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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-05-23] British Columbia. Supreme Court May 23, 1989

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 16625  Discussion  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  THE  MR.  THE  MR.  THE  MR.  MAY 23, 198 9  VANCOUVER, B.C.  REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Tuesday, May 23, 1989.  Calling the matter of Delgamuukw versus Her Majesty  the Queen at bar, My Lord.  COURT:  Thank you.  Mr. Rush.  RUSH:  My Lord, I addressed you on certain subjects last  Thursday.  I wish to bring you up-to-date on some of  those, and to advise the Court about what we see as  the items on the agenda of the plaintiffs' case that  remain.  COURT:  Thank you.  RUSH:  Firstly regarding funding.  There is no change in the  funding situation since my advice to you last  Thursday.  I can't inform you or shed any further  light on the subject.  Our position remains the same,  and I will advise you throughout this week as to  whether or not circumstances for the plaintiffs alter.  COURT:  Thank you.  RUSH:  Regarding outstanding matters for the plaintiffs'  case.  After the completion of the evidence of Dr.  Lane, Ms. Marsden and Dr. Galois, I can say that it is  the plaintiffs' intention to call the evidence of Dr.  Rigsby.  And we are exploring the possibility of  calling that evidence by way of commission or  deposition in Australia.  Your Lordship may recall  that the parties endeavoured to work out an agreement  with regard to Dr. Rigsby's evidence, and it is our  view now that in respect of one aspect of -- or  possibly more of Dr. Rigsby's opinion, it is necessary  to call his evidence, and he will be the remaining  expert that we will be calling.  And it's our hope  that we can find a way other than by calling his  evidence viva voce in court to call his evidence.  Now, if that's not possible, we may be required to  call his evidence and to present -- bring him from  Australia to have his evidence called here.  Secondly, there is the matter of an outstanding --  of the calling of evidence pertaining to certain  Wet'suwet'en genealogies.  And our thinking of that  was to call the evidence by way of affidavit, which  may leave open the possibility of the defendants  cross-examining on the affidavit, but our proposal at  the moment is in fact to tender a number of  Wet'suwet'en genealogies through the medium of an 16626  Discussion  1  2  THE  COURT:  3  4  5  MR.  RUSH:  6  THE  COURT:  7  MR.  RUSH:  8  9  10  1  11  THE  COURT:  12  MR.  RUSH:  13  1  14  15  16  17  MR.  GOLDIE  18  MR.  RUSH:  19  THE  COURT:  20  MR.  RUSH:  21  22  23  24  25  26  27  28  29  30  31  32  ]  33  34  35  36  37  ]  38  39  40  THE  COURT:  41  42  MR.  RUSH:  43  THE  COURT:  44  MR.  RUSH:  45  46  47  affidavit.  And that cross-examination could take place in court  or out of court, as circumstances may dictate, I  suppose?  That's right.  Yes.  All right.  Yes.  There is remaining one affiant to a territorial  affidavit who needs to be cross-examined, and that has  not been scheduled because of the illness of the  deponent.  He has been in and out of hospital.  Do your friends know his name?  Yes, they do.  Yes.  We have corresponded and  discussed this issue with our learned friends, and  unfortunately we just haven't been able to schedule it  so that the cross-examination in fact can be executed  with all parties there, including the witness.  :  Is that fellow Turner?  That's right.  All right.  And then there is a matter of certain fishing sites  that we consider at the end of the plaintiffs' case,  at least at the end of the plaintiffs' evidence as we  now anticipate calling it, will require further proof,  and we propose to call that evidence by way of  affidavit as well.  Now, to some degree this remains  to be seen after the completion of one of the  witnesses.  And similarly that could be done in or out  of court, but in fact it may be more convenient to do  it in court.  Next, My Lord, we are seeking admissions in  respect of the map atlas, and to the extent that it  may be necessary to the overlay maps, and there are  presently discussions between the parties regarding  these admissions, and to the extent that we are  satisfied that these admissions assist us in the proof  of these maps, we will then make a decision to call  Mr. Lou Skoda or not with regard to the proof.  And  that will be technical proof of the way in which  certain information came to be on the map.  Is that with relation to the map atlas and the  overlays?  Yes, My Lord.  Same witness?  Yes, that's right.  And I should have said that we  would call Mr. Skoda as an expert.  So I suppose in  this respect he would be a second expert, but we are  hoping that it won't be necessary to call him. 16627  Discussion  1 And then it is -- the plaintiffs are presently  2 considering calling another lay witness, and I can  3 advise Your Lordship that a decision has not been  4 taken on this, and as soon as we receive instructions  5 on this issue we will advise my learned friends and  6 the Court.  At the moment we would only call one  7 further lay witness, and at the present time a  8 decision hasn't been taken to do that.  So we can't  9 say yes or no to that.  10 And finally there are amendments to the Statement  11 of Claim that we would be proposing to make, and we  12 would do that at the conclusion of all of the evidence  13 to which I have made reference.  14 Now, My Lord, I should advise you that with  15 respect to my submissions to you last Thursday  16 regarding notification by the defendants of their  17 intentions regarding the calling of their evidence,  18 lay or expert, the schedule, when and so on, I have --  19 the circumstances have not changed since that advice  20 to Your Lordship, and I would like to hear from my  21 learned friends what -- given now what the plaintiffs  22 say they expect to be able to call, in terms of  23 outstanding evidence, what we can expect in terms of  24 the calling of the defendants' case in the month of  25 July.  26 THE COURT:  Mr. Goldie, are you able to respond to that?  27 MR. GOLDIE:  Before I respond to that, I wonder if our friend  28 could give us any indication of how many affidavits he  29 intends to file.  He made some reference to filing  30 Wet'suwet'en -- proving Wet'suwet'en genealogies by  31 affidavits.  Our experience has been that this is a  32 fairly time-consuming process, and it would be very  33 helpful if we knew how many my friend intends to file.  34 MR. RUSH:  Just one.  One affidavit that addresses all of the  35 genealogies.  36 MR. GOLDIE:  With respect to Dr. Rigsby, My Lord, the defendant  37 has advised -- my client has advised the counsel for  38 the plaintiffs that we do not require Dr. Rigsby to be  39 called.  We advised them some time ago with respect to  40 that.  So their decision in that respect does not  41 reflect any requirement on the part of the defendants.  42 The question of the remaining Gitksan deponent whose  43 cross-examination has been postponed, we'll have to,  44 of course, await advice, but Mr. Turner's  45 cross-examination was scheduled and he didn't turn up,  46 because apparently of illness, and there has been no  47 indication so far when he will be available. 1662?  Discussion  1 I mentioned these things, My Lord, because I have  2 advised my friend that my decision with respect to  3 what witnesses will be called and generally speaking  4 in what order cannot be made until the plaintiffs'  5 case is closed.  And I remain of that view, and the  6 comments that I will make now are always subject to  7 that.  8 Assuming that Dr. Rigsby is called, and that he is  9 the plaintiffs' last witness, with the possible  10 exception of the lay witness to which my friend refers  11 to --  12 THE COURT:  And possibly Mr. Skoda.  13 MR. GOLDIE:  And Mr. Skoda, although I wrote my friend on May  14 the 11th with respect to that, and I am awaiting his  15 reply as to whether the suggestions I make are  16 sufficient for his purposes, and I note that the Crown  17 in Right of Canada has filed an admission which, as I  18 read it, largely parallels the suggestion I made to  19 the -- my friend with respect to that map atlas.  20 Now, subject to all of those things, there are a  21 number of matters to be dealt with before the Province  22 calls its first witness.  We are preparing a list of  23 these, but they include the -- dealing with documents  24 which have been marked for identification during  25 cross-examination and argument has been deferred.  26 They include admissibility of the alienation series,  27 which is outstanding, they include matters arising out  28 of the cross-examination of the plaintiffs' experts,  29 and under that I include determination of the purpose  30 for which archival documents have been admitted.  As I  31 say, we are preparing a list of matters which in our  32 submission must be dealt with at the conclusion of the  33 plaintiffs' case.  Our present feeling is that that  34 might take two or three days, and if we cannot do that  35 in the week of June the 19th, then we would propose  36 doing that the first thing on the week of July the  37 3rd.  And my understanding is that the week between  38 the week of July -- June 19th and July 3rd is an off  39 week.  40 THE COURT:  Well, it is presently scheduled that way, but it  41 doesn't have to be that way.  We could sit that week.  42 MR. GOLDIE:  Well, if -- I am just outlining the schedule as we  43 see it, and if we can use that week, that would be the  44 first item that we would propose.  45 THE COURT:  Nothing has been scheduled for that week, simply  46 because we have not had a -- a horizon to work  47 towards, but speaking for myself, I would be glad to 16629  Discussion  1 deal with those matters during that week, if it's  2 convenient.  3 MR. GOLDIE:  That would be the week of June the 26th?  4 THE COURT:  Yes.  5 MR. GOLDIE:  Right.  My Lord, with respect to the sequence of  6 witnesses for the Province, I have to say that we have  7 not alerted witnesses, and we do not intend to do so  8 until we know whether the trial will be proceeding.  9 We went through this last fall of sending up a yellow  10 warning, and of course that fell through.  But the  11 first witness that we propose to call would be Dr.  12 Farley, who is a retired professor and at one time  13 head of the Department of Geography at the University  14 of British Columbia, whose report was delivered May  15 the 5th.  16 THE COURT:  This year?  17 MR. GOLDIE:  Yes.  I mentioned, My Lord, that Dr. Farley had  18 been retained by Mr. Robertson, and I actually didn't  19 meet Dr. Farley until about a week before his report  20 was delivered, but that -- he deals with the  21 cartographic background to the Royal Proclamation.  22 THE COURT:  What's the cartographic background?  23 MR. GOLDIE:  Maps.  24 THE COURT:  Yes.  All right.  25 MR. GOLDIE:  The next witness we would propose calling is Dr.  26 Greenwood, so that the Royal Proclamation evidence is  27 in one piece so-to-speak.  After that I would expect  28 to call a lay witness.  We will provide our friends  29 with a summary of this -- of the witness's evidence,  30 but which lay witness it will be is still subject to  31 confirmation.  32 THE COURT:  When can you give your friend the summary?  33 MR. GOLDIE:  I would anticipate, My Lord, very shortly after we  34 are advised that the trial will be proceeding, and  35 then we will know -- we will be able to go around the  36 block so-to-speak and ascertain the availability.  But  37 we cannot have people standing by on the basis of the  38 present situation.  39 THE COURT:  You mean we will be proceeding in July --  40 MR. GOLDIE:  Well, there is a doubt as to whether we are going  41 to be proceeding in July.  42 THE COURT:  Yes.  43 MR. GOLDIE:  Now, I should say this, that we are not putting all  44 of our eggs in one basket so-to-speak.  I hope to have  45 a contingency plan in effect, so that if we -- if we  46 know we are going ahead, and we find that witness A is  47 unavailable, we'll have witness B or C or even D, or 16630  Discussion  1 we may even be able to schedule witnesses with respect  2 to the alienation series, if we have not resolved it  3 by that time.  4 Now, I should add this, that I said in January, I  5 believe, that we thought it possible we might call 15  6 to 25 lay witnesses, and we would endeavour to deal  7 with those by affidavit with as great an extent as  8 could be managed that way.  Since that time, and as  9 the plaintiffs' case has proceeded, we have  10 endeavoured to cut down the number of witnesses that  11 we are proposing to call, and we have been able to do  12 that quite substantially, but we are still working on  13 the extent to which we can have one witness cover the  14 ground that we thought maybe two or three be required  15 for.  16 That, I think, is about all I can be of assistance  17 to my friends at this time, My Lord.  18 THE COURT:  Well, does that -- is that intended to be a summary  19 in the general terms you have used of the evidence  20 you -- all the evidence you propose to adduce?  21 MR. GOLDIE:  Oh, no.  I thought we were providing my friends  22 with an indication of the case that would be called in  23 the first three weeks of July.  24 THE COURT:  Yes.  That's what you anticipate doing in the first  25 three weeks in July?  26 MR. GOLDIE:  Yes.  And filing affidavits which may be dealt with  27 in August.  But I see now, from what my friend tells  28 us, that August may be fairly busy anyway.  29 THE COURT:  Well, all right.  I guess what I have to say is that  30 so far as I am concerned this trial will be proceeding  31 in July.  32 MR. GOLDIE:  Well, I appreciate what Your Lordship says, and I  33 would like to think that the odds are that it will  34 proceed, but I do recall my friends advising the Court  35 that if there were no funds they could not proceed,  36 and Your Lordship stating at a later date that they  37 would under the circumstances of this case be excused  38 from endeavoring to continue the case if they didn't  3 9 have funds.  40 Now, as I say, we have experienced, unfortunately,  41 a delay that extended from September of 1987 to  42 January of 1988, and we have given our witnesses  43 deadlines as we went along, all of which have proven  44 to be unrealistic.  And one of the witnesses has moved  45 to Montreal, and he's told us when he is available,  46 and I am unable to say at the present time change your  47 plans so as to be on hand, because I have had 16631  Discussion  1 experience with that and it didn't work out.  But I  2 think that -- I see no reason why the program that I  3 have outlined is -- couldn't be carried through, and I  4 hope it will be carried through.  I think it's evident  5 that we wish the conclusion of this trial on its  6 merits as soon as possible and as completely as  7 possible.  8 THE COURT:  I don't know what you have in mind for Dr. Farley  9 and Dr. Greenwood as to length.  Would they be several  10 days each?  11 MR. GOLDIE:  Oh, I would anticipate that Dr. Farley would be no  12 more than three to four days.  13 THE COURT:  In chief or all together?  14 MR. GOLDIE:  All together.  And Dr. Greenwood might be something  15 in the same order.  I think Dr. Greenwood would be  16 better to assume that he would be five days.  17 Now, the lay witness, and possibly there might be  18 others, at the present time the lay witness that I  19 would like to bring in there would, I think, take  20 about four court days.  21 THE COURT:  Four court days?  22 MR. GOLDIE:  Yes.  23 THE COURT:  Well, then, you have more or less completed the  24 greater part of three weeks then.  25 MR. GOLDIE:  Oh, yes, I think so.  It would undoubtedly be three  26 weeks, if we can't deal with these preliminary matters  27 before the week of July the 3rd, but assuming we can,  28 I intend to take full advantage of that three weeks.  29 THE COURT:  Yes.  All right.  Thank you.  Ms. Koenigsberg,  30 anything you want to contribute?  31 MS. KOENIGSBERG:  I don't think we probably can add much.  We  32 have not proceeded to the point of determining what  33 the order of our witnesses will be.  We are working on  34 the proposition that our case, we hope, is shrinking  35 as time marches on and as the evidence begins to  36 settle out.  37 I would say that with regard to Dr. Rigsby,  38 although I don't know why exactly the plaintiffs would  39 feel that they had to call him, that certainly in my  40 view would be far easier and less expensive and  41 onerous if the one person, Dr. Rigsby, could come  42 here, rather than the probably three, at least, people  43 would have to go to Australia.  So that if our  44 druthers are counted, I would certainly propose that  45 the most convenient way of taking any evidence from  46 Dr. Rigsby would be with Dr. Rigsby here.  47 I would perhaps add that it would seem to this 16632  Discussion  1 defendant that time in the beginning of July, at the  2 end of the plaintiffs' case and before the provincial  3 defendants' case began, would be devoted to attempting  4 to clean up the issue of admissibility of documents  5 generally.  6 We now have a large number of categories of  7 documents, a large number of situations in which we  8 have mused about both their admissibility and what  9 for, and in my submission it would certainly assist  10 Canada, and I took Mr. Goldie's remarks that it would  11 be of assistance to him, and I'm sure to the court and  12 the plaintiffs, if we knew what the rulings were going  13 to be with regard to admissibility of documents  14 generally, before we launched into the defendants'  15 case.  16 THE COURT:  All right.  Well, I think that we ought to  17 tentatively plan on doing as much as we can the week  18 of June 26th, if not sooner.  19 Mr. Goldie, are you able to assist Ms. Koenigsberg  20 and the rest of us generally in indicating how much  21 time you may need after this three week period in July  22 to complete your case?  When should she be ready to  23 proceed with her defence?  24 MR. GOLDIE:  I haven't reviewed the last estimate we made, in  25 terms of the developments as we have gone along, and I  26 am sorry to say I can't remember what that estimate  27 was.  I will check it out at the noon hour.  28 THE COURT:  I would like to get that subject ventilated, if only  2 9 in a very tentative way, so we have some idea what we  30 are working towards.  31 MR. GOLDIE:  Well, I do know this, that on a worst case basis we  32 had come to the conclusion that the defences and the  33 counterclaim evidence would be completed before  34 Christmas.  That was a worst case basis.  35 THE COURT:  Yes.  36 MR. GOLDIE:  And that was before I had gone through the business  37 that I am presently engaged in of trying to  38 consolidate evidence of lay witnesses so as to cut  39 down the number -- the estimate that I gave in  4 0 January.  41 THE COURT:  All right.  All right.  Mr. Rush, are you prepared  42 to commence?  43 MR. GOLDIE:  Regarding Dr. Farley, the first witness my friend  44 says he intends to call, we have taken the position,  45 and I take the position again, that for new  46 disclosures of expert opinions that there ought to be  47 ordered, and in my view Your Lordship did order, that 16633  Discussion  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  MR. RUSH:  THE COURT  MR. RUSH:  there be 120 days notification of the calling of the  evidence.  This we were advised, as my friend says, on  May 5th of the presence of a report and summary, and  then we were told it was Dr. Farley, and then we were  told the content, and then we got the summary minus a  few pages and its appendices.  And, My Lord, it's  completely unsatisfactory to expect the plaintiffs to  prepare for the cross-examination of the first witness  on the basis of somewhat less than two months notice  of that witness, when in respect of all of the other  opinions that have been tendered by the plaintiffs,  there have been over two years of notice provided.  And I say further that there will be an objection  taken to Dr. Farley's opinion when it is tendered,  because we received notice of Dr. Farley's opinion  after the evidence of Mr. James Morrison, the witness  presented by the plaintiffs, to deal with the very  subject matter of Dr. Farley's report.  And that's a  matter that we will deal with at the time that the  report and Dr. Farley are tendered, but at this point  in time it's my submission that Your Lordship ought to  order and require my learned friends to comply with  the 120 day notice, and that if they need to put off  Dr. Farley, well so be it, but that Dr. Farley is not  a witness that can be called within 60 days of the  tendering of his report.  :  When you said that you got the summary and then the  report, how -- when did you get the summary?  On May the 5th.  :  Wasn't some date earlier?  