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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-27] British Columbia. Supreme Court Oct 27, 1989

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 21721  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Vancouver, B. C.  2 October 27, 1989.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia, this  5 27th day of October, 1989.  In the matter of  6 Delgamuukw versus her Majesty the Queen at bar, my  7 lord.  8 May I remind you, you are still under oath. Would  9 your state your full name, please?  10 A   Yes.  Sheila Patricia Robinson.  11 MR. WILLMS:  My lord, if I may, I advised my friend about this,  12 he wrote a couple of days ago, suggesting that he  13 would be challenging our claim for privilege to some  14 of the documents that have been disclosed -- that have  15 not been disclosed with respect of Dr. Robinson, and I  16 talked to my friend this morning and he advised me  17 that at some point he still was going to challenge  18 that claim for privilege.  I would like to do whatever  19 we can to make sure that Dr. Robinson is finished by  20 tomorrow, at the latest, and if my friend has  21 documents that he wants to challenge our claim for  22 privilege to, I would like, at the earliest possible  23 time, my friend to outline the grounds for the  24 challenge and the documents so that we can dispose of  25 this matter and make sure that all of the matters  26 dealing with the cross-examination of this witness are  27 completed by tomorrow at the latest.  28 MR. GRANT:  As I indicated to my friend when he raised this, my  29 lord, I am not certain -- I certainly am going to  30 raise objection with respect to some of the documents.  31 I am not necessarily going to make an argument with  32 respect to all of them, and it depends on certain  33 responses of the witness, as to the scope of my  34 request.  And I feel I must request the witness, to a  35 certain degree on some of that to determine that.  36 That's the first point.  The second point is that from  37 my review and preparation last evening and the  38 documents that I am going to be referring to the  39 witness, I do not at this point anticipate that even  40 if we do go all day tomorrow that I will complete the  41 cross-examination of this witness.  Of course it's  42 early this morning to raise that.  I also spoke with  43 Mr. Rush concerning this matter, and one of the  44 aspects is the question of in the cross-examination of  45 this witness, as I indicated, I had operated under the  46 prevailing facts up to this witness where my friends  47 have taken a bit longer than expected. 21722  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  THE  COURT  2  3  MR.  GRANT  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  THE  COURT  20  MR.  GRANT  21  THE  COURT  22  MR.  GRANT  23  24  25  26  27  28  29  30  31  32  33  THE  COURT  34  35  36  MR.  GRANT  37  38  39  MR.  WILLM  40  THE  COURT  41  42  MR.  GRANT  43  44  THE  COURT  45  46  47  MR.  GRANT  Longer than expected?  I thought it was shorter than  expected.  Much shorter, up to those, operating on those  assumptions.  As I indicated to you the other day, if  necessary the plaintiffs' counsel are available, in  light of the Federal Crown's two points, in light of  the Federal Crown's position regarding the 0. N. C.  document, but not solely on this, certainly, because I  think Ms. Koenigsberg is going to be prepared to deal  with this after the morning break, but in light of  what I have already determined, I don't anticipate  completing the witness by tomorrow, and in light of  the Federal Crown's re-scheduling of theirs, I  anticipate -- I question whether it's necessary for us  to press forward on the Saturday.  And I spoke with  Mr. Rush concerning this and I wanted to raise this  matter with your lordship, given that we now have a  week --  We don't have a week.  Yes.  When?  The week of the 6th of November.  We have the week  of the 6th of November.  We had two days for the  province's case and because of the Federal Crown  requesting to change to the 20th, we now have a week.  I anticipate one-and-a-half to two days after today of  cross-examination.  If my outside of two days is  taken, there is still two days that Mr. Goldie has  requested and we still have another day for slippage.  I think Mr. Goldie had one additional day on  documents, if I recall his comments, and then  clean-up.  That was planned to be -- one of those was to be  today, on the expectation that you would finish today.  I think I am right in that.  Well, I never certainly didn't anticipate that I  would be finished this witness today.  And I don't  anticipate that.  :  Well, that's —  Mr. Grant, I don't think that's right.  But I  speak --  I am sorry, I should say this, if I -- if that  impression was left with the court.  I think it was a direct statement.  I think it was.  I thought it was in the form of an assurance, Mr.  Goldie could have tomorrow to read documents.  What I asked is I may want to stand down today 21723  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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  because I wouldn't be completed the cross-examination,  if necessary.  That's what I was referring to.  THE COURT:  If it was, Mr. Grant, it was on the basis that it  would be some tag ends to clean up.  But the problem  now is that I am scheduled for other things on the  8th, 9th and 10th.  Never occurred to me that we would  need more time than those two days.  I think I will  make some investigation, but I think we should get on  with this and maybe you can finish tomorrow, even if  we have to sit late tomorrow.  I would think we are  getting -- by then we must be getting very close to  the end.  MR. GRANT:  Well, we will see how we go today.  I may be able  to —  THE COURT:  Did I understand that there was some problem with  the witness's schedule after tomorrow?  MR. GRANT:  I don't believe so, my lord.  THE COURT:  That was suggested to me that there was.  When did  Mr. Willms say that --  MR. WILLMS:  Well, I don't think I did.  I don't know.  I, you  know, the first that I heard that my friend might be  longer than tomorrow was right now.  He first told me  he would be more than a day.  That didn't mean to me  two weeks, that meant a couple of days.  And that's  what he said yesterday that he is available Saturday,  so it's news to me.  So I have never broached this  with the witness.  MR. GRANT:  I indicated in the first day that I may go over  tomorrow into the next week.  That was my  recollection.  Mr. Adams is checking.  THE COURT:  All right.  Go ahead.  CROSS-EXAMINATION BY MR. GRANT:  (Continued)  MR.  GRANT:  Q  A  Q  A  Q  Do you have your report in front of you Dr. Robinson?  Yes, I do.  Your statement at page one first paragraph is:  "This  report investigates the argument that indirect contact  with Europeans during the protohistoric and early  historic periods provoked significant changes in  patterns of Gitksan and Wet'suwet'en land use."  When we say protohistoric and historic, we could  substitute the words protocontact and contact, could  we not?  I am not familiar with the term protocontact.  Do you know what contact means? 21724  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 A   Yes.  2 Q   What does it mean to you?  3 A   Direct interaction between people of two different  4 cultures or societies.  5 Q   And protocontact would be that time where there is  6 indirect contact?  7 A   Yes, and I was just indicating to you that it's new to  8 me but it sounds fine.  9 Q   But it may be a term used in the field, you are just  10 not familiar with it?  11 A   Yes.  12 Q   Doctor, would it not be correct to say that in fact  13 you were part of the research team for the defendants?  14 A   I suppose.  I didn't have much of a sense of team, in  15 the sense of collaborating with ideas and so on.  16 I would like to ask a question and it's perhaps out  17 of turn but I don't know how else to raise this, but  18 there was something mentioned yesterday that I would  19 like to clarify or correct.  I -- and if, you know,  20 forgive me if I am misinterpreting this, but I think  21 Mr. Grant suggested that I hadn't referred to George  22 Simpson's work in my thesis dissertation.  23 Q   I did suggest you had referred to them in your  24 dissertation.  25 A   Yes, I did and I just wanted to make sure --  26 Q   I had suggested you had.  27 A  And I went home and checked that and I thought I had  28 referred to Simpson and I wanted to make sure that the  29 references were thre.  30 Q   I had suggested that you had.  31 A   Okay I am sorry. I probably didn't hear you.  32 Q   I had suggested you had not cited them in your opinion  33 report.  34 A   That's correct.  35 Q   And that's correct, you didn't refer to them for your  36 opinion report but you were familiar with them for  37 your dissertation?  3 8 A   Yes, I was.  39 Q   At least some of those?  40 A   Yes, the 1824-25 narratives and also the '41-'42 one.  41 Q   This letter of February 19th, that you have in front  42 of you, I had referred you to it yesterday and out of  43 fairness, because Mr. Willms was concerned I hadn't  44 quoted the last paragraph, I will put it to you now,  45 but the last -- this was your term of your contract;  46 is that right?  47 A   Yes, I believe so. 21725  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   And you state at the bottom, "we anticipate this will  2 include..."  I am sorry, Mr. Plant states, I am sorry,  3 "While we have not yet determined the precise nature  4 of the assignments you will carry out, we confirm that  5 your assistance will be in areas related to your  6 professional and academic experience."  Here he was  7 referring, for example, to your dissertation type of  8 work?  9 A   Yes, I imagine so.  10 Q   "We anticipate this will include, for example,  11 research and evaluation of the anthropological aspects  12 of Indian land claims."  13 You understood specifically at this point the role  14 that counsel for the defendants was taking in this  15 litigation, didn't you?  You understood that they were  16 counsel for the province?  17 A   Yes, I did understand that.  18 Q   You understood at -- before entering the retainer that  19 the province was defending against the claim of the  20 Gitksan and Wet'suwet'en, didn't you?  21 A   Yes, I did.  22 Q   And you understood that you would be asked to research  23 and evaluate anthropological aspects of Indian land  24 claims to assist the provincial defendant in opposing  25 the Gitksan and Wet'suwet'en claim, you understood  26 that at that time?  27 A   Yes, I did.  2 8 Q   And that is what you did?  29 A   Yes.  30 Q   In fact, you became increasingly involved with the  31 defence team, that is, the legal team of the  32 defendants, in feeding them information that would  33 assist them in cross-examination of expert witnesses,  34 for example, is that fair to say?  35 A   That's not how I perceived my role.  I perceive my  36 role more as a -- as one where I was familiar with  37 certain kinds of materials, and I was asked to  38 sometimes explain terminology or pull together  39 reference materials and, if anything, I see that as a  40 role of educator.  41 Q   But, you -- your role was to, as you have said the  42 other day, you have been retained in other cases to  43 advise those defending against Indian interests in  44 this province?  45 A   Yes.  46 Q   In fact the Federal Crown has retained you?  47 A   Yes. 21726  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  Q  2  A  3  Q  4  5  6  A  7  Q  8  9  MR.  WILLM  10  11  THE  COURT  12  MR.  GRANT  13  Q  14  15  A  16  17  Q  18  19  A  20  Q  21  22  23  A  24  25  26  Q  27  28  A  29  Q  30  31  A  32  MR.  GRANT  33  THE  COURT  34  35  36  37  A  38  39  40  MR.  GRANT  41  Q  42  43  44  45  46  47  As well, not in this case but in other cases?  Yes.  And I think you advised yesterday of course you  attended at counsel table with respect to Sylvia  Albright?  Yes, I did.  But you're not a dispassionate expert here, are you,  Dr. Robinson, you're an advocate, this is argument?  3:  I object, my lord.  This is argument, that's not a  question.  :  Wait a minute.  :  I will reword the question then.  Would it be fair to say that you developed an  argument?  Not in reference to your previous statement or  question.  Would it be fair to say that your report is an  argument?  Yes or no?  In an academic sense, yes.  Did you assist in the -- in providing information for  the cross-examination of Gitksan and Wet'suwet'en  people in the case?  Only to the extent that I assisted with preparation of  materials for some cross-examinations of plaintiffs'  experts, expert witnesses.  We talked about that yesterday.  I am talking about  the lay witnesses?  No, I did not.  Did you review evidence of any of the Gitksan and  Wet'suwet'en people in this trial?  I don't believe so.  :   Did I ask that 1986, February 19th, be tab 9?  :  I don't think you did but it may be.  (EXHIBIT 1191-9: LETTER DATED FEBRUARY 19, 1986)  I am not sure if some of the plaintiffs' experts'  opinions, some of the plaintiffs' experts are not also  Gitksan or Wet'suwet'en people.  Can you refer to tab 2?  That's the letter from Mr.  Plant to -- I am referring you just because your  counsel corrected this and I would ask this go in at  two, at tab 2 at the back, my lord.  Mr. Willms  indicated to me that in fact if you look at tab 2, the  letter of March 19th was separate -- was not what the  material was appended with -- in fact it was appended 21727  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  3  A  4  5  Q  6  7  THE  COURT:  8  9  10  MR.  GRANT:  11  Q  12  A  13  Q  14  THE  COURT:  15  MR.  GRANT:  16  17  18  19  20  21  22  23  THE  COURT:  24  25  MR.  WILLMS  26  MR.  GRANT:  27  28  MR.  GRANT:  29  Q  30  31  32  33  34  35  36  37  38  39  40  41  42  A  43  Q  44  45  A  46  Q  47  with, it was appended to this letter of April 3rd,  1986, would that be correct?  I am sorry, I am trying figure this out.  The letter  of April 3rd goes in front of the late pre-historic --  That's what Mr. Willms has advised me is the sequence,  it's how I got the material, but in any event --  This letter, April 3rd, should go in front of the  document which is headed "Late prehistoric and early  prehistoric changes"?  Right.  You don't disagree with that?  I don't recall.  You don't recall.  That's fine.  Would it be part of tab 2?  My lord, I am going to be asking my friends that  this letter of March 18th at tab 2, which is partially  blacked out, I am going to be asking to have  disclosure of those portions on pages one, three and  four disclosed, because this letter clearly seems to  to be a letter in which the witness describes her  areas of expertise and proposals relating to her  opinions.  All right.  Any reason why I shouldn't look at  following the convention, Mr. Willms?  :  No.  If my friend can provide it to you before the break,  I don't have to deal with it at this moment.  Can you turn to your letter at tab 2, the one that I  referred you to yesterday, page 2 at the bottom, you  state:  "I should add that although there have been  very few archeological sites identified and fewer  still excavated in the land claims area, a review of  archeological reports could be quite worthwhile.  Scholars such as George MacDonald, Louis Allaire and  Gary Coupland are anthropologists and have usually  formed sound opinions about pertintent ethnographic,  ethnological and historic data."  Now, of those three, you have cited George  MacDonald and neither of the other two in your report;  is that right?  Yes.  And you agree you still maintain that archeological  evidence could be worthwhile?  Yes.  But you have not cited Sylvia Albright's archeological  digs within the land claims area, have you? 21728  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  MR. WILLM  2  3  4  5  6  THE COURT  7  8  MR. GRANT  9  Q  10  11  A  12  Q  13  A  14  15  16  17  18  19  20  21  22  Q  23  24  A  25  26  27  Q  28  29  A  30  31  Q  32  A  33  Q  34  A  35  36  37  38  39  40  41  42  43  44  Q  45  46  A  47  3:  I object, my lord.  That -- Albright's report came  over as part of this litigation.  It hasn't been  published, that was established through the  cross-examination of Ms. Albright.  She never  published it.  :  Was it available to the witness in time to be  included in her 1987 report?  You had access to that report prior to May 12th, 1987  didn't you?  I am not sure.  You don't remember?  I don't remember.  I might make one point though, is I  hesitate to or I would hesitate, had it been  available, to use material that was not sanctioned by  the Heritage Conservation Branch provincially, and  that's perhaps being excessively formal, but it is one  governing authority that I certainly recognize and  because Ms. Albright didn't register any of the sites  that she excavated with the branch, I don't know if I  would have looked at it had it been available.  You ultimately didn't cite Allaire and Coupland in  your report?  Did you review them?  No, I think the Allaire material this is referring to  is in the Skeena River anthology that we have  mentioned earlier.  So you did cite it because you cited a larger  anthology?  I don't think I cited Allaire specifically but I was  certainly aware of it.  And you didn't cite Coupland?  No.  Coupland does not assist in your argument, does he?  I would want to know what specific parts you're  referring to.  I didn't find very much of Gary  Coupland's work that new or I felt that George  MacDonald's work has still, to me, created the best  base of archeological knowledge for the area.  And I  might add one more recent article that I have read  that I found quite useful and informative was Jack  Ives' piece called The Tsimshian or Carrier, which is  the report on archeology in the proceedings of the  Chacmool conference.  When did you first come -- did that first come to your  attention?  After I had written my report.  But I am not sure when  exactly. 21729  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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  MR.  Q   In September of this year?  A   Oh, no, because I was at that conference and ordered  in the proceedings.  I forget when I got the  proceedings but I was aware of it earlier, I just  hadn't used it or thought of it in terms of this  report.  Q   But you had the paper prior to the report, didn't you?  A   I don't believe so.  No, there was a very interesting  session on the northwest coast at that conference and  I did have recollection of that so it was later that I  believe I brought in the proceedings.  Q   On page 3 of -- the next page over, I have numbered  mine, my lord, of the letter or of the 1191 tab 2,  March 18th, '86 letter you state, the third line down,  "Reports by archeologists may prove to be  illuminating."  Then you give the example of Kenneth  Ames and where he says, "I noted for instance in an  abstract of Kenneth Ames 1979 report..." citation  given, "...that site locality was given to the Carrier  by the Gitksan in A. D. 1820.  Is this genuinely known  or verifiable?"  You didn't cite Ames in your report?  WILLMS:  I object, my lord.  That is most misleading.  It is  not -- Ames is not listed, Skeena River Prehistory is  listed, it's in the Skeena River Prehistory. Now, that  is misleading, in my submission.  Okay.  MR. GRANT  THE COURT  A  Specifically, no, I didn't refer to Ames, and I made  the decision fairly early on, that because of my  hesitation generally about the archeological  information that has been produced from the region, I  felt it was better not to incorporate it in this  opinion report.  The opinion report was not really  including survey of the archeological materials.  Had  I been asked to or had I thought it was particularly  valuable to do so, I would have gone through these  sources.  These of just comments about some materials  that -- in fact, in this one, what I am referring to  is an extract of Ames's report and what I would have  done is gone after the more detained materials, had I  been asked to, or had it been decided that was an  important thing to do, which includes going after the  manuscript materials associated with finished cite  reports as well as the reports themselves.  In terms of your going on in this -- but you do agree  that archeology is an important component for a 21730  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 cultural geographer to look at when doing this kind of  2 research that you are doing?  3 A   It areas where there has been adequate site survey,  4 reasonably complete site survey and excavation, and  5 some conscientious effort made to write up the results  6 of the area, I feel that what George MacDonald has  7 done, and he himself would would agree with this I am  8 sure, is that it is a tentative overview that's  9 reflective of the excavation at some canyon sites.  We  10 don't have representative sampling from other kinds of  11 areas within the region and so I didn't feel it was  12 terribly useful or representative as a data base.  13 It's interesting to know what archeologists who are  14 knowledgeable as MacDonald have produced by way of  15 ethnographic analogy.  16 Q   On the bottom of that page, after several lines which  17 are blacked out, you state, this is on the section  18 Investigation of Post Contact Socioeconomic  19 Developments:  20 "Although a good deal has been written about  21 'impact of the white man' most of this material  22 is conjectural.  This is particularly the case  23 for groups such as the Gitksan and Wet'suwet'en  24 about whom the early written records are  25 virtually mute."  26  27 Do you maintain that view today?  2 8 A   Yes, I do.  29 Q   Brown, Harmon and Ogden are not mute, are they?  30 A  Well, I use the words virtually mute, and I think  31 their contributions are -- although they are the  32 earliest descriptive histories we have for those  33 areas, their contributions are relatively few and the  34 kinds of data that are present in those early journals  35 are relatively limited.  So I stand by the word  36 "virtually mute" or the words "virtually mute."  37 Q   Now, going over to the next page, where you do refer  38 to Kobrinsky, halfway down that page, you state, ninth  39 line down in that paragraph, my lord, starting  40 although:  41 "Although from here we are moving into the arena  42 of speculation, I think it would be worthwhile  43 investigating any lead which suggest that  44 'classic' patterns of Gitksan and Wet'suwet'en  45 resource use and ownership are post contact  4 6 phenomena."  47 21731  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 You agree that that is still an area of  2 speculation, isn't it?  3 A   Yes, I agree it's speculation.  However, I would like  4 to say that not only the examples that I have given  5 earlier that relate to the northern or northwest coast  6 region and adjacent interior, fall in line with this  7 general interpretation, but that other and additional  8 studies that have have been done in Alaska, in the  9 Yukon, in the Mackenzie drainage area in the Northwest  10 Territories, are all consistent with this general sort  11 of argument.  So it may be conjectural and it may be  12 speculative, but to my mind it's the best information  13 we have about early post contact developments or the  14 total historic period.  15 Q   What leads did you follow up on, if any?  16 A   Leads?  I am sorry, where are you referring to?  17 Q   You said "I think it would be worthwhile investigating  18 any leads", did you follow any leads?  19 A   Yes, by that I am referring to the published  20 references in my bibliography of the opinion report,  21 the ones that I did cite.  There were additional  22 materials for Yukon, Alaska and to some extent the  23 western part of the Northwest Territories that I was  24 aware of that I didn't include in the bibliography  25 because I thought it would broaden the scope too much  26 and I thought it was useful enough to focus in on the  27 northwest coast region.  But, yes, these are leads  28 that I was investigating.  29 Q   And in investigating leads, what you focused on was  30 those leads which would support Kobrinsky's thesis, is  31 that not fair to say?  32 A   Yes and no.  