q  4  5  A  6  Q  7  A  8  9  10  11  12  13  14  15  16  THE COURT  17  A  18  THE COURT  19  20  A  21  22  23  24  MR. RUSH:  25  Q  26  A  27  Q  28  A  29  Q  30  31  32  A  33  34  35  36  37  38  39  40  Q  41  42  43  44  A  45  Q  46  47  Moricetown Canyon?  Yes, it is.  And is the place where the excavation was conducted by  you the place of the hatching in this figure?  Yes.  Now, what does the reference number Gg St2 refer to?  That is a site designation number.  The site  designation system that is standard practise in Canada  now was first developed by Charles Borden and was  adopted in 1952 and widely adopted all across Canada.  This site designation system is based on a grid system  of latitude and longitude, so the letters refer to --  the first capital letter refers to latitude north and  the second capital letter S refers to longitude west,  and all --  :  I'm sorry.  What refers to latitude west, the G?  G refers to latitude west or a grid.  :  I'm sorry, I thought you said G referred to latitude  north?  Yes, I'm sorry, I got confused here.  G refers to  north and S refers to west with the site system  starting in eastern Canada, so the system goes north  to south and east to west across Canada.  And is there a grid system in place for all of Canada?  For all of Canada, yes.  And as I say, numbering from east to west?  East to west and south to north.  All right.  Now, had there been a site designation at  this location prior to the commencement of your work  in the summer of '85?  Yes, there had.  There are -- if you look at the map,  there are actually five site designations on this map  system.  Four of those I believe were first designated  by a Turnbull during his investigation at Moricetown  Canyon in 1966 under the auspices of George MacDonald  and the Northwest Coast Pre-history Project, and he  designated deposits on different terrace levels with  different site designations, so --  All right.  Now, is the designation system to which  you've made reference and which appears on this  figure, is that in common use throughout Canada among  archaeologists?  Yes, it is.  All right.  Now, having identified the place of the  backhoe trench for the excavations, what did you do,  can you just tell his lordship what physically you 1032?  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 did, having identified that site?  2 A   Yes.  We cordoned off, ribboned off a ten-metre area  3 along the trench at the southwest end of the trench,  4 and opened up four test units to begin with, and then  5 expand those units as we got some idea of the nature  6 of the deposits so that we did have significant  7 deposits there, we extended those to one-by-one metre  8 units.  9 Q   And what was -- sorry?  10 A   Yes.  In some cases the units were opened up 50  11 centimetres back from the trench and at other times a  12 whole metre back from the trench, but they were  13 basically one-by-one metre grids.  14 Q   And what was the total size of the area that you  15 excavated?  16 A  Well, a ten-metre length of the trench at the point  17 where the deposits were the deepest.  18 Q   And how it was a ten-metre length and how far -- how  19 wide?  2 0 A   Up to one metre wide.  21 Q   Thank you.  Now, my lord, there are a number of  22 photographs which I'm going to direct the witness'  23 attention to.  These come as a group after page 2-20,  24 and there they're identified as plates, and I'm going  25 to now ask Miss Albright to look at plate 1, if you --  26 now, you have a photocopy of the photograph?  27 A   Yes.  Some of these show up --  28 Q   All right.  Can you —  29 A   Fairly well in the Xerox.  30 Q   All right.  If you can work from the photocopy, his  31 lordship can use the positive.  Can you just identify  32 what it is that's displayed there, plate 1?  33 A   Yes.  Plate 1 is a view of the trench and the units  34 that we have opened up adjacent to the trench, the  35 backhoe trench or working from the trench back into  36 undisturbed deposits.  And the cordoned off area  37 represents the ten-metre area within which we worked.  38 Q   Now, what is involved in the investigations that you  39 conducted?  You indicated that you were working in  40 one-by-one metre units.  What did you actually do when  41 you were doing your work at this site?  42 A  We -- the units were laid out from a specific datum  43 point at the one end, at the south end of the trench,  44 and then in measurements -- in measuring off the unit  45 that we worked in and the -- any materials recovered,  46 then measured into from the datum point.  We excavated  47 each layer by trowel and worked within natural layers. 10329  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 We excavated according to five-centimetre levels  2 within natural layers, and we recorded notes on all  3 the materials found within those deposits, including  4 colour of the soil, texture of the soil, the artefacts  5 were recorded with three dimensional provenience.  In  6 other words, distances from the datum point as well as  7 depth below surface.  8 Q   All right.  Now, just in terms of the recording, can  9 you just tell his lordship what means that you kept  10 the recordings of the information that you found or  11 the material, physical remains that you found?  12 A   Yes.  We recorded our notes, recorded field notes on  13 observations made during excavation.  14 Q   And are the notes called level notes?  15 A   Yes.  They're called level notes.  16 Q   And could you just tell us what's contained within the  17 level note, and is this a standard format that's used?  18 A   Yes.  These are our standard forms that have been used  19 for quite a few years.  I obtained these, I've had a  20 stack of forms for awhile that I obtained from the  21 B.C. Provincial Museum, so they're all the  22 observations on what we were recording during the  23 process of excavation.  So the observations on the  24 materials were the artefacts, animal bones, their  25 plant remains, colour and texture of soil, features or  26 dark patches, or charcoal or ashes that we observed.  27 Q   All right.  Did you also keep forms which recorded  28 features?  