We got the summary and the appendices on May the 5th,  minus a few pages and minus the bibliography, I  believe.  I am not complaining about that.  I am  complaining about the fact that in order to prepare  for Dr. Farley's evidence, we will now have to retain  an expert or take advice from people assisting us with  regard to the content of the report, and we are asked  to do that in the face of a very, very tight schedule  for the plaintiffs, and at the same time less than 60  days' notice.  And I take very strong objection to  that.  I want to point out as well that my friend says  that he has a lay witness and his summary will be  delivered, and he thinks that this witness will be one  that will be called in the month of July.  Well,  perhaps it might be a little earlier.  We don't know  the name of this lay witness.  We don't know the name 16634  Discussion  1 of any of the witnesses that he might substitute for  2 this lay witness, in the event that he doesn't decide  3 to call that particular witness.  And I say, My Lord,  4 that my friend should be required now to disclose the  5 name of the individual and the general subject area of  6 that lay witness.  With Dr. Greenwood, no complaints.  7 There may be objections to Dr. Greenwood's evidence,  8 but that's -- we are not taking issue with Dr.  9 Greenwood in terms of notification.  But in terms of  10 another lay witness, I ask Your Lordship to require of  11 my learned friend that we should have notice of the  12 name, we should have notice of the area, and we should  13 have notice of any other witnesses that may be  14 substituted for that witness.  15 And, My Lord, in my submission it is an untenable  16 situation for my friend to rest the -- his  17 unwillingness to disclose this information on the  18 basis of a lack of knowledge about whether or not we  19 will be proceeding in the month of July based upon the  20 current funding situation of the plaintiffs.  In my  21 submission that is no justification whatsoever.  We  22 hope for the best, and we hope that in fact we will be  23 proceeding as directed by Your Lordship, but for my  24 friend to sit back and hold close to the chest the  25 question of who his witnesses will be, identified by  26 name and subject area, because of the existing funding  27 situation with the plaintiffs, in my submission is  28 completely untenable.  29 I say that with regard to the lay witnesses we  30 have asked, My Lord, that there be a disclosure of the  31 names and the subject areas and the -- well, the names  32 and the subject area of those lay witnesses 60 days in  33 advance of the calling of the witness.  We are not  34 saying that my friend should be restricted to any  35 other rules with regard to the disclosure of the  36 summary of the evidence.  That summary, in my  37 submission, remains to be disclosed in a timely way,  38 14 days in advance of calling the witness, but because  39 of the nature of the discovery process of the  40 defendants' case, in my submission it is a fair  41 disposal of the question of notification to require  42 that there be 60 days notice of lay witnesses.  43 In terms of the affidavit -- of the affidavits  44 that my friend intends to call, it is unclear to me  45 whether in respect of that body of evidence that my  46 friend is suggesting that part of August be set aside  47 for out of court cross-examinations, whether he's -- 16635  Discussion  1 he is suggesting as an alternative to in court  2 examination of these witnesses, and where those  3 affidavit witnesses sit in the general scheduling of  4 his -- his witnesses as a whole.  5 And so far as Ms. Koenigsberg's suggestion goes, I  6 think that she raises the very consideration that is  7 at play in our mind as to whether or not there should  8 be a commission or a deposition of Dr. Rigsby.  What  9 we are trying to do is to figure out what the cost  10 alternatives are, and if it's more convenient for  11 everyone that he come here, then that's what we want  12 to do.  13 But with respect, My Lord, I think there should be  14 some certainty for the plaintiffs now regarding the  15 issues raised by Mr. Goldie, in terms of the  16 scheduling of his witnesses and who they are.  17 MR. GOLDIE:  Well, My Lord, this whole business was thrashed out  18 at pre-trial conferences.  The order that was made in  19 1986 with respect to lay witnesses was a summary of  20 evidence of witnesses 14 days in advance, and we are  21 going to exceed that.  22 So far as names are concerned, I have told Your  23 Lordship that -- and I have told my friend that I will  24 not provide names until I know when and know what the  25 plaintiffs' case is, that is to say when it's closed.  26 I do not think it is appropriate to, and its never  27 been done in litigation, so far as I am aware, never  28 been done to state that so and so will be called as a  29 witness when that -- when there is -- when it is  30 possible he will not be called as a witness.  31 I really don't know where this 120 days crept in.  It  32 was never the subject matter of an order.  If my  33 friend says that he is unprepared to deal with Dr.  34 Farley, then in my submission Dr. Farley ought to be  35 called, his evidence given, and if my friend at that  36 time is unable to deal with it, an order is  37 appropriate at that time.  If I understand him  38 correctly, he wants Your Lordship to say there will be  39 no -- Dr. Farley may not be called.  If that's the way  40 in which my friend wishes to proceed, then I will have  41 to -- and Your Lordship makes such an order, I will  42 have to reconsider my position.  43 THE COURT:  Well, is it essential that Dr. Farley be called in  44 July?  Can he not be replaced by some other witness  45 and avoid this difficulty?  Your friend says he has  46 this problem.  Can it not be accommodated by dealing  47 with some other witness?  I don't think there is any 16636  Discussion  1 magic in having two witnesses on the Royal  2 Proclamation --  3 MR. GOLDIE:  There is no magic, but as I say, if my friend is  4 going to take the position that he is taking, then I  5 will have to consider what substitution can be made.  6 But I want to make it clear that that would be my  7 proposal for July, and I think that it would be  8 convenient to have Dr. Farley precede Dr. Greenwood.  9 In fact I would not call Dr. Greenwood until after Dr.  10 Farley.  11 THE COURT:  Well, counsel have a great advantage over me,  12 because they have an understanding of the way all  13 these things fit in, which is denied me, but it does  14 seem that after all this time we are at a state we  15 shouldn't be in, and I don't have enough information  16 or insight into these things to commit me to be  17 otherwise and terribly arbitrary.  I have confidence  18 that the funding problem will be resolved.  I am  19 determined we should proceed in July, simply because I  20 think that if we don't, we may extend this trial by  21 six months.  I think that we have to clean up these  22 details that have been left unresolved during June, if  23 we possibly can, and I think we have to use the three  24 weeks in July to try and avoid the six month delay  25 that I just mentioned.  26 It seems to me that it should be possible for  27 counsel to organize their affairs in a way that will  28 permit that to be done.  At the moment, not having  29 reviewed the previous directions which have been made,  30 I am not able to deal with the requirement of 60 days  31 notice of witnesses.  Mr. Rush tells me that I  32 directed there be 60 days, I think he said, did he,  33 Mr. Rush, for lay witnesses?  34 MR. RUSH:  No, My Lord, I don't say that with regard to lay  35 witnesses.  I say that only with regard to the  36 disclosure of new expert opinion reports that I raised  37 this matter with you.  38 THE COURT:  Well, do you say there is any order outstanding that  39 requires your friend to give the names of the lay  40 witnesses more than 14 days before the evidence is  41 called?  42 MR. RUSH:  No, I don't say that there is any outstanding order  43 to that effect.  What I am saying is that I think that  44 in the circumstances here that it is desirable to do  45 so, given the -- well, given two issues, essentially,  46 and that is given the nature of the discovery and what  47 in my submission has been the absence of a -- of a 16637  Discussion  1 full discovery of the defendants in the case, and  2 secondly, we have urged upon Your Lordship and  3 previous Chambers judges that there ought to be a  4 grouping of the defendants' documents giving the  5 voluminous disclosures that are involved there.  And  6 for those two reasons, because neither, in our  7 submission has been adequately met, that we need more  8 notice of who the witnesses are going to be to make  9 that -- those preparations.  10 Now, I think that there was an informal  11 recommendation from Your Lordship with regard to the  12 disclosure of the names of lay witnesses in a period  13 earlier than 14 days when the summary was required to  14 be disclosed.  I can't at this point recall whether it  15 was 30 days.  It is the only date that would spring to  16 mind.  17 THE COURT:  All right.  Well, I don't have a recollection of  18 those matters, and that leaves me to be more careful  19 than I might otherwise be.  Mr. Goldie.  20 MR. GOLDIE:  My Lord, I -- the comment that my friend makes  21 leads me to think that he is under a misapprehension.  22 I thought I made it clear in January, and I perhaps  23 didn't.  The Province is not calling any lay witnesses  24 to prove historical documents or anything of that  25 kind.  The lay witnesses that we are dealing with, and  2 6 which we are endeavoring to reduce to a minimum, deals  27 with the plaintiffs' claim of use and occupation.  28 There is no -- there are very little, if any,  29 documentary material involved with these people.  30 Basically, when we come to dealing with the meaning of  31 documents which are archival, it will be a matter of  32 argument.  33 THE COURT:  Yes.  34 MR. GOLDIE:  So if my friend is under the misapprehension that a  35 lay witness will be called to deal with matters beyond  36 the memory of living man, I can relieve his mind of  37 that right away.  38 MR. RUSH:  Well —  39 THE COURT:  Well, I think that we have to get on with this  40 trial.  I am terribly disturbed about what I am  41 hearing.  I think it should be unnecessary.  I think,  42 Mr. Goldie, you are going to have to give your friend  43 at least 30 days notice of the identity of the  44 witness, and you are going to have to give him 14 days  45 notice of the nature of the evidence.  46 I am not going to say anything about Dr. Farley at  47 the moment, but I am going to invite you, Mr. Goldie, 1663?  Discussion  1 to see if you can accommodate your friend by calling  2 some other witness other than Dr. Farley.  If you  3 can't do that, then I will have to deal with the  4 matter again, but it seems to me not -- to avoid these  5 problems if we can, and if we can't, then I will have  6 to make an arbitrary ruling, which I am reluctant to  7 do.  But it does seem to me that if we are facing  8 three to four months of evidence here, that we  9 shouldn't have to get hung up over which witness is  10 called first and which one is called secondly, and I  11 hope we can avoid these problems.  If we can't, then I  12 will have to deal with it.  13 I don't think we should proceed on the basis that  14 this trial is not proceeding in July.  I think we  15 should proceed on the basis this trial is proceeding  16 in July, and if we have to -- need to retreat from  17 that, then so be it, but I am not prepared to  18 recognize that we are going to risk completion of the  19 evidence this year by not sitting for three weeks in  20 July.  I think that would be irresponsible, and I  21 don't -- so let's get on with the trial and for  22 heaven's sakes let's see if we can accommodate each  23 other in some way.  24 MR. GOLDIE:  I would like to say, My Lord, I entirely agree with  25 what Your Lordship is saying, in that we intend to  26 occupy three weeks in July of the defendants' case.  27 THE COURT:  Well, I hope that can be arranged.  Shall we proceed  28 with the evidence?  29 MR. RUSH:  Thank you, My Lord.  30 My Lord, the next witness the plaintiffs intend to  31 call is Dr. Barbara Lane.  I will set out the area of  32 the expertise in which we intend to call her evidence.  33 Dr. Lane is being called to give expert evidence in  34 the fields of ethnohistory and anthropology in  35 relation to the origin, nature and content.  36 THE COURT:  Origin, nature —  37 MR. RUSH:  And content of Imperial, Colonial, Provincial and  38 Dominion policy regarding Indian title in what is now  39 British Columbia from the time of Captain James Cook's  40 voyage to the northwest in 1776.  And she will be  41 called to give evidence in relation to the manner of  42 the recognition and implementation of that policy from  43 time to time in the Colonies of Vancouver Island and  44 British Columbia, the United Colonies and the Province  45 of British Columbia, including the response of Indian  46 people in terms of shaping and implementing the policy  47 referred to toward native title. 16639  B. Lane (for Plaintiffs)  In chief by Mr. Rush  (on qualifications)  1 Dr. Lane is also being called, My Lord, to give  2 expert evidence in the fields of ethnohistory and  3 anthropology in relation to the land grant system  4 under the South African War Land Grant Act in the  5 Bulkley, in Kispiox Valleys, and the impact of those  6 grants on the native people in those areas, including  7 the response by those people to the grants.  8 I would ask that Dr. Lane come to the witness stand.  9 And Dr. Lane, if you will please come to the witness  10 stand here.  11 THE REGISTRAR:  Would you state your name for the record please,  12 and spell your last name.  13 THE WITNESS:  Barbara Lane, L-A-N-E.  14  15 BARBARA LANE, a witness called on  16 behalf of the Plaintiff, having been  17 duly sworn, testifies as follows:  18  19 THE REGISTRAR: Thank you.  You may be seated.  20 THE WITNESS:  Thank you.  21 MR. RUSH:  My Lord, I have handed up two sets of three volumes.  22 There is a fourth volume to come, but the relevant  23 portion deals with volumes 1 to 3 to begin with, and I  24 would ask that these volumes be placed before you.  25 There will be a passing reference to Volume 1, and the  26 substantial reference that I will be directing the  27 witness to will be in volumes 2 and 3 as I refer them  2 8 to her, but may I place Volume 1 -- have Volume 1  29 placed before the witness.  30  31 EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. RUSH:  32  33 Q   I would ask you to turn to Tab 1, and in Tab 1 at  34 Volume 1 there is a document set out "Curriculum  35 Vitae, Barb Lane, consulting anthropologist".  You  36 have reviewed this document.  Does this accurately set  37 out your academic training, your field research, the  38 faculty position which you have held, your  39 administrative and research posts, your retainer as an  40 expert witness and your publications?  41 A   Yes, it does.  42 Q   You indicate in your Curriculum Vitae that you hold a  43 teaching position or have held a teaching position  44 from 1981 to 1989 at the University of Washington.  Do  45 you still hold a position there?  46 A   Yes, I teach there intermittently.  I don't teach  47 every term. 16640  B. Lane (for Plaintiffs)  In chief by Mr. Rush  (on qualifications)  1 Q   And what course do you teach?  2 A   The last number of years I have taught primarily two  3 courses, one on Indians of the Northwest Coast, and  4 the other a course in ethnohistorical method in  5 archival technique.  6 Q   Have you taught courses in ethnohistorical method in  7 archival technique elsewhere than at the University of  8 Washington?  9 A   Yes.  Some years ago I taught at the Western  10 Washington College.  It's now Western Washington  11 University in Bellingham.  12 Q   And have you taught at any Canadian university?  13 A   Yes, at the University of Victoria and the University  14 of British Columbia.  15 Q   And what has been the subject matter of the courses  16 you have taught there please?  17 A  At the University of British Columbia I taught a  18 course in ethnographic field method to graduate  19 students in the Department of Anthropology, and also a  20 course on Indians of the Northwest Coast, or I believe  21 it was called Indians of British Columbia at U.B.C.,  22 and several courses at the University of Victoria,  23 including Indians of British Columbia.  24 Q   Thank you.  Apart from your teaching experience, have  25 you had experience as an ethnohistorian, direct  26 experience as an ethnohistorian in archival research  27 with regards to Indians in the northwest?  28 A   I am sorry, could you repeat that question.  29 Q   Yes.  Apart from your teaching experience, have you  30 had other experience of doing archival research and  31 performing work as an ethnohistorian?  32 A   I see you are asking me apart from for academic  33 purposes?  34 Q   Yes.  35 A   Yes.  36 Q   And what is that?  37 A   I have done so in connection with litigation.  38 Q   And can you advise His Lordship in respect of which  39 litigation, and what it was that you did in  40 preparation for that litigation?  41 A  Well, several cases.  Perhaps the most pertinent would  42 be the United States v. Washington.  43 Q   Yes.  And that is that -- a case sometimes known as  44 the Boldt case?  45 A   Yes, it is.  46 Q   And in respect of the Boldt case, what work did you do  47 as an ethnohistorian in archival research? 16641  B. Lane (for Plaintiffs)  In chief by Mr. Rush  (on qualifications)  1 A   I reviewed the circumstances of Indian and non-Indian  2 people in what is now Washington State in the  3 mid-nineteenth century, in order to assist with the  4 interpretation of treaty language on a series of about  5 half a dozen treaties that were made there in 1854 and  6 1855.  7 Q   And in respect of the non-Indian research that you  8 did, could you be more specific as to some of the  9 subject areas into which you conducted investigation?  10 A   Yes.  I researched the history of American Indian  11 policy in the nineteenth century prior to the time of  12 those treaties.  I researched the questions regarding  13 recognition of Indian title to land in that territory,  14 as reflected in the American policy, and I researched  15 what was known by the representatives of the United  16 States government at that time regarding both the  17 Indian fisheries and the fish that were at issue in  18 that case.  19 Q   And in respect of your research about the Indian  20 people, did you conduct research with regard to  21 Indians and their responses to the policy that you  22 have yourself indicated that you researched for the  23 non-Indian?  24 A   Yes.  I had to research the nature of Indian societies  25 in the case area in the mid-nineteenth century and  26 earlier, and the political organization, societal  27 structures and the manner of fishing and the  28 territorial claims of the various Indian groups that  29 were involved in the case.  In addition I had to  30 provide ethnohistorical material to assist with the  31 identification of the current plaintiffs with the  32 people who had been parties to the treaties in the  33 1850's.  34 Q   Current plaintiffs meaning native or non-native  35 people?  36 A   Non-natives -- excuse me, native people, Indian tribes  37 that were the plaintiffs in the case.  38 Q   Right.  And did you in the course of your research  39 with regard to the Indian people examine their fishing  40 habits and examine the fishery?  41 A   Yes.  42 Q   Okay.  And having done that research, were you called  43 upon and did you testify as an expert witness in the  44 case of U.S. v. Washington?  45 A   Yes, I did.  46 Q   And is that -- are you still engaged as an  47 ethnohistorian and archival researcher in respect of 16642  B. Lane (for Plaintiffs)  In chief by Mr. Rush  (on qualifications)  1 that case?  2 A   Yes, I am.  3 Q   That case is outstanding?  There is continuing  4 litigation in respect of issues subsequent to that  5 case?  6 A   Not subsequent to.  There is still -- the Court has  7 maintained control over the case, and the  8 implementation of the rulings in that case, and there  9 are still ongoing hearings and litigation within that  10 case.  11 Q   And in respect of that you have been called to testify  12 in respect of your ethnohistorical and anthropological  13 knowledge?  14 A   Yes, I am still retained by the United States for that  15 purpose.  16 Q   All right.  I would just ask you, if you will please,  17 to identify for His Lordship on pages 2 and 3 of your  18 Curriculum Vitae other cases in which you have done  19 ethnohistorical and archival research, and  20 subsequently been called upon to lead that -- the  21 results of your research as a witness in court.  