I would say the best leads that I  33 followed are those that I followed that were  34 consistent or parallel to Kobrinsky's arguments were  35 those that I call had some explanatory power and  36 didn't just say there were or weren't changes going on  37 in native societies but actually made some attempt to  38 explain what those changes were, how they worked, how  39 they related to native economies, relations with  40 environments and so on.  So I would say, yes, I did  41 select from materials that were generally consistent  42 with Kobrinsky's view, but I also looked for those  43 that were logical, concise and had some kind of what  44 we call explanatory power.  45 Q   Did you look at any of those that disagreed with his  4 6 views?  47 A   Perhaps if you name some. 21732  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   Well, you're the expert, you tell me, do you know of  2 any that disagree with Kobrinsky?  3 A   From prior to the time that I wrote the report?  4 Q   Yes.  5 A  Well, there are some discussions in the  6 anthropological field about things such as the origins  7 of matriliny for the Athabaskan region and they are  8 some controversies in that field or some field, but  9 even within that body of literature there seems to be  10 a general consensus that supports the notion that the  11 potlatch conference was introduced from the coast to  12 the interior in many areas.  13 Q   I will come back to what you have just said, but I  14 ought to ask you if you can think of any scholars in  15 the field that disputed Kobrinsky and if you looked at  16 them?  You didn't cite them.  17 A   You might have to lead me into that area of literature  18 because offhand I am not familiar with pieces that  19 dispute that.  20 Q   The second last page of this tab, can you look at  21 that?  It starts with a note at the top an approach,  22 part way down?  Do you have the right page?  23 A   Yes, I this think so.  24 Q   The second -- the third paragraph -- I am sorry, we  25 will go to the second one, this is your approach, this  26 is where you're summarizing on April 3rd your approach  27 to what you're going to do, your methodology, that's  28 what I take this as?  29 A   I think it's the beginning of a proposal.  It's a  30 suggestion for research.  I will remind you of that.  31 Q   Go to that page.  You say one of the things that you,  32 list of things you should do is "a search for any  33 criticisms of Kobrinsky's 'position' including a  34 review of recent articles by him to see whether he  35 appears to have changed or retracted his opinions."  36 The next paragraph:  "A search for any articles or  37 theses written since Kobrinsky's dissertation was  38 completed which pertain to the  disputed area and  39 which concur with his conclusions explicitly or  40 implicitly."  41 This is what you were looking for, wasn't it, you  42 were looking for, and I put both paragraphs to you,  43 but with your focusing on and you did focus on  44 articles or theses written since his dissertation,  45 pertaining to the disputed area which concur with his  46 conclusions explicitly or implicitly, that was your  47 task that that you saw to develop your argument, is 21733  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 that not a fair statement?  2 A   I think it's reasonably fair and I think that it was  3 within the general impression I had that I was being  4 retained for my expertise, and it was my opinion then,  5 as it is now, that these kinds of interpretations, the  6 ones that not just Kobrinsky expresses but that the  7 others concur with, that I mention, that I find, and  8 did find then, the most sensible way of explaining  9 changes that were going on in the protohistoric  10 period.  So, yes, I was looking for more recent  11 expressions of that and similar kinds of views.  12 Q   What could you mean when you say the most sensible  13 way?  14 A   Something that makes sense to me in terms of the  15 academic training I have had and my familiarity  16 broadly with a fairly extensive range of literature.  17 Q   Focusing particularly on the coast?  18 A   Focusing particularly on cultural ecological matters  19 relating to the coast.  And in late prehistoric or  20 early post contact times.  21 Q   Could you go back to the fourth page where I was  22 before.  The one that has three lines at the top  23 marked out.  24 A   Fourth in from the beginning?  25 Q   The fourth page of the letter, yes.  Fourth page from  26 the front.  At the bottom you say:  27  28 "Kobrinsky also makes a few 'incidental'  29 comments suggesting  that a similar scenario  30 might apply to the Gitksan while pointing out  31 that the duration and intensity of Coast  32 Tsimshian-Gitksan exchange relations probably  33 obscures any real understanding of when (or  34 indeed, whether) the Gitksan adopted the  35 phratry organization and associated styles of  36 of resource ownership from the Coast Tsimshian  37 during the protohistoric or early post-contact  38 eras."  39  40 Now that's an accurate summary of the depth of  41 Kobrinsky with respect to those comments, isn't it?  42 A   Yes, and I think what I was probably doing there was  43 alerting the others to some ideas that I noticed in  44 Kobrinsky's work.  45 Q   That may be food for further research to --  46 A  Well, I think so.  47 Q   To buttress — 21734  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 A   For instance, I found that the Ives article that  2 addresses this very problem of whether or not there is  3 a coastal or interior origin or origins or multiple  4 origins for the complexity of the Gitksan area, is a  5 very interesting approach to precisely that kind of  6 problem.  7 Q   And you haven't -- you can't really give a conclusion,  8 having read Ives, as to which view is right, can you?  9 A   No, and I think it's one of those areas where we do,  10 as professional anthropologists and archeologists,  11 recognize that many of these things are conjectural  12 and we go with the best information we can.  But it's  13 not quite as contentious  in the academic arena to  14 have different opinions or different approaches in  15 investigating the same research problem.  16 Q   Could I refer you to the last page, and, I am sorry,  17 the next page over, the last page of your letter of  18 March 18th.  And about ten lines down, you state:  19  20 "Ethnological and ethnographic analogies allow  21 many of the lacunae to be glossed over. This is  22 generally-accepted practice as scholars can  23 then move beyond the level of anecdotal  24 description to address broader issues germane  25 to their fields of inquiry.  In addition,  26 researchers usually possess a sufficient degree  27 of familiarity with pertinent records to  28 eliminate more glaring distortions. However,  29 that we deal in possibilities and probabilities  30 more often than in fact is an important point  31 to raise."  32  33 And here you were informing your clients of a point to  34 be raised generally in the field, weren't you?  35 A   Yes, I was.  36 Q   To be utilized as they wished to utilize them,  37 obviously?  38 A   I thought it was also fair warning that statements  39 that I would develop would be based on information  40 that was often speculative, as are many of the  41 scholarly works that are produced in this area, but I  42 think it's a fair statement to say again this is the  43 best information we often have to go with.  44 Q   And I think what, an example there is you're saying,  45 Kobrinsky is some of the best information you have,  46 although he admits it's speculative?  47 A   Yes. 21735  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   Okay.  And then you quote:  2  3 "Viola Garfield's 1951 assessment of the  4 'state-of-the-art' is generally applicable.  We  5 lack much comparative data on the relationships  6 between the Tsimshian (including the Gitksan)  7 and their neighbours.  There is also little  8 historical depth to our data.  Some of these  9 gaps can be filled by comparative analytical  10 studies of the Tsimshian with other tribes of  11 Northwest America using existing literary  12 sources.  Other problems will only be solved in  13 the future by systematic field work."  14  15 And that's a fair statement, you agreed with that  16 then and you agree with that statement today?  17 A   Yes.  I think Garfield has also stated, and if she  18 hasn't, certainly other scholars have, much of the  19 information that we might wish to have is  20 irretrievably lost, and just to give you one example,  21 there is almost no information on the domestic economy  22 which really impedes analysis, using some kinds of  23 anthropology interpretations.  We simply don't know  24 what's going at the level of households, historically,  25 pre-historically or even recently, in terms of the  26 distribution of goods within a household, for  27 instance, for the whole northern northwest coast  28 region.  29 Q   Garfield was writing in 1951 this statement?  30 A   Yes.  31 Q   And at that time William Brown was not generally  32 available?  He wasn't available to her?  33 A   I don't know that.  34 Q   You don't know when he became available?  35 A   I don't know whether or not she may have gone to  36 London  37 Q   Do you know, do you recall if she cites him?  38 A   No, I don't recall that.  39 Q   I suggest that she doesn't?  40 A   I do know that she was involved with a pretty  41 comprehensive overviews of a lot of material  42 pertaining to the Alaskan land claims hearings in the  43 '40s, and I think a lot of material was made available  44 then, but I honestly don't know if she had access to  45 Brown or travelled to London.  46 Q   Have you heard of Diane and Abberly?  47 A   Yes, I have. 21736  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   Flexible reconstruction, that was not published at the  2 time she made this statement, was it?  3 A   I don't remember exactly when Diane and Abberly's book  4 was published.  5 Q   And Diane was a linguist, or do you recall?  6 A   I think so, yes.  7 Q   And Abberly was an enthologist, is an enthologist?  8 A   Yes, he is.  9 Q   One of the leading ethnologists on the Athapaskans,  10 isn't he?  11 A   Yes.  12 Q   Considered one of the leading scholars in the field?  13 A   Yes, I believe he is.  14 Q   You didn't cite Diane and Abberly?  15 A   No, I didn't.  16 Q   Diane and Abberly wasn't available at the time of her  17 assessment in 1951?  18 A   No,  and it certainly wasn't available to William  19 Brown.  20 Q   Diane and Abberly was not available to William Brown?  21 A   No.  22 Q   In 1822-23.  I agree.  Do you know that -- Mr.  23 Abberly, David Abberly did field work subsequent to  24 Garfield's?  25 A   I am not sure in what areas.  26 Q   You would agree, given the reputation of Mr. Abberly,  27 that if he did do field work it would be systematic  28 field work?  29 A   I would want to look at his material.  30 Q   You may question that.  Okay.  Fair enough.  31 On the first page after April 3rd letter on the  32 same tab, you go to phase one and you have said to me  33 that when I put the first paragraph of that to you  34 yesterday, and you were concerned about that you  35 amplified on it and the end of that first paragraph,  36 phase one, you say:  37  38 "It will be shown how indirect and remote  39 European influences coming from several  40 directions act as catalysts to stimulate  41 internal socioeconomic developments before  42 British sovereignty was asserted over the  43 region."  44  45 I mentioned that to you yesterday and that's what we  46 were talking about.  47 A   Yes. 21737  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   Now the last sentence in that paragraph is:  2  3 "Developing sound arguments for phase one will  4 be the most challenging, for this is obviously  5 where the emphasis should be placed."  6  7 And I think I raised that with you yesterday as  8 well, I asked you about that?  You saw it as  9 developing argument?  10 A   I think so.  11 Q   Okay.  Now then you go on to phase two and there you  12 say:  13  14 "For phase two it will be shown how more  15 immediate but still indirect European influence  16 during the maritime and land based fur trade  17 eras continued to serve as 'triggering factors'  18 for internal socioeconomic developments, but  19 with progressively more impact as the Gitksan  2 0 and Wet'suwet'en were drawn into the trade as  21 fur suppliers, just a few steps from the  22 interface of white-Indian contact."  23  24 Now here you are developing or you are stating what  25 your argument would be for the second phase, that is  26 the chronological phase?  27 A   Yes.  28 Q   And that's the argument that you set out to establish  29 to prove through your opinion report, regarding that  30 phase?  31 A   Yes, I think so.  32 Q   And you set out your objective seven lines from the  33 bottom:  34  35 "The primary aim of this exercise is to show how  36 Gitksan and Wet'suwet'en socioeconomic  37 behaviour continued to develop along avenues  38 introduced in the protohistoric period, and  39 underwent  further changes which can sometimes  4 0 be documented."  41  42 Is that right, that was your -- that's a fair  43 statement of your objective in developing the purpose  44 why you were developing that argument?  45 A   Yes.  46 Q   Go to the next page there and you then deal with "The  47 Epic of Nekt by George MacDonald, something that you 2173?  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  3  4  A  5  6  7  Q  8  9  A  10  11  12  Q  13  A  14  15  16  17  18  Q  19  20  THE  COURT  21  MR.  GRANT  22  23  24  THE  COURT  25  MR.  GRANT  26  THE  COURT  27  MR.  GRANT  28  THE  COURT  29  MR.  GRANT  30  31  THE  COURT  32  MR.  GRANT  33  Q  34  35  36  37  38  39  40  41  42  43  44  45  46  47  focused on even at that point in your very naisant  thinking of about this and you maintained and relied  on I think subsequently, you have indicated?  Well, I don't like the word naisant thinking about it,  because I have been thinking about this coast interior  contact for a very long time.  It was not the subject matter of your dissertation,  was it?  The chapter that deals largely with the ethnography  and ethnology, chapter three in my thesis, does deal  with this.  With respect to the coastal?  To wealth exchange, to exchange and to the  relationships between the coast and interior  populations with respect to the Tlingit, primarily,  and with some mention of the Haida, Tsimshian and  inland from the Tsimshian connections.  You state, the second paragraph down, you summarize  MacDonald and you say --  Where are you reading from?  I am sorry, my lord, I have numbered my -- in the  late prehistoric, I am at -- I am sorry, I see what I  have done.  I missed a page myself here.  Are you on the second page?  Now I am on the second page.  Second paragraph?  Phase I, Socioeconomic Developments, is the heading.  Yes.  I don't see MacDonald.  MacDonald's is on the third page and I just grabbed  two pages at once.  All right.  Now, you state there that -- this is on Phase I again,  and you are going on to some more details and you  explain why there is a reason for persistent myopia,  third line down.  And then you have three reasons and  the second reason you set out as is:  "Second, processes of cultural change are so  poorly understood and difficult to demonstrate  that theories which are based on the  assumptions that relatively minor external  stimuli can 'trigger' profound changes in  patterns in socioeconomic of behaviour are  often dismissed as undemonstrable speculation."  That's a fair statement of the state of the 21739  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 state-of-the-art in the field, that was your opinion  2 of the state-of-the-art in the field at that time?  3 A   Yes, and I would say that cultural ecologists, and  4 that's people that deal with cultural geography,  5 cultural anthropology and archeology who share a  6 common interest in the relationship between people and  7 land and changes in those relationships, do indeed  8 recognize that sometimes profound socioeconomic  9 changes are triggered by relatively small or what  10 appear to be small factors.  And that often direct  11 cause is obscured by the subsequent consequences.  And  12 this is something that I think is generally recognized  13 as a theoretical orientation in other scholarly  14 fields.  15 Q   But there is some legitimacy to the criticism within  16 the field that relatively minor external stimuli can  17 trigger profound changes and patterns of socioeconomic  18 behaviour, there is some legitimacy to the concern  19 that that is often undemonstrable speculation?  20 A   Not within the field, I wouldn't say that criticism is  21 levelled at it.  I think the criticism comes more from  22 people that are outside the fields of anthropology and  23 cultural geography who don't know where the theories  24 of explanation are derived or from where they are  25 derived.  26 Q   The next page over is where you refer to MacDonald and  27 you state there, or MacDonald -- you summarize him on  28 that second paragraph, starting to trade, the second  29 sentence:  30  31 "He does state that mythical accounts and more  32 recent ethnographic describtions indicate that  33 it was routes and commodities but not  34 territories (these were 'sacrosanct') which  35 were the objects of competition."  36  37 Do you have that?  38 A   The second paragraph?  Yes.  39 Q   Do you have where I read?  40 A   Yes.  41 Q   And that's —  42 THE COURT:  What is thought to be sacrosanct, the commodities  43 and routes or the territories?  44 A  What I am referring to there is Dr. MacDonald's review  45 of the mythical accounts and ethnographic  46 descriptions, those suggest to him that the  47 territories were sacrosanct. 21740  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  THE COURT  2  A  3  4  MR. GRANT  5  Q  6  7  8  9  A  10  Q  11  12  13  14  15  A  16  Q  17  18  19  20  21  22  23  24  25  26  27  28  29  30  A  31  32  Q  33  34  35  36  A  37  38  39  40  41  42  43  44  45  46  47  :  All right.  Thank you.  I am sorry, I think you asked a question concerned  with that?  His lordship asked the question.  You have answered my  question.  He anticipated what I was going to be --  and the mythical accounts he would be referring to the  Beynon and Barbeau material?  Yes, he was, yes.  At the bottom of that page, you go an and you talk  about peaceful organization of territorial boundaries  and again you go back to Kobrinsky's dissertation.  By  the way, you didn't cite Kobrinsky's dissertation in  your report, did you?  No, I think that was mentioned yesterday.  Taking this a step further, it could be suggested,  this is your words, after talking about Kobrinsky and  the Wet'suwet'en to peacefully organize territorial  boundaries to the potlatch, you say:  "Taking this a step further, it could be  suggested that late prehistoric European  influence also stimulated coast interior  exchange, et cetera, to the extent that the  Gitksan were essentially Tsimshianized during  the 18th and early 19th century."  And you make that suggestion in your report, don't  you?  I am not sure if I do but but perhaps you could refer  me to that.  I will come back to your report for that.  But this is  only a suggestion and this is clearly, at this stage  in your thinking, speculative?  When you say "taking  this a step further, it could be suggested..."?  Yes, and I would like to make one comment with regards  to the question you raised, your honour, about what  MacDonald had said there about territories being  sacrosanct, just as perhaps a bit of a balance.  MacDonald does also refer to the article or the  manuscript version of that article by Brian Ferguson  in which motivations for warfare are seen as something  broader.  He looks at many different kinds of  motivations for warfare and includes the seizure of  territories as one of the motivations.  So that  although MacDonald is saying that, as far as I  understand, from his reading of the mythical accounts 21741  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 and more recent ethnographies, territories don't seem  2 to have been the focus.  There are other scholars who  3 are cited by MacDonald who do mention that.  4 Q   But MacDonald himself -- what you rely on in MacDonald  5 in your report, as I remember,  we can go back to it,  6 is that he focuses on in dealing with Nekt, he focuses  7 on the thesis that the conflicts are focused on  8 control of the trade routes?  9 A   Primarily, yes.  10 Q   Now, you would agree with me that when you have these  11 oral histories, when -- or ethnographies -- you  12 understand what I am referring to here?  13 A   Yes.  14 Q   When they are looked at it's considered in the field  15 that when you have oral histories that deal with  16 supernatural aspects, those are generally considered  17 to be earlier, of earlier origin than those oral  18 histories that do not contain supernatural components,  19 is that a fair statement?  20 A  My knowledge of that concept derives from my early  21 undergraduate work in classics, classical mythology.  22 I know it's a theory or a theme that's applied to  23 classical traditions but I don't know how it's applied  24 to North American native mythologies or legends.  25 Q   Can you then turn to the next page, and the paragraph,  26 the second paragraph three-quarters of the way down,  27 starts:  28  29 "When and why coast interior exchange linkages  30 were established is not known (although it is  31 interesting that they are not necessarily  32 treated in the supernatural mythical past which  33 appears to pre-date native histories lacking  34 supernatural elements."  35  36 That's a fair statement; is that right?  37 A   Yes, and that's my application of the theories as they  38 relate to classics mythology.  It seems to have held  39 for those.  4 0 Q   And you can't -- and you haven't studied the oral  41 histories or the literature of the oral histories in  42 the same way, I gather?  43 A   Not studied them, no.  44 Q   But you're reflecting what was generally considered to  45 be the case in terms of the scholar's interpretation  46 of oral histories?  47 A   Yes, and I think -- now I may not be correct on 21742  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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  this -- but I think it's a theme that's addressed  Frederica De Laguna with respect to the Tlingit oral  traditions.  And I think she also relies on that kind  of notion, that earlier stories are probably those  with more of a emphasis on supernatural events or  occasions.  Q   All right.  Then you go on to state "I suspect..."  This is, I think just to -- so that you are talking  about coast interior exchange linkages:  "I suspect that they -- coast interior exchange  linkages -- were of critical importance for  stabilizing northern coastal economies to the  extent that 'classic' northwest coast cultures  with their high population densities, complex  socioeconomies rank/cast systems and so on,  could emerge approximately 1500 to a 1000 years  ago.  This was before the time period that  concerns us here."  That was your assessment at that time?  That was an  accurate statement of your opinion at that time?  A   Yes.  Q   And you haven't changed that opinion because that's  not really -- you didn't focus your research on that  time period?  A   No, and I quite deliberately used the words "I  suspect" to indicate that it's speculation.  Q   Yes, you do use that word.  Next page -- okay.  I see.  I would like to you go to -- I am sorry, two pages  over, it's page seven on this, it's the last on part  two.  And again you say:  "Northwest coast and interior British Columbia  Indians have not often been the subject of  detailed ethnohistorical research although the  literature proliferates with hypotheses of the  European impact."  A   I am sorry, I don't know where you are.  Q   I know with the odd numbers it's a little hard.  This  page.  A   Okay.  Are you following me, are you on the right  page, my lord?  A   Yes.  THE COURT:  Yes.  MR. GRANT: 21743  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   Now, of course this was when you were making these  2 comments you did not have -- you had not had the  3 opportunity to review Dr. Ray's report in this case,  4 did you?  5 A   I don't think so.  I don't know the date sequence.  6 Q   Okay.  I think the correspondence indicates that that  7 was received by you sometime in 1987 and this of  8 course is your initial proposal in '86.  