29 A   Yes.  We recorded notes on each feature that was  30 observed for the pit feature, hearth.  31 Q   And did you take samples of certain of the remains  32 that you obtained and recorded these samples?  33 A   Yes.  All the materials were -- all the culture  34 materials were collected.  We collected charcoal  35 samples as well during the process of excavation.  36 Q   Now, did you also retain physical remains and did you  37 preserve them in some form?  38 A   The culture materials, yes.  39 Q   Yes.  And what did you do with those?  40 A   In -- after recovering them from the ground, and then  41 we took them to our field laboratory and they were  42 washed and catalogued and then further studied.  43 Q   And were they numbered and bagged?  44 A   Yes.  The cataloguing process requires that each one  45 is given a number, and then a catalogue with the  46 number of that artefact, brief description, and its  47 provenience or the location in the deposit were 10330  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 recorded.  2 Q   Okay.  Now, I've made mention of the feature, and  3 what's the difference, if there is one, between a  4 feature and a physical remains?  5 A  Well, a feature is considered a physical remain.  It's  6 different from an artefact, what we refer to as often  7 referred to as artefacts, in that artefact as a term  8 in archaeology generally refers to protable items  9 which have been manufactured or modified by use or  10 manufacturing so they're portable items where a  11 feature is -- are remains of structures that -- or  12 alterations which have been made by human activities.  13 So it's an artefact in that people have made it, but  14 it's not portable, it becomes a part of the ground  15 with the soil, so we record detailed notes on that,  16 but once we excavate it it's destroyed, so -- or that  17 portion of it is gone, that's why the detailed  18 recording.  19 Q   All right.  20 A   So it's a fixed piece of evidence in the ground.  21 Q   All right.  I would like you to now turn to figure 2,  22 which is after figure 1, and after page 2-2, and this  23 is identified in two parts as the South Wall Profile  24 and the North Wall Profile.  If you would just explain  25 for his lordship what the profile indicates in general  26 terms, and I'll ask you specifically about the  27 particular designations in a moment.  28 A   Yes.  The profile shows that the face of the -- the  29 wall face of a unit generally after excavation of a  30 portion of unit or a unit of excavation, when it's 50  31 centimetres wide or a metre wide in the -- the profile  32 reveals the different layers that were observed during  33 the excavation, the different soil layers which are  34 distinguished on the basis of some of the fine  35 distinctions in colour and texture of the soil.  The  36 profiles also show a variety of features that we  37 observed.  38 Q   I will be coming to those in just a moment.  Does this  39 profile -- or do these two profiles of the south and  40 north wall profile the whole length of the excavation?  41 A   Yes, on all of the area that we opened up.  42 Q   And the -- how deep does the profile reach?  43 A   The deposits on the south wall were a metre thick,  44 while the deposits on the north wall were not as --  45 not as thick.  They appear to be much more compressed.  4 6 Q   And can you -- how deep do you go when you do the  47 excavation? 10331  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  A  2  Q  3  A  4  5  Q  6  A  7  8  Q  9  10  11  A  12  Q  13  A  14  Q  15  A  16  Q  17  A  18  MR.  RUSH:  19  THE  COURT  20  21  22  MR.  RUSH:  23  Q  24  A  25  MR.  RUSH:  26  THE  COURT  27  MR.  RUSH:  28  THE  COURT  29  MR.  RUSH:  30  Q  31  32  33  A  34  35  36  Q  37  A  38  39  40  Q  41  A  42  43  Q  44  45  A  46  Q  47  A  We excavated down to sterile gravel.  What does that mean?  Sterile means we've excavated way into those deposits  and not found any additional cultural materials.  So that would be?  Sterile of culture activity in that -- in those gravel  deposits.  Okay.  Now, do -- does the south and then the north  wall profile indicate each of the units that you  excavated?  Yes.  Are all those units portrayed in this profile?  Yes.  Who prepared the profile, please?  I did.  And this was this --  This is --  This figure drawn by someone under your direction?  :  I'm sorry, Mr. Rush, I'm not following you.  I  thought I was, but -- oh, you're looking at figure 2,  I'm looking at Plate 2.  Where do I find figure 2?  I see.  Figure 2 is after figure 1.  It's back a little ways.  2-2.  :  All right.  Your lordship should have a pull out.  :  Yes.  I have it now, thank you.  All right.  Now, I -- just to come back to the  question I indicated, I think your evidence was that  you prepared the profile shown in this figure?  Yes.  This profile -- this profile is -- I prepared  the profile.  The profile is based on profiles drawn  in the field for each unit that we excavated.  Yes?  And in some cases the profiles were -- may have been  drawn by any one of three of us in the field.  There  were three of us excavating.  And you reviewed them?  I reviewed -- and I worked on the composite profile in  the field before we completed the work there.  All right.  Now, the profile indicates various layers  of deposits, is that so?  Um-hum.  And features?  Um-hum. 10332  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 Q   Now, can you just explain the various layers that  2 appear on the profile?  3 A   Yes.  Probably the same -- the same kinds of deposits  4 or same layers are seen on both sides, but they're  5 probably easiest to see on the south wall where they  6 were a bit thicker.  The top -- we can see the  7 grass -- the grass surface and sod layer, which was  8 removed, then what is referred to in the report as  9 Layer A is immediately below it, and we retrieved one  10 radiocarbon sample is noted in the large middle unit  11 there from Layer A.  12 Q   Just pause for me there.  Layer A, according to your  13 evidence, is the layer shown with the small crosses  14 within it, is that correct?  