And  22 you needn't, unless you feel necessary, go into each  23 of the cases, but perhaps just to identify those in  24 which you have done that type of work.  25 A   Yes.  Well, looking at page 2 and simply naming the  26 cases, the State v. Moses, the White River Project,  27 Makah Tribe v. the United States.  I have already  28 mentioned U.S. v. Washington.  Regina v. Jack,  29 Quinault Tribe v. Long, Alaska v. Frank, the  30 Nisqually Power Project, the Elwha Power Project,  31 Umatilla v. Alexander, Regina v. Bartleman/August,  32 Regina v. Bradley Bob, Regina v. Charlie and Jack,  33 U.S. v. Lincoln, Regina v. Adolph.  I believe all of  34 the others.  There is one in there in which I think I  35 did not do archival research, and that may have been  36 the Charlie and Jack case.  37 Q   All right.  38 A   I believe I misspoke a moment ago and named that one.  39 I think that was not.  40 Q   All right.  Thank you.  Dr. Lane, have you in the  41 course of your work as an anthropologist and  42 ethnohistorian been involved in field-work where you  43 have invoked the use of your ethnohistorical and  44 ethnographic training in -- in what field-work have  45 you been involved with?  46 A  Well, in two separate geographic areas.  In the South  47 Pacific, and then what used to be the the New 16643  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 Hebrides, and now the Nation of Vanuatui,  2 V-A-N-U-A-T-U-I.  I spent several years doing  3 ethnographic field-work in the islands, and in  4 connection with that did archival research at  5 libraries in New Zealand and Australia and France and  6 England.  7 Q   And the other area, the other geographic area in which  8 you have done ethnographic and ethnohistorical  9 field-work?  10 A  Well, here in the Northwest Coast.  11 Q   And in respect of which peoples?  12 A   Coast Salish people, Dene people, Nootkan,  13 N-O-O-T-K-A-N, people primarily, and others  14 incidentally, and I have done research in archives and  15 libraries in Canada and the United States and  16 England --  17 Q   All right.  18 A   -- in that regard.  19 Q   Yes.  All right.  And in terms of your ethnographic  20 work, have you conducted field-work among or with the  21 Gitksan and/or Wet'suwet'en people?  22 A   No, I have not.  23 Q   Okay.  And have you done archival work with respect to  24 the Gitksan and Wet'suwet'en people?  25 A   Yes, I have.  26 MR. RUSH:  All right.  I am asking that Dr. Lane be qualified as  27 an expert in the field that I have so indicated, in  28 the field of giving expert opinions, My Lord.  29 THE COURT:  Thank you.  Do I have this right, that you have done  30 archival research but not ethnographic research with  31 regard to the Gitksan and Wet'suwet'en?  Thank you.  32 Mr. Goldie.  33  34    CROSS EXAMINATION ON QUALIFICATIONS BY MR. GOLDIE:  35  36 Q   Dr. Lane, as you have told His Lordship, your formal  37 qualifications are in the field of anthropology?  38 A  Anthropology and ethnohistory.  39 Q   I'm sorry?  40 A  Anthropology and ethnohistory.  41 Q   What formal qualifications have you in ethnohistory?  42 A   I have been a practising ethnohistorian for the past  43 30 years or so, and I have taught courses in  44 ethnohistory at several universities.  45 Q   I asked for your formal qualifications, and I'll  46 qualify that by stating academic.  47 A   I have a PhD in anthropology, which included training 16644  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 in ethnohistory as a --  2 Q   So that your formal qualifications in the academic  3 sense is in anthropology?  4 A  Which includes ethnohistory.  5 Q   All right.  I will come to that.  And the branch of  6 the discipline that you have received your training in  7 is cultural anthropology; is that right?  8 A   That's correct.  9 Q   Which is the study of a living culture?  10 A   Generally, yes.  11 Q   I beg your pardon?  12 A   Generally, yes.  13 Q   Why do you say "generally"?  14 A  Well, cultural anthropology is generally concerned  15 with the study of living cultures.  16 Q   Yes.  Thank you.  And would it be fair to say that  17 your specialty, so far as cultural anthropology is  18 concerned, has focused on the Indians of the Northwest  19 Coast of North America?  20 A  And peoples of the Southwest Pacific.  21 Q   Uh-huh.  And I think you named them a few minutes ago.  22 Coast Salish -- I am sorry, I want to be clear about  23 the names that you gave us.  Yes.  Coast Salish, Dene  24 and Nootkan?  25 A   Yes.  I neglected to mention that I have also done  26 field research and archival research in connection  27 with Tsimshian, T-S-I-M-S-H-I-A-N, people.  28 Q   Yes.  And is it fair to say that your focus in Canada  29 has been mainly in Vancouver Island?  30 A   It would be fair to say that it's mainly on Vancouver  31 Island, yes.  32 Q   Your dissertation for your PhD was on a comparative  33 and analytical study of Northwest Coast Indian  34 religion, with the field-work being done amongst the  35 Cowichan Indians in Vancouver Island; is that correct?  36 A   That's correct.  Cowichan and Saanich.  37 Q   Your kinship studies were done in the South Pacific?  38 A   Yes, that's correct.  39 Q   The research and study which you have undertaken with  40 respect to the Northwest Coast Indians includes  41 research and study of the Gitksan; is that right?  42 A   That's correct.  43 Q   Because they are a Tsimshian people?  44 A   No, because they are a Northwest Coast people, and  45 that's one of my areas of specialty.  46 Q   Yes.  Well, you gave me some names a few minutes ago,  47 and you said I omitted the Tsimshian.  Did you also 16645  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 omit the Gitksan?  2 A   No.  I'm sorry, did I mishear your question?  3 Q   I said you gave me some names of the studies that you  4 had made a few minutes ago.  Do you remember that?  5 A   Yes.  6 Q   Yes.  And the names were Coast Salish, Dene, Nootkan  7 and Tsimshian?  8 A   Yes.  I thought that the question that had been asked  9 to me, with respect to that answer, those four groups,  10 were groups that I had done field-work with,  11 ethnographic field-work.  12 Q   So your inclusion of the Gitksan is because you have  13 done archival work with respect to them?  14 A   That's correct.  15 Q   Yes.  And what about the Wet'suwet'en?  16 A  As with the Gitksan, archival work.  17 Q   Archival work only?  18 A   Yes.  19 Q   All right.  Thank you.  My understanding is that from  2 0 your evidence that you gave opinion evidence in the  21 Canadian courts as listed in your C.V., including  22 Regina v. Bradley/Bob and Regina v. Adolph.  You gave  23 opinion evidence in those cases?  24 A   Yes.  25 Q   But you -- the evidence that you gave in those cases  26 was in your capacity as an ethnohistorian?  27 A   That's correct.  2 8 Q   Now, I think you told me a minute ago that your formal  29 training as an ethnohistorian was included in your  30 training as an anthropologist?  31 A   That's correct.  32 Q   You don't have a degree in history?  33 A   That's correct.  34 Q   Nor have you taken any course work in history?  35 A   That's correct.  36 Q   When did you come to regard yourself as qualified to  37 speak as an ethnohistorian?  38 A   I couldn't give you an exact date on that.  39 Q   Well try.  40 A   Perhaps I can answer your question in this way.  I  41 took my PhD in anthropology in 1953, and at that time  42 there were no separate, as far as I know, no separate  43 courses being given in ethnohistory.  It was a  44 developing field, and some anthropologists who were  45 pioneering in that field as a specialization within  46 anthropology --  47 Q   Yes. 16646  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 A   -- were among my professors and my doctorate program.  2 Today there are courses offered in ethnohistory,  3 titled as such, in those days they were not.  4 Q   Right.  5 A   However, from the time of my doctoral training I have  6 regarded that as one of the areas of my  7 specialization.  That's the best way I can answer your  8 question.  9 Q   Am I correct in my understanding that at one time you  10 took the view that evidence with respect to the  11 interpretation of archival documents was part of  12 anthropology?  13 A   I am sorry, could you repeat that question.  14 Q   I said:  Am I correct in my understanding that at one  15 time you regarded the interpretation of documents as  16 part of the field of anthropology?  17 A   I still do.  18 Q   Uh-huh.  So in that sense you blend the two together,  19 ethnohistory and anthropology?  20 A   Ethnohistory is an area of specialization which is  21 engaged in -- by people who have degrees in  22 anthropology, and sometimes by people who have degrees  23 in history.  24 Q   Yes.  So I -- my question to you was you have blended  25 the two together.  26 A   I don't blend them.  It is a discipline which is  27 practiced by many anthropologists, yes.  28 Q   And by many historians?  29 A   They have more recently become interested and followed  30 anthropologists in that endeavour, yes.  31 Q   Yes.  You gave a paper in Victoria, I believe last  32 year, November, 1988, when you -- do you recall that?  33 A   I think you may be referring to a talk at the  34 University of Victoria called "The Uses of  35 Ethnohistory".  36 Q   Well, the document that I have been given is headed  37 "Use of Historical Evidence in British Columbia  38 Courts, Progress and Problems, B.C. Studies  39 Conference, November, 1988" --  40 A   No, that was in Vancouver at Simon Fraser University.  41 Q   All right.  The "Victoria" is simply your residence,  42 is that right, the reference to "Victoria"?  You live  43 in Victoria?  4 4 A   I do.  45 Q   Yes.  All right.  And have you a copy of that paper  46 with you?  47 A   No, I have not. 16647  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 Q   I just got the single copy.  2 THE COURT:  I notice, Mr. Goldie, it is time for the usual  3 morning adjournment.  Perhaps before you put this  4 document to the witness we should take the morning  5 adjournment.  6 MR. GOLDIE:  All right.  Thank you.  7 THE REGISTRAR:  Order in court.  This court will recess.  8  9 (PROCEEDINGS ADJOURNED FOR BRIEF RECESS)  10  11 I HEREBY CERTIFY THE FOREGOING TO BE  12 A TRUE AND ACCURATE TRANSCRIPT OF THE  13 PROCEEDINGS HEREIN TO THE BEST OF MY  14 SKILL AND ABILITY.  15  16    17 LORI OXLEY  18 OFFICIAL REPORTER  19 UNITED REPORTING SERVICE LTD.  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 16648  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Goldie.  5 MR. GOLDIE:  6 Q   Dr. Lane, I think you told me that you don't have a  7 copy of that paper here?  8 A   I don't have a copy of that paper.  9 Q   Well, I'll place one in front of you then.  Is that a  10 transcript of a paper that you gave at the proceedings  11 described there in November of 1988?  12 A   Yes, it is.  13 Q   As I understand that paper, on page 5 you, after  14 discussing in the paragraph beginning over the page,  15 and perhaps I should read you the first sentence on  16 the page 4 under the heading "The Researchers", you  17 say, and I quote, "Ethnohistorical research is  18 undertaken most frequently by anthropologists and by  19 historians."  They're two separate and distinct  20 disciplines, aren't they?  21 A   That's correct.  22 Q   And in the case of ethnohistory they have come  23 together in analysing cultural reactions within their  24 historical context; is that a fair statement?  25 A   Yes.  26 Q   And you say on page 5, and I quote "In a well  27 researched study of relations among native groups or  28 between natives and non-natives, the anthropologist  29 needs to understand cultural interactions within their  30 historical context." And that's a statement that you  31 made and which you believe; is that correct?  32 A   That's correct.  33 Q   These two disciplines may have different approaches to  34 the same set of information or data?  35 A   Is that a question?  36 Q   Yes; is that correct?  37 A   Yes.  38 Q   In fact, that's what you say, is it not, on page 7?  39 You say:  "Even when they share the same general  40 research objective, the historian and anthropologist  41 may bring different approaches and perspectives to the  42 enterprise."  43 A   Yes, that's what I said.  44 Q   All right.  And you believe that?  4 5 A   I do.  46 Q   But in fact there are two separate and distinct  47 disciplines which it is your opinion come together 16649  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  with an ethnohistorian and provide information derived  from both approaches; is that a fair way of putting  it?  Well, it's not the way I would put it precisely.  Well, perhaps I can refer you to page 11 of your  paper.  Uh-huh.  You say -- and it's the last sentence on that page.  You say:  "The ethnohistorian, whether that expert is  an anthropologist or a historian, may be the only one  who can provide the information needed by the judge to  adequately assess the document." That's your present  belief?  Yes, I said that.  That's a different statement from  the one that you put to me a moment ago, however.  All right.  Well, do you accept the statement I just  read to you?  Yes, I do.  Yes.  And your expertise originates in the field of  anthropology, doesn't it?  That's correct.  And not in the field of history?  That's correct.  And you have found it increasingly useful as a witness  in court cases to interpret historical documents in  light of the anthropological study you have made of  Indian cultures; is that correct?  Well, this is an approach which I have used since the  late 1940's in understanding materials for academic  purposes and in more recent decades when I have been  involved in using this approach in litigation I have  found it consistently to be a useful and sometimes  indispensable part of the research.  Yes.  Now, in every case in which you've testified in  Canada that is shown on the CV you have testified on  behalf of the Indians; is that correct?  Yes, with respect to the cases in Canada that is  correct.  Yes.  Perhaps I might tender the paper as an  exhibit, my lord.  It's "Use of Historical Evidence in  British Columbia Courts, Progress and Problems,  Barbara Lane, Victoria B.C." and the head is -- the  head-note is "B. Lane - B.C. Studies Conference,  November, 1988".  We took the trouble to get some copies, Mr. Goldie.  :  Thank you.  What's the next exhibit number?  1  2  3  4  A  '  5  Q  6  7  A  8  Q  9  10  11  12  13  14  A  15  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  26  27  28  A   '  29  30  31  32  33  34  Q  35  i  36  37  A  38  39  MR. GOLDIE  40  41  42  43  44  45  MR. RUSH:  46  MR. GOLDIE  47  THE COURT: 16650  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 THE REGISTRAR: Next exhibit number is 1036, my lord.  2 THE COURT:  Thank you.  3  4 (EXHIBIT 1036: "Use of Historical Evidence in British  5 Columbia Courts, Progress and Problems" by B. Lane)  6  7 MR. GOLDIE:  8 Q   And in the cases in the United States you were  9 retained either by the Indians or by the United States  10 on behalf of the Indians; is that correct?  11 A   No, that's not correct, sir.  12 Q   Which cases were you retained other than by the United  13 States on behalf of the Indians or the Indians in the  14 CV that you've listed here?  15 A  At page 3 in the CV.  16 Q   Yes.  17 A   The only listing under the date 1982 which was before  18 the Federal -- U.S. Federal Energy Regulatory  19 Commission, Kootenay Falls Project.  20 Q   Yes.  21 A   I was retained by the Federal Energy Regulatory  22 Commission to serve as their expert in order to assist  23 them in evaluating the anthropological testimony that  24 was offered through an expert on behalf of the  25 Indians, as well as the anthropological testimony that  26 was offered by I believe four anthropologists on  27 behalf of the power project.  28 Q   You were a staff witness at that time?  29 A  Well, I was not a member of the staff.  They didn't  30 have a staff anthropologist and they asked me if I  31 would serve in that capacity.  32 Q   Perhaps more accurately you were retained by the  33 commission on its behalf?  34 A   That's correct.  35 Q   Yes.  Any others?  36 A  Well, in many of the ongoing court hearings under the  37 umbrella of U.S. v Washington the particular issue is  38 a disagreement between Indian tribes and I have on a  39 number of occasions been retained either by several of  40 the disputants jointly in order to assist the court in  41 settling the differences among them, or by one or  42 another of the tribes in order to do research on their  43 behalf in such a dispute.  44 Q   All right.  Thank you.  45 A   So that those have been Indians against Indians which  46 I have been retained by one or the other.  47 Q   But the original case you were retained by the United 16651  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 States on behalf of the tribes?  2 A   In the original case of United States versus  3 Washington?  4 Q   Yes.  5 A   It's a little more complicated than that.  The United  6 States brought the case against the State of  7 Washington --  8 Q   Yes.  9 A   -- on behalf of certain named tribes.  Other tribes  10 who were interested and affected by the results of the  11 case had not been named by the United States and they  12 intervened in the case on their own behalf, and I was  13 retained -- well, it's a little more complicated.  In  14 one case at least a tribe that was named by the United  15 States also intervened on its own behalf, apart from  16 having been named by the United States, and I was  17 retained both by the United States and by the  18 intervening Indian tribes as the expert for the  19 several parties.  20 Q   When the United States retains an expert, it does so  21 in its capacity as trustee for the tribes in question,  22 does it not?  23 A   That's correct.  24 Q   Now, are you familiar with the works of Dr. Bruce  25 Trigger?  2 6 A   Yes, I am.  27 Q   He's a respected well known anthropologist in Canada?  28 A   Yes, he is.  29 Q   Are you familiar with his work "Natives and  3 0 Newcomers"?  31 A   Yes.  32 Q   That was published in 1985, was it not?  33 A   I'm not sure of the date.  34 MR. GOLDIE:   I've taken some extracts from Dr. Trigger's book.  35 At page 166 of this particular chapter, which is  36 chapter 4, Dr. Trigger says that --  37 THE COURT:  I'm sorry, whereabouts is this?  38 MR. GOLDIE:  39 Q   Page 166, my lord, at the bottom of the page, the last  40 sentence of the paragraph, four lines from the -- six  41 lines from the bottom of the page he says:  42  43 "In this view, to which I subscribe, the term  44 ethnohistory should be confined to labelling  45 a set of techniques that are necessary for  46 studying native history."  47 16652  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 Do you accept that as an accurate statement or is  2 that a statement to which -- with which you agree?  3 A   From my perspective that is a true statement, but it  4 is not the entire statement.  I don't agree with it if  5 it's confined.  I think ethnohistory involves more  6 than that.  7 Q   All right.  Well, he goes on to say in the next  8 sentence:  9  10 "It is generally agreed that  11 ethnohistory uses documentary evidence and  12 oral tradition to study changes in  13 nonliterate societies."  14  15 Do you accept that statement?  16 A  Again, as partially correct.  Correct insofar as it  17 stands, but not the whole truth.  18 Q   All right.  To what would you add -- what would you  19 add to that?  20 A   To the first or the second of the statements?  21 Q   Either.  22 A  All right.  Perhaps I can answer the question best in  23 this way.  Ethnohistory brings together the  24 historiographic techniques used by historians and  25 archivists and the theoretical framework from  26 anthropology, and that is why I feel the first  27 sentence that you read me is too limited, although  28 it's correct insofar as it goes.  And the second one,  29 I might add this:  Ethnohistory is used by different  30 people in two somewhat different but overlapping  31 senses.  In one sense it is used to refer to the study  32 within a historical framework of cultural systems or  33 cultural processes or particular societies, and in  34 another sense, which overlaps with this, it's  35 sometimes used to refer to an ethnic group's own  36 history about itself, especially with reference to  37 oral tradition and oral history.  38 MR. GOLDIE:   But Dr. Lane —  39 MR. RUSH:  Excuse me.  Excuse me.  We should be sure that Dr.  40 Lane has completed her answer in this respect.  41 MR. GOLDIE:  42 Q   Oh, certainly.  43 A   Thank you.  44 Q   Do you wish to keep on talking?  45 A  Well, I would like to clarify --  46 Q   Carry on.  47 A   So that ethnohistory is sometimes used when referring 16653  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 to non-native renderings of a history of a native  2 group, but it is also not confined to the study of  3 exotic groups.  