And you had  9 not reviewed, at that point, William Brown?  10 A   I don't think so.  11 Q   Okay.  Now, then the second last line you state:  12  13 "Documentation is sparse.  A heavy emphasis must  14 be placed on inference."  15  16 Is that -- that's what your opinion was then about  17 how you had to deal with this at the time you were  18 talking about post-contact socioeconomic development?  19 A   Yes.  20 Q   That's what you have done since then?  21 A   Done what?  22 Q   You have placed a heavy emphasis on inference?  23 A   Oh, yes.  24 Q   You have not relied -- you have not -- you placed more  25 emphasis -- your comment that documents are sparse,  26 you still maintain that position?  27 A   Yes, I do, pertaining to the kinds of information that  28 would be of interest in the cultural ecological  29 reconstruction.  We have very little information on  30 the domestic economy and so on.  31 Q   But the historical records are one of the important  32 components for a cultural geographer to look at,  33 historical documents, you explained that yesterday?  34 A  We tend to assess them by content rather than the  35 number of pages in them.  36 Q   Right.  Now then, I would just like to ask you, did  37 you refer -- you see at the bottom that -- or the at  38 top of, under approach, the next page, you say, "A  39 meeting with Kobrinsky..."  that's one of your  40 suggestions, to discuss his dissertation, I think you  41 told me you did not meet with Kobrinsky?  42 A   I did not meet with Kobrinsky, or phone him, no, I did  43 not.  44 Q   Did you phone him?  45 A   No, I did not.  4 6 Q   At the top you say:  47 21744  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 "A review and summary of Kobrinsky's  2 dissertation and related articles with the aim  3 of identifying his theoretical orientation, the  4 data he used, and the conclusions he reached  5 about late prehistoric cultural changes in  6 Gitksan and Wet'suet'en socioeconomies."  7  8  9 Q   Did you look at the data that he used?  10 A  Which data?  Well, I am sorry --  11 Q   You don't know what data he used?  12 A  Well, yes some of the scholarly publications that he  13 reviews in support of his information I also looked  14 at. I know he refers to Duff's article on the Carrier,  15 Morice, Goldman and so on, but I would consider those  16 materials that he relied on data along with any other  17 kinds of information he looked at.  18 Q   But as you yourself say in your reference to Garfield,  19 and you agree that other problems will only be solved  20 in the future by systematic field work, that's one  21 aspect of what she says, you know that Kobrinsky did  22 some field work?  23 A   I also went on to say that some of the information is  24 irretrievably lost.  25 Q   Answer my question first.  You know that Kobrinsky did  26 field work, don't you?  Or do you know?  27 A   I have some recollection of that but I don't know  28 exactly what area.  29 Q   Did you review the evidence of Dr. Antonio Mills?  Did  30 you read her evidence?  31 A   The opinion or evidence or opinion report?  Yes, I  32 did.  33 Q   The evidence at trial.  34 A   The opinion report of Dr. Mills?  Yes.  35 Q   Her evidence at trial.  36 A   I don't —  37 Q   Transcript of her evidence.  38 A   I don't believe so.  39 Q   I would like to refer you here to volume 197 page  40 19267, where Dr. Mills apparently does know what Dr.  41 Kobrinsky did, and you have read his thesis, I think?  42 A   Yes, sometimes ago.  43 Q   Okay.  She is asked at page 12967, line 7, by Mr.  44 Rush:  45  46 "Q  Are you aware of from your reading of doctor --  47 of Mr. Kobrinsky's thesis upon what information 21745  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 he bases his study with regard in particular to  2 the Wet'suwet'en feast."  3  4 And she answers:  5 "Mr. Kobrinsky -- Dr. Kobrinsky was not in a  6 good position to analyze the Wet'suwet'en  7 feast.  He had initially intended to make that  8 the subject of his doctoral dissertation."  9  10 Did you know that?  11 A   I don't have a recollection of it right now.  12 Q   Okay.  You didn't know that that was his initial  13 intent?  14 A   No.  He may have stated that in his thesis, I don't  15 remember.  16 Q   Dr. Mills is, I think, relying on his thesis for what  17 she knows.  I think so.  He probably did. If you don't  18 remember, that's okay.  19  20  21 "He went to Babine Lake.  He found that the  22 major centre of pot -- of feast was at  23 Moricetown.  Not knowing those people, he stood  24 outside the door uncomfortably at one feast but  25 he never attended any feasts."  26  27 Does that refresh your memory about what he  28 reported on his field work?  29 A   No, it does not.  30  31  32 "He noted, however, I may as well point this  33 out, he noted the existence and persistence and  34 importance of the feast to the Wet'suwet'en  35 before the land claims was joined."  36  37  38 Now -- so he did his -- I think that last comment  39 is she is suggesting that he did note the importance  40 and persistence of the feast to the Wet'suwet'en  41 before 1984, you know that he did his dissertation  42 before 1984, or you don't know?  43 A   Yes.  44 Q   And if he did field work, and he reports on this field  45 work in his dissertation, that would, of course, by  46 definition have happened before 1984, right?  47 A   I am sorry, could you restate that question please? 21746  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  Q  2  A  3  THE COURT  4  5  A  6  7  MR. GRANT  8  Q  9  10  A  11  12  13  Q  14  15  A  16  Q  17  18  19  20  A  21  Q  22  A  23  Q  24  25  26  A  27  Q  28  A  29  Q  30  A  31  32  Q  33  34  A  35  36  37  38  39  Q  40  A  41  42  Q  43  44  45  A  46  47  I am sorry if I am confusing you.  No, I am sorry I was just thinking about something.  :  The question was simply did he do his dissertation  before 1984?  I believe so.  The paper is dated to 1977, I think.  So I am trying to keep the dates straight.  :  Okay.  But you don't remember that he did his work on the  Babine?  I would like to review the thesis before I stated  that.  I would say right now I don't remember in  enough detail to be sure.  And that that was the only field work that he did, you  don't remember that either?  No, I don't.  And it was only for, I believe, if I remember rightly,  I am sure Mr. Willms will stand up quite quickly if I  don't, I think it was six weeks that he did field work  there?  I don't remember.  You don't know that?  No.  Now, he -- you know now that what his -- that he  hasn't done further work in this field with respect to  the Wet'suwet'en or the Carrier, you're aware of that?  No, I don't think so.  Sorry --  Am I aware of it?  I don't think I am aware of it.  That's what I mean.  You don't think he did any work?  I have no awareness of any work that he has done in  the area.  And you searched for any further work that he did in  the area, didn't you?  Specifically, I am trying to remember if I did a  social sciences citation index search for Kobrinsky  particularly.  I would just like to point out again,  that these were suggestions for approaches that might  be taken and --  Well, you are explaining what you did and didn't do.  I don't remember specifically if I looked for any  further work that Kobrinsky had done.  Did you do -- and referring here -- did you actually  look at related articles, identifying his theoretical  orientation?  Kobrinsky is referred to, I believe, in Mike Cranny's  masters thesis in archeology for the central interior  area.  I am just trying to remember, it's hard to 21747  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 cross-reference some of these authors to time.  2 Specifically, I can't remember.  3 Q   Well, it would have been relevant in determining his  4 theoretical orientation, would it not, to have looked  5 at his dissertation and realized that he was initially  6 was going to study the Wet'suwet'en feast and then  7 changed to the topic that he changed to, that would  8 have been relevant in terms of analyzing theoretical  9 orientation?  10 A   I am not sure how.  11 Q   Not for work it wasn't?  12 A  Well, his comments on a 1984 or pre-1984 observation  13 of a feast and then an excursion into the  14 protohistoric or historic are two very different time  15 periods, very different sorts of subject areas for  16 analysis.  So I am not not quite sure how they connect  17 or what you are suggesting.  I have known other people  18 to change theses topics and take quite significant  19 divergent paths of interest.  20 Q   Well the reason I am -- and you will have lots of  21 chance to explain more in those paragraphs about  22 Kobrinsky -- but the reason I am focusing on it, you  23 in seven out of 49, seven or six or even eight,  24 paragraphs out of 49 paragraphs you quote him  25 extensively, he is a very important source for you,  26 Kobrinsky is, right?  That's fair enough, it's in your  27 report, it seems so?  28 A   Yes, and the section under paragraph 49 at the end of  29 the opinion report, I had a fairly extensive section  30 on other writers expressing similar points of view  31 which for brevity were left in the notes rather than  32 included in the text, so I think that gives some kind  33 of balance to your bold assertion.  34 Q   I agree, I agree.  You mentioned that yesterday.  I  35 know paragraph 49 is important as well.  But what I am  36 asking you, if Kobrinsky's ideas are important, isn't  37 it important to know what fieldwork, if any, he did?  38 Isn't that relevant?  39 A   I would say that work in late prehistoric,  40 protohistoric and early historic times, often  41 precludes fieldwork in the area, because you are  42 working in a time period that's gone and gone by a  43 couple of centuries often.  And so if he chose not to  44 do fieldwork and spent a lot of time in a library, and  45 had never been in the area, I wouldn't pre-judge his  46 work on the basis of that.  47 Q   I am not suggesting you pre-judge it on the basis of 2174?  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 at all, Doctor.  What what I am saying is that he did  2 do fieldwork, you knew that, didn't you?  3 A   I am not sure if I did know that.  4 Q   In determining --  5 A   Or if I did know that then, I am not sure -- I don't  6 remember it now.  But if I did read his introduction  7 carefully and he had mentioned fieldwork at the time I  8 did know, probably.  9 Q   If he did later work after his dissertation and after  10 the article, that's important for you to know as well,  11 in the field, isn't it?  12 A   Not necessarily.  13 Q   If he had changed his opinion, for example, between  14 1977 and 19 -- and today, that would have been  15 important for you to know, wouldn't it, and why, why  16 did you change your views, wouldn't that have been  17 important?  18 A   I mentioned -- I probably, and it may be a lazy man's  19 approach to this sort of thing, but I imagine in the  20 fairly extensive reading I was doing at the time and  21 since, had he changed his view I would have noted it  22 and I would have been aware of it because had it been  23 printed and published and drawn to my attention  24 through of my other reading, it would have been there,  25 and in that sense I may not have done the social  26 sciences citation search to see if he had published  27 any subsequent material for that area.  I was doing  28 enough of an intensive read in and around the area,  29 that I think I would have picked up on it.  30 Q   But there is a lot easier way to find out if he  31 changed his opinion, isn't there, or if he had done  32 further work?  33 A   I am sure there are easier ways.  34 Q   It's picking up the phone and calling him at the  35 University of Calgary, and you never once did that,  36 did you?  37 A   No, I didn't.  I would have seen that most scholars  38 stand by the work that they print and publish and I  39 think I made it very clear whenever I did use  40 Kobrinsky I was referring to his '77 article.  And  41 even if Kobrinsky had changed his ideas, if I found  42 that the material that was in that earlier report was  43 of use and value for the development of my opinion, I  44 would have gone with it.  45 Q   But if he had changed his opinions it would have been  46 of importance for you to know why so that you could  47 either say I disagree with why he has changed his 21749  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 opinions or I have to reconsider my reliance upon him,  2 isn't that had a scholarly approach to this?  3 A   It's one scholarly approach, yes.  4 Q   That's what you did not do?  5 A   No, I didn't do that.  6 Q   Now, go to page nine -- I am sorry, the next page  7 right after your approaches.  The first paragraph:  8  9 "Particular attention will also be paid to  10 theories which regard relatively minor external  11 stimulae as catalysts or 'triggering' factors  12 which can provoke significant internal  13 adjustments in socioeconomic configurations."  14  15 This is a reiteration of your approach of what we  16 have already referred to in terms of, I think it  17 was --  18 A   Yes.  19 Q   I think it was un -- a challenge to that  20 undemonstrable speculation, and you say:  21  22 "This will not be a comprehensive overview but  23 will legitimize the positions taken by  24 Kobrinsky and MacDonald in the terms of  25 theoretical traditions in the social sciences."  26  27 You saw your role here as legitimizing Kobrinsky  28 and MacDonald, not determining whether or not they  29 could stand up under careful scrutiny of those in  30 support and in opposition to them; isn't that right?  31 A  Well, no.  32 Q   Then why did you use the word legitimize in your  33 proposal?  34 A   It's one of my favourite words.  But in the context of  35 this paragraph, and in the way that cultural  36 ecologists often do their work, is that they do use  37 comparative examples from all over the world that  38 investigate similar kinds of relationships or aspects  39 of relationships between people and their  40 environments, and what I intended to do there, not  41 realizing that when I submitted this report in May  42 that that would be the end of it, but what I would  43 have liked to have done, and what I intended to do  44 there, is put this in the context of some general  45 ecological theories, which showed that this is not an  46 unusual situation, that this kind of scenario occurs  47 all over the world and it's consistent with models in 21750  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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. GRANT  Q  ecological anthropology and cultural geography which  show -- explain how these relationships work.  So  basically what I was going to do there, rather than,  as I say, not a comprehensive overview but say let's  pull together perhaps a set of cultural ecological  works that put this in the context and explain that  this is not an unusual way of looking at the world,  but it's legitimate in terms of the way social  scientists look at these kinds of configurations.  That's all.  Q   And do not -- I do not want to look, and I will not  refer to those views that oppose or challenge  Kobrinsky and MacDonald on this point; I will look and  find those that support them, that was what you set  out as your approach and that's what you mean by  legitimize, you would buttress their theory?  A   Oh, yes.  And I don't see that that's objectionable at  all.  I think that unless you have a really sound  foundation then that's what creates a sound foundation  to argue around or tease out the details, or to figure  out what might be going on that's slightly different  than the general pattern, but you have to lay the  foundation of getting the basic materials in together.  Q   I just have one question on this last paragraph and  then I am finished with this there document, my lord.  All right.  You make a note there that Barbeau, whose theoretical  contributions are generally poorly received felt that  many aspects of classic Tsimshian society were post  contact.  Barbeau's feelings there are, that's his  theory, part of his theoretical contribution, isn't  it, that you are referring to, isn't it?  Isn't it?  That's Barbeau's interpretation?  A   Yes.  Yes.  Q You knew then and you know now that his theoretical  contributions are generally poorly received and not  accepted?  A   I think this is an example that I certainly wasn't  going to neglect information that might be contrary to  the kind of interpretation I was advancing.  But what  I wanted to make -- I certainly would bring to the  attention articles such as Wilson Duff's objection to  some of Barbeau's treatment or theoretical analysis.  Q   And Phillip Drucker's?  A  And Drucker's, yes.  Q   Yes. 21751  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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  A  A  MR. GRANT  THE COURT  But it's also important to put Drucker Duff in their  context as well.  And I think there has been  resurgence of interest in Barbeau's analyses.  And what you saw is that you would bring to the  attention Drucker and Duff in order to -- and  encourage the resurgence of Barbeau's ideas because  those ideas are what encourage your argument?  No, quite honestly Barbeau's analyses were not  highlighted in my dissertation research and were not  highlighted in my opinion report.  But in your opinion report, although you had looked at  the Beynon-Barbeau original material in your opinion  report, you don't cite them, you cite Barbeau's  material?  Again a constraint of time.  Again, if I had the  opportunity to include more supportive information for  this opinion, I would have.  :  Thank you.  :  Thank you.  (Proceedings adjourn for short recess)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 21752  Proceedings  Cross-exam by Mr. Grant  1 (PROCEEDINGS RECOMMENCED AFTER RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT: Mr. Willms.  5 MR. WILLMS:  My Lord, my friend asked about the March 18th  6 letter.  7 THE COURT:  Yes.  8 MR. WILLMS:  And I should say — I think this will be quite  9 brief -- that the claim in respect of the blacked out  10 parts, if you compare them, is that it discloses the  11 legal strategy in part of the plaintiffs, which is one  12 of the elements that your friend -- that my friend --  13 that the plaintiffs asserted and Your Lordship  14 accepted, and -- but there is one part where I  15 acknowledged that part of it can probably be disclosed  16 without any ruling, and that's on the third page.  On  17 the third page under "Investigation of post-contact  18 socio-economic developments".  The first sentence, it  19 is still my submission that that discloses strategy,  20 counsel strategy.  But the second sentence, I don't  21 have any objection to that portion.  But other than  22 that, and the last partially blacked out portion is on  23 the top of the next page.  24 THE COURT: I'm sorry, you're saying that you wouldn't object to  25 disclosing the second sentence?  26 MR. WILLMS:  The second sentence.  27 THE COURT: On page 3.  The blacked out portion of page three.  28 MR. WILLMS:  But not the first sentence.  I still maintain the  29 claim there.  3 0 THE COURT:  Yes.  31 MR. WILLMS:  And I still maintain the claim in respect of the  32 top part of page 4.  There is that one sentence.  33 MR. GRANT:  Maybe I can clarify something.  Because, of course,  34 when I was considering this, I was thinking that the  35 article or the proposal, late pre-historic, et cetera,  36 was part of that letter, and of course my friend  37 corrected me, it was the April 3rd letter.  And I  38 believe there is -- maybe I am wrong.  I thought I had  39 seen something blacked out.  That's all right.  That's  40 been fully disclosed.  41 MR. WILLMS:  Yes.  42 THE COURT: Yes.  Well, I have looked at these already.  I mean,  43 it doesn't take long to look at them, and I think that  44 the blacked out portions are properly matters that  45 fall within the kind Mr. Willms has just described,  46 and I would not order they be produced, except for the  47 sentence that Mr. Willms said that he is prepared to 21753  Proceedings  Cross-exam by Mr. Grant  1 produce.  They are indications of how the defence  2 proposes to prepare its case, and I think that should  3 be privileged.  4 MR. GRANT:  I am not asking for a global review of privileged  5 documents.  I just would advise my friend now, because  6 he did want me to advise that he gave me two lists of  7 documents, ones that were disclosable, and others that  8 are privileged, and item number 10 on the privileged  9 documents is described as a February 13th, 1987  10 memorandum re Albright report.  And that, in light of  11 the fact that this witness is tendered as an  12 archaeologist, that this witness has reviewed the  13 Albright reports, that part of this witness's evidence  14 in her own report deals with archaeology, it's my  15 submission that at this point in time, given that that  16 was the position my friends decided to take, that this  17 witness's opinion reviews of other archaeological  18 evidence given in this trial is relevant.  And my  19 friends elected to utilize her in two different ways,  20 and at this point in time that that memoranda, at  21 least, should be disclosable.  22 There is another of others that my friend has  23 listed, and I don't know if they are connected to the  24 archaeology or not, except I think item two is a  25 letter from Mr. Plant to the witness.  Those two I  26 would -- so I am asking with respect to the -- those  27 documents that are privileged relating to the  28 archaeology, I am asking that, in view of the evidence  29 of the witness, that -- and her expertise and the  30 opinion evidence of her which focuses on archaeology  31 in part, that those would be properly disclosable.  My  32 friends have, as I say, elected to utilize her in  33 those ways.  34 And then my friend says dates for items subsequent  35 to the delivery of her report are not set out, but the  36 pertinent items are contained in a binder of  37 correspondence, memoranda and notes which contain 66  38 items.  39 Now, that -- and they are right, it isn't set out.  40 I mean, I can't -- I don't know -- I'm saying that  41 given that this witness -- that -- the documents that  42 are relevant to her opinion may not end on May 12th,  43 1988, they end now, and she has reviewed material  44 subsequent to that, and that those items should be  45 listed or should be disclosed.  And for my friends to  46 say well, we are cutting you off on May 12, '87,  47 doesn't automatically follow, and that's what I take 21754  Proceedings  Cross-exam by Mr. Grant  1 from that statement my friends to mean.  I don't know  2 what there is subsequent to May 19th, '87.  3 THE COURT:  I have two preliminary observations, Mr. Grant.  I  4 don't intend this to be my final word on the subject,  5 but firstly I do not subscribe to the theory that the  6 result of Mr. Justice Finch's judgment is that counsel  7 must now use separate consultants for that purpose and  8 as witnesses.  I think that a witness can be employed  9 as a consultant and also give evidence, without making  10 admissible anything that would have been privileged if  11 written by a non-witness consultant.  That doesn't --  12 that doesn't say that her consulting writings will not  13 be producible.  They will be, if they bear upon the  14 opinion that she is preferring, or upon her  15 credibility, and I think that such documents are  16 reviewable for the purpose of determining whether or  17 not they are privileged.  Unless some other way can be  18 suggested to permit the court to reach a conclusion  19 without reviewing the documents.  20 My second observation is one which is intended to  21 agree with what Mr. Grant has just said, that I do not  22 think the date of the report cuts off the date for  23 production of the documents which might be producible  24 under the general principles that have been stated in  25 part by Mr. Justice Finch and in part by myself with  26 particular reference to this case.  I don't know where  27 that leaves you.  28 MR. GRANT:  I want to be very clear.  I understand, and I  29 believe you have made this ruling, that where there's  30 been correspondence relating to witnesses for the  31 other side, that generally that has not been  32 produced -- producible by a person on the stand, and  33 that, I think, is in line with what you've just said.  34 But -- and I want to be very clear.  