15 A   Yes.  16 Q   And it's the second legend category in the first  17 column on the left-hand side.  Now, you've identified  18 a radiocarbon feature or --  19 A   Sample.  20 Q   Sample?  21 A   Sample was taken, sure.  22 Q   Where it shows RC in a circle.  Does that indicate a  23 radiocarbon sample?  24 A   Yes.  And they haven't all been noted on this, just  25 some of the ones that are relevant and that we were  26 able to obtain dates on and relevant interpretation.  27 Q   Now, Layer B?  28 A   Yes.  Layer A was quite a dark silty loam with a lot  29 of carbon staining, very dark, reflections of charcoal  30 and fire cracked rock in it, so it indicated quite  31 intensive use.  The next layer immediately below it  32 with the vertical lines referred to as Layer B is a  33 dark greyish brown silt with rounded pebbles, less --  34 somewhat less fire crack rock but rounded pebbles.  It  35 has a number of features in it which are visible in  36 the south wall profile, the very black area on the  37 left.  38 Q   Marked with RC?  39 A   Yes, marked with RC, but the plain black refers to a  40 hearth, and it's black, greasy carbon stain with bits  41 of charcoal.  42 Q   And that -- was that a place where a radiocarbon  43 sample was taken?  44 A   Yes.  45 Q   All right.  What is Layer C?  46 A   There is a CI and a C2.  47 Q   Yes? 10333  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1 AC was a much finer silt clay layer, again lighter in  2 colour, and the CI is a brown, a rich reddy brown,  3 here I've given -- I have also given -- the colour  4 determinations were determined using a  5 Munsell(phonetics) colour code, so these are colour  6 codes that are standardly used in carrying out field  7 work.  8 Q   Now, just in terms of the legend, where you make  9 reference to Layer CI it says "Dark brown 10 YR 3/3  10 compacted silt".  What is the "10 YR 3/3"?  11 A   That refers to colour and hue and intensity of colour  12 as identified in the Munsell(phonetics) colour code.  13 Q   And that's, as you've indicated, a standard?  14 A   YR refers to yellow red soils, which are in looking at  15 other areas are quite common in that area, the  16 interior.  17 Q   Moving along to layer C2?  18 A   It's a yellowish brown, dark yellowish brown.  19 Q   And those are horizontal lines?  20 A   Yes.  21 Q   All right.  And were there -- there is a Layer D?  22 A   Yes.  Layer D refers to the gravels.  They were redish  23 brown gravels, and they did not contain cultural  24 materials, but we excavated into those a certain  25 distance.  2 6 Q   All right.  Now, where you have indicated on the  27 profile an area that is marked F.5 or F.2, what does  28 that indicate?  29 A   Those refer to features, what we've identified as  30 features.  31 Q   And for example, what would F.5 refer to?  32 A   F.5 and F.2 on the south wall profile refer to pits,  33 and these two pits we interpreted as roasting pits.  34 Q   And both on the south wall and the north wall profile  35 you have a black area which is indicated in the legend  36 as a hearth?  37 A   Yes.  38 Q   And what does that -- what is a hearth?  39 A  A hearth consists of fire cracked rock, sometimes  40 referred to as fire altered rock, that cracks from  41 heat, carbon sustained soil, quite often a very greasy  42 black bits of charcoal, so that samples of the  43 charcoal, chunks of the charcoal are taken as samples  44 for dating.  45 Q   Now, did you make any finding or make a determination  46 that there was carbon located in the areas that you  47 excavated? 10334  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  1  A  2  3  4  Q  5  6  A  7  8  9  10  11  Q  12  A  13  Q  14  A  15  Q  16  17  18  A  19  Q  20  21  22  A  23  Q  24  A  25  26  27  28  29  THE COURT  30  31  A  32  MR. RUSH:  33  Q  34  A  35  THE COURT  36  A  37  38  39  40  MR. RUSH:  41  Q  42  43  44  45  A  46  47  Yes.  We retrieved a number of samples.  We retrieved  approximately 30 samples, even small bits were  recovered when they were -- from all chunks.  And what's the significance of the presence of carbon  and its location, if there is any?  The charcoal in -- the charcoal or carbon in the  hearth or in other features where charcoal has  developed from burning of wood or organic material  allows us to send the samples for determining age of  activities within the deposit.  And is this by radiocarbon dating analysis?  Yes, it is.  And did you do that in respect of some of the samples?  Yes, I did.  Are the places where you have RC marked with a circle,  are those places where samples were taken for  radiocarbon dating?  Yes.  Um-hum.  Now, I want to ask you about a category in  your legend termed as ash deposit, a yellow brownish  10 YR 5/4?  Yes.  Can you just --  These -- on the profile several of these are adjacent  to pit features.  For example, adjacent to F.5 there's  a small -- there's an ash deposit in B Layer, and  adjacent to F.2 there is one -- it looks a little  washed out in this Xerox.  :  Where do you think -- where is the ash deposit in  F.2?  It's adjacent just to the right of the F.2.  And that would be an area --  It's a very fine -- it's this area right here.  :  Oh, all right.  And these are adjacent to these pits.  This is ash  that has built up from fire within the pit feature  itself, and there was also fire cracked rock in the  pit feature.  And now, in your opinion you make reference to the  term stratigraphy, and in particular on page 2-3.  In  terms of the profile that's depicted on figure 2, how  does that relate, if it does, to a stratigraphy?  Well, stratigraphy is what we've been describing in  the profile here.  Stratigraphy is a description of  the various layers that are found in the deposits in 10335  S.L. Albright (for Plaintiffs)  In chief by Mr. 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  Q  A  THE COURT  MR. RUSH:  THE REGISTRAR:  which cultural materials are found in, so a  description of those layers and the nature of how they  were found in the site.  And is it common to do a stratigraphy of an excavation  site among archaeologists?  Yes.  Just standard procedure to describe soil  deposits and to show a profile of them.  :  Should we take the adjournment, Mr. Rush?  Yes, thank you.  Order in court.  (AFTERNOON RECESS TAKEN AT 3:00)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd. 10336  S.L. Albright (for Plaintiffs)  In chief by Mr. Rush  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 10337  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  THE COURT  4  MR. RUSH:  5  6  Q  7  8  9  A  10  11  12  13  Q  14  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  A  22  23  24  Q  25  A  26  THE COURT  27  A  28  29  30  31  THE COURT  32  A  33  MR. RUSH:  34  Q  35  A  36  Q  37  A  38  Q  39  40  A  41  Q  42  43  44  A  45  46  Q  47  (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  :  Mr. Rush.  I am referring the witness now to figure 3 of page  2-5.  It's a floor plan, in effect, of layer B.  I am referring you to figure 3, Miss Albright.  This  is a floor plan of the features associated with the  deposition of layer B, is that so?  Yes.  It's a generalized floor plan, so it's not at  any specific elevation, but more an outline of the  units, and shows the features that we observed during  excavation that are associated with layer B.  And for example, PM 25, can you just indicate what  that means?  PM —  25.  -- 25 refers to a post mould.  PM, post mould.  And 25, that's a numbering system that you've adopted?  Yes.  Is it?  The -- yes.  And the numbers refer to mainly the order  in which they were noted during excavation and  numbered by us.  All right.  For —  :  What's a post mould?  A post mould is the matrix, the soil matrix that  appears in the place of a decayed post of a structure,  of a house or other structure.  So it's the mould left  by that post after it's decayed.  :  Refers to my back fence or under my back fence.  Yes.  Now, H 15, now, these are hearth --  Yes.  -- indicators?  H refers to hearth.  Yes.  And the numbering system again is a sequential  numbering that you utilize for features, is that so?  Yes.  Yes.  For recording and referring to them.  All right.  And you have in the legend a pit feature  and an ash deposit feature which again are shown in  the layer and number, is that so?  Yes.  Two and 2A which we noted previously in the  profile is shown here in a more planned view.  Okay.  And you have also done a features floor plan  for layer C, and that's at figure 4? 1033?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  A  2  3  4  Q  5  A  6  7  8  9  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  A  18  19  Q  20  21  22  A  23  Q  24  25  26  27  28  29  30  A  31  32  33  34  35  36  37  38  Q  39  40  A  41  Q  42  A  43  THE COURT  44  A  45  THE COURT  46  A  47  MR. RUSH:  Yes.  Again, you see the same outline of the area of  excavation with the features that are associated with  layer C.  Appears to be more features in relation to layer C?  Layer -- most of the features in layer C were found on  the north side of the trench.  And most of the  features that we observed in layer C were post moulds.  So there are a number of post moulds shown there on  the right-hand side.  All right.  And at the bottom of figure 4 in the -- I  take it the square would be an excavation unit?  Yes.  That's the unit.  There is a PM 26 and a PM 27 indicating post moulds 26  and 27?  Yes.  Was PM 26 radiocarbon dated?  Yes.  We retrieved a carbon sample that was sent for  age determination.  Okay.  The features which you have depicted on figures  3 and 4, are these standard categories of features  used among archeologists?  Yes.  Now, I'd like to refer you, please, to table one.  Now, this is on page 2-5, my lord.  It's a summary of  features at the GSST 2-1985 excavations which is the  Moricetown excavation.  And I'm not going to ask you,  Miss Albright, to review the whole of this table.  I  simply would like you to assist his lordship in  respect to the first line.  What does this indicate?  Yes.  Under hearth -- all the features are grouped  under the type of feature they are.  So under hearth,  three refers to the number of the feature as recorded.  What layer it's associated here, three, this hearth is  associated with layer B.  Then I have given the  provenience from our fixed datum on the north and east  of the datum itself.  The depth at -- of the feature  and its diameter.  All right.  And this you've done on the summary in  respect of all the features that you identify?  Yes.  And that would be number 1 to 27, is that so?  Yes.  :  The depth is from the -- from the --  From surface.  :  -- level, the surface?  Yes. 10339  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   And these features were recorded in your level notes  2 in feature forms?  3 A   Yes.  4 Q   Okay.  Thank you.  5 THE COURT:  And hearths like number three, that means one hearth  6 has been given a designation number three?  7 A   Yes, it is.  8 THE COURT:  And similarly the next one 15 means one hearth with  9 that number?  10 A   Yes.  11 MR. RUSH:  Okay.  12 Q   Now, just in respect of that taking the first  13 identified feature under hearth, three would appear in  14 figure 3 which is the next page over --  15 A   Yes.  16 Q   -- on the floor plan description, is that right?  17 A   Yes.  Each one listed in the table is identified in  18 either figure 3 or figure 4 associated with either  19 layer.  20 Q   So H 3 on the figure 3 is the place on the floor plan  21 where that would be located?  22 A   Yes.  23 THE COURT:  What about hearth number 15?  24 A   Hearth number 15 is in figure 3 on the right-hand  25 side.  26 THE COURT:  How do you know that it's in figure 3?  27 A   I'm pointing that out to you.  It's not noted on the  28 list.  I've just listed certain information about the  29 features.  30 THE COURT:  All right.  31 A  And then they are also illustrated on the two figures.  32 MR. RUSH:  But when you refer to figure 3, my lord, you see H  33 15.  34 A   It can -- it can be found on that figure 3.  35 THE COURT:  Yes.  All right.  