Anthropologists frequently use  4 ethnohistorical research in order to study change  5 within American culture, Canadian culture, French  6 culture, Irish culture, and so on.  It is not  7 necessarily related to a nonliterate society.  8 Q   Well, that is its focus though, isn't it?  That's how  9 it arose?  It brought together the anthropologist  10 who's interested in the changes in the culture of a  11 particular group and historical techniques with  12 respect to research, and it was focused on nonliterate  13 groups; isn't that correct?  14 A   No, it is not correct, sir.  15 Q   So you --  16 A  A large part of what is done as ethnohistorical  17 research perforce is done with nonliterate societies  18 because the only older materials, apart from oral  19 tradition, were those written by outsiders, and in  20 order to get at the earlier history of groups without  21 written traditions it was necessary to use this  22 approach.  However, it has been used extensively by  23 anthropologists both in Europe and in Canada and the  24 United States for studies of earlier phases of the  25 history of literate societies.  26 Q   Well, the history of a literate society is the  27 province of a historian, isn't it?  2 8 A   No.  29 Q   Well, that's what he's trained for, he or she?  30 A   Oh, yes, but not exclusively.  31 Q   All right.  32 A   Yes, certainly.  33 Q   The nexus between anthropology and the historian is  34 the study of a nonliterate group using historical  35 methods; isn't that correct?  36 A   Only in part.  37 Q   Well, I take it, Dr. Lane, that you disagree then with  38 Dr. Trigger's statement, and I quote:  39  40 "It is generally agreed that  41 ethnohistory uses documentary evidence and  42 oral traditions to study changes in  43 nonliterate societies."  44  45 You disagree with that?  46 A   No, I don't disagree with it.  I simply say that it is  47 also used for the study of literate societies. 16654  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 Q   I see.  Well, if the —  2 A  And I tried to clarify that by explaining that  3 ethnohistory is used in two different senses.  The  4 sense in which he is using it here relates to the  5 study of nonliterate societies, but that's not the  6 entire scope of ethnohistorical research.  7 Q   Would you agree that ethnohistory is confined to the  8 study of native cultures?  9 A   No, I would not.  10 Q   Yes.  All right.  Let me read to you a little further  11 from what Dr. Trigger says:  12  13 "Ethnohistory has been variously  14 described as a separate discipline, a branch  15 of anthropology or of history, a technique  16 for analysing particular kinds of data, and  17 a convenient source of information for other  18 disciplines."  19  20 A   Excuse me, would you tell me where you're reading  21 from?  22 Q   At page 166 the third complete paragraph midway down  23 the page beginning with the words "Ethnohistory has  24 been variously described..."  25 A   Yes.  Thank you.  26 Q   All right.  Stopping at the end of that sentence.  Do  27 you accept that statement?  2 8 A   Yes, I do.  29 Q   And then continuing "It has been debated..." Well, the  30 reference there is to McBryde.  Are you familiar with  31 who Mr. McBryde is?  32 A   I don't at the moment recall.  33 Q   Well, let me refer you to the first complete paragraph  34 on that page, and I quote:  35  36 "For a long time the theoretical  37 foundations and aims of ethnohistory remain  38 part of the broader discipline of  39 anthropology (McBryde 1979)"  40  41 Do you accept that statement as accurate?  42 A   Yes.  43 Q   "In recent years", continuing:  44  45 "In recent years, however, more  46 ethnohistorical research has been done by  47 professional historians, as well as by 16655  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 economists and geographers.  These  2 researchers are bringing new skills and  3 fresh theoretical perspectives to the study  4 of native American history."  5  6 Do you accept that?  7 A   That's correct.  Yes.  8 Q   Now, just pausing there, would you not agree with me  9 that, so far as this continent is concerned,  10 ethnohistory is generally considered to mean the study  11 of native American history?  12 A   Oh, in this continent much of the work in ethnohistory  13 has been devoted to native Americans.  Yes.  14 Q   Yes.  Nobody speaks of an ethnohistorian studying the  15 history of France, does he?  16 A   I don't know.  17 Q   Then I go back to the third complete paragraph of Dr.  18 Trigger's book following the first sentence on that  19 paragraph:  20  21 "It has been debated whether it is closer to  22 anthropology or to history and whether it is  23 a bridge or a no man's land between these  24 two disciplines."  25  26 I take it you would agree with that statement?  27 A   Yes.  28 Q  29  30 "There is also disagreement about whether  31 historical ethnography, or the  32 reconstruction of early historical cultures,  33 and the study of changes in native societies  34 are separate branches of ethnohistory, as  35 many ethnohistorians maintain, or whether  36 only the latter activity constitutes  37 ethnohistory in the strict sense.  38 (Hickerson 1970) "  39  40 A   I have no problem with that statement.  41 Q   Yes.  Both are related, however, to the study of  42 native cultures, aren't they, the disagreement that he  43 makes reference to there?  44 A  Well, this sentence speaks about native societies.  45 Yes.  4 6 Q   Yes.  All right.  And continuing:  47 16656  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 "It is worth noting, however, that historical  2 ethnography was not designated as  3 ethnohistory prior to the development of an  4 interest in studying cultural change."  5  6 Now, that sentence is also applicable to other  7 than current cultures, that is to say, cultures of a  8 nonliterate character?  9 A  And your question is?  10 Q   That sentence is applicable to nonliterate societies?  11 A   Oh, certainly.  12 Q   Yes.  It is not applicable to a literate society is  13 it?  14 A   Just let me read it again for a moment.  Are you  15 asking me about the sentence that begins "It is worth  16 noting"?  17 Q   Yes.  18 A   No, it would be applicable to a literate society as  19 well.  20 Q   Well, does one speak of a literate society as a study  21 of historical ethnography?  22 A   One can do, yes.  23 Q   Do you?  24 A  Well, you're asking me a hypothetical question.  You  25 have to point to a particular study.  26 Q   Well, do you refer to the study of the history of let  27 us say Russia from 1840 to the present day as  28 historical ethnography?  29 A  Well, again, you're giving me a hypothetical without  30 any specific to direct the label to.  31 Q   Well, can you answer my question?  32 A   But in the -- I would -- well, I can't answer it in  33 the way you ask it.  No.  34 Q   All right.  And then I continue in the reading of what  35 we have here:  36  37 "In recent years it has been suggested that  38 labelling a field of historical  39 investigation 'ethnohistory' perpetuates an  40 ethnocentric and unjustifiable distinction  41 between the study of literate and  42 nonliterate societies."  43  44 Do you understand what I've read to you?  45 A   I think so.  46 Q   Yes.  And has there been such a labelling of  47 historical investigation, ethnohistory, as one that 16657  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 perpetuates an ethnocentric and unjustifiable  2 distinction between the study of literate and  3 nonliterate societies?  4 A   Yes.  I think perhaps that's what this communication  5 is about.  6 Q   Yes.  Your view is that there is no distinction?  7 A   That's correct, the same procedures and approaches are  8 used.  9 Q   Yes.  And Dr. Trigger says, and this is the sentence  10 with which you did not wholly agree, and I quote:  11  12 "In this view, to which I subscribe, the term  13 ethnohistory should be confined to labelling  14 a set of techniques that are necessary for  15 studying native history."  16  17 Now, you say that is unduly confined?  18 A  Well, no, now that you are reading it to me with the  19 preceding material, I see that what he is suggesting  20 here is what should be in his view.  He's proposing a  21 tighter definition of how that label should be used.  22 He's not describing how in fact the label has been  23 used, and I think that's what's caused an  24 unnecessarily long communication back and forth with  25 these preceding questions.  26 Q   You now agree with him that it is a set of techniques  27 that are necessary for studying native history?  28 A   No.  I'm saying it can be defined to be confined to  29 that area of research, and that's what he's proposing.  30 I have no problem with that.  Labels and words are  31 simply things that we use to mean what we want them to  32 mean, and he's proposing a meaning there.  33 Q   Yes, I believe there's a well-known book that follows  34 that line of thinking.  35 Well, now we come to the last sentence again.  36  37 "It is generally agreed that ethnohistory  38 uses documentary evidence and oral  39 traditions to study changes in nonliterate  40 societies."  41 You've explained why you don't agree with that.  42 Would you agree that that -- there is general  43 agreement that the term ethnohistory uses documentary  44 evidence and oral traditions to study changes in  45 nonliterate societies?  46 A  Well, as I believe I said to you before, I agree with  47 this statement.  There's nothing wrong with it as it 16658  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  stands.  It simply doesn't encompass everything --  Yes.  that's done in the name of ethnohistory.  The techniques that have been developed have been  developed for the purpose of identifying the history  of societies which rely upon oral traditions?  Again, that's true insofar as it goes.  It's not the  entire story.  All right.  Now here, if I understand what you told  his lordship, you wish to speak of imperial, colonial,  and provincial policy with respect to Indian title; is  that correct?  I don't believe I spoke to his lordship.  Those are  areas which I was asked to research in this case.  I understood that in answer to questions put to you by  Mr. Rush that your expertise was in relation to  imperial, colonial, and provincial policy with respect  to native title?  Yes.  All right.  But that's what you wish to speak to in  this case; is that not correct?  That's what I've been asked to do, yes.  Yes.  And in the course of that, as I understand it,  you propose talking about intent; is that right?  I propose to describe materials which I have found in  the course of my research which may assist the court  in understanding the intent.  Yes.  You have through the course of your research  identified certain documents which you wish to place  before the court?  That's correct.  Yes.  Now, we've been furnished with a summary of your  opinion which I understand you wrote; is that correct?  That's correct.  Yes.  Do you have that in front of you?  No, I do not.  Would you just familiarize yourself with that?  My  lord, I tender that extract from Dr. Trigger's book as  an exhibit.  RAR: 1037, my lord.  (EXHIBIT 1037: Extract from Dr. Trigger's book,  "Natives and Newcomers")  Yes, it's already in, but --  :  I wasn't sure whether that part was already in.  I think it is, but we'll have it in again.  1  2  Q  3  A  4  Q  5  i  6  7  A  8  9  Q  10  11  12  13  A  14  15  Q  16  ]  17  18  19  A  20  Q  21  22  A  23  Q  24  25  A  26  27  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  A  37  MR.  GOLDIE  38  39  40  THE  regist:  41  42  43  44  45  THE  COURT:  46  MR.  GOLDIE  47  THE  COURT: 16659  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 MR. GOLDIE:  Are we correct in our understanding that --  2 MR. RUSH:  Excuse me, you've produced a copy of the summary of  3 Dr. Lane's opinion?  4 MR. GOLDIE:  That's correct.  5 MR. RUSH:  And she's reviewing it now?  6 MR. GOLDIE:  7 Q   Yes, that's correct.  8 Is that still a summary of the evidence that you  9 propose giving here?  10 A   I believe so.  11 Q   You say in the first paragraph:  12  13 "The opinions summarized here address  14 the following (1) the nature and content of  15 imperial policy regarding Indian title."  16  17 And then you go on to say from when, and how that  18 policy was implemented, and then:  19  20 "(3) evidence provided in the ethnographic,  21 ethnohistorical, and documentary records  22 regarding any intent to diminish or  23 extinguish Indian title in British Columbia  24 through treaty, legislation, or other formal  25 legal instrument."  26  27 So you wish to bring to his lordship's attention  28 all documents which you think are relevant with  29 respect to the intent that I have identified?  30 A   I would agree with your statement with one  31 qualification.  32 Q   Yes.  33 A   You said "all documents".  Many are simply  34 repetitious.  35 Q   Yes.  36 A  And so I've not --  37 Q   The significance --  38 A   -- encompassed all.  39 Q   It's a selection by you of the significant  4 0 documents --  41 A   Yes.  42 Q   -- relating to intent?  43 A   That may shed light on intent.  44 Q   All right.  And it is your view, and I'm now referring  45 to the last sentence on that page, that these  46 documents would "provide legislative background  47 indispensable to an informed interpretation of the 16660  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  A  Q  A  Q  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  Submissions by counsel.  resulting legal instruments.", and it is for that  purpose that you're bringing these documents or will  bring these documents to his lordship's attention?  Yes.  Now, you identify in the second paragraph certain  sources?  Yes.  And you include amongst those, item number (5),  "notices, letters to the editor, editorials, and  accounts published in the public press."?  That's correct.  MR. GOLDIE: My lord, I would like to have that — I'm going to  be referring to the summary and I would ask that it be  marked as an exhibit, but I'll do that after I make my  submission with respect to her qualifications.  MR. RUSH:  I think it should be marked now, my lord.  MR. GOLDIE:  All right.  I don't mind.  THE COURT: For all purposes?  MR. RUSH:  I don't see why not.  MR. GOLDIE: No, I think this is a classic example of the state  of the witness' mind.  THE COURT:  Well, if —  MR. GOLDIE: It is tendered during her -- the cross-examination  on her qualifications and that's really all that it's  tendered for.  Is there general agreement with that?  Well, my lord, I think that my friend risks the use  by which we may well put this document.  I hadn't  intended to lead it, as I indicated to him.  You had not intended?  No, I hadn't, but I will now.  I'll take advantage of  presenting the document before the court, and I think  it's in for all purposes and, as I think your lordship  has indicated on many previous occasions, that the  document once tendered cannot be used or confined to  the specific areas for which it is being tendered and  nor should it be.  THE COURT:  The only question I had with that is whether that  rule applies to a document that is put in during the  course of a cross-examination on qualifications.  I  wonder if this is in any way a parallel procedure to a  voir dire where the court determines a fact before the  evidence can be heard and then, in the absence of  agreement, the evidence has to be re-tendered and it  doesn't become admissible for all purposes, it just  becomes admissible on the voir dire.  And I wonder if  this document is only admissible on the question of  THE COURT  MR. RUSH:  THE COURT  MR. RUSH: 16661  Submissions by counsel  1 qualifications and if it -- if she is found to be  2 qualified, it would then be open to counsel to seek to  3 tender it or for the other side to oppose it.  I'd  4 like to think -- modesty should prevent me from saying  5 this, but I'd like to think that -- I'm thinking out  6 loud.  I'm not sure that there's any authority that  7 governs this question that I have encountered.  8 MR. GOLDIE:  I said I would tender it as an exhibit after I  9 completed my submissions.  This contains -- if this is  10 an indication of the evidence this witness is going to  11 be giving, this contains a number of statements which  12 would be objected to and the reason would be given for  13 the objection.  I'm taking an in limine objection to a  14 number of the statements, and I'm going to be  15 submitting that the document is tendered and would be  16 proof of the nature of the evidence which she would be  17 giving.  But I think that you --  18 THE COURT:  For the purpose of questioning her qualifications to  19 give that statement?  20 MR. GOLDIE:  Yes.  And the statements themselves even if she's  21 qualified would be objected to, but we are now dealing  22 with the qualifications to make the statement.  23 MR. RUSH:  And I say again, my lord, my friend cannot pick and  24 choose.  It may in this phase of the trial go to the  25 question of the qualifications of the witness.  It  26 doesn't mean then that it is excluded for purposes  27 other than qualifications in the trial.  Are we to  28 pull out and excise from the trial all of those  29 exhibits that have been tendered in the course of this  30 trial for testing the qualifications?  31 THE COURT:  Well, we do that in voir dires.  32 MR. RUSH:  This isn't a voir dire I say.  33 THE COURT:  Isn't this an inquiry to determine whether the  34 witness is qualified to give expert evidence of the  35 kind that you have?  36 MR. RUSH:  Yes, it is, but I think it's noteworthy that your  37 lordship identified the Trigger document as one that  38 was previously exhibited, and I think that we all, by  39 force of logic, refer to the documents which have been  40 tendered for whatever purpose, and there may be many  41 different purposes in my friend's mind as to why he  42 tenders a document.  I can tell you that I will use  43 the same document in a completely different way.  44 That's my purpose.  But he can't limit the use of the  45 document by the statement of his purpose nor by the  46 place at which the document enters the proceedings.  47 MR. GOLDIE:  Well, I'll resolve the matter and I won't tender 16662  B. Lane (for Plaintiffs)  Cross-exam by Mr. Goldie  (on qualifications)  1 the document at this point.  2 THE COURT:  All right.  3 MR. GOLDIE:  4 Q   That completes my cross-examination.  Thank you, my  5 lord.  Oh, I just have one other question.  Dr. Lane,  6 the contract of employment that you have with the  7 Tribal Council is dated June the 13th, 1985, and is  8 with Lane & Associates.  Can you tell me who the  9 associates are, please?  10 A  My husband.  11 Q   And has he been responsible for any part of the  12 evidence you're giving here?  13 A   No.  14 Q   Have you done the research that you are relying upon  15 in the case at bar personally or through others?  16 A   Both.  17 Q   Would you describe to his lordship how you have done  18 it through others?  19 A  My husband has assisted me by getting things from the  20 library and from the archives for me.  21 Q   Yes.  Anybody else?  22 A   Yes, other people from time to time, colleagues,  23 research assistants.  24 Q   How many of the latter?  25 A   Oh, since 1985?  26 Q   Yes.  27 A   I can't give you an exact count, but I suppose I've  28 called on the assistance of somewhere between half a  29 dozen and ten people perhaps to get materials for me  30 from libraries and archives rather than me having to  31 travel to them.  32 Q   Those are people who have done archival research under  33 your supervision then?  34 A   That's correct.  35 MR. GOLDIE:   Yes.  All right.  Thank you.  36 THE COURT: Miss Koenigsberg?  37 MS. KOENIGSBERG: I have no cross-examination.  38 THE COURT:  Thank you.  Mr. Rush?  39 MR. RUSH:  Madam registrar, could you place the extract entitled  40 "Use of Historical Evidence in British Columbia  41 Courts, Progress and Problems before Dr. Lane, please?  42 THE REGISTRAR: It's Exhibit 1036.  43  44 RE-EXAMINATION ON QUALIFICATIONS BY MR. RUSH:  45 Q   Thank you.  46 Dr. Lane, I refer you please to page 4 under the  47 heading "The Researchers", and it says: 16663  B. Lane (for Plaintiffs)  Re-exam by Mr. Rush  (on qualifications)  1  2 "Ethnohistorical research is undertaken  3 most frequently by anthropologists and by  4 historians.  In studies of cultural  5 relations between natives and non-natives,  6 anthropologists sometimes focus on the  7 native community and culture.  8 Alternatively, the anthropologist's central  9 interest may be the effect of contact on the  10 non-native culture or certain of its  11 institutions.  In either case the  12 anthropologist analyses the nature and  13 dynamics of cross-cultural exchange and the  14 structural or systemic effects of culture  15 change in one or more of the affected  16 groups.  