This witness has  35 indicated that she has assisted counsel with respect  36 to many of the experts.  I am not asking at this point  37 in time for production -- and I may not ask for  38 production of documents relating to those other  39 experts.  What I am focusing on is this field of  40 archaeology and Dr. Albright.  41 THE COURT:  I don't think, with respect -- my preliminary views,  42 I don't think that matters.  It could be archaeology  43 or could be any other discipline that's relevant to  44 this case, and it's really a question in each case  45 whether it falls within the counsel's brief protection  46 or it doesn't, and I don't think it really matters  47 that it happens to be centered on archaeology, in the 21755  Proceedings  Cross-exam by Mr. Grant  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  MR. GRANT  THE COURT  MR. GRANT  THE  MR.  THE  MR.  same sense that I think I ruled that material that was  circulated by some of the plaintiffs' witnesses to  other consultants, if it seemed to fall within the  rubric of strategy, I held that it was privileged, and  I think that same principle would apply here.  And what I am really saying is I don't think I  agree with you, Mr. Grant, that it makes a lot of  difference that the consultation may have been  qua-archaeology.  Well, qua-archaeological evidence -- in particular  this is item -- memoranda re Albright report, which I  presume is her comments and her views on the Albright  opinions, which the witness --  And I think that is reviewable, but as I have said,  I don't think it is going to make it more likely that  it would be producible, just because it deals with  archaeology.  It deals with evidence in the case, and  if it -- if it reflects on the opinion of the  witness -- the opinions the witness has advanced here,  then it is admissible.  If it falls within the other  camp and is related as strategic considerations, et  cetera, then I don't think it is producible.  I -- at this point, then, I think it may be  appropriate, in light of your comments, that that  document is clear to me, in light of your comments,  that these privileged documents should be reviewable.  I don't know what my friend is able to put together --  or give me a list of the 66 items.  COURT: He may persuade me to move off my preliminary  opinions.  WILLMS:  If I may deal with the first document first, before  my friend descended to generality.  The first document  that my friend referred to is not authored by this  witness.  It's authored by someone else.  It's a  comment on the Albright report, but it's just a  document that came into her possession, and a claim  for privilege has been made, because this witness did  not comment on the Albright report.  But it's not  authored by this witness.  It doesn't disclose this  witness's thoughts.  It discloses another person's  thoughts outside of the people that have come before  Your Lordship.  COURT:  It's not privileged at all, is it?  What's the basis  for the privilege?  WILLMS: The basis for the privilege, My Lord, is that the  witness has fulfilled two functions, as my friend so  ably demonstrated yesterday.  Function one was to 21756  Proceedings  Cross-exam by Mr. Grant  1 prepare an opinion report and deliver opinion evidence  2 to this court.  Function two was to assist in the  3 preparation of the cross-examination of the  4 plaintiffs' witnesses.  Now, that preparation for  5 cross-examination started from the moment that we  6 received the opinion reports, but then after May 12th  7 until, as the witness said in her evidence, until  8 September of this year, assistance to counsel and  9 assistance for preparation of cross-examination has  10 been what this witness has done.  11 Mr. Justice Finch specifically said in Phillips  12 Barrett that that is a part that is still privileged.  13 That is assistance and preparation for  14 cross-examination of experts or other witnesses is  15 still privileged.  What isn't privileged is writings  16 that touch on the issues that the witness is called to  17 give evidence about.  Now, the writings, My Lord, in  18 this case -- after May 12th this report was -- if I  19 can put it this way -- fixed in stone, as you heard.  20 It hasn't changed.  The opinions haven't changed.  The  21 references are the same.  Since that time the  22 exclusive occupation, as I said earlier, as my friend  23 so ably demonstrated yesterday, of the witness, was to  24 assist in cross-examination.  25 Now, we did not, because of Phillips Barrett, make  26 any attempt to dip into my friend's cross-examination  27 briefs.  We didn't ask to see the 15 or 16 experts who  28 had been assisting to cross-examine Dr. Robinson and  29 get into that material, because under Phillips Barrett  30 it is privileged.  So we never asked for it, and of  31 course we don't have it.  And in my submission from  32 May 12th on that's privileged.  And what happened  33 before, in terms of exchange of correspondence -- and  34 we have disclosed to my friend, where it touched on  35 the subject matter of the witness's report, writings  36 by this witness prior to May 12th, even where the  37 writing was initially to assist in cross-examination,  38 where its touched on the subject matter of the report  39 that's been disclosed.  But if it doesn't touch on the  40 subject matter of the report, but goes to  41 cross-examination of a witness, and after May 12th,  42 that was the sole purpose of most of this, and it  43 didn't change the opinion one wit, nor affect the  44 opinion one wit.  And in my submission under Phillips  45 Barrett and under Your Lordship's earlier ruling it's  46 privileged.  47 THE COURT:  Well, you have raised a new dimension which calls 21757  Proceedings  Cross-exam by Mr. Grant  1 into play the judgment that I had the privilege of  2 delivering in the Court of Appeal in Hodgkinson and  3 Simms, where documents that come from the outside, and  4 which were not created for the purpose of  5 litigation --  6 MR. WILLMS:  Yes, they were.  No.  No.  This memorandum, My  7 Lord, and I'm sorry if I was unclear, but the  8 memorandum that went to the witness was a critique of  9 Dr. AlBright's report at the request of counsel.  It  10 wasn't a document that came in that was otherwise  11 unprivileged.  The reason for --  12 THE COURT: It was created at the time -- it was privileged at  13 the time it was created?  14 MR. WILLMS:  It was privileged at the time it was created, and  15 because Dr. Robinson was going to assist in the  16 cross-examination of Ms. Albright, it was disclosed to  17 her, but with no implied expressed, in my submission,  18 waiver of that privilege.  19 THE COURT: Can you identify it by description who prepared the  2 0 document?  21 MR. WILLMS:  Well, My Lord, the identity of the person is  22 something that's also privileged.  Now, I'll hand it  23 up to Your Lordship.  I have no difficulty with  24 handing it up to Your Lordship, so that you can see  25 the identity of the individuals, but we -- there have  26 been some unidentified people assisting the  27 plaintiffs, and so be it, and there are unidentified  28 people assisting the defendants, and in my submission  29 that's entirely proper.  30 THE COURT:  I can imagine consultants sitting around a table  31 with masks over their heads.  32 Well, all right.  I'm not sure there is any escape  33 from it, because I don't think I can determine this  34 issue without knowing whether or not the contents of  35 the document touch upon the opinions which the witness  36 has been tendering, and if they came into her  37 possession.  And seriously -- let's take an extreme  38 example.  If the witness says my opinion is A, and  39 after that the witness receives a document which  40 demonstrate that A is wrong, then it seems to me that  41 the privilege ought not to be preserved or maintained  42 for a document which calls the bona fides of the  43 witness into question.  44 MR. WILLMS:  And I am perfectly aware of that, My Lord, and  45 those documents have been disclosed.  This doesn't  46 fall within that category.  But as I said, if Your  47 Lordship wishes to -- 2175?  Proceedings  Cross-exam by Mr. Grant  1  THE  COURT:  2  MR.  WILLMS  3  4  5  6  7  8  9  10  11  THE  COURT:  12  MR.  WILLMS  13  14  15  16  17  THE  COURT:  18  19  MR.  GRANT:  20  THE  COURT:  21  MR.  GRANT:  22  THE  COURT:  23  MR.  GRANT:  24  25  26  27  28  29  MR.  WILLMS  30  31  THE  COURT:  32  MR.  WILLMS  33  34  THE  COURT:  35  MR.  WILLMS  36  37  THE  COURT:  38  39  MR.  GRANT:  40  THE  COURT:  41  MR.  GRANT:  42  43  44  THE  COURT:  45  MR.  GRANT:  46  47  MR.  WILLMS  I think I must.  :  -- review that document.  Now, you should know, My  Lord, and I don't have a copy of it, because  apparently a copy of the cover letter -- there is a  cover letter from Russell & Dumoulin, which sets out  questions which relates to the 1, 2, 3, 4, 5, 6, 7, 8,  9, 10, which are the answers in the memoranda, in  those two memoranda, so that -- but -- and I'll try to  find that.  You see, the cover letter did not go to  the witness.  Yes.  :  But there is a cover letter from us to the  individual saying here is Dr. -- here is Ms.  Albright's report, and here are ten questions, 1, 2,  3, 4, 5, 6, 7, 8, 9, 10, and these are the responses  to those questions.  Well, I don't think I can answer this sitting here  now as I presently am.  I am not -- I was just giving my friend --  All right.  I think —  I will have to review this and think about it.  In light of my friend's position in changing on one  of the sentences or whatever, I am not going to seek  any more.  I think I indicated item number 2 as well,  which also deals with the Albright report, and that's  a letter that appears to be, if the initials are  correct, from Mr. Plant to the witness, item 2 and 10.  :  Yes.  In fact item 2 tells Your Lordship, if I can  hand that up, how item 10 got to the witness.  Item 10 is what I have here?  :  You have item 10, and item 2 is an explanation of  how item 10 --  Yes, all right.  :  -- came into the witness's possession,  did.  Yes.  All right.  Do you have the date,  Were you given the date?  Of item 2?  Yes.  Item 2 I have a date of April 21st, 1987, and item  10, February 13th, 1987.  Item 10, as my friend says,  doesn't show the author, but item 2 does.  Yes, that's right.  And I would -- I take it my friends will provide me  with a listing of the other 66 items in due course.  :  Well, no, My Lord.  I made a submission that those  and when it  Mr. Grant? 21759  Proceedings  Cross-exam by Mr. Grant  1 items, as I said earlier, the report was complete on  2 May 12th.  The witness did not start working on her  3 evidence until September.  The documents for which  4 privilege has been claimed in that period are almost  5 exclusively, although there are some legal strategy  6 documents, but they are almost exclusively  7 cross-examination, and in my submission --  8 THE COURT:  Material for cross-examination of other witnesses?  9 MR. WILLMS:  Of plaintiffs' experts.  And in my submission on  10 Phillips Barrett and on the argument that was made by  11 myself, and I believe it was my friend Ms. Mandell  12 that engaged in that argument in the initial phase, in  13 my submission it was assumed by both of us the  14 documents related to the preparation for  15 cross-examination of the witness were privileged.  16 THE COURT:  Well, I think that is a sound basis upon which to  17 proceed, but the question then comes how is one to  18 know whether the documents fall within that category?  19 Are counsel's statements in that regard conclusive?  20 MR. WILLMS:  Well, we've done better than that, in my  21 submission, My Lord, here with the evidence of the  22 witness, because we have disclosed, itemized up to May  23 12th everything.  We have an itemized list of  24 privileged documents.  After May 12th Your Lordship  25 has heard, and Your Lordship has before you, a  26 document that was delivered to my friends after May  27 12th, and hasn't changed, and an opinion given by this  28 witness in respect of these.  So in my submission how  29 could it possibly go to credibility in respect of that  30 material if the opinion hasn't changed at all?  I  31 mean, in my submission it can't possibly go to  32 credibility.  33 Now, my friend earlier today has been -- and  34 yesterday as well has been suggesting, well, you  35 didn't look at contrary material, and you didn't look  36 at contrary this and contrary this, and if what he is  37 getting at is the plaintiffs' experts reports, then I  38 think the answer is self-evident.  If he has got  39 something else, then maybe that might form a  40 foundation for getting into the material between May  41 12th and September, if my friend has other learned  42 writers who the witness didn't review.  But right now,  43 My Lord, in my submission if the only contrary views  44 are the plaintiffs' experts, then the comments relate  45 solely to cross-examining those plaintiffs' experts,  46 and credibility is not in issue whatsoever on any of  47 that material.  And it would be a sad day, in my 21760  Proceedings  Cross-exam by Mr. Grant  1 submission, if counsels' brief in respect of the  2 preparation for cross-examination could be dipped  3 into.  4 THE COURT:  Well, I would agree that it would be a sad day, but  5 we have a lot of sad days around here.  The problem is  6 simply one of process.  If after delivering a report a  7 witness is retained as a consultant, and if in the  8 course of that capacity receives or prepares material  9 that touches upon the opinion previously given, then  10 it will be a matter of weighing the respective goods  11 and evils in deciding whether the document which fits  12 the description I have just given and a -- and which  13 at the same time is properly within counsels' brief.  14 I would think that the tendency would be to preserve  15 the integrity of the brief, but it may be that the  16 material would go so far as to reflect upon the  17 integrity of the witness or the bona fides of the  18 witness, in which case that might override the  19 interest of protecting the brief.  And I don't know  20 any way to resolve that dichotomy, short of looking at  21 the document and weighing it.  22 Now, is it possible that any of these documents  23 would fall within both those camps, Mr. Willms, and if  24 you say no, they are -- they do not -- none of these  25 documents fall within both of those camps, is your  26 answer conclusive?  27 MR. WILLMS:  Well, at the present time, My Lord, I can't say.  I  28 mean, I certainly from recollection know there was a  29 comment on Dr. Ray's report that was prepared to  30 assist the cross-examination, and so in reviewing that  31 I don't know right now.  But there are other aspects  32 which are completely unrelated to the evidence  33 whatsoever.  34 In terms of the disclosure that my friend just  35 requested, it was my understanding that the way we  36 disclosed it, that is 69 items, is consistent with  37 Your Lordship's judgment in the Hodgkinson case, a  38 disclosure of a description of a category of documents  39 and a number of documents in a category.  I don't know  40 whether there is any way to see whether or not those  41 documents fit within the category, without giving Your  42 Lordship all of them, because each document in one way  43 or another might.  Now, I don't know right now, My  44 Lord, whether there are some that are clearly outside  45 the two categories that Your Lordship has suggested.  46 But I am -- My Lord, I am concerned about this.  I  47 mean, I proceeded on the argument with respect to the 21761  Proceedings  Cross-exam by Mr. Grant  1 disclosure of the plaintiffs' documents with the  2 Phillips Barrett judgment in mind, and it is my  3 recollection that I acknowledged the documents which  4 related to the preparation for the cross-examination  5 of the defendants' witnesses were privileged.  And we  6 have now gone through --  7 THE COURT:  I think, generally speaking, they are.  I would hope  8 they are.  9 MR. WILLMS:  And I made no, if I recall correctly, request for  10 documents that fit within that category.  11 THE COURT:  Well, this matter keeps getting refined as the new  12 situations emerge, and I dare say that at some date,  13 perhaps sooner than later, the whole Phillips Barrett  14 approach might be reviewed and reconsidered, but I am  15 not in a position to do that sitting where I now sit.  16 MR. WILLMS:  Well, you are not.  You are quite right, My Lord.  17 But in Phillips Barrett, and I should refer to the  18 case, but I am sure my recollection is pretty clear  19 that Mr. Justice Finch said not preparation for  20 cross-examination.  That's not the part that gets  21 disclosed.  22 THE COURT:  Well, I am sure if you have that clear recollection  23 that he did indeed say that, but I am not sure that he  24 had in mind the dimension or sub-dimension which has  25 now arisen.  And that is what if it -- what if it  26 reflects upon the bona fides of the witness.  I  27 hesitate to use that kind of language in the context  28 where a particular witness is involved, because we are  29 using some of these terms, some of them unpleasant  30 ones for the purpose of illustration.  31 MR. WILLMS:  To put it that way, My Lord, I think what goes that  32 way too is ethical considerations of counsel, because  33 this is material for counsel.  And what, in my  34 submission, my respectful submission what Your  35 Lordship is suggesting, is that the witness would do  36 something which showed that the opinion evidence was  37 completely wrong, and that counsel would lead the  38 evidence anyway, burying that.  And that crosses the  39 line between the credibility of the witness, and  40 really trenches upon the ethics of counsel.  And in my  41 submission that is the kind of documentation, which if  42 it bore on a change of the report or something like  43 that, would be disclosed.  44 THE COURT:  Well, I would hate to think that we're at that  45 unpleasant waste stop in this dialogue, Mr. Willms.  46 But you have made it clear that your classification of  47 these documents did not take this present 21762  Proceedings  Cross-exam by Mr. Grant  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  MR.  THE COURT  MR.  THE  MR.  THE  MR.  consideration into account.  WILLMS:  No, it did not.  But it took what I understand Mr.  Justice Finch into account in Phillips Barrett, and  that was the basis for it, and it did not take Your  Lordship's comments this morning into account.  This isn't the volume of business that I am anxious  to promote, but I see no alternative to it, and I  think you are going to have to review it in light of  what has been said.  I will expect you to conduct  yourself, as I always do of counsel, in the way I have  described.  If you come to something within the  category I have mentioned, I am sure you will be  reconsidering your position.  Failing that, I do not  think in my present frame of mind I am prepared to go  so far as to say that counsels' classification is  conclusive.  I think that where this matter arises,  and where an issue is joined, then I have no choice  but to read the documents and make my own  determination of the side of the line on which they  fall.  WILLMS:  All right.  COURT:  Thank you.  GRANT:  May I just say, My Lord, is that if my -- the reason  why I wanted the listing of the 66 items, is that I  may have not asked -- just from the description, it  may have been obvious to me.  But if my friend is  concerned about the listing, that was the sole reason,  I was trying to avoid the review.  And I am certainly  not suggesting an ethical question.  As you recall,  plaintiffs' documents were tendered to Your Lordship  as well on the same principle.  Counsel sometimes make  conclusions that aren't correct, and that's the way we  work.  COURT:  I have known counsel to be wrong from time to time.  Not very often, but once in awhile.  GRANT:  Now, maybe I -- I understand from Ms. Koenigsberg  that they have now got this document that is cited in  the C.V., which is at tab number 1 of my documents of  Ms. Robinson, and Ms. Robinson has in her possession,  and that's the material.  It's at Tab 1, number 15,  the second last item on page 5.  And Ms. Koenigsberg  indicated to me, and she may wish to say more, but my  understanding is -- I am prepared to speak to it -- is  that she said she is not going to make a claim to  privilege, but was going to raise a question of  relevance.  Now, my submission, My Lord, is it's quite simple. 21763  Proceedings  Cross-exam by Mr. Grant  1 At volume -- two days ago -- October 25th, 1989 in  2 cross-examination on qualifications, volume 288,  3 I asked:  4  5 "Would it be correct to say that all of your  6 work in native claims has been in opposition to  7 native claims in the province of British  8 Columbia?"  9  10 Mr. Willms objected, and the Court says:  11  12 "Well, I thought I understood the question, and  13 let me see if you agree with me, and that was  14 simply this:  Is all the work you have done on  15 native claims in British Columbia been in  16 opposition to claimants?"  17  18 And the witness says:  19  20 "I think my hesitation there was with regards to  21 the overview I did for the federal government  22 with the Office of Native Claims.  The overview  23 or the report I produced was, in my  24 understanding, and I know it's some time ago,  25 nothing but that.  It was a document to assist  26 in the analysis of claims, so it was an  27 overview of the available information.  It  28 wasn't -- it wasn't a critique of a claims or  29 claim statements or anything."  30  31 Now, as you may recall, the other two positions of  32 the witness has been with respect to Sparrow with  33 respect to this case, and today, as you said, there is  34 other matters she worked for the Federal Crown on.  35 But with respect to this claim, the witness has put  36 this matter in issue.  37 Mr. Willms had the choice, when he did the C.V.,  38 of either not listing it or listing it.  It was --  39 taking it out when advised by the witness that it was  40 something that she could not speak to, or didn't want  41 to disclose, or was concerned she couldn't disclose.  42 It's in her CV.  I would say that -- and it's one of  43 the three items, the opinion report being the other  44 one, and her work on Sparrow being the third, it's one  45 of the three items that relates to this very issue,  46 the types of issue, I should say, out of all of these  47 items in her C.V., and I say that it is relevant, that 21764  Proceedings  Cross-exam by Mr. Grant  1 I should be allowed to review that, so that I can  2 question the witness.  And --  3 THE COURT:  Well, did you try to get it?  You have had the CV.  4 for some years, I expect.  5 MR. GRANT:  This CV. I got on October 16th.  6 THE COURT:  All right.  The earlier ones didn't include it?  7 MR. GRANT:  I understand there is no difficulty of getting it.  8 Ms. Koenigsberg has it now.  It's not a question that  9 it's -- if I recall rightly -- no, the earlier CV.  10 does not -- did not list any publications was my  11 recollection.  I had requested -- I wrote to my friend  12 in early October and said is there an updated C.V.,  13 and this was sent to me on October 16th.  So I say  14 that this particular document is relevant for that  15 purpose.  I want to -- I have a right in  16 cross-examination to -- and nothing more than what the  17 witness says, but it's something I certainly can test  18 by looking at the document myself.  19 THE COURT:  All right.  Thank you.  20 MR. GRANT:  Those are my submissions.  21 THE COURT:  Ms. Koenigsberg.  22 MS. KOENIGSBERG:  Strictly speaking, my submission on this  23 subject is not merely its relevance, but rather the  24 confidential nature of the process, and that document  25 weighed against its relevance.  There is no basis upon  26 which a claim for privilege can be advanced that I  27 could determine, however, I think the process, the  28 comprehensive claims process is before Your Lordship  29 in evidence, and this much I can say about it based  30 upon that evidence.  There is a policy of the federal  31 government to encourage and receive and accept, if  32 possible, claims put forward by Indian groups.  Your  33 Lordship has heard a fair bit of evidence about a  34 large number of those claims in British Columbia.  The  35 Kwakiutl claim is one of those.  