36 A   So it will be in either figure 3 or 4, depending on  37 which layer it's in, B or C.  3 8 MR. RUSH:  39 Q   And is that because the layer that is identified in  40 your summary of features is related to the figure 3 or  41 4, depending on the layer --  42 A   Yes.  43 Q   — B or C?  44 A   Yes.  45 Q   Now, if you will, Miss Albright, would you just turn  46 to page 2-6 and that's after figure 4?  47 A   Yes. 10340  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  Q  2  3  4  A  5  Q  6  7  8  9  10  11  A  12  Q  13  A  14  THE  COURT  15  16  MR.  RUSH:  17  A  18  MR.  RUSH:  19  A  20  THE  COURT  21  MR.  RUSH:  22  23  24  THE  COURT  25  MR.  RUSH:  26  THE  COURT  27  MR.  RUSH:  28  Q  29  30  31  A  32  Q  33  34  35  36  A  37  38  39  40  41  42  43  44  45  46  47  And I would ask you if on page 2-6 the last two  paragraphs on that page, do they describe post moulds  and the numbers of post moulds which you found?  Yes, it does.  Now, if I can direct your attention to plates 5 and 6.  Now, these are photographs 5 and 6 in the photograph  section of the report.  And these relate to post  features number 1 and number 26.  And I'd like you to  review, if you will, his lordship's copy of the  photograph.  This Xerox copy is --  Well, I think it might be --  It's fairly clear.  :  I have made a lot of notes in here.  Nothing I am  embarrassed about.  Well, we will turn the notes over.  This copy is fairly clear.  Okay.  Some turn out quite dark.  :  Should I be preserving this in its pristine form?  Not the document.  I simply want to refer the  photograph to you because the photograph is the only  one that we have of that.  :  Yes, all right.  You have the positive, the best one.  :  Well, if you need these you let me know.  All right.  Just referring to the photograph and your description  of a post mould, and you defined the post mould to his  lordship?  Yes.  And I would ask you if you can tell from the photocopy  of plates 5 and 6 what indicates the post mould as you  have described it both in the opinion and to his  lordship a few moments ago?  Yes.  In plate 5 shows a post mould that is associated  with layer B.  There is a dark line running  horizontally through layer B, which is a gray, dark  gray matrix, and there is a dark lens or line running  through layer B.  And then you see it dipping down in  a vertical form, very constricted form, down into the  layer below, the light orange, into the lighter orange  of the layer C two deposits.  And it extends down into  just about to the gravels.  The dark horizontal lens,  the charcoal staining there is part of or associated  with the post itself and represents the burning of the  post and whatever structure that it supported to leave 10341  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  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  THE COURT  THE  the consistent line there.  So that's how the post  feature is identified.  THE COURT:  Show me what you are referring to.  A   Okay.  This -- this is layer A here, darker deposits  here.  This is the light -- the gray, called it dark  gray according to a code system.  But this is the gray  B deposits.  And then this dark line here that  descends down here, this vertical line here represents  the post and indicating there that there was burning  involved with this post on whatever structure is  related to it.  So the post was dug -- is related to  the occupation of this layer or the soils that are  deposited here.  The post itself, of course, was dug  into the ground like your fence post.  THE COURT:  Yes.  A  And dug into underlying soil, so that would have been  somewhere -- the surface of the ground would have been  up here somewhere.  Where do you -- you perceive the surface at that  time was at the top of this orangey light brown?  A   Yes.  Or into the gray.  COURT:  Yes.  A   Into the gray.  It is definitely associated with the  gray itself.  COURT:  Yes.  All right.  A   Because the post extends from the gray down in -- down  into the orange deposits.  COURT:  All right.  Thank you.  RUSH:  Q   And referring now to plate 6, this is a profile view  of post feature 26.  And it's indicated on the  description of the photograph that it's context of  radiocarbon date of 5650 B.P.  Now, if I may ask, can  you identify for his lordship the description in the  photograph which constitutes the post mould that you  referred to as post mould number 26?  A   Yes.  The post mould itself is the vertical dark  staining that runs from the lighter orangey C2  deposits down into the gravels below.  And you can see  the trowel standing up on one side of the post mould.  And you can see these large rocks on both sides of  that vertical dark staining.  So those large rocks  were supporting the post that was there at one time.  And it is within about the level of the handle, the  base of the handle, the handle of the trowel that  charcoal sample was retrieved from that -- those dark  deposits in the post mould that was sent for  THE  THE  MR. 10342  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  Q  3  4  5  6  A  7  Q  8  9  10  11  12  13  14  15  16  A  17  18  19  20  21  Q  22  A  23  24  25  Q  26  A  27  Q  28  29  A  30  31  32  33  34  Q  35  36  37  38  39  40  A  41  Q  42  43  A  44  45  46  Q  47  THE COURT  radiocarbon determination.  Okay.  I just ask you to refer back to page 2-7 in the  Opinion.  Now, with reference to post mould feature  number 26, you at the top of page 2-7 draw an opinion  with regard to this post feature, is that correct?  Yes.  And you say with reference to this feature number 26,  and I am quoting:  "The alignment, size, and dates of post features  in layer C2 suggests occupation of large,  permanent house structures at Moricetown canyon at  a very early time period."  End quote.  Now --  Yes.  That's based on the size particularly of that  feature 26, the age determination for that feature as  well as an age determination on another post feature,  as well as the alignment of those post mould features  that we saw in figure 4.  And what do you mean by the alignment?  Those -- from the area that we were able to expose the  posts appear to fall within a line that is consistent  with the construction of a building, of a structure.  All right.  Is that depicted on figure 4?  Yes.  