Whatever the central concern, the  17 quality of ethnohistorical studies  18 undertaken by anthropologists depends in  19 part upon their ability to place central  20 events, actions and attitudes within an  21 adequate historical context.  This often  22 requires specialized knowledge of archival  23 and historical materials and methodology."  24  25 Those are your statements obviously at that time.  26 Do you hold those statements today?  27 A   Yes.  28 Q   And does that accurately reflect your views with  29 regard to the use to which ethnohistorical research is  30 put?  31 A   Yes.  32 Q   You then go on to say:  33  34 "The historian who undertakes a study of  35 cross-cultural relations may be primarily  36 concerned with the effect of specific events  37 or with analysis of particular policies.  38 The historian's interest may focus primarily  39 on non-native actions and only secondarily  40 or tangentially on the native community and  41 culture.  Even so, the quality of such  42 studies depends in part on how competent the  43 historian is to deal with information  44 concerning relative native communities and  45 cultures.  Without adequate knowledge of  46 these, there is abundant room for  47 misunderstanding historical realities and 16664  B. Lane (for Plaintiffs)  Re-exam by Mr. Rush  (on qualifications)  1 mistaking native actions and responses.  The  2 competent historian exploring relations or  3 transactions between two European nations  4 would consider it indispensable to study the  5 situation and motivations of both parties.  6 However, when one of the parties in a  7 transaction is a native group, the same  8 standards are not always applied.  It often  9 appears that less stringent efforts are made  10 to understand relevant political, legal and  11 other aspects of the native culture."  12  13 And then there's the passage which Mr. Goldie  14 referred to you, and I ask you simply, Dr. Lane, are  15 those views that you uphold today?  16 A   Yes.  17 Q   And with regard -- I just would ask you if you'd refer  18 through to the end of that chapter without my needing  19 to read the whole of it, and ask you again if these  2 0 views are the views that you have with regard to  21 ethnohistorical research by historians and  22 anthropologists?  23 A   Yes.  24 Q   And at the bottom of page number 6 under the heading  25 "Research Objectives and Strategy", you say:  26  27 "The anthropologist and the historian  28 often rely on the same documents to discover  29 data for their studies.  Sometimes the field  30 of inquiry is the same; sometimes it is  31 different.  Even when they share the same  32 general research objective, the historian  33 and anthropologist may bring different  34 approaches and perspectives to the  35 enterprise.  For example, if the general  36 field of inquiry is the nature of Indian  37 policy in the colony of Vancouver Island,  38 both anthropologist and historian may search  39 the same official documents to discover  40 statements about policy and specific actions  41 taken to implement policy.  Both will be  42 concerned to understand the origins and  43 development of policy and to account for  44 changes in it over time.  The historian  45 likely will be more interested in  46 understanding the subject by studying Indian  47 policy within a context of other 16665  B. Lane (for Plaintiffs)  Re-exam by Mr. Rush  (on qualifications)  1 governmental actions and concerns and  2 against the history of colonial affairs in  3 general.  The anthropologist often will find  4 it more instructive to study the development  5 of policy as influenced by the native people  6 at whom it is directed.  The anthropologist  7 bring to bear knowledge of the native  8 societies and of the interaction between  9 particular Indian groups and the government  10 agents, traders, settlers, and others with  11 whom they were in contact."  12  13 And in particular I'd like you to refer to this  14 paragraph:  15  16 "The two approaches are complementary.  17 Together they contribute to a more balanced  18 and adequate understanding of historical  19 realities than can be gleaned from study of  20 official documents or legal instruments read  21 without such context being provided.  Both  22 kinds of analysis are indispensable to any  23 well-reasoned judgment regarding what the  24 policy actually was at any given time."  25  26 And then I would just ask you to go over the page  27 to page 8, having considered two points, noting the  28 two points with regard to the two disciplines.  At the  29 top of page 8 you say:  30  31 "What is important is that the research  32 strategies are appropriate to the problem  33 addressed and that the materials and methods  34 are used in a competent manner.  35 Ethnohistory is a specialized field  36 requiring special skills and knowledge.  37 Although some historians and some  38 anthropologists engage in ethnohistorical  39 research, not every anthropologist or  40 historian does so, nor is every historian or  41 anthropologist qualified in the field.  42 It used to be a fairly comment conceit  43 of academics and some other intellectuals  44 that they could understand events within  45 their particular frame of reference and that  46 they had no need to explore other approaches  47 or consider other perspectives. 16666  B. Lane (for Plaintiffs)  Re-exam by Mr. Rush  (on qualifications)  1 Ethnohistorians, like biochemists,  2 understand that their subjects require  3 diverse approaches."  4  5 Do you hold those views today?  6 A   That their subject matter requires diverse approaches.  7 Q   Thank you.  "That their subject matter requires  8 diverse approaches."  9 A   Yes, I hold those views today.  10 Q   Thank you.  And, Dr. Lane, I want to ask you one  11 further question.  You refer to your husband as being  12 one of those with whom you worked in Lane & Lane  13 Associates.  Do I take it that the second of the Lane  14 is your husband?  15 A   That's correct.  16 Q   And his name is Robert Lane?  17 A   That's correct.  18 Q   And does he have academic credentials as an  19 anthropologist and ethnohistorian?  20 A   Yes, he does.  21 Q   And what degrees, if any, does he hold?  22 A   He has a Ph.D. in anthropology.  23 MR. RUSH:   Thank you.  24 THE COURT:  Dr. Lane on page 7 in that last full paragraph in  25 the page which Mr. Rush read to you it says:  26  27 "Both kinds of analysis are indispensable to  28 any well-reasoned judgment regarding what  29 the policy actually was at any given time."  30  31 I'm sure -- well, I'm not sure about anything  32 anymore.  Does your discipline recognize that very  33 often the world moves on ad hocery and not reasonable  34 policy?  35 THE WITNESS:   I'm sorry, I didn't hear you.  36 THE COURT:  That the world sometimes moves on ad hocery and that  37 there is no policy?  38 THE WITNESS:   Yes.  39 THE COURT:  Reading this would seem to suggest that there's  40 always a policy and it's only necessary for the  41 ethnohistorian properly trained and skilled to  42 discover what the policy is?  43 THE WITNESS:   I take your point.  44 THE COURT:  So you do not intend to convey that there must  45 always be a policy to be discovered?  46 THE WITNESS:   No, I do not.  47 THE COURT:  Yes.  All right.  All right.  Thank you.  I suppose 16667  Submission by Mr. Goldie  1 you're tendering the witness as an expert.  I suppose  2 I should hear from you, Mr. Goldie.  3 MR. GOLDIE:  Yes, my lord, my concern is that whatever else Dr.  4 Lane is proposing to do, it is not something which is  5 based upon any anthropological training, and assuming  6 that there is an ethnohistorical specialty which has  7 emerged, it is not the specialty which is being relied  8 upon here.  What is being relied upon here is purely  9 historical.  There are -- as I said earlier, there are  10 no actors who are alive who can speak to the question  11 of policy, assuming for a second that the question of  12 policy is relevant, and that all that can be done by  13 someone who's trained in whatever training Dr. Lane  14 has, is to pick documents.  15 Now, the documents which she has identified as the  16 documents that she relies upon are --  17 THE COURT:  Dr. Lane, you're welcome to stay there if you want.  18 It may not be the most comfortable place and we're not  19 going to get to your evidence this morning.  If you  20 wish to step down you may do so or you may stay there  21 if you prefer.  22 THE WITNESS:   Thank you.  23 THE COURT:  Is there any point in embarking on this document in  24 five minutes time Mr. Goldie?  25 MR. GOLDIE:  Yes, that would be helpful, my lord.  2 6 THE COURT:  We'll adjourn until two o'clock.  27 THE REGISTRAR: Order in court. This court will adjourn until  2 8 two.  29  30 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS)  31  32 I hereby certify the foregoing to  33 be a true and accurate transcript  34 of the proceedings herein to the  35 best of my skill and ability.  36  37  38 Tanita S. French  39 Official Reporter  40  41  42  43  44  45  46  47 1666?  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 by Mr. Goldie 1666?  Submission by Mr. Goldie  1    (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in court.  Ready to proceed, My Lord?  4 THE COURT:  Yes.  Mr. Goldie.  5 MR. GOLDIE:  Thank you, My Lord.  The submission that I make on  6 qualifications comes down to this.  First her evidence  7 is not concerned with ethnohistory, it is simply  8 history, and in my submission she is not a historian  9 qualified to speak about Imperial, Colonial,  10 Provincial or Dominion policy.  She is not a historian  11 qualified by any academic yardstick, and it is not a  12 field of interest which has occupied her attention  13 since 1953.  She has become, by her own evidence, an  14 ethnohistorian, and in my submission that has resulted  15 from her occupation as a witness called where native  16 interests are at stake.  17 My Lord, ethnohistory is not history.  It's the  18 study of a particular -- or I should say more  19 accurately the history of a particular people in their  20 culture.  Now, that's evident from the name ethno,  21 which when applied to ethnography is the study of  22 culturally significant behaviours of a particular  23 society.  Ethnology is the comparative study of  24 documentary -- documented and contemporary cultures,  25 and ethnohistory is a study of the cultural history of  26 a particular people, and in the case of Dr. Lane, the  27 Indians taken at its broadest, the Northwest Coast  28 Indians, the Indians of British Columbia, the State of  29 Washington, what have you.  30 Now, Dr. Lane may disagree with Dr. Trigger, but  31 he repeats on a number of occasions, and I am now  32 referring to the excerpt of his book which has been  33 handed up, My Lord.  The page 164, which is the first  34 page of the excerpt, second paragraph under the  35 heading "ethnohistory".  36  37 "Ethnohistory uses written sources of  38 information and oral traditions to study the  39 history of non-literate peoples."  40  41 Dr. Lane's quarrel is that ethnohistory can be  42 used to study the history of literate peoples, but it  43 doesn't change the fact that it is primarily a  44 cultural study of a particular people.  45 On the next page Dr. Trigger says in the second  46 paragraph:  47 16669  Submission by Mr. Goldie  1 "Since the time of L.H. Morgan, American  2 ethnologists have used historical documents, in  3 conjunction with varying amounts of  4 archaeological, linguistic and ethnographic  5 evidence, to reconstruct traditional native  6 cultures and to trace the origins and  7 interconnections of their various features."  8  9 And then the part that I discussed with the  10 witness at page 166, where Dr. Trigger states again,  11 and I quote:  12  13 "It is generally agreed that ethnohistory uses  14 documentary evidence and oral traditions to  15 study changes in non-literate societies."  16  17 Whatever her difference with Dr. Trigger, the  18 whole thrust of her experience relates to the cultures  19 of native peoples, but she proposes to give evidence  20 before Your Lordship on Colonial, Provincial, Dominion  21 and Imperial policy.  22 THE COURT:  Well, your quarrel is not with the admissibilities  23 of her evidence, but with the choice of a person with  24 her qualifications to give that evidence?  25 MR. GOLDIE:  Well, that's my first point.  I do have a quarrel  26 with the admissibility of her evidence.  27 THE COURT:  Yes, right.  28 MR. GOLDIE:  But I am confining my point now to the question  29 of -- assuming that her evidence was admissible, that  30 the -- she -- her -- the focus of her study is not the  31 culture of the people of the United Kingdom or the  32 culture of the people of Canada or the culture of the  33 people of the Colony of British Columbia or Vancouver  34 Island, her focus is in the culture of the native  35 peoples, but she wishes to address Your Lordship in  36 terms of the documentary records of the -- of those  37 other societies.  38 Now, in her paper given in Simon Fraser  39 University, Exhibit 1036, she gives an example of  40 something which I assume she says that she would have  41 been of assistance in.  Beginning with the second  42 paragraph she says:  "In the second case ..."  43 THE COURT:  I'm sorry, what page are you at?  44 MR. GOLDIE:  20.  I'm sorry.  She says:  45  46 "In the second case an anthropologist was  47 called to give evidence regarding hunting 16670  Submission by Mr. Goldie  1 practices of Indians in the interior of  2 mainland British Columbia.  In this case also,  3 counsel for the Attorney General of British  4 Columbia as intervenor objected to testimony  5 about historical documents from an  6 anthropologist.  Testimony about such documents  7 was tendered subsequently through an historian.  8 Several important issues about ethnohistorical  9 evidence arose in this case which merit more  10 extended discussion than is possible here.  I  11 briefly comment on one of those.  12 The historian gave as his opinion that  13 Indians in the area had killed game for food  14 without government regulation until about 1890.  15 Counsel for the Attorney General disagreed,  16 citing a series of laws beginning in 1865 which  17 set seasons and other regulations for specific  18 species.  Indians are not mentioned in the  19 initial 1865 law or in the subsequent  20 amendments.  The language in these laws reads  21 "... it shall be unlawful for any person ..."  22 or "No person shall ...".  Counsel for the  23 Attorney General appears to assume that the  24 term 'person' was intended to include Indians,  25 but this assumption appears to be unwarranted.  26 At that era, Indians were not necessarily  27 deemed to be persons under the law.  Be that as  28 it may, there is ancillary documentation to  29 show that Indians hunting for food were not  30 intended to be affected by the law.  Mr.  31 Holbrook, who drafted the bill in 1865,  32 initially used the word 'settlers' in  33 contradistinction to Indians, who should not be  34 affected by the law.  The objector explained  35 that he did not think Indians should be  36 prevented from shooting deer either and the  37 language was amended to read 'person'.  38 Reading of historic documents without  39 reference to surrounding records and  40 circumstances can lead to the advancing of a  41 claim wholly at odds with the sources on which  42 the claim purports to be based."  43  44 Now, in that case I assume that Dr. Lane is saying  45 I as an anthropologist trained as an ethnohistorian  46 and having a focus on Indians could be of assistance  47 to the court in interpreting an ordinance of the 16671  Submission by Mr. Goldie  1 Colony of Vancouver Island or British Columbia,  2 whatever the case may be.  In fact, all she is doing  3 is referring the court -- or all in my submission she  4 can do is refer the court to a document which she  5 found in her research.  Now, if the historian had done  6 his work, if he was a historian trained in the -- he  7 could have found that document equally well.  There is  8 no magic in the term ethnohistorical.  Both of those  9 are historical.  10 And my objection to Dr. Lane on the basis of  11 qualifications is notwithstanding the pride in which  12 she takes in unearthing, I assume, the equivalent of a  13 parlimentary debate, and ignoring for the moment  14 whether that may be referred to as an aid to the  15 construction of the statute.  As I say, ignoring that,  16 that is the province of the historian whose focus is  17 on the culture --  18 THE COURT:  Even historians wouldn't be allowed to speak with  19 respect to the intention of the legislature.  20 MR. GOLDIE:  Well, that's my second point, because the whole  21 purpose of her evidence, even if she was qualified as  22 a student of English history or Canadian history or  23 Colonial history, even if she was qualified in that  24 regard, she is speaking about something which the --  25 is outside the purview of an expert.  And in the  26 Saanichton Marina case the -- His Lordship Mr. Justice  27 Meredith noted that she was proposing to give as  28 evidence statements which were conclusions of fact.  29 Now, some of them were pretty -- how should I put  30 it -- pretty innocuous.  I think there's been handed  31 up, My Lord, the Saanichton Marina transcript.  Tab 14  32 of the collection that Mr. Willms handed up.  As I  33 say, some of those questions -- or some of the  34 statements that she was going to make reference to are  35 pretty innocuous, and they are the sort of statements  36 that counsel would make in argument.  I refer to page  37 38.  There is underlined words that -- at lines 33 to  38 36, and I assume they are a quotation from -- they are  39 a quotation from her evidence.  Sets out unequivocally  40 that the company acted as an agent.  41 THE COURT:  What page are you on?  42 MR. GOLDIE:  38, My Lord.  43 THE COURT:  I don't think my pages are numbered.  44 MS. KOENIGSBERG:  38 is numbered, My Lord.  I think is the only  45 one that is numbered.  46 MR. GOLDIE:  Oh, I see.  There are — well, I am reading from —  47 Your Lordship should have -- 16672  Submission by Mr. Goldie  1 THE COURT:  The practise of protecting inland fisheries.  2 MS. KOENIGSBERG:  It's the fifth page in from the front.  3 THE COURT:  Fifth page from the front.  4 MR. GOLDIE:  Fifth page from the front, yes.  5 THE COURT:  Yes.  All right.  6 MR. GOLDIE:  And line 31 to 37 is a quotation from her evidence,  7 and she says at 33:  8  9 "Sets out unequivocably that the Company acted  10 as an agent of Imperial policy with respect to  11 Indian rights in Vancouver Island during the  12 period of the grant."  13  14 Now, that's a statement, but it's drawn from  15 documents which anybody can read.  And it's the  16 province of counsel to argue, and it's the province of  17 the court to decide.  And then two pages further on at  18 line 24, 26 there is an underlined portion:  19  20 "No limitation on Indian fishing as explicitedly  21 noted."  22  23 And the Court says:  24  25 "That's an argument, isn't it, and not an  26 opinion.  She has interpreted documents there."  27  28 And then in the next page at line 20 His Lordship  29 says:  30  31 "Do you think that's an opinion?  She says she  32 has looked at all the documents and she sees no  33 limitations."  34  35 She is making a statement of fact that there are  36 no limitations, and she makes the very same statements  37 with respect to various ordinances and statutes in  38 this case that in her -- she sees no limitation on  39 aboriginal title.  But that is a statement that  40 constitutes an interpretation of the document in  41 question.  42 Now, Your Lordship has had read to you, I  43 understand, the ruling of His Lordship at page -- it's  44 at page 54, and it's 5 pages from the end, and at line  45 19 he says:  46  47 "But I hold that the conclusion of Dr. Lane 16673  Submission by Mr. Goldie  1 tendered as a fact in evidence is inadmissible.  2 To allow it would be to embarrass the  3 Defendants in having to cross-examine on any  4 number of other documents which may go to  5 contradict or test the conclusions expressed by  6 Dr. Lane, and if those conclusions - those  7 conclusion, incidentally, really are recorded  8 in the statements themselves."  9  10 The fundamental difference, of course, between  11 history and the court of law is that history is always  12 probing for the motives of individuals and so on and  13 so forth.  The Court is not concerned with the motives  14 or intentions of people only as their words are  15 recorded in the documents which are to be taken as  16 conveying that intention.  17 And I want to refer to a case in the House of  18 Lords.  I'll hand up a report, My Lord.  That is the  19 report in the Court of Appeal as well as the House or  20 Lords.  Henry Boot & Sons.  