In the process -- it  36 is a process of submitting claims, assessing them,  37 accepting them for negotiation, and negotiating them.  38 One way of describing that entire process is that it  39 is non-adversarial, it is a negotiation and hope of  40 settlement process.  41 In my submission on its face does not fit into the  42 categories that Mr. Grant is seeking to subsume it.  43 That is, the -- on its face this witness was not  44 retained by the federal government to act against the  45 interests of the Indians.  It was in the comprehensive  46 claims process that she was retained and asked to  47 provide the overview which she has listed here.  It is 21765  Proceedings  Cross-exam by Mr. Grant  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 confidential process to the extent to which it is a  settlement process.  The documents are --  THE COURT:  Isn't that a ground for privilege?  MS. KOENIGSBERG:  Well, I couldn't find that it was, or I would  have advanced that claim.  THE COURT:  Well, I thought any document that's made or prepared  for the purpose of settlement is privileged.  MS. KOENIGSBERG:  Well, these documents find their way into  non-privileged basis.  THE COURT:  The Kwakiutl First Nations have a copy, have they?  MS. KOENIGSBERG:  Oh, I'm sure they do.  I can't say that, but  it would be part of the process.  THE COURT:  Yes.  All right.  MS. KOENIGSBERG:  However, as Your Lordship is aware, the claims  in British Columbia, and I think it's a matter of --  that it's published, are frequently overlapping  claims, and it is on that basis that it is not in the  interests of the process that wide distribution be  given to these kinds of documents.  This one, the  Kwakiutl claim, has nothing whatsoever to do with the  claim area or overlapping claims.  This defendant has  listed the claims received by ONC which overlap this  claim because of their obvious relevance, but there is  no obvious relevance to this in that respect.  And with regard to the credibility issue, as I  understand Mr. Grant's submission, the only relevance  there is if it can be characterized as this witness  having been retained to act against the interests of  Indians, and he can then demonstrate that, because the  witness says well, she doesn't really -- wouldn't  characterize it that way.  THE COURT:  What if a person, not this witness I'm sure, but if  the position of this witness were -- says "This is  another one of these specious claims being put forward  by the Indians in British Columbia about which there  are far too many."  MR. GRANT:  I would like to see that.  THE COURT:  Would it not then become a relevant document going  in as a bias, perhaps even prejudice?  MS. KOENIGSBERG:  Yes.  But in my submission the point is this.  We have on the one hand, I think, an obvious policy of  some confidentiality to the process.  On the other  hand we have the possibility that this witness in this  process would say something like that in this  document.  Nothing else has been produced thus far  which would suggest that this witness would in any way  have elsewhere said such a thing, and in my submission 21766  Proceedings  Cross-exam by Mr. Grant  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  MS.  THE  MR.  it's a simple matter of weighing and saying suppose  that she said something like that.  Now, I think it's  beyond -- it is a fact that I think my friend is aware  of, that this particular claim by this claimant group  has been accepted, and it's a non-litigious, and it's  a process of negotiation, and the point of hiring this  witness or any other, and there are many others, and  some of them have given evidence here, who have been  hired to make these assessments, are not hired to act  against the Indians.  And of course it's possible that this witness and  many others who have been here have said things that  could be construed one way or another.  There is no  evidence of it here, and I would suggest that the  process in which the Kwakiutl are involved should not  be interfered with on that thin strand of possibility.  THE COURT:  Well, talking of thin, that sort of thing, is it a  heavy report?  KOENIGSBERG:  Quarter of an inch.  COURT:  All right.  Thank you.  Mr. Grant.  GRANT:  Well, I think that you have touched on this on  another precedent in this case, and that is with  respect, of course, I am confused now by my friend  saying it is "confidential", when it's given to the --  it's not something prepared for counsel or for  negotiators on this side of the table to deal with  negotiators on the side of the table.  It's given to  the other side, so it seems to be --  KOENIGSBERG:  I think — I want to make it clear, I don't  know that.  I would just expect that.  GRANT:  But —  COURT:  So the Kwakiutl First Nation may not have it?  KOENIGSBERG:  I don't know.  I didn't make that enquiry.  GRANT:  This is the issue, and we had to deal with this, and  had to face the hard reality as well.  Dr. Galois put  in his CV. "The writing of burning embers", I believe  it was, which was --  COURT:  "Smoldering".  GRANT:  "Smoldering embers", that's right.  Which was argued  by my colleague was draft of legal argument.  It was  not tendered as an exhibit.  And my understanding of  Your Lordship's ruling was well, it's in the C.V., he  relies upon it as part of his expertise.  Now, isn't  that -- I mean, the CV. has been put to you not by  me, but by Mr. Willms.  It's in the CV.  Here you  have got this expertise.  Certainly the material in  the CV. is disclosable.  Now, I had requested all of  MS.  MR.  THE  MS.  MR.  THE  MR. 21767  Proceedings  Cross-exam by Mr. Grant  1 the material in the C.V., and my friend has indicated  2 at different times that some of it was available and  3 some of it wasn't.  But when I received the C.V., I  4 asked for the background material, and some of it  5 was -- he indicated the size, and do you really want  6 something this big.  But I didn't realize, until  7 those -- these are the ones that my friend has given  8 page numbers for you.  I didn't realize, until it was  9 raised the other day in my cross-examination, that  10 there was some holding back on this particular one.  11 So I had requested the documents at that time, and I  12 am in a situation where I would submit, with respect,  13 that this witness having put -- having three  14 experiences in this area of Indian native claims  15 referred to in her C.V., that I am entitled to  16 cross-examine on that.  17 Now, it may have nothing in it, and it may be -- I  18 mean, I don't know.  My friend Ms. Koenigsberg can  19 talk quite well about it.  I don't know.  And that's,  20 I say --  21 THE COURT:  She talks quite well.  22 MR. GRANT:  She can talk quite well about that document.  I wish  23 I could say the same.  And I would like to -- I don't  24 say this is in the category of privilege, where it's  25 something for Your Lordship to look at and then  26 decide.  I think this is a question that there is not  27 privilege claimed.  It's relevant to the credibility  28 of the witness.  I should have an opportunity to look  29 at it.  The witness has raised -- she raised it  30 specifically in her answer.  31 MR. WILLMS:  My Lord, the only comment I wish to make is that my  32 friend suggested you made some curriculum vitae rule,  33 that if it's on the C.V., it's producible, with Dr.  34 Galois.  That wasn't the ruling Your Lordship made.  35 You actually reviewed the document and looked at how  36 it linked up with his ultimate opinion report, and  37 that was the basis for the order for production, not  38 the fact that it was on a curriculum vitae.  39 THE COURT:  Well, this report may not touch that which it —  40 that to which it may be tangential, but I think I have  41 to look at it and satisfy myself one way or the other,  42 if there is any point or purpose in having this  43 document added to those many other matters upon which  44 there may be cross-examination, and I will review it  45 and give counsel an answer as soon as I possibly can.  4 6 Thank you.  Mr. Grant.  47    MR. GRANT:  Thank you, My Lord. 21768  S.P. Robinson (for Province)  Cross-exam by Mr. Grant  1  Q  2  3  4  A  5  Q  6  A  7  8  9  THE  COURT  10  THE  WITNE  11  12  13  14  15  16  17  18  19  20  21  MR.  GRANT  22  23  24  25  26  27  28  29  THE  COURT  30  MR.  GRANT  31  Q  32  33  A  34  35  36  Q  37  A  38  Q  39  40  41  42  A  43  Q  44  A  45  Q  46  47  I would like to refer you to a letter dated April  23rd, 1986.  You recognize that -- you have seen that  letter before, haven't you?  Yes, I think so.  In fact you wrote it?  I recognize the type, yes.  I would like to make one  comment vis-a-vis this report that's being obtained,  just so that there is no question -- may I do that?  :  Oh, yes.  Every one else has had their say.  3S:  I did make some efforts to contact the office of  Native Claims, or now it's Comprehensive Claims,  vis-a-vis that, and some other materials that are  involved with the claims process, and I didn't -- I  wasn't aware that the Kwakiutl claim had been  accepted, and it was with regards to some other  materials and some claims that are still not being  accepted that I was advised that there could be some  issues of confidentiality.  And this is the only  reason I held back on that.  I wanted to make sure  that it was obtained through the proper channels.  :  Okay.  Let's look at document -- the April 23rd,  1986 letter to Mrs. Mary Jones in Ottawa, Ontario.  I  would ask that that be marked as Exhibit 1191, Tab 10,  My Lord.  (EXHIBIT 1191-10 - LETTER FROM JONES TO  ROBINSON DATED APRIL 23, 1986)  :  Yes.  And that's your letter?  You have already identified  it.  And who is Mrs. Mary Jane Jones?  Mary Jane Jones is someone that, I believe, has been  retained by Russell & Dumoulin, and is working on some  aspects of this litigation.  She is a lawyer?  Yes.  And you in the course of your work consulted with her,  and she provided you with information, and you  provided her with information?  Is that a fair  synopsis of how you worked?  Yes.  Relating to your work with Russell & Dumoulin?  Yes.  Now, the second paragraph you say:  "I am enclosing a copy of the proposal I 21769  S.P. Robinson (for Province)  Cross-exam by Mr. Grant  1 submitted to Mr. Goldie, to give you some idea  2 of what I am beginning to focus on."  3  4 This would have been the proposal we discussed  5 before the break, wouldn't it?  6 A   I believe so.  7 Q   Then you say:  8  9 "In a nutshell, I will be investigating any  10 leads suggesting that the Gitksan and  11 Wet'suwet'en Indians' socio-economies were  12 undergoing changes in the protohistoric (just  13 before direct European contact) and early  14 post-contact periods as a result of indirect or  15 direct European stimulus."  16  17 Now, that is, in a nutshell, what you were doing?  18 A   Yes.  19 Q   And you were looking for leads to show -- again to  20 prove your theory, your argument?  21 A   Yes.  22 Q   Okay.  23 A   That's not to say that I wouldn't have been interested  24 had Mrs. Jones been able to find things that  25 contradicted that theory.  26 Q   Fine.  Here is a letter from yourself to Mr. Goldie  27 dated April 25th, 1986, two days later.  Do you  28 recognize that letter?  29 A   I recognize the type, yes.  30 Q   And your signature is on the second page of it?  31 A   Yes.  32 Q   Now, again you sent a copy of the letter to Mary Jane,  33 and then you say in your fourth line:  34  35 "I haven't found anything of major significance,  36 but it is reassuring to find that several  37 prominent and respected scholars seemed to be  38 coming around to the idea that pre-direct  39 contact influence may have been quite dramatic  40 for some of the Indian societies in  41 northwestern North America."  42  43 And that was what you concluded at that point,  44 isn't it?  That was your opinion at that point, based  45 on what you had looked at?  46 A   Yes.  47 Q   And who are these prominent and respected scholars 21770  S.P. Robinson (for Province)  Cross-exam by Mr. Grant  1 that you were referring to?  2 A   Let me think.  I think probably what I was referring  3 to there is that there's been -- although this notion  4 is certainly not new, there's been a recent burst of  5 interest in ethnohistory and understanding  6 post-contact changes in native societies accruing from  7 stimulus from the fur trade.  And probably what I was  8 referring to there -- I can't remember offhand --  9 would be more recent work that's been, say, coming out  10 of the northern area.  I am thinking of people like  11 Shep Krech, K-R-E-C-H, the third.  And also — I think  12 it's Colin Yerbury.  13 THE COURT:  Yerbury?  14 THE WITNESS:   Y-e-r-b-u-r-y.  15 MR. GRANT:  16 Q   He's at Simon Fraser?  17 A   Is he?  18 Q   You don't know?  19 A   I don't know.  2 0 Q   You don't know where he is?  21 A   No.  22 Q   Okay.  Who else?  23 A   Recently.  Fisher --  24 Q   I am looking at your statement --  25 THE COURT:  Mr. Grant, I think the witness gave us another name.  26 THE WITNESS:  I was thinking of — I think around that time I  27 became aware that there was an issue in  28 anthropological that deals with post-contact  29 developments and fur trade influence, or that may have  30 been later that I ran into that, but names -- Toby  31 Morantz and Charles Bishop.  I was becoming aware that  32 there was some recent scholarship in this area, and  33 I'm sorry, I can't be more precise about the names.  34 THE COURT:  What was Toby's —  35 THE WITNESS:   M-o-r-a-n-t-z.  3 6 MR. GRANT:  37 Q   You don't cite any -- you cite Yerbury and Bishop.  38 You don't cite Krech, you don't cite Morantz?  39 A   No.  4 0 Q   Do you know Rogers?  41 A   Rogers.  First name?  42 Q   Can't recall.  4 3 A   I don't know.  44 Q   Okay.  45 A   I don't know without the surname.  46 Q   Now, you have -- then you go on to say:  47 21771  S.P. Robinson (for Province)  Cross-exam by Mr. Grant  1 "So it seems that we will be able to marshall an  2 army of support, although I have yet to see  3 really convincing demonstration of  4 proto-historic changes."  5  6 That's what you were doing, you were marshalling  7 the army of support for your argument, weren't you?  8 Those are your words, not mine, doctor.  9 A  Well, it's perhaps a casual phrasing, and if anything,  10 it reflects my naivety about this whole litigation  11 process, or I might have been tighter with my words or  12 my phrasing.  But, yes, an army of support, I imagine  13 them out there like shelves of books.  14 THE COURT:  Well, shall we adjourn 'til 2:00 o'clock?  15 MR. GRANT:  Certainly, My Lord.  Time is marching on.  16 THE REGISTRAR:  Order in court.  Court stands adjourned until  17 2:00 o'clock.  18  19 I HEREBY CERTIFY THE FOREGOING TO BE  20 A TRUE AND ACCURATE TRANSCRIPT OF THE  21 PROCEEDINGS HEREIN TO THE BEST OF MY  22 SKILL AND ABILITY.  2 3    2 4 LORI OXLEY  25 OFFICIAL REPORTER  2 6 UNITED REPORTING SERVICE LTD.  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 21772  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (Proceedings resumed at 2 o'clock p.m.)  THE COURT:  Mr. Grant.  MR. GRANT:  Q   I am showing you a letter, Dr. Robinson, dated June  23rd, 1986 from Mr. Goldie to yourself, you recognize  that letter and you received it around that time?  A   Yes.  MR. GRANT:   And maybe that could be marked exhibit -- the next  tab.  (EXHIBIT 1191-11: LETTER DATED APRIL 25, 1986)  (EXHIBIT 1191-12:  LETTER DATED JUNE 23, 1986)  MR. GRANT:  The army of support letter, could be tab 11, that's  April 25th, 1986.  Before we start, I am sure my  friend was intending to be facetious when he suggested  that 15 or 16 experts I had dealing with Dr. Robinson.  WILLMS:  We counted 21.  I don't know how many of the 21 my  friend has helping him.  I didn't think he would have  all 21.  This, gentlemen, is an issue on which I propose not  to give judgment.  MR.  THE COURT  MR.  GRANT:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  June, this letter, you were referred to Black's Rocky  Mountain Journal of 1824; is that right?  Yes.  And it was a few pages from the introduction of that?  Yes.  Did you review that?  I believe I did and I believe it's included in the  bibliography of my opinion report, under Patterson.  Under which?  Sorry?  Patterson.  Just a moment.  introduction,  Yes.  So, just let me understand that.  My copy in your  bibliography, it's in a Journal of a Voyage, I assumed  that was one of the seagoing voyages, am I wrong in  that?  No, I believe they are the same thing.  I don't have  the full title.  Perhaps we could or should find a  title page.  But as far as my recollection is that  it's the introduction referred to in this letter from  Mr. Goldie, is the same as the Patterson reference in  Let me -- yes, it's 1955,  in a Journal of a Voyage? 21773  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  Q  3  4  5  6  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  THE COURT  17  18  19  20  MR. GRANT  21  Q  22  23  24  25  26  27  A  28  29  30  31  32  33  Q  34  35  36  37  A  38  Q  39  40  41  42  A  43  Q  44  45  A  46  Q  47  my bibliography.  Thank you.  You have answered that.  I would like to show you a letter dated August  14th, '86.  My lord, if you would excuse I will pass  it up.  And, this is a letter that was addressed to  you by Mr. Tim Mackenzie or James Mackenzie as he goes  by?  Yes.  Now -- and you received this letter around that time?  Yes.  This is -- obviously you received the letter with more  than what's in here, this is the copy I have and --  Hm-hmm.  Okay.  Now, if you turn to the second page -- could  that be marked as tab 13, my lord?  :  Yes.  (EXHIBIT 1191-13:  LETTER DATED AUGUST 14, 1986)  If you turn to page 2, it says:  "As for the items  ranked D..."  Before I go any further, do you recall  in the correspondence, it appears in the  correspondence that at some point you took a listing  of theses and then you ranked them, A, B, C, D, do you  remember that?  I certainly did a list of theses relating to B. C.  Indians and related topics and I don't remember right  now my ranking system.  I think I probably did  indicate some kind of separating code but I don't  remember if it was A, B, C, D, but I did do a list of  theses.  The reason I suggested it was A, B, C, D is because  from my review it appears there was some ranking you  did, and the items arranged D, that was a listing that  you did and you had done and passed on to Mr. Plant?  Probably, yes.  From the correspondence record that appears to be what  it is.  But what he says, Mr. Mackenzie says: "Geoff  suggests you should review only the following, Adams,  Alice", that's Alice Kasakoff, isn't it?  Yes.  And Allaire, Allen, A-L-L-E-N, Dawn and Stuckley and  those are dissertations that those are referring to?  Yes, I believe so, yes.  So at this point in time, that is in August of 1986,  Mr. Plant was directing which of the sources you 21774  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 should go to, would that be fair, with respect to the  2 dissertations only now?  3 A   Yes.  4 Q   And that was part at this stage, in August of '86, you  5 were preparing your report?  6 A   No, I don't think so.  7 Q   Just go back --  8 A   I think, and I am trying to recollect specifically  9 what this was relating to, because I was doing more  10 during the period up to May, '87 than simply writing  11 the report, and one thing I was undertaking and had  12 finished, at August, or at the end of July, was a list  13 of theses relating to B. C. Indians and the area in  14 particular.  Now -- I can't say that the review of  15 those items was specifically directed towards the  16 opinion report and I don't remember even what the Dawn  17 reference refers to, for instance.  18 Q   Let's just —  19 A   I don't have a title for Dawn.  20 Q   You can't remember Dawn at all?  21 A   Particularly, no.  22 Q   But Adams, Kasakoff, you know that?  23 A   Yes.  24 Q   And that's the wife of Adams who you rely on to a  25 great deal in your report?  26 A   Yes.  27 Q   And she did her research at the same time as he did  28 his?  29 A   Yes.  30 Q   And her dissertation is unpublished, as I recall?  31 A   Yes, it is.  32 Q   But he refers to her dissertation in his book The  33 Gitksan Potlatch, which you rely on and cite?  34 A   Yes.  35 Q   And Allaire is one of the archeologists, if I remember  36 rightly, that you mentioned in material we looked at  37 this morning, one of the persons that should be looked  38 at?  39 A   Yes, that's correct.  4 0 Q   And so Allaire had something to do what you were  41 preparing to research and ultimately formulated itself  42 in the form of a report?  Allaire was relevant to your  43 report?  44 A   Yes, I am trying to remember the thesis.  45 MR. WILLMS:  My lord, I object, because if my friend put the  46 list and the notes on the list to the witness,  47 especially with respect to Allaire, where the witness 21775  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  MR.  GRANT:  14  THE  COURT:  15  MR.  GRANT:  16  17  18  19  THE  COURT:  20  MR.  GRANT:  21  22  23  24  25  26  THE  COURT:  27  28  MR.  WILLMS  29  30  THE  COURT:  31  MR.  WILLMS  32  33  34  35  36  37  THE  COURT:  38  MR.  WILLMS  39  40  41  42  THE  COURT:  43  44  MR.  WILLMS  45  THE  COURT:  46  MR.  GRANT:  47  THE  COURT:  Unless my  I don't know  to review"  noted on the list, "S. R. to review", notwithstanding  what she said in her letter, and what Mr. Plant said,  but if my friend put the list, a copy of which we have  provided to him, to the witness, and pointed to the  item D referring to Allaire, the witness would then  see that she has written "S. R. to review" on it.  Now, I just think it's most unfair to a witness to put  a letter before her which refers to arranging that she  has done and not put the ranking before her at the  same time and then start asking questions about what's  useful and what isn't useful to review.  It's most  unfair to the witness.  My lord, there is a handwritten note on it.  On what?  On this list that my friend refers to  friend is now giving evidence, my note  who is the person that put that note "S. R  on it.  I don't have any such note.  No, you don't.  I didn't think -- the ranking wasn't  important.  All I was dealing with was this specific  letter of this request.  I don't have to get into the  detail of these particular items.  My friend may raise  it on redirect if he wishes, and argue that it's  something that arises out --  I am missing the point.  I don't understand what's  between you on this one at all.  :  My lord, if I can clearly state my objection here.  My friend puts a letter to the witness.  That's exhibit tab 13.  :  Yes.  And the letter says, "As for the items ranked  D, Geoff suggests that you should review only the  following items.  Alice Adams, Allaire, Allen, Dawn  and Stuckley."  All right.  Then if you go to the list  and he is talking about whether she reviewed it or  not.  What list is this?  :  There is a list with the ranking on it.  This  letter refers to a list, my friend hasn't put the list  to the witness.  You see, there is a -- the items  arranged D, if you go to the --  Well, is your point, Mr. Willms, that the list  should be in front of the witness?  :  Yes, that was my point.  Any objection to that, Mr. Grant?  The only objection is it was in the bottom of a box.  That's not an objection, it's a difficulty. 21776  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  MR.  GRANT  2  3  4  5  THE  COURT  6  7  MR.  GRANT  8  9  A  10  MR.  GRANT  11  Q  12  13  THE  COURT  14  15  MR.  GRANT  16  Q  17  18  19  20  21  A  22  23  24  25  Q  26  27  28  29  30  A  31  Q  32  A  33  Q  34  35  36  37  38  39  40  A  41  Q  42  A  43  44  45  Q  46  47  :  I am just digging, my lord.  The witness didn't  indicate any difficulty, she understood what I was  referring to, I thought, but my friend didn't, but I  will do my best here to --  :  I am with your friend on that because I don't  understand.  :  I am not interested in putting this lists in,  because as far as I am concerned it hasn't --  It might help me figure out who Dawn is.  I would have put it to you if I was interested in who  Dawn was.  Doesn't really matter for my question.  :  Dawn is not coming up like thunder on this one?  Maybe it will.  I am not going to ask you about Dawn.  But what I am  going to say, because my friend raised it, is this is  this list that my friend refers to, revised list of  theses, and you recall seeing this or being involved  in its preparation?  