Figure 4 being the features associated with deposition  of layer C, my lord, and that's after page 2-5.  So looking at those various aspects of the those post  mould features, their size, the dates associated with  them and their alignment, have led me to the opinion  as stated on page 2-7 that they are indicative of a  large house structure at very early time period.  Now, I want to again direct your attention to  photographs or plates 2, 3 and 4 and just ask you, if  you will, to identify the features that are shown in  these photographs.  Plate 2, which is just after page  2-20, it's entitled "View of hearth feature No. 3  layer B south wall."  Yes.  And can you identify the hearth feature in this  photograph?  Yes.  It -- it's -- it's the dark staining that  extends well below the layer A and is found in layer B  itself in the gray deposits.  And photograph or plate 3, the --  :  Just a moment.  I am not sure I have the same.  Are 10343  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  A  3  THE  COURT  4  A  5  6  7  8  9  THE  COURT  10  A  11  12  13  14  THE  COURT  15  A  16  THE  COURT  17  MR.  RUSH:  18  Q  19  A  20  Q  21  22  A  23  Q  24  25  26  27  A  28  29  30  31  32  33  34  THE  COURT  35  MR.  RUSH:  36  Q  37  A  38  39  Q  40  41  42  43  A  44  45  46  47  you talking about the staining area up here?  Yes.  :  Yes.  This is the staining here.  This is a hearth feature  in the layer -- layer B starts about here and the gray  deposits and these are -- this is the dark carbon  stained and charcoal material in this area here which  is part of the B deposits.  :  This looks even darker over here on the right.  Yes.  The hearth extends, so the hearth probably  extends almost over to the corner.  I think if we  looked at the profile that was mapped, it extends  almost over to the corner.  :  All right.  And of course the corner is also in shadow too.  :  Yes.  All right.  Now, referring you to plate 3 or photograph number 3.  Yes.  There is here indicated a profile view of rock lined  steaming pit?  Yes.  You have identified the feature, and it's photographed  here as a rock lined steaming pit.  Can you show his  lordship in the photograph the feature that's  indicated by that description?  Yes.  This is again associated with the B deposits and  you see there is alignment of boulders that run here.  This one is a large one sitting at the base of it.  And also the other larger boulders up here.  This is a  pit feature which was filled with a lot of tiny bits  of charcoal, bits of bone, fire-cracked rock, and a  variety of materials.  :  Thank you.  And finally --  So I referred to it as a steaming pit.  We might also  say that foods were steamed or roasted in it.  All right.  And finally with reference to features at  the Moricetown excavation, you've photographed a small  cooking pit at plate 4.  Would you please identify  that in the photograph?  Yes.  This is -- this is the little feature here, the  smaller feature, and it's in the CI deposits.  We  have -- so we're seeing this in the profile during the  process of excavation.  So that is the back wall, it's  actually seen in the finished profile.  But this is 10344  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 during excavation itself.  So you have only worked a  2 certain way back and then down, showing this feature.  3 It's a small cooking feature.  It doesn't have a lot  4 of rock in it like this, but used for cooking smaller  5 quantities of food than this would have been for  6 either within it lined with bark or materials steamed  7 over it.  8 Q   Thank you.  Now, you took certain samples from the  9 excavation site for the purposes of radiocarbon  10 dating?  11 A   Yes.  12 Q   And how did you select the samples that you sent for  13 dating?  14 A  Well, of the samples retrieved, retrieved a variety of  15 samples as we recovered them, and of those samples  16 were collected in a standard manner by trowel and  17 collected into tinfoil.  In the laboratory they were  18 cleaned with treating of excess soil and rootlets that  19 came easily.  So in looking at those, reexamining  20 those samples, then we took the best of those samples  21 in terms of size --  22 Q   Yes.  23 A   -- and apparent quality of the charcoal chunks, and  24 also looked at the degree of possible contamination  25 from small rootlets that grow through the deposits.  26 So on the basis of the quality of the samples and  27 wanting to draw on samples associated with various  28 layers and various features, then we chose ten samples  29 to send for analysis.  30 Q   And were these sent to Beta Analytic?  31 A   Yes.  Beta Analytic in Florida.  32 Q   And were numbers attached to the samples?  33 A   Yes, they were.  They had both a field collection  34 number in the order in which they were retrieved as  35 well as -- as well as numbers two to -- two to eleven  36 I believe.  I had already submitted a sample earlier  37 in the summer, so these were samples from Sabrina  38 Research, samples two to eleven submitted for this  39 site.  40 Q   Okay.  And was an information sheet attached to the  41 sample and the sample number?  42 A   Yes.  The standard information requested by Beta  43 Analytic concerning the context in which those samples  44 were taken were described.  45 Q   Okay.  46 A  And submitted along with the samples to Beta Analytic.  47 Q   All right.  I direct you now, please, to page 2-8 of 10345  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  A  5  MR.  RUSH:  6  7  8  9  THE  COURT  10  MR.  RUSH:  11  Q  12  13  A  14  THE  COURT  15  MR.  RUSH:  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  24  25  A  26  Q  27  28  29  30  31  32  33  34  35  A  36  Q  37  A  38  Q  39  A  40  Q  41  42  A  43  44  45  46  47  the Opinion, and does table 2 set out the results of  the radiocarbon dating that was performed on your  behalf by Beta Analytic Incorporated?  Yes, they are.  Now, my lord, I have also included the actual report  of the radiocarbon dating analysis that was returned  to Miss Albright, and it is found at tab 6 of the  small black three-ring binder.  :  Yes.  All right.  And I want to ask you, do you have the  small black binder in front of you?  