The facts are not of any  21 importance.  There is a dispute between a building  22 contractor and a -- the London County Council.  The  23 dispute centered on who would bear the cost of  24 increased benefits accruing to workmen by virtue of  25 regulations and a statute in place at the time.  The  26 part that I wish to refer to, because in my submission  27 it states a principle of general application, is found  28 in the judgment of the House or Lords at page 641, the  29 last page.  And the background or the observation is  30 that prior to the contract being entered into, the  31 parties exchange correspondence on the meaning of the  32 clause in question, and one of the parties said well,  33 as far as I am concerned the clause means this, and  34 the other party said no, it doesn't, it means this.  35 And Lord Denning commented at page 641, letter E:  36  37 "I may add, perhaps, a word on the  38 correspondence which took place before the  39 contract was executed.  The appellants there  40 made it clear that they did not regard holiday  41 credits as coming within the rise-and-fall  42 clause, but the Builders Association took a  43 different view.  Neither side inserted any  44 words in the contract so as to clear up the  45 difference between them.  They left the  46 rise-and-fall clause as it was.  It was  47 suggested that, on this account, there was no 16674  Submission by Mr. Goldie  1 consensus ad idem.  Your Lordships rejected  2 this suggestion without wishing to hear further  3 argument on it.  There was, to all outward  4 appearances, agreement by the parties on the  5 one thing that really mattered, on the terms  6 that should bind them.  In the case of  7 difference as to the meaning of those terms, it  8 was for the court to determine it.  It does not  9 matter what parties, in their inmost states of  10 mind, thought the terms meant.  They may each  11 have meant different things.  But still the  12 contract is binding according to its terms as  13 interpreted by the court."  14  15 Now, just to give Your Lordship an indication of  16 the nature of the conclusions which the witness wishes  17 to -- the court to accept.  From her reading of  18 documents -- these are the summary of the conclusions  19 on page 18 of her summary.  She says:  20  21 "Imperial policy was to recognize Indian title  22 in British Columbia and to extinguish native  23 title by formal arrangement with the Indians,  24 for compensation, and with Indian consent,  25 while reserving to the Indians lands adequate  26 to their needs."  27  28 Now, that involves a consideration and  29 interpretation of the whole host of documents, or to  30 use the witness's expression, a range of documents.  31 She says:  32  33 "Failure to continue to negotiate with Indians  34 regarding their title is not due to a change in  35 policy but because of a shortage of funds."  36  37 That requires consideration of a range of  3 8 documents.  39  40 She suggests that:  41  42 "The Imperial policy regarding Indian title was  43 the same in Vancouver Island and in the  44 Mainland Colony of British Columbia."  45  46 Well, that requires consideration and  47 interpretation of documents to come to the conclusion 16675  Submission by Mr. Goldie  1 A, that there was a policy; and B, that the -- there  2 was a policy that was applicable to both; and C, that  3 the -- it was the Imperial policy.  These conclusions,  4 and I could go onto the -- every single one of them is  5 of the same character as Mr. Justice Meredith  6 considered in the Saanichton Marina case.  For  7 instance, and here is a -- here is one that requires a  8 crystal ball.  9  10 "The Imperial government did not intervene in  11 regard to the Indian title issue in the 1870's  12 in the expectation that the Dominion and  13 Provincial governments would resolve the  14 matter."  15  16 That requires consideration of a number of  17 documents.  And indeed the best proposition that I can  18 call in aid of that submission is to say that since --  19 we have received a very substantial number of  2 0 documents from my friend that are in the four volumes  21 which were delivered to us yesterday, not that all of  22 those documents are new.  We received the first list  23 in April of 1987, when my friend wrote us a letter  24 saying these are the documents which Dr. Lane relies  25 upon.  Then there was a further list in April 29th of  26 this year, and then on May the 4th and finally on May  27 the 15th there were further documents.  All of that  28 goes to underline the proposition that the -- that the  29 skill of the witness is not interpretation.  The skill  30 of the witness is in the research activity which she  31 has undergone and which her assistants have undergone  32 in order to winnow out what she considers to be the  33 significant documents.  34 Now, I have no intention of taking the documents  35 which I consider to be significant and putting them to  36 the witness.  That would be a fruitless exercise, even  37 if she was qualified to comment on it.  What I intend  38 to do, and which in my submission is the only  39 appropriate thing to do, is to have the documents  4 0 tendered and marked, and then we'll hear in argument  41 what it's all about.  42 Now, I say the same thing applies to her second  43 opinion, which relates to the South African Lands  44 scrip.  Everything which the witness relies upon, as  45 far as I can make out, is based upon the reading of a  46 statute, the reading of newspaper reports, the reading  47 of evidence before the Royal Commission, all of it is 16676  Ruling by the Court  1 simply an interpretation and suggested conclusions.  2 Now, I say -- my submission is a very simple one,  3 My Lord, that firstly Dr. Lane's expertise, so far as  4 ethnohistory goes as related to the culture of the  5 native peoples, and we are dealing entirely in these  6 opinions with the statutory and written records of the  7 United Kingdom, the Dominion of Canada, the Province  8 of British Columbia, the Colony of Vancouver Island  9 and the Colony of British -- the United Colony, and  10 Your Lordship is in as good a position as any to  11 interpret those.  12 THE COURT:  Thank you.  Mr. Rush, I don't need to hear you on  13 the question of the qualifications of Dr. Lane.  I  14 have the view that one does not have necessarily to be  15 a person with a PhD in history before he or she can  16 give evidence on historical research.  I think that  17 most of the classic definitions of experts refer to  18 persons whom by reason of special training or  19 experience have acquired an expertise or a proficiency  20 in a particular function, and I think that someone  21 like Dr. Lane, who has spent her professional life  22 dealing with these kinds of problems and is a trained  23 researcher in a larger or a sister discipline is  24 perhaps not quite as competent to research a  25 historical question as an equally intelligent  26 historian might be, but I think that she's good enough  27 for this task.  28 Therefore I do not have any difficulty in saying  29 that to the extent she has indulged herself in  30 research and has collected together documents which  31 she considers relevant to a historical question  32 arising in this case.  And I would be prepared,  33 subject to whatever counsel have to say about  34 particular documents, to allow them to be admitted in  35 evidence.  36 The question of the purpose for which they can be used  37 is perhaps another matter, and I don't know if that  38 has to be dealt with now or at some subsequent time.  39 With regard to Mr. Goldie's second principle  40 submission, I have the view, as I have expressed  41 before with respect to Dr. Ray and Mr. Johnson and --  42 no, not Johnson, Morrison, then there was someone  43 else, Galois, that while the witness can explain why  44 they think these documents are relevant, they cannot  45 interpret the documents.  That, it seems to me, in the  46 court of law is the exclusive province of the judge.  47 It seems to me that if a document contains a 16677  Submission by Mr. Rush  1 statement, that is, it is confident for a witness such  2 as Dr. Lane, if such should be the case, to point out  3 other documents which call that statement in question,  4 but only for the purpose of bringing to the attention  5 of the court the full picture, so that the court can  6 structure the document, will be assisted and will be  7 as true and accurate as human resources can make it.  8 I do not think, if she is proposing to interpret  9 documents, that she may be allowed to do so, but that  10 is a matter that will have to depend on what specific  11 question she is asked and what answers she embarks  12 upon.  13 With regard to the third question, which is the  14 South African War Land Grant Act, if that's its name,  15 I would think that if Mr. Goldie has accurately  16 described the question, that she would not be allowed  17 to explain what its intention or meaning was.  I think  18 again she can point out the documents in the  19 collection or explain why she has collected these  20 documents, but their interpretation and their  21 consequences, it seems, are not, strictly speaking,  22 matters that fall within the limited range of  23 admissibility that I think applies in the case of  24 historians dealing with the problem of the kind we  25 have here.  26 Now, those are the preliminary views that I have  27 reached, Mr. Goldie, but I would be glad to hear what  28 you want to say about it.  29 Again, before I do that, I should call upon Ms.  30 Koenigsberg to see if she has a submission.  31 MS. KOENIGSBERG: I think I would not have gone very far afield  32 to what Your Lordship has outlined.  My concerns were  33 less with her qualifications and more with the  34 admissibility of this kind of evidence as expert  35 evidence.  It seems to me that in fact the -- at least  36 the Indian title in British Columbia opinion comes so  37 close to being a legal opinion that I wouldn't be  38 surprised to find that in the library of any law firm  39 that was interested in this particular topic, and it  40 certainly is in my view a good example of what one  41 might expect as legal argument.  And I have no further  42 submissions as far as the witness's confidence to  43 speak about the documents she has selected.  44 THE COURT:  Thank you.  Mr. Rush, what do you want to say now?  45 MR. RUSH:  Well, I'm not sure that Your Lordship's preliminary  46 ruling in my submission are all that far apart.  Let  47 me say in the first issue, and that is the question of 1667?  Submission 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  THE COURT  MR. RUSH:  qualifications, in my submission there is absolutely  no magic in the use of the word "ethnohistory" or  "anthropology" or "history", and that it is, with  regard to Dr. Lane's experience and knowledge in the  field and what she has done, whatever the label, that  I think brings her forward to qualify her as an expert  to assist the court in terms of factual decisions  which the court has to make.  With regard to the question of her task in  bringing forward documents to the court, I have this  to say, that I have said before and I say now, and no  doubt I will say in legal argument, that I disagree  with the court's interpretation of the role of a  historian or an ethnohistorian or an anthropologist  with regard to documents.  I do not, and I urge upon  Your Lordship that no document speaks for itself.  A  document cannot be decontextualized.  A document must  be with reference to its date, its place, the sender,  the receiver, the context, what happened the day  before and the day after.  It must also be viewed from  the perspective of someone with specialized knowledge  about the circumstances.  And it is for this reason  that I urge this upon Your Lordship, and have in the  past, and that is that you will be called upon to  weigh certain documents.  Mr. Goldie in the final submission or in the  closing submissions talked about the significance of  the documents which he will urge upon you, and I ask  Your Lordship how are you going to determine the  significance of documents put to you without the  assistance of an expert, because it is that expert who  will contextualize the documents, who will assist you  to determine the weight to attach to a specific  document, whether you can evaluate a newspaper article  in the same way that you can evaluate a Colonial  dispatch.  Those facts, those ingredients, if you  will, to determine significance, I believe and I urge  upon Your Lordship to find as being necessary, a  necessary component of an expert to assist you in  evaluating and assessing documents that are brought to  you.  But the expert's contextual explanation can surely  come from other documents.  Why can't counsel do that,  rather than the witness?  Because, My Lord, they don't only come from other  documents. They come from -- in this case you are  going to hear ethnographic evaluations that were done 16679  Submission 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  THE COURT  MR. RUSH:  in the fifties and sixties about what the people, the  native people in the 1840's were doing, and I think  you have to set aside the documents, the viewers of  events in the 1840's with what we know about the  people who are being viewed, and I say that you cannot  glean that only from the documents that will be  presented to you.  :  Well, then I am -- you are inviting me to -- to  reach conclusions based upon some nebulous substratum  of information the witness has collected from sources,  some admissible and some aren't admissible.  No, My Lord.  Your Lordship has heard on many  occasions references to ethnographic considerations by  a host of anthropologists and ethnographers, and Your  Lordship will be urged to accept one over another.  We  will try to persuade you in terms of what weight to  attach to which one.  There is nothing nebulous about  it.  There are evaluations in the academic community  and there may be differences, and you have heard the  evidence of many of the witnesses whom we have called  to assess those assessments of native peoples.  Nonetheless, they go into the mix to assist you to  determine who the people were that were being viewed  by the bald words in a document.  And I say to you, My  Lord, that those words need to be weighed in some  context.  I don't say that every word needs to be  weighed, nor do I say that every document needs to be  weighed.  I say that documents have to be seen in  their historical sequencing.  They have to be seen in  terms of the particular people that were being  addressed, the physical realities that were being  addressed, in terms of what the positions were that  were held by the various recipients of the document.  And my argument is really based on the fact that no  document stands in so blind isolation, and no document  speaks nakedly for what the words seem to say.  And I  say to Your Lordship that the task of an expert, with  regard of Dr. Lane's qualifications, will be to assist  the court in understanding the context and -- of the  documents as well as the significance of the documents  and the weight to be attached to them in the end.  And I say that Mr. Goldie can certainly chose on  behalf of the provincial defendant the task or the  particular objective that he choses in not advancing  documents either to a witness by way of  cross-examination or by way of his own expert witness, 16680  Submission by Mr. Rush  1 but I say he does so at his peril, because you will --  2 he will be asking Your Lordship to make a decision on  3 the basis of his word, on the basis of his assessment  4 of the documents that will be presented to Your  5 Lordship at the end of the day, in terms of the  6 argument that will be advanced to you.  And I say that  7 in respect of many documents there will be  8 disagreement about the significance of those  9 documents, and there must be evidentiary foundation  10 for Your Lordship to appreciate on what basis you  11 should weigh them and on what significance you should  12 attach to them.  13 THE COURT:  But if witnesses are able to come into the courtroom  14 and give me their view of the interpretation of  15 documents, there could be no end to it.  I am  16 reluctant to decide points of admissibility based upon  17 policy, but surely either it's wide open or it's  18 confined in some way.  If we are talking about --  19 well, Dr. Lane said that Cook arrived here in 1776, I  20 think, so we are talking about 223 years, and if  21 anything that happened in that time affecting Indians  22 can be the subject of evidence about the significance  23 of what was happening or what was being said, then it  24 seems to me that just as a defensive mechanism the  25 court has to confine it.  And the documents are  26 voluminous, and surely that's not the way a legal  27 issue is to be decided.  28 That's why these rules have been developed, so  29 that we will not allow people to tell us what the  30 legislators had in mind or what the draftsmen had in  31 mind.  We talk about the meaning of legislation to be  32 gathered from its terms and the meaning of documents  33 to be gathered by its terms.  All these rules were  34 developed in order to permit the matter to be dealt  35 with sometimes somewhat harshly, but effectively and  36 efficiently.  And it seems to me you are asking me to  37 go way beyond what's never been done before.  That's  38 not a reason not to do something for the first time,  39 but it's pretty persuasive.  40 MR. RUSH:  My Lord, I may have mispitched my argument, because I  41 am certainly not urging the Court to entertain Dr.  42 Lane's evidence from the standpoint of an  43 interpretation of Statutes or Proclamations or  44 Treaties or anything else.  I am asking Your Lordship  45 to entertain her evidence from the standpoint of  46 contextualizing documents which in some cases may  47 require her interpretation of a word or a sentence in 16681  Submission by Mr. Rush  1 the document, but I certainly do not intend to ask her  2 about -- and I think -- I think Your Lordship has  3 already spoken on the issue of calling expert evidence  4 to deal with the meaning of language and statutory  5 instruments.  6 I do not intend to direct Dr. Lane's attention to  7 such evidence, but I do intend to direct her attention  8 to language in certain of the documents which in my  9 submission will assist you in determining whether  10 there is or is not a policy that was consistent or in  11 conformity throughout the period of concern to this  12 court, and --  13 THE COURT:  Well, I am not sure, Mr. Rush, that you are able to  14 persuade me that you can now determine what somebody's  15 policy was 100 years ago or even last year.  I have  16 seen enough of life to know that very often what  17 people later come along and say was obviously policy  18 was nothing more than accident, and I think we are  19 into a very, very slippery piece of ground if we are  20 trying to determine not just what happened, but the  21 policy behind it.  22 I think we should proceed with the evidence, and I  23 think that subject to further submissions and  24 consideration I am going to try and confine the  25 evidence more or less as it was confined with Dr. Ray  26 and Mr. Johnson and Mr. Morrison and Mr. Galois, but I  27 will be glad to hear from you, and I am sure we will  28 hear from your friend if you want to depart from that  29 format.  If that happens, and I am reasonably  30 confident it will, then I will try to deal with the  31 matter on a more precise basis, but I don't want to  32 generalize at this point and say yes, we are going to  33 do it this way and get into that way, and get myself  34 into something that I don't -- I quickly realize we  35 shouldn't be into.  36 I think there has to be serious limits put on the  37 scope of this kind of evidence.  The courts have come  38 very close to surrendering its authority to experts,  39 and I am determined that that must not be allowed to  40 happen.  Experts have gone far too far in many cases.  41 What is happening is deplorable, in the sense of the  42 way experts are being used to change the face of  43 litigation, and I don't think it's a healthy change,  44 and I am quite determined to see it doesn't go much  45 further than it has.  But I will be glad to hear from  46 you, and if you get to a particular place where you  47 want to go beyond what I have generally outlined, we 16682  Submission by Mr. Rush  1 will deal with it in specific terms, and I think  2 that's the healthy way to  3 do it.  4 MR. RUSH:  I take from that, My Lord, that you have made a  5 ruling on Dr. Lane's qualifications and the area of  6 expertise, and I can now proceed with the evidence?  7 THE COURT:  Yes.  8 MR. RUSH:  Dr. Lane, I wonder if you could please step forward  9 to the witness stand.  