I did prepare that.  And I believe you did ask me if  these items were related to my opinion report and  that's why I would like to see what the Dawn reference  is in this.  Let's look at -- I believe my friend alluded to  Allaire, and then there is the citation of Allaire,  and a handwritten note, "S. R. to review", the other  part is in type, is that right, with a little star  beside it?  Yes.  Is that your note?  Yes, it is.  All right.  Thank you.  Now, I don't want you to feel  at all hard done by, so I am going so show you Dawn,  Leslie Allan Dawn, Xsan Museum, Cultural and Artistic  Activity among the Gitksan Indians of the Upper  Skeena, 1920-1973, M. A., U-Vic, 1981, and then there  is a handwritten note under it, "S. R. to review" and  that's in your handwriting?  Yes, it is.  So that assists you in knowing what Dawn is?  Yes, and that's one item that I don't believe  connected in with the formulation of my opinion report  at all.  Now -- I didn't ask you about it, I was asking about  Adams and Allaire, they were connected, they relayed  it to your opinion report?  Just -- you may 21777  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  3  4  5  A  6  Q  7  A  8  9  Q  10  A  11  MR.  WILLM  12  THE  COURT  13  MR.  GRANT  14  Q  15  16  17  A  18  19  Q  20  21  22  23  A  24  Q  25  Q  26  27  28  29  THE  COURT  30  MR.  GRANT  31  THE  COURT  32  33  34  35  36  Q  37  38  A  39  MR.  GRANT  40  Q  41  42  43  44  45  46  47  A  misunderstand my question here, so let me be clear, I  am not saying that that's why, I don't know why Mr.  Plant asked you to review, do you know what I am  talking about with Adams?  Not specifically, no, I don't.  You don't know the Adams thesis?  Yes, I do but I am not quite sure what the connection  is between that and the opinion report.  Fair enough.  Thank you.  3:  My lord, it's the Alice Adams not the John Adams.  :  Yes.  Yes, it's Alice Adams, it's Alice Adams Kasakoff,  right, and she is cited in John Adams' book, the  Gitksan Potlatch, right, Doctor?  I am sorry, I was looking at the list.  Could you  repeat that, please?  I think we have already got this clear that Mr. John  Adams in his book The Gitksan Potlatch refers to an  Alice Adams' dissertation which is in your list and  which is referred to there?  Yes.  Thank you.  Referring to you a letter dated October 10, 1986 from  yourself to Mr. Goldie.  It's got several blanks on  it, but if you go to the last page of that letter -- I  am sorry, did I have the other one marked.  Yes, you did.  That was tab 13.  Yes.  This is 14.  (EXHIBIT 1191-14:  ATTACHMENTS)  LETTER DATED OCTOBER 10, 1986 WITH  The last page, you see, it's not signed, this copy,  but this is your letter, isn't it?  Yes.  :  That could be marked as tab 14.  And the last sentence you refer to the Beynon  manuscripts and the Beynon material and you state at  the bottom, and I presume there is quite an eclectic  assortment, probably referring to the entire body of  that letter you have listed in this letter, because  you have listed, obviously, 12 items, and all I have  is three and four, eight and 12.  Yes. 2177?  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   But it says:  "Quite an eclectic assortment but I am  2 concentrating on the Beynon-Barbeau tales."  3 My question to you, Dr. Robinson, in that you are  4 referring to what what I referred you to yesterday,  5 that would be the Beynon-Barbeau collection?  6 A   No, I was referring here to item 12, I believe, which  7 are on microfilm at UBC.  And these are something  8 different.  It's Special Collections at Columbia  9 University.  10 Q   And then you say:  "As well as the dissertations  11 treating depopulation."  12 What are you referring to there?  Now, what I am  13 saying is when you say depopulation, are you referring  14 to depopulation as a result of disease or something  15 else?  16 A   There is a thesis, actually the surname of the person  17 is mentioned in item two, I believe.  This is the one  18 I was referring to, cited in Boyd, and I don't  19 remember the full title or the author's full name.  20 But there is a dissertation that I sought through  21 university microfilms reproduction, and I have got it  22 at home, I believe, and it deals with the general  23 problem of reconstructing Indian populations at or  24 before or around the time of contact through the  25 northwest region.  26 Q   This is Boyd?  Is that the one that's Boyd?  27 A   Yes, that's the one I am referring to in point three.  28 Q   Just one point is that you refer to it plural there,  29 dissertations, treating depopulation, is that the only  30 one you can recall right now?  31 A   Yes.  I think there is another one that is fairly  32 recent, and I might be referring to this one, the item  33 number three.  I forget if this is something that  34 treats depopulation in general, the Hai --  35 Q   That's on the Lower Columbia, Regional Social  36 Organization in the Greater Lower Columbia?  37 A   Yes.  38 Q   Now, do you recognize this as a draft that you  39 prepared or a portion of a draft that you prepared?  40 A   Yes.  41 Q   Now, this -- there were little -- this is in January  42 of 1987?  43 A   Yes.  44 Q   And I know that you prepared something earlier and we  45 will come to that, so bear with me.  46 Could this be marked as the next tab, 15, I  47 believe. 21779  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2 (EXHIBIT 1191-15:  DRAFT OF PORTION OF REPORT)  3  4 MR. GRANT:  5 Q   Doctor, can you turn to the bottom of page 2 now --  6 before we turn to that, let me ask you this, as I  7 understand by December of '86, you understood you were  8 preparing a report that may, and I am not certain  9 whether it was at that time decided but, may or may  10 not have been an expert report tendered, you were  11 beginning to put together the corpus of what became  12 your opinion report here?  13 A   Yes.  I am not sure if at that time there was any  14 discussion of it being an expert report.  But I was  15 about to write a report on these areas, yes.  16 Q   So you did some work -- the earliest draft that I  17 recall I have is something in December and then we  18 have parts in segmented form, parts such as this in  19 January, that's what I have seen and that would  20 coincide with your recollection or you don't know?  21 A  More or less.  It is hard to piece it back.  22 Q   That's fine.  Okay.  Now at the bottom of page 2, this  23 is your, part of your draft, section seven you say:  24  25 "Control and management of local resources and  26 connections to distant resources were acted out  27 through potlatching.  Potlatching involved,  28 among other features, validating claims to  29 certain territories through the distribution of  30 food and wealth to specified witnesses.  Claims  31 had to be upheld continually through such  32 disbursements or they could lapse and be  33 counter claimed -- in some instances, actually  34 seized."  35  36 Now, what is the foundation for that opinion?  37 A   It is difficult for me to know what I was reading  38 specifically around this time to produce that  39 particular paragraph.  But it's in keeping with the  40 fairly lengthy discussions I produced for my  41 dissertation in a chapter on northern coastal Indians  42 socioeconomies.  In that I was covering not just the  43 Haida and Tlingit but also to some extent the Coast  44 Tsimshian and the interior tribes most adjacent to the  45 Tsimshian populations.  So it's a fairly broad  46 synopsis and I don't remember specifically what  47 references I could bring to bear on that.  But that's 21780  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 my general understanding.  2 Q   Where are you talking about here, what group are you  3 talking about?  4 A   I am not talking specifically about a group, I don't  5 think, but I intended in the context of this, I  6 imagine, going back that length of time, to refer to  7 the Gitksan and Wet'suwet'en.  Gitksan more so.  8 Q   But in your dissertation, did you make any reference  9 to Gitksan sources that were a foundation for this  10 opinion with respect to the Gitksan?  11 A   Specifically?  I would want to review that chapter in  12 my dissertation before I answered that question.  I  13 really can't remember offhand.  14 Q   But in your dissertation you do not refer to Adams,  15 for example, you rely quite heavily for your opinions  16 about the Gitksan in this case, in your opinion report  17 here?  You don't refer to Adams in your dissertation?  18 You don't know?  19 A   I would like to check the bibliography.  20 Q   I have checked it and it's not there but I will give  21 you a chance to look at it if you want.  22 A  All right.  I was certainly aware of Adams when I was  23 writing my dissertation and like my opinion report, my  24 dissertation citations in the reference list are only  25 to those materials that were actually used in the  26 report.  So I had read Adams sometime ago, even if it  27 was not cited in my dissertation, I owned a copy of  28 sometime ago, of Adams.  29 Q   This reference here is not based on Adams, is it?  30 A   I really don't honestly know.  It's a general  31 statement that I think is largely applicable to many  32 situations of feasting and potlatching, and I don't  33 know if it refers specifically to Adams.  34 Q   On what basis do you say that it's a general statement  35 that is largely applicable to feasting and potlatches?  36 A   On what basis?  37 Q   Yes.  38 A   Probably the best description is the one that I have  39 given for the northern coastal and adjacent interior  40 region in my dissertation.  41 Q   In your dissertation, chapter three I think, you did  42 describe you were dealing with the Tlingit, the Haida  43 and to some extent the Coast Tsimshian, if I recall  44 right?  45 A  And the adjacent populations.  46 Q   Yes, but did you focus on the social organization of  47 these "adjacent populations"? 21781  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  A  2  3  4  5  6  Q  7  A  8  9  10  11  12  Q  13  14  A  15  16  Q  17  A  18  19  20  21  22  23  24  MR. GRANT  25  26  THE COURT  27  MR. GRANT  28  29  30  31  32  33  34  MR. GRANT  35  Q  36  37  38  A  39  Q  40  41  42  43  44  45  46  47  A  For several months I did a review of the social and  economic organization of those groups of people  described in the dissertation and if by focusing you  mean spending a considerable amount of time trying to  come to an understanding of that literature, yes.  Well, by focus I meant --  I did not make it the emphasis in a particular piece  of writing, no.  But as a general review of the  socioeconomy, there is a fairly lengthy discussion of  wealth exchange, of the potlatch, of exchange and so  on.  Focusing on the coastal Tsimshian, Tlingit and Haida,  right, that's what your discussion's about?  No, I also discussed the interior adjacent  populations.  With respect to the Legaic events, right?  No, not in my dissertation.  It's a much broader  treatment of wealth and wealth exchange in the  economic organization and so on, particularly since I  was interested in how tobacco might have been  introduced from the Northern Alberta Plains to the  northwest coast region.  I did focus on exchange  mechanisms and institutions.  :   My lord my numbering -- this would be -- that last  one has been marked?  :  Yes, 15.  :  This would be December 6th, 1986, letter together  with a draft of your report.  I might ask it to be the  next number.  (EXHIBIT 1191-16:  LETTER DATED DECEMBER 6, 1986 WITH  ATTACHED DRAFT OF REPORT)  You recognize that to be your letter together with a  first draft of your report or, as you call it, the  draft of the beginning of your report?  Yes.  And you describe on the page December 5th, 1986  letter, you describe, after referring to the draft at  the beginning of your report, it describes "the model  I propose to develop for treating protohistoric and  early developments in the disputed land claims area."  So when you are referring to model in this draft,  you are talking about your model; is that right?  You  use the word model in this draft.  Yes, and I also have a section called theoretical 21782  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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  framework in this report, which is what --  Q   I want to connect the word model --  THE COURT:  Please, one at a time, please.  A   I am connecting the word model here to the words  theoretical framework in the letter that follows, the  draft that follows. Just so that I am explaining how  I use the word model.  MR.  GRANT:  Q  I see.  I see.  So what you're saying is that when you  use theoretical framework in the draft, then that's  interchangeable with what you're using as model?  A   That's correct.  Q   I am sorry, I thought you were -- I understand.  I  thought you were moving into something else.  Going to the next page, the introduction, do you  have that?  This is the first page of the draft.  Now,  Mr. Willms has provided me with this together, so I am  assuming that this is the draft that went with this  letter at this time and you can confirm that, that's  right?  A   Yes.  Q   Okay.  You state:  "This report is a preliminary statement  addressing the model of traditional Gitksan and  Wet'suwet'en societies which will likely be  presented by the plaintiffs in the case of  Delgamuukw et al versus the Queen et al."  So you were setting out your statement for how to  deal with the model presented by the plaintiffs?  A   Yes.  Q   Then it says, this is your aim, you set out on the  second photograph:  "Specifically it aims to challenge assertions  that a comprehensive consistent and stable view  of traditional Gitksan and Wet'suwet'en  societies and economies can be reconstructed on  the basis the contemporary knowledge."  That's an accurate statement of the aim of this  model which flowed and developed into your report?  Is  that an accurate statement?  A   Yes, I think that aim was made subsidiary to the main  thrust of the opinion report eventually but that aim 21783  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 is asserted in the opinion report, the final version.  2 Q   If I could refer you to page five, do you have it?  3 A   Yes.  4 Q   If you want to take a moment to put that in the  5 binder, if it's easier for you, that's fine.  6 If you look at page five, just the last sentence of  7 the first paragraph lays the groundwork for the second  8 paragraph.  It says:  9  10 "These are also supportable.."  11  12 You are referring to some of your theories here  13 on lines of inference,  14  15 "...to some extent directly, as inference and  16 factual information  describing the people  17 occupying the disputed land claims area can be  18 tied to the model I present."  19  20 So here you're referring to your model in the next  21 paragraph?  22 A   Yes.  23 Q   And you then say:  24  25 "The model moves beyond a recitation of the  26 factors which may have affected native  27 populations during the protohistoric and  28 historic periods (such as introuduced firearms,  29 diseases, and other products and by-products of  30 the fur trades) to analyse how and why specific  31 cultural changes probably occurred.  It is  32 innovative, credible, and in keeping with  33 recent ethnohistoric, cultural-ecological and  34 cultural-evolutionary research."  35  36 That was your view at that time of your model,  37 right?  38 A   Yes.  39 Q   And it's your view today, your view hasn't changed on  40 that, has it?  41 A   No, although I would have liked to have taken it  42 further in the sense of making it a broader based  43 report with more of a theoretical thrust than I did.  44 Q   Hm-hmm.  Well, you are saying you would like to have  45 taken your report further.  I think you mentioned that  46 a number of times.  47 A  Well, I would have liked to have spent more time to 21784  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  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  sketching out the theoretical underpinnings to give it  more strength, as an example, in a broader context  that way, yes.  But I want to be sure, you're talking about your  report here?  Yes.  But you agree that your report and this opinion is  innovative, that's correct?  Well, it's something that you are finding objection  to.  I think it's putting the material together in a  nice way.  I am not finding anything objectionable.  I am not  finding anything objectionable.  This is your words,  you are saying it's innovative and I want to be sure  that's right.  Fine.  WILLMS:  I think, my lord, my friend said the report, the  witness said here the model.  And that is --  And the witness said this applied to her report.  I  asked her that before.  Well, I am not sure that there is any harm done in  making sure that we are talking about the same thing.  No, I don't.  I think the witness understood.  But —  Well, let's find out.  MR.  MR.  A  GRANT:  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  A  I will ask again.  This statement, that this model is the foundation  of one part of or aspect of your report, if we follow  through with that, right, the model, this is a draft  of your report?  Yes, but perhaps before I go any further in tying this  too firmly to the final opinion report, I should  review this draft of a letter or this letter to make  sure that it's in keeping, is that --  If there is anything where there is a difference  between this model and the opinion report that I have  a concern with, I will certainly direct you to that.  What I am saying is that, I am just -- it's not as  complex as you appear to make it, you say at the  beginning of your letter, "attached is a draft of the  beginning of my report."  This is the first draft of  what becomes your opinion report, that's what I am  asking you and you have already agreed that's true,  right?  The beginning of your report, okay?  Yes, I see this as one of a series of letters that  were being sent in over a period of time. 21785  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   Is this not the first draft of the beginning of your  2 report that you sent to Mr. Mackenzie?  3 A   Yes, and I think also though, there are ideas that  4 eventually fed into the report coming out of different  5 sources than this draft.  6 Q   And this -- and in this draft you set up a model,  7 which I have now, we have gone through all of this, on  8 page five, you set up a model, present a model, the  9 second paragraph on page five you refer to the model,  10 you are referring to your model, you're with me?  11 A   Yes.  12 Q   That's all right.  Okay.  And commenting on the model,  13 which is basically, I think you said the model also --  14 you go on to talk about the theoretical framework,  15 which is at the bottom of page five, and you said your  16 model is tied into the theoretical framework, and I  17 understand you.  In talking about the model you say,  18 "It is innovative, credible and in keeping with recent  19 ethnohistoric, cultural-ecological and  20 cultural-evolutionary research", and there you are  21 talking about your model, right?  22 A   Yes.  23 Q   And I asked you, before my friend objected, and you  24 may have missed the question, is that comment  25 applicable to your report, and what I am asking you  26 now, just to be sure we are on the same wavelength --  27 A   Yes, I think it is.  28 Q   Right.  That's what you said.  Okay.  So your report  29 is innovative and it's credible and it's in keeping  30 with recent ethnohistoric, cultural-ecological and  31 cultural-evolutionary research?  32 A   Yes.  33 Q   Now, what is the recent enthnohistoric research  34 research to which you are referring with respect to  35 your report?  36 A   That it's in keeping with?  37 Q   If you want to look at the bibliography to help you, I  38 have no objection to that.  It's not a memory test.  39 A   So much of this is.  Yurbery I would say is one  40 writer, recent ethnohistoric research, Bishop and Ray.  41 Q   I think that's the 1976 Bishop and Ray you have cited  42 it?  43 A   Yes, I have cited it.  I think Catharine McClellan has  44 come out with a recent book to do with the southwest  45 Yukon natives.  46 Q   That is page 92 of your report?  47 A   No, there is a more recent one that's not listed in 21786  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 the report.  2 Q   But, at the time in December of '86, would you have  3 been having that in mind, or in May of '87, as  4 applicable to your report?  5 A   I am not sure.  I am not sure.  6 Q   Okay.  Anything -- anyone else in recent ethnohistoric  7 work?  8 A  Well, the work that Jim Gibson has been doing on the  9 northwest coast ties into this, although I don't know  10 if he would call it historic per se.  He does deal  11 with the early history of aspects of the northwest  12 coast or the aspects of the early history of the  13 northwest coast, and to a large extent brings in the  14 native populations.  So one of his works in here  15 that's listed is Imperial Russia and Frontier America,  16 which details the activities of the Russians in the  17 Alaskan archipelago.  But his more recent work has to  18 do with the opening up of the agricultural frontier  19 and so on.  20 Q   Where?  21 A  Again, it's -- a lot of the work is based around Puget  22 Sound but also deals with the connections between the  23 Puget Sound Hudson Bay Company activities and what was  24 going on in southeast Alaska.  So it ties into this  25 area.  26 Q   But it doesn't touch the Gitksan and Wet'suwet'en,  27 does it?  28 A  Well, to the extent that the Fort Simpson activities  29 out on the outer coast seem to have been having some  30 kind of effect on the upriver populations, I would say  31 that it does very much.  There was certainly an  32 awareness of the Russian activities, even by the  33 traders as early as William Brown and Daniel Harmon.  34 Q   When is this latest work of Jim Gibson, the one you do  35 not cite?  36 A   There is a UBC Press one I am thinking of, that's  37 1984, I think, the agricultural frontier.  38 Q   Would that have been in your mind when you were  39 talking about you are keeping in recent  40 ethnohistorical representations?  41 A   Gee, I honestly don't remember.  I would say Shep  42 Krech's edited anthology is another one and that was  43 prior to '87.  That anthropological issue that's got  44 articles by Bishop and others that reinvestigates a  45 lot of similar kinds of scenarios in northeastern  46 North America.  47 Q   You mentioned Bishop already. 21787  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 A   Yes.  2 Q   That covers the ethnohistoric, the recent  3 ethnohistoric research with which you are dealing  4 with, is that right?  5 A   It doesn't cover it.  It would take me a few minutes,  6 I think, to come up with a comprehensive list.  I  7 thought you wanted some examples.  8 Q   What about the cultural-ecological research?  9 A   Current cultural-ecological research?  10 Q   What cultural-ecological research is your report in  11 keeping with?  What are you referring to there?  With  12 respect to your report, okay?  I am not worried about  13 with respect to -- with respect to your report.  14 A   I am trying to think of the full title.  There is a  15 book called Cultural Ecology by Netting.  16 Q   Netting?  17 A   Netting, N-E-T-T-I-N-G.  There is —  18 Q   I am not sure if that one was cited, was it?  19 A   No, there is an anthology of research that has a  20 fairly exhaustive bibliography of recent works in  21 cultural ecology pertaining to North America by a  22 couple, or edited by a couple of people called  23 Winterhalter and Smith.  24 Q   Okay.  You may misunderstand my question.  I want to  25 be sure that you are clear.  2 6 A   Yes, maybe I might.  27 Q   Your report is innovative, credible and in keeping  28 with cultural -- with cultural ecological research?  29 That's what I understand now.  Well, that's what this  30 statement says and it applies to your report, right?  31 A   Yes, yes.  32 Q   I am asking what cultural ecological research it's  33 keeping with.  I am not asking for a bibliography to  34 everything that's out there, which of all of these, in  35 cultural ecology, does your report keep with, who,  36 what authors?  And I say if it helps you to look at  37 your bibliography, no problem.  