No.  :  It's tab 5, I think, actually.  It -- yes, that's right.  Thank you.  Now, this report indicates the lab number and your  sample number?  Yes.  And those sample numbers were dedicated by you to the  particular sample that you submitted to Beta?  That I submitted, yes.  Yes.  And it indicates the dating analysis in the  column under C-14 eight years B.P. plus or minus, is  that right?  Yes.  Those are the age determinations sent back.  Okay.  At the bottom of the analysis report there is a  note which says, and I am quoting:  "The above small samples were given extended  counting time."  I would first ask you if that note refers to the three  samples where there is a parenthetic weight that's  ascribed to the sample?  Yes.  Such as the fourth sample gives you 0.3 gram carbon?  Yes.  And so it refers to those samples, does it?  Yes.  And what does, if you know, the term extended counting  time refer to?  Well, from what I understand of the process, when the  sample is cleaned and converted to a gas in the  laboratory, then the C-14 itself is counted, it is put  into a counter, which is -- it's counted at least  twice over a period of time.  And sometimes for  smaller samples they may wish to extend the counting 10346  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  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  time to ensure the accuracy of the count.  Q   Okay.  Now, in respect of the date -- dates which you  received in the report from Beta Analytic, do you  accept the results of the dates that were provided to  you?  WILLMS:  I object, my lord.  How can this witness accept the  results of the dates?  The dates are the dates the  dating lab did on whatever they got.  I think what Mr. Rush is asking the witness is  whether she has confidence in the dates.  MR.  THE COURT  MR.  RUSH:  Q  A  A  A  Yes.  Yes, I accept the dates as they were sent to me.  And  they -- they fall within a range that is reasonable to  expect from the deposits that I examined.  And they  appear to correspond with my previous analysis of the  stratigraphy, and by this time my examination of the  artifact that I had -- artifacts that I had retrieved  from those deposits, so the dates seem -- seem -- I  was able to accept the dates that were returned to me.  All right.  Is the technique of radiocarbon dating  analysis one that is used widely among archeologists  in respect of the dating of material, physical  material found by archeologists?  Yes.  It's a common technique that is used in the  discipline.  The analysis itself is done by  independent laboratories.  It's a technique that was  developed in 1950, so we have been using this analysis  within the discipline for almost 40 years.  And for  providing relative dates for organic materials from --  and providing an age estimate of other materials  associated with the deposits in which the samples come  from.  And referring to the report, the first column  indicates for sample number R-SR-85-2 an age 3680 plus  or minus 170 P.B. and there is a plus or minus  indicate in respect of all the dates that are  indicated there.  Can you just tell his lordship what  that indicates?  Yes.  The 3680 refers to years ago, years before  present, with 1950 being the time from present or time  at present when the technique was developed.  Then  plus or minus whatever is the range in which the date  falls within one standard deviation error.  So the  date, the actual date is expected, the date is  expected to fall within that range.  Radiocarbon  dating we still acknowledge as a relative dating.  We 10347  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 can't give it -- we haven't been able to determine  2 calendar years in which an event would happen, but  3 it's a relative dating.  So the plus or minus refers  4 to the time frame in which the date is expected to  5 fall.  6 Q   All right.  And just referring you back to your table  7 2 at page 2-8, you have enumerated eight of the  8 samples here?  9 A   Yes.  10 Q   And can you explain to his lordship what does the  11 radiocarbon dates summary at 2-8 illustrate?  12 A   In the table I have again given the Beta number which  13 is common practice to give the lab number of a sample  14 dated.  The date and range.  The context in which it  15 was found.  The layer deposit or the feature within  16 which that sample was taken from.  And its -- again  17 its provenience, approximate provenience within the  18 site along the trench for both south and the north  19 wall units and the depth at which the sample was  20 taken.  21 Q   Okay.  Now, is there -- is there a significance in  22 respect of the ordering of the samples that you have  23 set out in this summary?  24 A  Well, I -- I set out the samples to give an idea of  25 the approximate age range for which we have dates of  26 the various deposits.  So I have placed the  27 youngest -- the date associated with layer A which  28 happened to be the youngest date returned at the top  29 which is -- and the depth, associated with the depth  30 in which it comes.  So it gives an idea of the age or  31 the continuity of those various deposits from layer A  32 down through layer B and CI or C2.  33 Q   Okay.  And what, if anything, is the relationship  34 between the stratigraphy that you noted earlier in  35 your evidence and the results of the ages of the  36 samples which you submitted?  37 A   The dates returned on the samples that I submitted  38 correspond very well with the stratigraphy that I had  39 already looked at and studied even before I had the  40 dates returned, so they -- they conform very well.  41 Q   Okay.  42 A   Corroborate each other.  43 Q   Now, you mentioned that the dates illustrated a  44 continuity.  Can you just expand on that?  45 A   Yes.  During excavation we did not observe any sudden  46 breaks in the deposits that would suggest that there  47 was any lengthy break-in in occupation of that site 1034?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 and the dates tend to confirm my interpretation of the  2 stratigraphy that there was fairly continuous  3 occupation over a period of more than -- of more than  4 5600 years at that site location.  