I wonder if you would place,  10 please, Volume 2 before Dr. Lane.  11  12    EXAMINATION IN CHIEF BY MR. RUSH:  13  14 Q   Dr. Lane, before I refer you directly to the volume of  15 documents in front of you.  You were asked to  16 undertake research with regard to your opinion on  17 Indian title in British Columbia, and I wonder if you  18 would just explain in summary form the research that  19 you were asked to undertake.  20 A  As I recall, I was asked to explore the documentary  21 record to identify those written documents which  22 appeared to shed light on policy or lack of policy  23 regarding Indian title in the area now known as  24 British Columbia, and I understood that task to  25 include the timeframe from the first British presence  26 in this area.  And I date that period from Captain  27 Cook's arrival here in 1778.  I perhaps neglected to  28 say in the first sentence that I understood the task  29 to be Imperial policy and later Colonial policy and  30 later Dominion policy with respect to native people in  31 what is now British Columbia.  32 Q   In terms of the period that you were considering, was  33 there a cut-off point?  34 A   Yes.  I chose as a cut-off point roughly 1927.  35 Q   Okay.  Within that timeframe, Dr. Lane, what did you  36 examine?  37 A  Well —  38 Q   The documentary record, if you can express --  39 A   Yes.  That timeframe was the one that I was concerned  40 with, but in order to begin at the beginning point I  41 had to search out what the preceding situation was, so  42 that the documents looked at actually begin before  43 that timeframe.  44 Q   Yes.  45 A   In order to -- you can't start at one point without  4 6 knowing what went before.  47 Q   All right. 16683  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 A   I looked at statements of policy, I looked at  2 secondary histories and analyses that purported to  3 deal with this subject matter.  I then went to the  4 primary sources that those secondary sources dealt  5 with, and I refer here to official statements of  6 policy, unofficial statements about policy, statutes,  7 laws, proclamations, acts that purported to deal with  8 that subject matter, both published and unpublished  9 materials, comments about policy contained in the  10 personal records, such as diaries, personal  11 correspondence, so on of officials that were involved  12 with annunciating such policy or implementing it.  13 Official dispatches back and forth between the  14 imperial government and various governments here,  15 commentaries about what the policy was or had been or  16 would be in future or at a particular given time that  17 were contained in the statements and documents  18 produced by British and American and Spanish  19 representatives of their several governments in  20 periods in which those several nations were disputing  21 or discussing among themselves who had claims or  22 better claims to this territory which became British  23 Columbia.  And contemporaneous accounts, wherever I  24 could find them, or commentaries on what was going on,  25 and these include such things, as in later days,  26 newspaper accounts, editorials, letters to the editor,  27 notices published in papers that bear on that subject  28 matter.  2 9 Q   Right.  30 A   I also looked at the accounts of unofficial persons  31 who had anything to do with or on the scene as policy  32 was being implemented or annunciated to the Indian  33 population, and so I looked at any written records  34 left by Indians or left by missionaries or other  35 persons on the scene who may have been writing on  36 behalf of Indians to communicate with government about  37 policy.  38 Q   Now, in the course of your research on policy with  39 regard to Indian title did you undertake a course of  40 research with respect to land grants in the Bulkley  41 Valley?  42 A   Yes.  43 Q   And can you briefly state how you came to do that, and  44 what documents you reviewed in respect of the research  45 you did there?  46 A   Yes.  That had not been initially contemplated, but as  47 almost inevitably happens in undertaking a historical 16684  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 or ethnohistorical research project, one becomes aware  2 after becoming involved in the research that there are  3 areas that were unknown that need to be covered in  4 order to fully understand what was going on.  And I  5 discovered in looking over records and correspondence  6 left by Indian people from that area that their  7 concerns over their land and their loss of land had to  8 do with something that I saw referred to as South  9 African war land grants.  And I had no idea what those  10 were, and I searched in most of the likely places in  11 historical records and asked all of the professional  12 historians I knew who work on British Columbia  13 history, and nobody was able to enlighten me.  So I  14 had to undertake original research to find out what  15 those South African war land grants were, and how they  16 happened to be used so extensively in the Bulkley  17 Valley, and how they impacted Indian land holdings in  18 that valley and clan territories, and why the  19 individuals who had become dispossessed and were  20 trying to protect the lands were in that position at  21 the time that they were.  22 In doing so I brought to bear on the problem I --  23 knowledge I gained through anthropological training,  24 although I have never done any field-work in that  25 area, I was able to realize very quickly that the  26 paper records I was looking at did not reflect what  27 was probably an ethnographic situation.  And so I  28 pursued the matter and came to a realization this was  29 a very important part of the history of how government  30 policies interacted with and affected and impacted  31 native claims to land in that area.  32 Q   And did you look at a similar array of source material  33 and documents, as you have indicated you did in  34 respect of your research on native title in British  35 Columbia?  36 A   Yes.  37 MR. GOLDIE:  I'm sorry, array of what?  38 MR. RUSH:  Of documents.  39 MR. GOLDIE:  I thought that's what your first questioning was  40 all about.  41 MR. RUSH:  Well, it was, but it was in relation to one of two  42 opinions.  And if you would like to hear it again, I  43 am quite happy to --  44 MR. GOLDIE:  I wanted to know what "similar" referred to.  45 MR. RUSH:  Well, I think if Your Lordship has any doubt —  4 6 THE COURT:  You have now explained it.  47 MR. RUSH:  Thank you. 16685  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 MR. GOLDIE:  Thank you.  2 MR. RUSH:  3 Q   Now, Dr. Lane, I wonder if you -- you have used, and I  4 am going to ask you if you have used in terms of your  5 research -- you have used the term Indian title in  6 describing research which you did, and if you have a  7 meaning which you attached to that term.  8 A   Yes.  9 Q   And what is that?  10 A  Well, I find the term used in many of the sources that  11 I go to, and it appears to me that the term, like many  12 other labels, is used by different people to refer to  13 different things.  And since I was trying to spread a  14 broad canvass here to follow what was meant when the  15 term Indian title or aboriginal title or native title  16 was used, and I use them interchangeably, I chose as a  17 working definition, and what I understand and what I  18 mean when I use the term, simply some sort of claim  19 made by native people in respect of their -- the lands  20 they claim to be their traditional lands.  And I use  21 the term and understand the term to include not only  22 land within a given domain or territory, but also the  23 waters within it and all other things within that  24 territory, other kinds of resources and other kinds of  25 things that are encompassed within that territory.  26 Q   Okay.  And is the definition which you employ here, is  27 that one that's common or not among the  28 ethnohistorical -- ethnohistorians and  29 anthropologists?  30 A  Well, I need to elaborate that answer.  31 MR. GOLDIE:  I object to that, My Lord.  The question was what  32 do you mean by aboriginal title.  She's explained  33 that.  34 MR. RUSH:  Well, that wasn't the question.  But anyway --  35 MR. GOLDIE:  Well, if the question was intended to illicit an  36 opinion as to what is meant in documents, I take  37 objection to it, but I didn't take that out of the  38 question.  I thought what is it that you mean when you  39 employ the words "aboriginal title", and she's  40 explained that.  41 MR. RUSH:  Well, I said Indian title.  But yes, that's right, I  42 did ask the witness that, and now I am asking the  43 witness how, in terms of her definition, if that is  44 common or uncommon within her discipline.  45 MR. GOLDIE:  Well, I am objecting to that, My Lord.  It is her  46 definition.  That's what we are intended to know is  47 meant by her.  What does it matter what other people 16686  B. Lane (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  think?  We are embarking upon the evidence of others  to support her definition.  THE COURT:  Well, I don't at the moment see any harm in it, Mr.  Goldie.  If you say that I have adopted a definition  and here it is, and it is commonly used in my  profession, it seems to me to be relatively innocuous,  isn't it?  MR. GOLDIE:  Well, that stage of it is, but I don't want that  spread over the documents that we are going to look  at.  THE COURT:  That other people will have the same view I have  about this?  MR. GOLDIE:  That's right.  THE COURT:  Well, I think there might be some force to that  submission.  I don't see it with respect to the  question of the definition.  MR. RUSH:  Q   Now, before this objection, Dr. Lane, you -- I had  asked the question if the definition which you  employed was common or uncommon among ethnohistorians  and anthropologists, and then I think you indicated  there was something more that you wanted to say before  answering that question.  A   Excuse me, Mr. Rush, I hadn't finished my answer to  your initial question.  Q   All right.  A   I believe that I said that I started with a broad  definition, which I have just given you, and I want to  continue my explanation of how I use the term.  Q   Go ahead.  A   To encompass as well that the way in which native  title is used in my view has two aspects.  One is --  MR. GOLDIE:  Excuse me.  If the witness is embarking upon how  other people use it, I object.  THE COURT:  I think she is telling you how she uses it, and she  has added in the fact that people use the same  definition.  MR. GOLDIE: I think, My Lord, with respect, the witness ought to  confine it to what she uses it --  THE COURT:  That's what I took.  I wrote down her words.  I use  the term to distinguish the way native title was used,  to which there are two aspects.  She hasn't said  anything about what anybody else says or thinks.  MR. GOLDIE:  It's her two aspects.  MR. RUSH:  Go ahead, Dr. Lane.  THE WITNESS: If I might be allowed to complete my answer, I  think it will perhaps make it quite clear to Mr. Davie 16687  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 (sic) and to His Honour what it is that I am trying  2 say here.  I am trying to say that when I use the  3 term, I use it broadly, as I have just described it,  4 but I have already also to take into account that the  5 term has two aspects.  One, when I use it to describe  6 what native people are referring to, it is from their  7 perspective.  When I use it in reference to statements  8 which I make about documents that I look at, prepared  9 by non-Indian people, there are these two sides to how  10 native title is used, and they are not exactly the  11 same definition, because they come from two different  12 perspectives.  When I use the term, I am sometimes  13 using it from the one perspective and sometimes using  14 it from the other perspective, depending upon context  15 and what it is that I am describing or discussing.  16 THE COURT:  Shall we take the afternoon adjournment, Mr. Rush?  17 MR. RUSH:  All right.  18 THE REGISTRAR:  Order in court.  This court will recess.  19  2 0 (PROCEEDINGS ADJOURNED FOR BRIEF RECESS)  21  22 I HEREBY CERTIFY THE FOREGOING TO BE  23 A TRUE AND ACCURATE TRANSCRIPT OF THE  24 PROCEEDINGS HEREIN TO THE BEST OF MY  25 SKILL AND ABILITY.  26  2 7    2 8 LORI OXLEY  2 9 OFFICIAL REPORTER  30 UNITED REPORTING SERVICE LTD.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 166?  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Rush.  5 MR. RUSH:  6 Q   Dr. Lane, you indicated that from your review of  7 documents that the term native title had been used by  8 government sources in those documents?  9 A   Yes.  10 Q   And is it -- are you able to you say how the term was  11 used in those documents?  12 A   Yes, it's used in two senses; sometimes in a general  13 sense, and sometimes with reference to a specific area  14 or a specific ethnic group.  When it's used in its  15 general sense it tends to be used in an abstract way.  16 When it's used with reference to a particular group,  17 it has to be defined in terms of the specific people,  18 the kind of society, the kind of political  19 organization, the kind of laws about land tenure and  20 territory that pertain to that particular area or  21 people.  22 Q   All right.  Now, does the literature which you've  23 examined disclose what position -- what the position  24 was, rather, of Britain, Spain, and the United States,  25 with regard to native title in the latter half of the  26 18th century?  27 A   Yes.  In the latter half of the 18th century all three  28 of those countries recognized something which they  29 called Indian title or native title.  30 MR. GOLDIE:  Well, my lord, if we're going to get along I'd ask  31 the witness to identify the source of every document  32 that supports these, then we can save a lot of time.  33 MR. RUSH:  34 Q   First, if you can complete your answer, and then we'll  35 deal with the objection.  Go ahead.  You said that all  36 countries recognized native title to some degree I  37 think it was.  38 A   Yes.  The kinds of recognition were not precisely the  39 same, but there were some common aspects.  I'm dealing  40 here just with the three countries --  41 Q   Yes.  42 A   -- of concern with respect to the north-west coast or  43 the part of it that became British Columbia, and I'm  44 speaking then of the Spaniards, the British, and the  45 Americans.  46 Q   Yes.  47 A  And the common aspects for all three of those 16689  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 countries with respect to recognition of native title  2 was that the indigenous people had some kind of rights  3 to the territory in which they were found by the first  4 discoverers; that the first discovering nation had the  5 right to make purchases from the natives of land in  6 the area that the discoverer claimed sovereignty over  7 or rights of discovery to; and that those purchases  8 could only be made on behalf of the government not by  9 individual citizens of that country or subjects of  10 that country; and that the purchase had to be made by  11 payment of compensation to the natives for the ceding  12 of territory to the foreigners.  Several of the  13 countries also thought at that time I think still in  14 the -- in that area that we're discussing that another  15 way of gaining rights to the land would be in a just  16 war with the native people.  That, however, doesn't  17 apply to the area that we're concerned with.  18 Q   And what documents do you refer to which express that  19 position in regard to those three countries?  20 A  Well, a number of documents which I have read, not all  21 of which are in evidence, but of those -- excuse me, I  22 guess none of them are in evidence yet, but that I  23 have given to you, item number one in this volume that  24 you've placed before me would be an example of a  25 description of British policy.  I refer to the Indian  26 Land Cessions in the United States, the Royce volume,  27 which contains a large introduction by Mr. Thomas  28 which outlines the policies of Spain, France, Britain,  29 the United States, and deals with imperial policy,  30 with colonial policy, of the various colonies on the  31 eastern seaboard of North America prior to 1776.  32 Q   Okay.  33 A  And then with colonial policies after that period, and  34 then with both British and American policy in what is  35 now Canada and United States.  36 Q   And are there other documents to which you make  37 reference with regard to the position you've outlined?  38 A   Yes.  The Royal Proclamation of 1763, the various  39 American statutes that either track that language and  40 immediately follow it I think are the Proclamation of  41 1783, the first United States Intercourse Act, 1790.  42 I think these have all been given to you.  43 Q   All right.  I'm going to be referring those to you  44 shortly.  45 A   Yes.  46 Q   Before I do, however, I'd like to ask you if there  47 were any other concepts or terms which you felt had to 16690  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 be defined for an understanding of the opinion --  2 A   Yes.  3 Q   -- you were giving?  4 A   Yes.  Many of the sources that I referred to that  5 discuss the interface between government authorities  6 and Indian people with respect to land in what is now  7 British Columbia use the terms not only Indian title  8 but the term Crown title when referring to certain  9 lands, and since most of the land in British Columbia  10 has not been ceded through formal treaties between the  11 Indians --  12 MR. GOLDIE:  Well, I object to this, my lord.  She's defining a  13 term that is found in documents, not one that she's  14 using.  15 THE WITNESS:   No, I'm trying to define how I use the term when  16 I use it.  17 MR. GOLDIE:  Well, I'm sorry, she's defining a term that is  18 found in documents.  19 THE COURT:  The term being?  20 MR. GOLDIE:  Crown title.  21 MR. RUSH:  Crown title.  I don't agree, my lord.  I think that  22 the question that I posed was a question aimed at the  23 witness' understanding of the words "Crown title" and  24 how she uses it when she refers to it.  If you will,  25 it's the opposite side of the coin to Indian title,  26 and her definition of that in terms of her use of  27 those terms through the course of her evidence.  28 THE COURT:  Well, for the time being can we assume that what the  29 witness is doing is identifying merely what she means  30 when she reads or what she understands when she reads  31 that term.  32 MR. GOLDIE:  Well, my lord, unlike aboriginal title or native  33 title, everybody knows what Crown title means.  34 What -- if the word Crown title doesn't mean land that  35 is vested in the Crown, then what does it mean?  36 THE COURT:  Well, I suppose, Mr. Goldie, it might mean the  37 so-called allodial or radical underlying title.  It  38 seems to me there are possibilities for variations of  39 meanings.  40 MR. GOLDIE:  There are a variety of Crown titles.  41 THE COURT:  Yes.  42 MR. GOLDIE:  But the one common thread is that the title is  43 vested in the Crown.  So far as the word Crown is  44 concerned, modifying the word title, it is an  45 indication that the title, whatever the title may be,  46 is vested in the Crown.  Now, I can understand that  47 the witness wishes to say "When I use native title, 16691  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  1  6  MR.  RUSH:  7  THE  COURT:  8  MR.  GOLDIE  9  10  11  THE  COURT:  12  13  1  14  15  16  MR.  GOLDIE  17  THE  COURT:  18  19  MR.  GOLDIE  20  21  THE  COURT:  22  23  MR.  GOLDIE  24  THE  COURT:  25  ]  26  27  28  29  MR.  GOLDIE  30  1  31  1  32  THE  COURT:  33  MR.  GOLDIE  34  35  THE  COURT:  36  37  1  38  MR.  RUSH:  39  Q  40  41  42  43  A  44  Q  45  A  46  47  when I use Indian title, I mean this." because there  are a whole range of definitions attached to those  words.  But I don't know of any definition which has  any meaning other than the title that is being  described as one that is vested in the Crown.  Well —  Are there not different kinds of Crown title?  :  Well, there may be.  There may be.  But the one  common thread is that whatever that title may be, it's  vested in the Crown.  I don't know that I can deal with that.  I think  that's a position that you may well be able to  demonstrate and argue, Mr. Goldie, but I'm not sure  that I can rule with confidence that there is only one  kind of title that's vested in the Crown.  :  My —  I mean, the king claims title to all animals farae  naturae.  :  Yes, but we're talking about land here as far as  I'm aware.  And are there not variations in the kind of Crown  title that might arise in an English land law?  :  Not in respect --  I'm surprised if anything was as simple as you're  making it.  I thought it was the most complicated  thing I'd ever heard of when I tried to study it in  law school.  If it was as simple as that, I don't know  what all the fuss was about.  :  I think the fuss arose out of grants from the  Crown, which in a variety of ways came back to the  Crown.  That may be.  :  And with all of the ragtag and bobtail that  attached as they went out and came back.  I'm going to allow the evidence subject to your  objection, Mr. Goldie. I just don't feel that I can  deal with it.  Thank you, my lord.  Now, in terms of your use of the term Crown title,  Dr. Lane, can you express how you use it and will use  it in terms of your opinion?  Yes.  Please go ahead.  Before I begin, am I allowed to preface my answer with  a statement which will -- a one sentence statement  which will make my following sentence intelligible? 16692  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 Q   Well, we'll have to wait and hear what you --  2 A  All I'm trying to say here is that much of the land in  3 British Columbia is viewed as land to which the Indian  4 title holds by some people, mainly native people, and  5 is viewed as land which is vested in the Crown by  6 other people who call that land Crown title, and I  7 simply wanted to make clear that I am going to use the  8 word Crown title or the label Crown title frequently  9 when referring to documents and evidence which contain  10 that language instead of saying each time "lands to  11 which the Crown asserts title" or "lands to which the  12 Indians assert title".  In other words, I am using  13 Crown title, but without any implication as to whether  14 that land belongs to the Crown, belongs to the  15 natives, or to both, or what kind of fee or other  16 kinds of rights in the land may be with either party.  17 I simply wanted to explain that I will use Crown title  18 without using quotation marks each time or saying  19 "alleged Crown title" or "alleged native land" or  20 anything of the sort, just as a shorthand, but it does  21 not mean that I, as I am using the term, imply any  22 legal status of that land one way or the other from my  23 point of view.  24 Q   All right.  25 A   That's all I wanted to make clear.  2 6    MR .RUSH:   All right.  Thank you.  In terms of the volume of  27 documents before you, that I placed before you as  28 volume 2, Dr. Lane, does the documentary record  29 indicate the existence of an imperial policy towards  30 North American Indians and Indian title at the time of  31 the first contact by the British with lands we now  32 know as part of British Columbia?  33 MR. GOLDIE:  There are about three questions in that, my lord.  34 I think my friend should establish without necessarily  35 leading the date of first contact, the documents that  36 the witness will be relying upon, and then we can see  37 what it is that she's referring to.  38 MR. RUSH:  I don't have any trouble with that, my lord.  39 THE COURT:  All right.  Thank you.  4 0    MR. RUSH:  41 Q   Dr. Lane, do you have knowledge from the documentary  42 record at what time there was the first contact  43 between a non-Indian from Britain and the land that is  44 known today as British Columbia?  45 A  Well, the first official entry of a British subject  46 coming as a representative of the Crown that I can  47 discover is that of Captain Cook's arrival in 1778. 16693  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 Q   Okay.  And is that arrival recorded in the documentary  2 record in some form or another?  3 A   Yes.  4 Q   And at that time can you say whether there was in  5 existence an imperial policy towards North American  6 Indians?  7 A   Yes.  The documents I have looked at describe such a  8 policy.  9 Q   And the documents that you have looked at which  10 describe such a policy are what?  11 A  Well, the secondary sources, of which there are many,  12 and I have included one here, is the long introduction  13 by Thomas to the Indian Land Cessions in the United  14 States, which describes the 19th century policy as  15 well as earlier and later policies of Britain.  16 MR. GOLDIE:  What tab is that, please?  17 THE WITNESS:   It's tab 1.  18 MR. RUSH:  19 Q   And, Dr. Lane, is that -- the reference you've made,  20 is that at tab 1?  21 A   Yes, it is.  22 Q   All right.  And if I direct you to the document  23 itself, can you demonstrate by reference to the  24 document the policy to which you're making reference?  25 A   Yes.  And I'm referring here to the Thomas  26 introduction.  This is the "Eighteenth Annual Report  27 of the Bureau of American Ethnology" and this sets out  28 for the -- it was printed in 1899.  It sets out for  29 anthropologists and ethnologists the policies that the  30 Indian people in various parts of North America were  31 impacted by with respect to their title to land or  32 their -- depending upon the particular European  33 country that was in contact with them.  34 Q   Yes.  35 A  And I've included in here only a section from that  36 very long introduction, the section dealing with the  37 English policy, and it begins at the bottom of page  38 549 and carries on to the end of the material in tab  39 1, which is at page 561, and this describes the  40 imperial policy.  The English policy here refers to  41 the policy enunciated in England and refers to the  42 treaties made by Great Britain with various native  43 people in the eastern part of North America in what is  44 now Canada and the United States.  It does not  45 cover -- that's in another section -- the policies  46 carried out by various British colonies earlier, but  47 deals only with the direct policy by the government in 16694  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 England.  2 Q   Yes.  And if I direct your attention specifically to  3 pages 558 and 559.  4 A   Yes.  At these pages beginning with the small point  5 type at page 558 and carrying over to 559, Mr. Thomas  6 sets out the language in the Royal Proclamation of  7 1763, and then goes on to discuss its application to  8 Indian people in North America, and I'll perhaps just  9 read one paragraph here.  10 MR. GOLDIE:  Well, I object to that, my lord.  This is the  11 subject matter of Mr. Morrison's evidence.  It is an  12 issue before the court.  Mr. Thomas presumably is long  13 dead.  14 THE COURT:  This is just a quotation from the Proclamation,  15 isn't it?  16 THE WITNESS:   No, I was going to read Mr. Thomas' —  17 MR. GOLDIE:  She was going to — yes.  18 THE WITNESS: -- following paragraph, the first large sized type  19 paragraph on page 559, to explain what it is that I  20 base my previous answer on.  21 THE COURT:  On 559?  22 THE WITNESS:   Yes, the paragraph beginning "Although primarily  23 relating".  24 THE COURT:  Oh, I can quickly read it.  Let me see what it says.  25 Yes.  All right.  I read that.  Where are we now?  26 MR. GOLDIE:  Well, my objection is, my lord, that Mr. Thomas'  27 views held in 1899 don't gain any greater credence by  28 being repeated by Dr. Lane in 1989.  This is the  29 subject matter of Mr. Morrison's evidence.  He put  30 before the court a whole range of documents, original  31 documents not secondary sources, and from that the  32 question will be, was the Royal Proclamation intended  33 to be a general application.  34 THE COURT:  What do you want to ask the witness now, Mr. Rush?  35 MR. RUSH:  Well, this all originated with my question, and my  36 attempt to parse the question out of courtesy to the  37 objection that was taken, to determine the documentary  38 reliance placed on this document by Dr. Lane for the  39 question of the existence of an imperial policy at the  40 time -- at the time of the first contact by a  41 non-Indian from Britain to the land mass that we know  42 as British Columbia.  43 THE COURT:  What the witness is telling me is the policy such as  44 it was, if it was a policy, is set out in the Royal  45 Proclamation.  46 MR. RUSH:  Yes, she will say that.  47 THE COURT:  And does it help any to say what Mr. Thomas thought 16695  B. Lane (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  about that?  MR. RUSH:  Well, it's -- your lordship is directed to sources  both secondary and primary which the witness has  relied upon, and if this is one of the sources, then  this is one of the sources.  THE COURT:  Yes.  MR. RUSH:  And it -- Dr. Lane will indicate why she relied on it  and she will say as well that she relied upon the  Royal Proclamation, and perhaps it's little more than  that, but we thought it of significance that your  lordship have some documentary reference with regard  to the policy as it existed at the time of Captain  Cook's voyage to the north-west in 1778.  THE COURT:  All right.  Well, it seems to me that we've got that  when the witness refers me to the document.  Haven't  we got all that?  Well, yes, but we had to get you to the document, my  lord, if I can put it that way.  We've been to the document for sometime now.  All  right.  Let's go to the next one.  MR.  THE  MR.  RUSH:  COURT  RUSH:  Q  THE  THE  Now, Dr. Lane, in terms of -- you've made reference to  Mr. Thomas' comments at 559 of the document entitled  "Indian Land Cessions".  In terms -- just who was Mr.  Thomas, to assist the court on this -- in this  respect?  A  Mr. Thomas was both a lawyer and an anthropologist.  COURT:  A lawyer and a what?  WITNESS:   Anthropologist.  That is to say, there were very  few -- he didn't have a Ph.D. in anthropology.  There  were very few universities at that time that gave  degrees in anthropology, but he was a practising  anthropologist and published extensively on Indian  people of the eastern part of North America and  Mexico.  MR.  RUSH:  Q  A  Q  A  All right.  And I think you've already commented on  the document the "Indian Land Cessions in the United  States".  Yes, this is a standard -- the standard reference  source for anthropologists looking at land history of  Indian people throughout what is now the United  States .  And in terms of primary sources, Dr. Lane, do you rely  on the Royal Proclamation itself?  Yes, I rely on it to tell me what the enunciated  policy was in 1763, which is the nearest date that I 16696  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 can find an enunciated policy prior to Cook's  2 departure, which by the way was in 1776.  He arrived  3 at the north-west coast in 1778, but his departure  4 from England was in '76.  5 Q   Okay.  Now, do you refer to the documentary record in  6 respect of -- or, rather, let me rephrase it, to  7 illustrate if or that the policy enunciated in the  8 Royal Proclamation was extended to the land of British  9 Columbia?  10 A  Well, I look at the policy that was enunciated then as  11 context for what I find with respect to the north-west  12 coast.  13 Q   And in respect of that policy what do you find when  14 you look to --  15 A  Well, I looked for instructions that were given to  16 Captain Cook when he set sail on behalf of the British  17 government to discover whether he was given  18 instructions as to what policy to pursue when he met  19 with native people on the north-west coast.  20 Q   And are those instructions set out at tab 2?  21 A   Yes, they are.  22 Q   And what's the context of these instructions?  23 A  Well, these instructions set out -- this was after all  24 a voyage of discovery to the north-west coast.  Cook  25 was to try to search for and find a north-west  26 passage.  And it was understood that he would be  27 coming into territory claimed by Spain, and farther  28 north perhaps, if he got that far north, perhaps to  29 territory claimed by Russia, and he was given  30 instructions with respect to how he should deal if he  31 had to come to shore at places claimed by prior  32 discovering nations, and also what he was to do if he  33 was to discover territory that wasn't claimed by other  34 nations or was uninhabited, and how to deal with  35 native people if he found them present where he came  36 to shore at the coast.  37 Q   All right.  And how do these instructions relate, if  38 they do, to the imperial policy that you've talked  39 about?  40 A  Well, they appear to be in conformity with the policy  41 that was enunciated in the Royal Proclamation of 1763.  42 Q   And is there a passage of the instructions which you  43 rely on for that?  44 A   Yes.  I think there may have been two places, but one  45 certainly is at the top of what is page 4 in the  4 6              document here beginning:  47 16697  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 "You are also with the consent of the  2 natives to take possession in the name of  3 the King of Great Britain of convenient  4 situations in such countries as you may  5 discover, that have not already been  6 discovered or visited by any other European  7 power, and to distribute among the  8 inhabitants such things as will remain as  9 traces and testimonies of your having been  10 there.  But if you find the countries so  11 discovered are uninhabited, you are to take  12 possession of them for His Majesty by  13 setting up proper marks and inscriptions as  14 first discoverers and possessors."  15  16 Q   This document, Dr. Lane, appears to be dated the 6th  17 of July, 1776?  18 A   That's correct.  19 Q   And I think you indicated that the voyage of Captain  20 Cook was in 1778?  21 A   No, he set out from England in 1776 and arrived on the  22 north-west coast in 1778.  23 Q   Okay.  24 A  And these were the secret instructions that were given  25 to him along with his sailing instructions.  26 Q   Were there other -- were there instructions similar to  27 those given to Captain Cook given to other sea  28 captains of the British?  29 A   Yes.  I've included one other example.  I believe it's  30 at the next tab.  31 Q   And that's the instructions to Captain Nathaniel  32 Portlock?  33 A   Yes, in 1785.  34 Q   And the particular passage that you direct our  35 attention to here is that to be found on page 29 of  36 those instructions at tab 3?  37 A   Yes.  Yes.  In the paragraph beginning "Mr. William  38 Willy...", and I'm quoting:  39  40 "...we have deemed perfectly qualified for  41 such an undertaking, and he accompanies you  42 entirely with that intent.  Therefore,  43 wherever it is necessary to establish a  44 factory,"  45  46 Q   What's being referred to there, if you know?  47 A  A trading station, I believe, 1669?  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1  2 "a factory, you are to purchase of the  3 natives such a tract of land as you shall  4 think best suited for the purpose of  5 trading, and for security, paying them in  6 the most friendly and liberal manner for the  7 same."  8  9 Perhaps that's all I need to read.  10 Q   Thank you.  Now, in respect of the voyages made by  11 the -- well, by Captain Cook in 1778 to the  12 north-west, did you research further documentary  13 support to demonstrate the policy of the Royal  14 Proclamation as having been extended to the lands that  15 we now know as British Columbia?  16 A   Yes.  I looked to see if Captain Cook had in fact  17 carried out the instructions that were given him,  18 found that he did not in fact take possession of land  19 within the area which is now British Columbia, but  20 that he did in fact carry out the instructions with  21 respect to paying the natives who claimed, who made  22 claims about things in the territory where he touched.  23 Q   Okay.  And is that illustrated by documentary  24 reference in tab 4?  25 A   Yes, it is.  26 Q   And can you just explain to his lordship what this  27 document represents?  28 A   Yes.  These few pages are taken from the journal of  2 9 one of the men who accompanied crew in that voyage of  30 discovery.  This particular excerpt is from King's  31 journal.  King accompanied Cook and several of the  32 members of that expedition kept journals which were  33 later published.  This is one of them.  34 Q   All right.  And I direct your attention to page 1407  35 and in the bottom right-hand corner.  Is this the  36 passage to which you draw our attention?  37 A   Yes.  King's journal is of particular interest and  38 value to anthropologists because he spent a good deal  39 of time discussing the native people, and in the  40 passage to which I would draw your attention he  41 describes an encounter in which the native people, and  42 this is in the vicinity of Nootka Sound when Cook's  43 ships were there, insisted on being paid for  44 everything, and King says here:  45  46 "No people had higher Ideas of exclusive  47 property; they made the Captain pay for the 16699  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 grass which he cut at the Village, although  2 useless to themselves, and made a merit,  3 after being refused payment for the wood and  4 water we got in the Cove, of giving it to  5 us, and often told us that they had done it  6 out of Friendship."  7  8 Q   All right.  Now, does that event appear in the  9 journals of any of the other persons who were on this  10 voyage?  11 A   Yes.  Captain Cook himself reported this material in  12 the next tab, tab 5.  13 Q   That's at tab 5?  14 A   Yes.  15 Q   And this is again described as "The Journals of  16 Captain James Cook on His Voyages of Discovery", and  17 this is "The Voyage of the Resolution and Discovery",  18 and is that to be found at 306, Dr. Lane?  19 A   Yes, the preceding pages are simply there to place --  20 to give the place and the time at which the text -- to  21 which the text refers at page 306.  And this is in  22 April of 1778.  And in the last full paragraph Cook  23 says:  24  25 "Here I must observe that I have nowhere  26 met with Indians who had such high notions  27 of every thing the Country produced being  28 their exclusive property as these; the very  29 wood and water we took on board they at  30 first wanted us to pay for, and we had  31 certainly done it, had I been upon the spot  32 when the demands were made; but as I never  33 happened to be there the workmen took but  34 little notice of their importunities and at  35 last they ceased applying.  But made a Merit  36 on necessity and frequently afterwards told  37 us they had given us Wood and Water out of  38 friendship."  39  40 Q   Is this Captain Cook speaking?  41 A   I believe it is.  I would need to check, but I think  42 so.  Yes.  43 Q   All right.  And I direct your attention to tab 6, and  44 I would ask you if the account which is described as  45 "A Journal of Captain Cook's Last Voyage, by John  46 Ledyard" also contains a description of the event  47 which has previously been described by Mr. King and 16700  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 Captain Cook?  2 A   Yes, it is.  Ledyard was another one of the people  3 with Cook and I included this because he gives an  4 interesting description of Cook's reaction when being  5 told about the native people demanding payment and  6 claiming possession of everything in their country.  7 Q   And does that reaction appear at page 72 and 73?  8 A   Yes, it does.  9 Q   And I won't ask you to read the passage to which  10 you've made -- the whole of the passage, but could you  11 just direct our attention to the particular passage?  12 A   Yes.  It begins, the last paragraph on page 72:  13  14 "When a party was sent to procure some  15 grass for our cattle, they would not suffer  16 them to take a blade of it without payment,"  17  18 And goes on to say:  19  20 "nor had we a mast or yard without an  21 acknowledgment.  They intimated to us that  22 the country all round further than we could  23 see was theirs."  24  25 And it proceeds to describe the events that we've  26 already had a description of, but what is new in this  27 account is a description of Cook's reaction, and it  28 begins the last sentence on page 72:  29  30 "Cook was struck with astonishment, and  31 turning to his people with a smile mixed  32 with admiration, exclaimed 'This is an  33 American indeed.'  And instantly offered  34 this brave man what he thought proper to  35 take; after which the Indian took him and  36 his men..." et cetera, et cetera.  37  38 Q   All right.  39 A   I read Cook's action here as an acknowledgement that  40 these Indians, like the Americans --  41 MR. GOLDIE:  Well, excuse me, I object.  It speaks for itself,  42 my lord.  43 THE COURT:  It really does, doesn't it?  44 MR. RUSH:  I don't intend to pursue this with Dr. Lane.  I  45 would, however, refer Dr. Lane to the next tab.  4 6    THE COURT: You want to do that this afternoon or do you want to  47 keep the usual hours? 16701  B. Lane (for Plaintiffs)  In chief by Mr. Rush  1 MR. RUSH:  I think we could keep the usual hours, my lord.  2 THE COURT:  All right.  We'll adjourn then until tomorrow  3 morning at ten o'clock.  4 THE REGISTRAR: Order in court. This court will adjourn until ten  5 a.m.  6  7 (PROCEEDINGS ADJOURNED TO TEN O'CLOCK MAY 24, 198 9)  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings herein to the  12 best of my skill and ability.  13  14  15 Tanita S. French  16 Official Reporter  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

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