38 A   No, not specifically, because I didn't develop for  39 this opinion report the theoretical underpinning that  40 would have broadened the context into the cultural  41 ethnological milieu.  But I am thinking specifically  42 of the people whose traditions I was associated with  43 as a graduate student.  I know it's in keeping with  44 the work that my graduate supervisor was doing, David  45 Harris, at the University of London.  46 Q   Where did he do his work?  47 A   In New Guinea and northern Australia. 217?  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 Q   And that has applicable to the Gitksan and  2 Wet'suwet'en?  3 A   Yes, I think it does.  4 Q   Who else besides David Harris?  What other recent  5 ecological -- oh, what -- has he published?  6 A   Yes.  7 Q   That you would refer to?  If you can't remember now  8 you can have a chance to look at it.  9 A   I don't know the title of his most recent works but  10 yes, he has.  11 Q   Anybody else?  12 A   I am trying to think of a good example.  I think there  13 were several writers that have contributed to an  14 anthology on the evolution of complex sites on the  15 northwest coast that I would include in that bunch.  16 Q   Have you read these writers?  17 A   Yes, there is an anthology edited by Nash, which I  18 believe is listed in the bibliography, the evolution  19 of complex maritime cultures.  2 0 Q   By who?  21 A   The editor is Nash.  I think I did cite Donald  22 Mitchell's article out of that anthology.  I don't  23 know if he would call himself a cultural ecologist per  24 se, but he is certainly an archeologist who has worked  25 with and ecological orientation in analyzing some  26 changes in prehistoric northwest coast cultural  27 complexes, particularly on the southern coast.  28 Q   And he talks about -- Mitchell is talking about tribes  29 and chieftans of the northwest coast in the Tsimshian  30 case, isn't he?  31 A   Yes, he is in this article, yes.  And using the  32 examples of Legaic --  33 Q   Who is a Tsimshian, a coastal Tsimshian?  34 A   Yes.  Who was also active in the Skeena River system.  35 Q   One of them is at least or a couple of them are?  36 A   Yes.  37 Q   There are many Legaics, you agree with that, of  38 course?  39 A   There seemed to have been at least two.  40 Q   At least two?  41 A  At least two.  42 Q   Okay.  If you would -- if that's -- now refer to the  43 record regarding the recent cultural ecological  44 research, I would ask you what cultural evolutionary  45 research is your report keeping with?  46 A   I would say Mitchell again, in the same context;  47 MacDonald's work to some extent touches base with both 21789  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 the cultural ecological and cultural evolutionary  2 frameworks, in that it attempts to analyze changes in  3 material culture in the archeological record through  4 time.  5 Q   When you are talking about MacDonald, let's be clear,  6 is that --  7 A   George.  8 Q   And are we talking about Kitwanga Fort --  9 A   Or Skeena River prehistory.  All three I have seen  10 anthologies in that general framework.  11 Q   He was the editor of Skeena River Prehistory?  12 A   Yes, and a major contributor.  13 Q   And he was who you are referring to as authority  14 regarding the cultural evolutionary you are keeping  15 with?  16 A   Yes.  17 Q   Okay.  If we could go on with your draft here, on page  18 nine we have a reiteration, if I may say, of a comment  19 that was in earlier material, restatement as well, it  20 seems almost word for word.  Halfway down that centre  21 paragraph regarding potlatching.  22  23 "Potlatches involved, among other things,  24 validating claims to certain territories  25 through to the distribution of food and wealth  26 to specified witnesses."  27  28 And this is a reiteration of what you had said in  29 that earlier draft; is that right?  30 A   Yes.  31 Q   And you didn't have additional sources this time than  32 did you there, basically just seeing a flow-through of  33 your ideas?  34 A   Yes.  35 Q   Now what time period are we talking about here  36 regarding this potlatching?  You don't know?  I mean,  37 I should -- I am not asking if you don't remember, I  38 am saying at this time was it a general statement for  39 the area the northwest coast?  I think that's how you  40 described it earlier?  41 MR. WILLMS:  My lord, I am confused.  My friend started off in  42 time and then moved into space and I don't know if he  43 is talking about time or space or both.  44 MR. GRANT:   I am going to talk about both.  So first of all I  45 did go to space, I wasn't trying to jump around as my  46 friend pointed out I did.  47 THE COURT:  What are you asking the witness to answer now, time, 21790  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 space or --  2 MR. GRANT:  Space.  3 Q   The area that this covers is the northwest coast, it's  4 a general statement of the area I think is what you  5 said?  The sentence I am reading to you, do you  6 understand?  7 A   Yes, I would like a moment to review it, please.  As a  8 general statement, I would say that that's applicable  9 to the northwest coast region in general.  The  10 northern northwest coast region, more specifically,  11 and to all those groups who also had the potlatch rank  12 complex.  Now we know that historically.  13 MR. WILLMS:  You should let the witness —  14 A   Time and space.  We know historically that the  15 distribution of something that I am calling  16 potlatching here ranged quite far into the interior  17 and was manifest in various kinds of forms.  This is a  18 very general, broad statement, covering Athabaskan  19 groups, for instance, as far away the the Mackenzie  20 drainage.  Temporally, if we refer back to an earlier  21 either letter or statement --  22 MR. GRANT:  23 Q   Could you stop before you go into temporally, you said  24 the northern north coast, I just wanted to clarify  25 what you are referring to there?  26 A   From the Bella Bella-Bella Coola area north.  I have  27 less familiarity with the southern examples.  2 8 Q   No problem, I just wanted to know what you meant.  29 A  And I would also say it extended as far north as  30 Kodiac Island and into and Yukon/Alaska in some forms.  31 This generalized kind of exchange that I am describing  32 here.  Temporally, if we go back to an earlier, either  33 letter or report, I think you brought my attention to  34 a statement I had made about the northwest coast  35 complex seems to have stabilized sometime around 1000  36 to 1500 B. C, which is kind of a ballpark figure, but  37 that might give you a time depth for starting to talk  38 about this wealth exchange and possible outriggers  39 into the interior.  I think there is no question that  40 there was a regularized exchange between groups of  41 people throughout this northwestern North American  42 region, which the term potlatch has been largely  43 applied to, although we all recognize that there are  44 many different forms that the potlatch can take.  45 THE COURT:  Sorry, did you have say a 1000 to 1500 B.C. or B.P.?  46 A   No, B. C, and what I would like to do is check that,  47 your honour, back into that earlier statement that I 21791  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  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  had made.  I think Mr. Grant drew my attention to it  because I did, at that time, have a date for it.  MR. GRANT:  Q   You can look at it.  My recollection that it was B.P.,  maybe you can refer to it.  THE COURT:  I think it was B.C.  A   I think MacDonald puts a date on it at B. C, 1000  B.C., on the basis of his coast Tsimshian excavations.  MR. GRANT:  Q   On page ten of this same draft, you state in the last  paragraph:  "Timing is also a consideration and herein lies  some real difficulties.  Athabaskan speaking  groups occupying territories adjacent to those  of northwest coast societies appear to have  been in various stages of assimilating coastal  patterns 'around the time of contact'."  Now, where is that quote around the time of contact  coming from?  A  Where is it coming from?  Q   Well, it's in quotes, I wonder why you put it in  quotes?  A   Because the time of contact -- that's my "around the  time of contact."  Q   You are not taking it from some other source?  A   No.  And the reason I have done that probably more  than anything is to draw attention to it because the  time of contact varies, or did vary from place to  place, depending on when the first Europeans were  actually in a region.  For instance, you can say that  for the people living on part of the Sekani or on the  Parsnip River, Alexander McKenzie came through in 1793  and that marks for them the beginning of European  contact, although it might have been many years before  they had any direct dealing with a non-native person.  For other parts of northwestern North America, the  time of contact came at different times.  That's the  reference I am making there.  Q   That's fine.  Now if you could say, this is still on  the timing factor:  "In the Gitksan and Wet'suwet'en cases are  fairly clear examples of people adapting to  exchange-related pressure stemming from  intensified interactions with coastal native 21792  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  A  16  Q  17  A  18  Q  19  A  20  21  22  23  24  25  Q  26  A  27  Q  28  29  A  30  31  32  33  34  35  36  Q  37  A  38  39  40  41  42  43  44  45  Q  46  A  47  THE COURT  Indians by adopting coastal style  organizational rules.  More complex and  intensified socioeconomic behaviour requires  more elaborate operational strategies.  This is  a fairly straightforward equation consisting of  cultural-evolutionary theories."  Now, I am only putting that in to put this next  sentence in context.  "When and why these changes in adaptation began  is, however, controversial."  That was your opinion at that time?  Yes.  And it is your opinion today?  Yes.  And you haven't found anything to suggest otherwise?  Well, it additional reading in the distant surrounding  areas leads me to feel that those analyses which tie  the interior peoples to coastal traits can be linked  to the European fur trade and can be linked to the  protohistoric period as I define it in my opinion  report.  Who?  Who?  Are you saying more readings in this area, which  readings?  Going back to Catharine McClellan's work, which is  listed in the bibliography.  I might add that in my  notes that there was a reference that was not included  in the reference list, which is to a 1964 publication  of hers which deals with these cultural relations  between the coast and interior in a fairly broad way  through the 18th and 19th century.  Did you consult with Catharine McClellan?  Not about this specifically.  My correspondence with  Dr. McClellan had to do with the production of the  trade bibliography or the trade trails bibliography,  which I did some time ago for Parks Canada, and  because she was working on a recent publication on the  southwestern Yukon Indians, I offered that  bibliography to her, in case there were materials in  there that she wanted to see.  You didn't consult with her about your work here?  No, I did not.  :  We will take the afternoon adjournment, please. 21793  S.P. Robinson (For Province)  Cross-exam by Mr. Grant  1 (Proceedings adjourned for afternoon adjournment)  2  3  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein to the best of my  9 skill and ability.  10  11  12  13  14  15 Wilf Roy  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 21794  Proceedings  Cross-exam by Mr. Grant  1 (PROCEEDINGS RECOMMENCED AFTER RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Willms.  5 MR. WILLMS:  My Lord, if I could just hand up and explain what I  6 have handed up.  I have looked through the privileged  7 documents, May 12th and on, and Your Lordship  8 mentioned two categories, one category being  9 credibility, another category being whether it touches  10 on the opinion of the report or refers to the opinion  11 of the report.  And what I have handed up to Your  12 Lordship, and I think I should outline it, just  13 briefly.  The first document is a credibility  14 document, and Your Lordship can look at that and see  15 whether or not that's something that need be  16 disclosed.  The next three are, in each case, a  17 question or a series of questions is put, and there is  18 a response from Dr. Robinson which mentions some of  19 the material that she relied on in her report, and I,  20 out of an abundance of caution, I've handed those up  21 to Your Lordship, because I don't know whether that is  22 the scope to which Your Lordship was referring, but  23 especially the -- there is a document that starts, My  24 Lord, "Summary", and then "Question 1", and it should  25 be the last document, and it's not -- it's not  26 paginated, but it will -- it has "Summary" in the left  27 hand corner, and then the first page has "Question 1".  28 It should be about the fourth or fifth page in from  29 the front.  3 0 THE COURT:  Yes.  31 MR. WILLMS:  Now, what that is is a series of questions from  32 counsel to Dr. Robinson concerning Hugh Brody.  The  33 questions, in our submission, are -- do disclose  34 counsel's strategy, legal strategy.  The answers  35 contain, as I indicated a moment ago, references to  36 materials that Dr. Robinson referred to in her report,  37 and because of that, I don't know whether that was the  38 intention of Your Lordship, but that explains the  39 context of that.  4 0 THE COURT:  All right.  Thank you.  41 MR. GRANT:  Maybe I can clarify one point.  I believe my friend  42 is here dealing with the 66 items that are post-May  43 12th, 1987.  Of course I think the clarification of  44 your ruling would apply equally to the pre-May 12th,  45 1987 material as well.  I'm just not sure if my friend  46 has looked at that, or thought --  47 MR. WILLMS:  The basis for the pre-May 12th was on Your 21795  Proceedings  Cross-exam by Mr. Grant  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  Lordship's earlier ruling, that is, if it went to  credibility.  THE COURT:  It's already been delivered.  MR. WILLMS:  If it touched on the substance of the report or  related to the substance of the report, it was  delivered.  THE COURT:  But this doesn't cover 67 items.  MR. WILLMS:  No, My Lord, I went through those items.  THE COURT:  I see.  MR. WILLMS:  And there are some that are completely unrelated,  not only to credibility, because the witness hasn't  given any evidence in the area, but also unrelated to  the subject matter of her report.  THE COURT:  Yes.  All right.  Let me look at those, and I'll  give you an answer as soon as I can.  MR. GRANT:  In light — in light of what my friend has said, I  am not requesting, of course, at this time anything to  do with the rest of the 66.  It will depend on how you  view those.  We can approach it as time goes on.  THE COURT:  All right.  MR,  COURT  GRANT  Q  Dr. Robinson, in Exhibit 1191, tab 16, I would like  you to go back to page 5 just for a moment.  This is  your December 5th, '86 draft.  A   Yes.  Q And I've asked you already about the sentence in the  middle of that paragraph, and then the last sentence  of that paragraph, referring to the model, says:  "That this model should find acceptance among  ethnohistorians, anthropologists and  geographers conducting similar research allows  it to form a firm base from which arguments for  the case Delgam Uukw et al v. The Queen et al.  can be developed."  Are you meaning when you say arguments there, the  arguments in your papers, or the arguments of the  defendants, when you say it's a firm base from which  the arguments can be developed?  A   I think what I was intending it to mean here is  arguments for the case.  Q   Legal arguments?  A   Yes.  Q   Okay.  And in the listing we have already done, that  would include the -- those amongst who this model  should find acceptance among in the field of 21796  Proceedings  Cross-exam by Mr. Grant  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  ethnohistory, anthropology and geography.  You have  already given me those, is that right, or are there  others that you would refer to?  A   I'm sorry, I have already given you --  Q   I asked you about -- you said it's keeping with recent  ethnohistorical, cultural-ecological and  cultural-evolutionary research, and I discussed that  with you.  Are there other ethnohistorians,  anthropologists and geographers to whom you have not  referred me, that this model finds acceptance with,  and I am talking here about your report?  I haven't yet exposed it to specific anthropologists,  ethnohistorians and geographers.  In fact, I am  waiting for the end of my involvement with this so I  can.  That's been my own decision.  Not to expose it?  Yes.  Okay.  So you don't know if it does find acceptance or  not?  No.  In my opinion it will.  That will only take time.  And you have -- I mean, to  have it reviewed, you don't know, you conjecture it  will, you hope that it will, but you don't know yet?  I have confidence that it will.  Is there specific anthropologists, ethnohistorians or  geographers who are in agreement with it?  I haven't yet shown my opinion evidence to any  specific anthropologists, geographers or  ethnohistorians, in deference to the role that it's  serving in this litigation.  Q   Now, can you go to page 11.  First of all, I  understand pre-historic means -- is before any contact  or influence of contact, right?  That's what you use  it as?  A  Are you referring to -- yes, but I wasn't sure -- I'm  sorry, I was looking on page 11.  Q   I want to be sure of your terminology.  A   Yes, pre-historic, I refer -- I use in reference to  situations unaffected by European influence.  MR. GRANT:   Okay.  Second paragraph — first full paragraph, My  Lord, second sentence.  THE COURT:  I'm sorry, why would you exclude Russian influence,  for example?  THE WITNESS:  I don't, sir.  I — in fact, some of the northern  North American archaeological and historic records  suggest that we could even extend the proto-historic  period back further, and I've been using a fairly  A  Q  A  Q  A  Q  A  Q  A 21797  Proceedings  Cross-exam by Mr. Grant  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. GRANT  Q  conservative baseline in this context.  We know, for  instance, that by the mid-17th century some trade  ordered goods were moving back and forth from  continental Siberia into continental North America,  and so on.  So I'm not at all excluding Russian  influence.  I just thought that that might muddy the  waters by extending it back too far.  In fact, a  provincial archaeologist, Grant Keddy, has recently  written a report looking at proto-historic influences  and extending it back as much as 1,500 years.  He is  talking about Asiatic influence into North America  that can be documented archaeologically.  Q   But that would -- is he basing it on written records  or archaeological records?  A   Both, but primarily archaeological.  And what he's  doing is expanding the notion of proto-historic to  talk about intercultural contact that's non-European,  saying Asiatic influence onto the North American side  is something that we are not taking into account as  much as we might, in terms of the early influence or  pre-historic influence.  Q   Okay.  Thank you.  The second sentence on page 11 you state:  "In late pre-historic times Gitksan and  Wet'suwet'en people were already involved in  extensive aboriginal exchange networks, were  already increasingly being influenced by  coastal dwellers with whom they exchanged  locally-produced and exotic commodities, were  already developing ways to more effectively  exploit local resources to satisfy subsistence  and exchange related needs, and so on."  And that was your opinion at that time based on  your sources?  A   Yes.  Q   And that's your opinion today?  You didn't change that  opinion  9  A   No, I didn't.  Q   But you did not include that opinion in your report,  did you?  A   Oh, gee, I would think that I had, but it would  perhaps --  Q   I would ask you to take a chance over the evening to 2179?  Proceedings  Cross-exam by Mr. Grant  1 look at that.  2 A   Because I certainly think that it's stated in my  3 report that coast interior trade or exchange did not  4 spring up as a result of the European induced fur  5 trade, but that there was an extension of, an  6 expansion of and intensification of that contact.  7 Q   Okay.  You go on in this -- I know you make reference  8 to coastal interior trade occurred before contact in  9 the pre-historic time.  10 A   Yes.  11 Q   But here you're saying more than that.  Maybe that is  12 all you're saying, but you are looking at types of  13 society, the developing ways to more effectively  14 exploit local resources, et cetera.  15 A   I may have expanded it there, but I don't think that  16 the idea was left out of the report.  That's  17 another --  18 Q   You can look at the report, and if I stand to be  19 corrected, I will ask you first thing in the morning.  20 A   I may have changed phrasing.  I don't think the  21 content was ignored.  22 Q   I couldn't track this, doctor, I couldn't track this  23 into your report, and you may direct me to where I  24 should have looked to track it.  25 A   Okay.  26 Q   The last paragraph says:  27  28 "With the scenario related to socioeconomic  29 developments I outlined above, it can be  30 suggested that European influence stimulated  31 Gitksan-Wet'suwet'en cultural changes along  32 prevailing emphases and directions.'"  33  34 And is that again your quote?  35  36 A   No.  As I explained in the next sentence, it's a  37 phrase used frequently to talk about trajectories of  38 cultural change.  I am thinking particularly of  39 writers such as Kent Flannery and Roy Rappaport, who  40 were doing general systems theory based models in  41 cultural ecology in the sixties and early seventies.  42 Q   With respect to which area?  43 A   I think Rappaport's models and some of his articles  44 are fairly general, but do have some tie into New  45 Guinea, and perhaps other areas.  I am trying to think  46 now.  I think his contributions are often fairly  47 general.  Kent Flannery's work has been largely based 21799  Proceedings  Cross-exam by Mr. Grant  1 in Meso-America, but he's also developed models that  2 have general application.  3 Q   Then you go on after referring to that sentence.  You  4 say:  5  6 "What it implies is that cultural changes which  7 have already begun may be stimulated further in  8 the same direction by additional input from  9 outside sources and/or feedback from inside  10 sources.  Once the wheels are in motion, the  11 trajectory is hard to change.  'Causes' of  12 significant socioeconomic adjustments may be  13 seen, in this case, as a set of accumulating  14 circumstances which were gradually leading  15 toward a reorganization of Gitksan-Wet'suwet'en  16 cultural-environmental relations.  The notion  17 causality' raises a complex set of  18 philosophical issues which need not be  19 addressed here.  What, however, should be  20 stated is it is not necessary to suggest that  21 European influence of the sort I described  22 caused major shifts in Gitksan-Wet'suwet'en  23 social and economic behaviour."  24  25 Now, that was your opinion at that time, and it is  26 your opinion today?  27 A   Yes, and I would like to just add --  28 Q   I would like to ask you about it first, and then you  29 will get a chance.  30 A   Yes.  31 Q  32  33 "European-derived stimuli may have 'merely'  34 added to pressure already being placed on their  35 cultural systems.  It may, in fact, be  36 appropriate to regard European influence in  37 this light rather than to see it as a 'prime  38 mover' on initiating catalyst."  39  40 And again that was your opinion at that time?  41 A   Yes.  42 Q   And is that your opinion today, that last statement?  43 A   Yes.  44 Q   You do not state this in your report, do you, and if  45 you need to refer to it, again --  46 A   Probably not, but I will check that this evening.  47 Q   Okay.  If you have, you can check it now -- 21800  Proceedings  Cross-exam by Mr. Grant  1 A  May I just add one thing to this, though, in reference  2 to the -- who are the people I am referring to with  3 that phrase, "along prevailing emphasis and  4 directions"  5 Q   Which one?  6 A  When you asked me earlier to whom I was referring with  7 the phrase "along prevailing emphasis and directions".  