5 Q   All right.  I will just ask you, if you will, to turn  6 to page 2-7 with regard to the dating of deposits,  7 third paragraph.  And does the third paragraph on page  8 2-7 beginning with:  9  10 "The radiocarbon dates appear to confirm  11 interpretation of the site stratigraphy and  12 suggest that Moricetown canyon has been occupied  13 fairly continuously for over 5,000 years,"  14  15 and so on through to the end of the paragraph, does  16 that set out your opinion with regard to the dating of  17 the samples and the -- from the site at the Moricetown  18 excavation?  19 A   Yes, it does.  20 Q   All right.  Now, I just refer to the last sentence of  21 that paragraph:  22  23 "These suggest — "  24  2 5 And I am quoting:  26  27 "These suggest occupation and permanent settlement  28 at Moricetown canyon by 5600 B.P."  29  3 0 And you say:  31  32 "This is the earliest date recovered so far from  33 the central interior of British Columbia."  34  35 End quote.  And I want to direct your attention to  36 your conclusion that the dates suggest a permanent  37 settlement at Moricetown.  Could you just amplify on  38 how you arrived at that conclusion?  39 A   Yes.  The features themselves, the post features  40 indicate large -- a large structure there.  The size  41 of the features and the alignment of the post features  42 indicate quite a substantial house structure at the  43 site, and we have the date of 5660 B.P. and another  44 one at 4700 B.P.  But the earliest one at 5660 for  45 that post mould, for that post.  And so we have people  46 using large structures, living and using large  47 structures at that site at that time. 10349  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  Q  2  3  4  A  5  6  7  8  9  10  11  12  13  14  Q  15  16  17  18  A  19  20  21  22  Q  23  24  THE COURT  25  MR. RUSH:  26  THE COURT  27  MR. RUSH:  28  Q  29  30  31  32  33  A  34  35  36  37  38  39  40  41  42  Q  43  A  44  Q  45  46  A  47  Okay.  And what's the significance of the fact that  it's a large structure, that it's indicated to you  by —  Well, it indicates that people were spending a lot of  time there.  They were investing a considerable amount  of energy in building a large structure and it  indicates that people have been using that area making  use of the river resources and other resources in that  immediate vicinity and being a productive -- with a  productive enough site for them to invest enough  energy to build considerable size structures.  This  was not just a temporary drying racket at the location  at that time.  It was a sizeable structure.  Prior to the results of the radiocarbon dating that  you received in respect to the samples that you  submitted, what was the earliest date which had been  recorded in the region?  For the -- for the study area in which I'm working,  the earliest previous date had been one retrieved by  George MacDonald from Hagwilget canyon and that was  3430 B.P., from work during 1966.  Okay.  And I will just refer you to the large black  volume, my lord.  I am going to conclude an area here.  :  Yes.  All right.  If I may just speed over it.  :  Do you want this to go to the witness?  Yes, please.  You made reference to Mr. MacDonald.  I just direct  you to Dr. -- tabs 1 and 2 of the large black binder  and I would ask you if the references to the dates  which you have just referred to are contained within  those two tabs in that binder.  Yes.  These are both reports written by -- reports or  papers written by George MacDonald summarizing some of  his very early work, 1966, and early work in the  middle Skeena area.  And in the first paper, tab 1,  dated 1967 he refers -- in a general sense in that  this was a general conference paper that he gave on  page 7 of that paper, he indicated a date of -- a  generalized date of 3000 B.P. was obtained from hearth  feature five metres below the surface.  And was that at Hagwilget?  That's at the site he excavated at Hagwilget.  And just referring to tab 2, to the second page at  page 249?  Yes.  And this paper he's summarizing the bit of work  that was done in the middle Skeena, but also a lot of 10350  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  Q  6  A  7  Q  8  9  A  10  11  12  13  14  15  16  Q  17  A  18  19  Q  20  A  21  22  23  MR.  RUSH:  24  25  THE  COURT  26  MR.  RUSH:  27  28  29  THE  COURT  30  31  MR.  RUSH:  32  THE  COURT  33  MR.  RUSH:  34  THE  COURT  35  36  37  38  39  40  41  42  43  44  45  46  47  the work done in Prince Rupert harbour.  And he gives  a number of dates on page 249, a number of dates from  Prince Rupert harbour, and he also gives the date from  Hagwilget canyon.  And he shows it as 1480 plus or minus 2820 B.C.?  B.C., yes.  And there is some writing there, and can you just  indicate what that is?  Yes.  Because radiocarbon dates are returned by the  lab in B.P. and I think in more recent times people  have started commonly using B.P., Before Present, to  refer to dating of the past.  At this time he had  converted the dates to B.C. in the Christian calendar,  Before Christ.  So if we add 1480 plus 1950 in the  Christian calendar gives us a date of 3430 B.P.  Plus or minus 200?  Plus or minus 200, yes.  The deviation is still the  same or the range is still the same.  Very good.  And this is a date that is also referred to in  subsequent publications concerning Hagwilget canyon as  well.  Very good.  Thank you.  I think we can leave it  there.  :  All right.  Thank you.  Are we on schedule?  A little bit behind.  I am trying to finish tomorrow  evening, but I think it will be more like midway  through Wednesday.  :  Well, I think that we ought to consider scheduling  an evening session.  If we could leave that until tomorrow.  :  Yes.  Certainly.  And I would be able to tell better by tomorrow.  :  All right.  Thank you.  (PROCEEDINGS ADJOURNED UNTIL TUESDAY, JANUARY 10, 1989  AT 10:00 A.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and abillity.  Laara Yardley,  Official Reporter,  United Reporting Service Ltd.

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