8 Q   Oh, yes.  9 A  Well, what I wanted to say in connection with this  10 whole paragraph, and it's something that those two  11 writers, Rappaport and Flannery, both refer back to,  12 is that their second cybernetics theory, a general  13 systems model that was proposed or first introduced by  14 a person called Maruyama, M-a-r-u-y-a-m-a, and the  15 phrasing and the identification of these triggering  16 factors and so on, is very much derived from that  17 general orientation, which was then picked up by  18 cultural ecologists.  So it's just to put it in a  19 firmer context.  20 Q   That hasn't been applied by anyone you know to the  21 Gitksan and Wet'suwet'en, has it?  22 A  Well, no.  And the reason, perhaps, why this is not  23 replicated exactly in the opinion report, is it's a  24 fairly cumbersome jargon.  And as I indicated right at  25 the outset of this section of theoretical models -- or  26 what did I call them?  Back to page 5.  The  27 theoretical framework, the first sentence:  28  29 "Many assumptions are built into the type of  30 model I propose, as are what might be called  31 awkward words of the trade."  32  33 I felt it was best, perhaps, not to, in the  34 context of this opinion evidence, belabour points that  35 seemed to me to be pretty straight forward, by  36 reverting to a kind of language of the social sciences  37 which is difficult to master and tedious in the  38 extreme, if you are not familiar with it.  So although  39 I've -- I refer in this paragraph to some phrases like  40 cause and causality and so on within that framework,  41 that's why that was abandoned.  My decision to abandon  42 it, because I felt that getting into second  43 cybernetics modeling language would be too obscure.  44 Q   It is generally agreed among persons in the field of  45 ethnology that contact had a quantitative effect on  46 aboriginal societies.  At least it had a quantitative  47 effect; is that not correct? 21801  Proceedings  Cross-exam by Mr. Grant  1 A   I'm not sure what you mean by "quantitative effect".  2 Q   Well, like you say here, it would increase, it would  3 intensify the utilization of resources, for example.  4 So people would maybe utilize resources more with the  5 trade than they did before.  An intensification.  You  6 understand -- do you understand?  7 A   Yes.  8 Q   And you agree with that?  9 A   Yes.  10 Q   There was a decimation of population through disease  11 through contact, wasn't there?  12 A   That's not known for sure.  13 Q   The impact of disease is not known for sure?  14 A   It's very poorly understood.  We have some anecdotal  15 information about particular areas being hit with  16 various kinds of epidemics, but how that adds up is  17 not really well-known.  18 MR. GRANT:   Okay.  One more brief reference.  Tab — I guess  19 this would be 17, My Lord.  Is that right?  20 THE REGISTRAR:  Yes.  21 THE COURT:  Yes.  22 Q   You remember receiving this letter from Mr. Plant, May  23 4th, 1987?  You did receive this letter?  24 A   Yes.  25 MR. GRANT:   Can that be marked the next exhibit, Exhibit  26 1191-17.  27  28 (EXHIBIT NO. 1191-17 - LETTER DATED MAY 4,  2 9 1987 FROM MR. PLANT TO MS. ROBINSON)  30  31 THE REGISTRAR:  Yes.  32 THE COURT:  Yes.  33 MR. GRANT:  34 Q   Tab 17.  The first paragraph Mr. Plant's -- now, you  35 had prepared a report dated May 1st, 1987, to which he  36 is making reference; is that right?  37 A   Yes.  38 Q   And he says:  39  40 "I enclose the draft of your report which you  41 delivered to me in several installments late  42 last week.  I took sections IV and V, and their  43 notes, as a starting point for my review over  44 the weekend.  You will see I have made a  45 considerable number of revisions and deletions.  46 Unfortunatley, I did not have time to review  47 the other sections of the report ... 15 MR. GRANT  16 THE COURT  17 MR. GRANT  21802  Proceedings  Cross-exam by Mr. Grant  1 I suggest that you look at what I have done  2 to sections IV and V, then look carefully at  3 the balance of the report.  What I would like  4 you to do is to provide me with a final draft  5 in a form which you are completely happy with  6 (i.e., you would have no reservations about  7 delivering it to a publisher).  You should try  8 to get this to me by Wednesday or, at the  9 latest, Thursday of this week.  Please return  10 the enclosed draft to me when you are finished  11 with it as I have not had time to make a copy."  12  13 MR. WILLMS:  Sorry, My Lord, I think my friend skipped part of  14 that.  I did skip part of it.  I read the whole letter.  The whole letter is in here.  18 MR. WILLMS:  Okay.  19 MR. GRANT:  I am not going to ask the witness about the part I  20 skipped.  21 Q   The draft that was sent to you, do you remember  22 receiving this draft from Mr. Plant?  23 A   Yes.  24 Q   And that draft, he says would you return it to me, do  25 you recall was his draft that had his handwritten  26 notations on it, or did he give you something separate  27 that was -- had changes or his recommendations on it  28 for parts IV and V?  2 9 A   I don't remember.  30 Q   Do you remember sending the draft back to him?  31 A   Not specifically, although I probably would have  32 delivered it, that being more often my --  33 Q   You would have delivered it back to him?  34 A   Not specifically.  35 Q   Okay.  Do you remember what the changes were to  36 sections IV and V?  37 A   Not specifically.  No --  38 Q   Were they major -- this is the penultimate draft, as I  39 take it, because then you send it back, and it was the  40 May 12th report.  That's what I gather.  41 A   I haven't compared it in detail with this one, and  42 then I could tell you.  43 Q   Okay.  I haven't -- I have received a draft dated May  44 1st, and then I have this letter.  I assume the May  45 1st draft is the one he is talking about?  46 A   Yes.  47 Q   And then the next one I received is May 12th, which is 21803  Proceedings  Cross-exam by Mr. Grant  1  2  A  3  Q  4  5  A  6  Q  7  8  9  10  11  A  12  13  Q  14  15  16  17  A  18  Q  19  20  21  22  23  24  25  26  27  28  A  29  30  31  32  Q  33  34  A  35  36  37  38  39  40  Q  41  42  43  44  THE COURT  45  MR. GRANT  46  THE COURT  47  MR. GRANT  the report that His Lordship has before him.  Yes.  So I would be right in saying this is the penultimate  draft?  I don't think there was anything between those.  Right.  And in looking at the May 1st draft, you may  have missed it, but I didn't notice any changes or  corrections, or there is no reference to what he was  talking about.  And I would like it, if you know if  there is changes, what those changes are.  I could probably try to reconstruct them, looking at  the two side by side.  Probably if you look at the May 1st one, you may  refresh your memory.  But in any event, it is fair to  say that as late as May 4th Mr. Plant was recommending  changes to your report, which became the final report?  Yes.  Okay.  You can probably put that large book down for a  moment, or set it aside, and take yourself to your  report.  I think document -- I think it's number 1,  Exhibit 1189-1 for ID.  I would like to ask you a  general question about the report.  When you cited  these authors and you determined which authors you  would rely upon, did you determine which of them were  relying on primary sources, and which of them were  relying on secondary sources?  Did you take that into  account?  The best answer I can give you is yes, I took that  into account at the time I was reading each piece,  and/or excerpting from it.  I didn't make specific  notes, I don't think, about that.  It wasn't a matter that you dealt with as of  significance, was it?  No.  I would say in a general sense, no, although I  was aware that many of the anthropologists, whose work  I was deriving materials from, had done either a  considerable amount of fieldwork and/or research in  support of their arguments, or presented in articles  or books.  Go to page 2.  You state:  "Recognition that proto  ..."  Sorry, page 2?  Yes, My Lord, of the report.  Yes, Thank you. 21804  Proceedings  Cross-exam by Mr. Grant  1 Q  2  3 "Recognition that protohistoric European  4 developments took place and were significant  5 has one very important implication.  It casts  6 suspicion on any portrayal of a 'pristine' or  7 truly aboriginal way of life based on  8 contemporary knowledge."  9  10 What do you mean by "contemporary knowledge"?  11 What are you referring to?  12 A   In that place I think I was referring to contemporary  13 knowledge in the broad sense, so that if people are  14 observing native life contemporary with them at any  15 time.  For instance, I think this phrase refers to  16 Brown's observations of Indians as much as Adams'  17 observations of Indians.  So by "contemporary" I mean  18 at the same time as, in that sentence.  When I refer  19 in the next sentence to "none of our contemporary  20 knowledge", I am referring to the present or 1987,  21 when I wrote the report.  22 THE COURT: So contemporary there means then current?  23 THE WITNESS:  Then current, yes.  2 4    MR. GRANT:  25 Q   Do you suggest that William Brown portrayed the truly  26 aboriginal way of life, a pristine or truly aboriginal  27 way of life?  2 8 A   No.  29 Q   Are you aware of the work done by William -- oh, let  30 me ask you this.  Would contemporary knowledge include  31 the oral histories of the aboriginal people  32 themselves?  33 A   To some extent, although I would say that the  34 interpretation of those oral histories by people today  35 is problematic.  36 Q   But the interpretation of those oral histories by  37 certain of the ethnographers upon whom you rely is not  38 problematic?  39 A   No, I'm not saying that.  40 Q   Well, when you -- you do agree that the majority of  41 your sources are ethnographic sources?  42 A   Yes.  Oh, well, maybe I should do a bit of a head  43 count here.  I think --  44 Q   Go to page 84.  45 A   Some of its ethnographic, ethnological, some of its  46 historic, and some of its --  47 Q   Did you say something -- 21805  Proceedings  Cross-exam by Mr. Grant  1 A   You said ethnographic, and I said well, perhaps we  2 should do a head count, because there is a lot of  3 ethnology there as well.  4 Q   I should have said ethnology.  So the majority is  5 ethnological is what I meant.  Go to page 84.  Adams,  6 Allen and Barbeau.  That's ethnology, right?  7 A   Yes.  8 THE COURT:  Well, I'm sorry, but if you are going to have this  9 kind of a distinction made, I have to know what are  10 the specifications of ethnology.  11 MR. GRANT:  As opposed to ethnography?  12 THE COURT:  Yes.  And as opposed to all these different  13 disciplines.  So can you -- can somebody tell me  14 briefly what they include within ethnology, and within  15 ethnography?  16 MR. GRANT:  Okay.  17 Q   Dr. Robinson, the Beynon Barbeau transcriptions of  18 oral histories, would be an example of ethnography,  19 according to my understanding.  Would you agree with  20 that?  21 A  Where they are verbatim descriptive accounts, yes.  22 Where there are some synopsis or summaries by Barbeau,  23 for instance, ethnology -- you see, there is a  24 mixture, because there are commentaries on the  25 descriptions.  And the distinction we are making here,  26 I think, if this is what you are talking about --  27 Q   Just let me --  28 MR. WILLMS:  Let the witness finish.  29 THE WITNESS:  Are you making — well, maybe you can —  30 MR. GRANT:   I can help you here.  I think that you have made a  31 good point.  When I say the Barbeau Beynon oral  32 histories, I am not talking about Barbeau's  33 commentaries on those histories.  I mean the material  34 I showed you the other day.  35 THE COURT:  The verbatim accounts.  36 MR. GRANT:  The verbatim accounts, okay.  37 Q   You understand?  That's what I am specifically  38 referring to, and that would be ethnography.  That's  39 what you have just explained.  40 A  And if we are really going to mix points, I would say  41 that when they are recorded in the native language,  42 then they are ethnography.  As soon as there is any  43 interpretive suggestion, even translation, then  44 perhaps we are talking ethnology.  You know, to me  45 it's a mincing of words at this point.  I think that  46 the Barbeau-Beynon materials are largely ethnographic,  47 but there is certainly the commentary or commentaries 21806  Proceedings  Cross-exam by Mr. Grant  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  by people who are also knowledgeable about  ethnological matters in them.  So getting a mixture of  both those --  Maybe I can assist you here.  Do you know Dr. Marjorie  Halpin?  I know of Dr. Halpin.  She's reknowned in the field of ethnology,  anthropology?  She teaches at U.B.C, I believe, in the anthropology  department.  She's respected in the field?  I believe so.  This has already been marked as an exhibit.  :  This is Mr. Beynon, isn't it?  A  Q  A  Q  A  Q  THE COURT  MR. GRANT:  This is Mr. Beynon.  It was an exhibit in, I  believe, Susan Marsden's evidence.  Q   Can you turn over to the first page, William Beynon,  ethnographer.  Are you familiar with this paper by Dr.  Marjorie Halpin?  A   Yes.  I haven't read it very recently, but yes, I have  read it.  Q   Okay.  Go to page 142 at the top.  And Marjorie Halpin  states:  "For the purposes of this paper, then, I will  define an ethnographer as one who solicits  cultural information from an informant, and  ethnography as the data resulting from that  solicitation, i.e., produced during the course  of the informant/ethnographer relationship.  Is that for our purposes a satisfactory definition  of an ethnographer?  But the comments by -- referring to Burridge on the  first page has caught my eye.  I am going to spend one  minute with that reviewing that, if I might.  :  I would ask this be marked.  :  Tab 19.  A  MR. GRANT  THE COURT  THE REGISTRAR:  Yes, My Lord.  THE REGISTRAR  MR. GRANT  THE COURT  MR. GRANT  (EXHIBIT NO. 1191-18 - WILLIAM BEYNON  ARTICLE BY MARJORIE HALPIN)  Tab 18, I think, My Lord.  It's Tab 18, My Lord.  Quite right.  Thank you. 21807  Proceedings  Cross-exam by Mr. Grant  1 Q   So what I am asking you here about these sources of  2 yours, doctor --  3 A   Yes.  4 Q   When I am asking you about the sources commencing at  5 page 84, and I will refer to these persons as  6 ethonologists, and there I am referring that they have  7 done interpretive or some kind of commentary on  8 ethnography.  Would that be a fair way of describing  9 an ethnologist?  10 A   Yes and no.  Two people that spring to mind  11 immediately, three actually, are Frederica De Laguna,  12 Catherine McClellan and Viola Garfield, all of whom  13 conducted extensive ethnographic research, as opposed  14 to ethnological work --  15 Q   You are anticipating my next point.  16 MR. WILLMS:  My Lord, my friend should let the witness finish  17 when she starts answering a question.  18 THE COURT:  I think that that point is well stated.  19 MR. GRANT:  20 Q   You anticipated my next point, which is I am not  21 suggesting when I call these persons ethnologists,  22 that they have not -- that they may well -- some of  23 them may well have done fieldwork or ethnography, as  24 defined by Dr. Halpin, okay.  For example, John Adams  25 did fieldwork is a example, so we could say he did  26 ethnography and ethnology.  I am not trying to slice  27 the pie that way here.  You understand?  28 A   Yes.  29 Q   So if I say -- what I am saying -- as opposed to  30 historians, as opposed to travellers such as, I think,  31 Bartlett, these kinds of commentaries, I am talking  32 about persons in the field of ethnology.  You  33 understand?  You don't understand?  34 A   I have hesitations about -- I think Halpin herself was  35 expressing hesitations about being glib about a  36 description of ethnography.  I will accept the comment  37 that she makes on the second page here, but I am aware  38 of her reference to Kenelm Burridge's reminder that  39 ethnography only exists properly in the context of  40 ethnology, and otherwise it is nothing more than a  41 travel log.  42 Q   Well —  43 A   So that's why I was hesitating with this piece.  44 Q   All I am trying to do, Dr. Robinson, is to determine  45 if you -- the number of sources you rely on were in  46 the field of ethnology, and if some of them have done  47 ethnography as well as ethnology, that's fine.  I am 2180?  Proceedings  Cross-exam by Mr. Grant  1  2  3  4  5  A  6  7  8  Q  9  10  11  12  13  A  14  Q  15  A  16  Q  17  18  A  19  Q  20  A  21  Q  22  23  24  25  26  THE  COURT  27  28  29  MR.  GRANT  30  31  THE  COURT  32  THE  WITNE  33  MR.  GRANT  34  THE  COURT  35  36  MR.  GRANT  37  38  39  THE  COURT  40  41  MR.  GRANT  42  THE  COURT  43  MR.  GRANT  44  45  THE  COURT  46  47  MR.  GRANT  not suggesting they haven't, okay.  But ethnology as  opposed to history, or as opposed to geography, or as  opposed to fur trading, okay.  That's all I am trying  to do here, so that we understand each other.  Okay?  I think I indicated a few times that I have difficulty  with these very firm disciplinary boundaries,  especially with people like Dr. McClellan's work.  Okay.  Well, the field of ethnology and those sources  you rely on in that field include, starting on page 4,  John Adams, Wayne Allen and Marius Barbeau, is that  right, and I think Amsden that you referred to as  being in MacDonald?  I'm not sure of the Amsden reference --  Okay —  I'm not sure .  On the second page Franz Boas would not be in this  field?  I'm sorry, you included Barbeau in the first set?  Uh-huh.  On page 84.  He's also an ethnographer.  I am not saying it's exclusive.  You don't have to  make that caution.  There is no need to.  I am just  getting the generic field as opposed to, as I say, the  historians and trappers and these kinds of people.  Franz Boas is involved in ethnology on page 85.  Well, I'm gathering that an ethnographer is engaged  in the field of ethnology.  I gather that an  ethnologist isn't necessarily an ethnographer.  I think that would be -- that certainly seems to be  my understanding.  Is that right?  S:  I think that probably simplifies things, yes.  So maybe --  You want the witness to tell me which ones did  ethnographic work?  No.  I am just trying to get which ones are in the  field of ethnology, as opposed to the field of  history.  You don't care about the distinction ethnology and  ethnography?  I am not concerned about that.  What have we been doing for the last ten minutes?  I think I ensnared myself in something I didn't want  to.  All right.  We want to differentiate amongst these  authors as between ethnology and history?  Yes. 21809  Proceedings  Cross-exam by Mr. Grant  1  THE COURT  2  3  THE WITNE  4  5  6  7  MR. GRANT  8  Q  9  A  10  Q  11  A  12  13  14  15  16  17  18  19  20  21  Q  22  23  24  A  25  Q  26  27  28  29  30  31  32  33  A  34  Q  35  A  36  Q  37  A  38  Q  39  A  40  Q  41  A  42  43  Q  44  45  A  46  Q  47  A  :  All right.  That should be easy.  I'm sure it won't  be.  3S:  I don't know if we started with that.  I think we  were talking about ethnography, ethnology, and now we  are talking ethnology and history.  I'm sorry, I am  getting confused.  John Adams isn't a historian?  He makes some reference to historic materials.  Is he a historian?  Are we talking about where people hang their academic  hats?  When people do work that relates to  ethnohistory, and are using both historic materials,  ethnographic materials, and in addition are analyzing  or interpreting those materials, as I have indicated  before, I don't feel happy about compartmentalizing  those works.  I think most people working in this  field would be drawing on a variety of sources coming  out of different disciplinary niches, but that's -- so  I'm sorry if --  Let me try to make it easier for you.  Let's go back  to square one.  Just forget the last ten minutes  happened.  All right.  Which of these authors relied on ethnographic  material, I'll just say that, and then we don't have  to put them in an academic camp or any of that.  That's my question to you.  They may have done it  themselves, they may have had somebody else do it,  they may have sat in a library, I don't care.  I just  want to know which ones relied on ethnographic  material.  Shall we go through the list?  John Adams?  Yes.  Wayne Allen?  I would say A.C. Anderson, yes.  A.C. Anderson relied on --  Firsthand observation of the Indian peoples.  Okay.  And wrote about them.  So he's doing ethnography, even  if it's before the discipline's invented.  Okay.  So you would -- he would have, for example,  relied on peoples' statements such as what?  Such as Indians telling him about their ways of life.  Wayne Allen?  Yes. 21810  Proceedings  Cross-exam by Mr. Grant  1 Q   Marius Barbeau?  2 A   Yes.  3 Q   Page 85, Franz Boas?  4 A   I would say similarly, if we keep going in  5 alphabetical order, some of Bartlett's comments are  6 also records of observations about Indians, and I  7 don't remember offhand if he interviewed people, but  8 he certainly described ways of life, as did many of  9 the other maritime fur traders.  10 Q   He didn't —  11 A   Bishop relies on ethnographic information.  12 Q   Just a moment.  Bartlett didn't -- he observed -- he  13 wrote about what he observed, but he didn't rely on  14 interviews with Indian people, did he?  15 A   To the extent that the merchants on the coast were  16 having daily interactions with native peoples with  17 whom they were bartering and trading furs, yes, I  18 think he probably did.  19 Q   Okay.  Charles Bishop relied on ethnography?  20 A   Yes.  21 Q   Franz Boas?  22 A   Yes.  23 Q   Any others on that page?  24 A   Charles Borden.  25 Q   Uh-huh.  26 A   The Robert Campbell journal is a similar kind of  27 report to the Daniel Harmon materials.  So that's also  28 got ethnographic description, although it's an early  29 historic report.  30 I don't know if Carlson's paper does specifically,  31 because that's archaeological, but in his description  32 of inferring trade networks from material  33 archaeological remains, he is certainly talking about  34 a broad knowledge of anthropological sources.  35 Chittenden, I don't remember offhand.  36 Cranny certainly uses ethnographic sources.  37 William Dall's "Coast Pilot" is both a review of  38 the early maritime history, as well as a place name  39 gazetteer for the Alaskan Archipelago, and in that  40 sense has observations about the native populations.  41 Q   But does Dall rely on ethnographic material?  42 A   Dall was up in the area, and many of his observations  43 are firsthand for southeastern Alaska.  Although the  44 corpus of that "Coast Pilot" works has been of value  45 to me, because it contains descriptions and extracts  46 relating to the maritime fur trade logs.  I haven't  47 checked it for ethnographic -- 21811  Proceedings  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  THE COURT:  MR. GRANT:  THE  THE  THE  Q   I would like to get through this, if I could, today.  A   Okay.  Q   I appreciate all these things are important for  different reasons, but ethnography is what I am  interested in.  A   Basically I am saying that most of these have some  connections with the ethnographic literatures --  Q   Davidson, De Laguna, Duff?  A  Well, "The Journal of John Work" is firsthand  ethnographic description, as well as historic  sources --  Dee, yes.  I'm sorry, but I'm not sure what I am supposed to  put down for Davidson and Dee and De Laguna.  Davidson, Dee and De Laguna and Duff have all  relied on ethnographic material.  WITNESS:   Or been creators of ethnographic material.  COURT:  How about Dawson?  WITNESS:   Well, Dawson and the Dee version of John Works'  journals are both reflections of people who made  firsthand observations about the native peoples they  encountered.  And so this is direct ethnography, even  if it doesn't have the economic name associated with  it.  Mr. Grant, I don't know any reason why we can't  continue this in the morning.  We have got eight or  nine pages yet to go.  GRANT:  I see no reason, My Lord.  COURT:  All right.  Look forward to having this complete  tomorrow morning.  GRANT:  My Lord, Exhibit 11918 is also Exhibit 1042-5.  COURT:  9:30 convenient?  Yes, Thank you.  REGISTRAR:  Order in court.  Court stands adjourned until  9:30 A.M.  (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  THE COURT  MR.  THE  MR.  THE  THE  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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