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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-18] British Columbia. Supreme Court May 18, 1990

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 26903  Submissions by Mr. Willms  1 MAY 18, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 18th day of May, 1990, Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Mr. Willms, I omitted to remember — I forgot when  8 you mentioned an evening sitting on Tuesday that I had  9 made a commitment for Tuesday.  I didn't make it until  10 I was told that we weren't going to be having the  11 evening sitting.  12 MR. WILLMS:  Yes.  13 THE COURT:  It isn't essential that I be there.  I could hang in  14 here and carry on.  It was arranged partly for my  15 convenience.  I could sit Tuesday or Wednesday.  16 MR. WILLMS:  You mean Wednesday or Thursday.  17 THE COURT: Wednesday, Thursday evening.  18 MR. WILLMS:  All right.  It's just — I will see how I am at the  19 end of the day, and maybe I can -- we won't need it.  20 But it wouldn't matter which day.  We just wanted to  21 pick one day next week.  22 THE COURT:  As I say, I can sit either Wednesday or Thursday, or  23 we can hang in here if we have to.  24 MR. WILLMS:  I would still like to sit until 5:30 on Tuesday,  25 and then perhaps we could tentatively mark in Thursday  26 night then.  27 THE COURT:  I won't make any more commitments next week, unless  28 I get a better offer.  29 MR. WILLMS:  My lord, I was on page 25 of my argument in  30 paragraph 42.  And I had referred to the diagram from  31 Dr. Bishop and Dr. Ray's report, and I am going to  32 carry on in the middle of the page.  And I submit that  33 Dr. Mills and Dr. Daly relied wholly on what they were  34 told by their informants, not only as to present  35 events, but past events as well.  As Dr. Mills said  36 and accepted, the Wet'suwet'en perceived themselves as  37 having been in situ in the location where they are  38 found now since the very earliest times that this is  39 basically their homeland.  And I submit, my lord, that  40 perception is not evidence that they were actually in  41 situ since the earliest times.  42 I also submit, my lord, and this is at the bottom  43 of page 25, that in coming to their conclusions about  44 occupation, this is prehistoric occupation, both Dr.  45 Mills and Dr. Daly appear to have substituted partisan  46 subjectivity for scientific objectivity.  47 At the top of page 26 I say the opinions of Dr. 26904  Submissions by Mr. Willms  1 Mills and Dr. Daly ignore or misinterpret the  2 historic, linguistic and archaeological evidence  3 respecting where people lived in the prehistoric past  4 and deserve no weight.  A fundamental problem with the  5 evidence given by Dr. Daly, Dr. Mills and Mr. Brody is  6 that they think it is in the best interest of the  7 Gitksan and Wet'suwet'en for the anthropologists to  8 help reconstruct and record their history.  That was  9 put by my friend Mr. Grant, that proposition was put  10 to Dr. Robinson, and her response, in my submission,  11 was the appropriate response for an anthropologist,  12 and it was that she would not want to speak for the  13 Gitksan and the Wet'suwet'en about what is in their  14 best interest.  She wouldn't presume to do so.  And I  15 take from that that what she would do is do her  16 anthropological, archaeological or cultural geographic  17 work without interest to anybody's so-called best  18 interests.  19 MR. GRANT:  Just so that I can be clear.  That quote of the —  20 "it is in the best interest", was that something put  21 to Dr. Daly, Dr. Mills or Mr. Brody by my friend?  22 MR. WILLMS:  No.  It's one handy thing about the yellow binders,  23 and this is how the yellow binders work.  My friend  24 can go to tab 43 and find the evidence in support of  25 the submission, and so at tab 43 you will see there,  26 my lord, my friend Mr. Grant putting that proposition  27 to Dr. Robinson as if that's the appropriate way to do  28 research.  And what I am submitting is that since Mr.  29 Grant is putting that to Dr. Robinson as the  30 appropriate way to do research, that must have been  31 the way that Dr. Daly, Dr. Mills and Mr. Brody did it.  32 THE COURT:  Of course there is a quality that's missing in your  33 submission, and is presumably of the question that  34 it's in their interest to help them reconstruct and  35 record their history is presumed to be that that's to  36 be done objectively.  That would be in their interest.  37 MR. WILLMS:  And I deal with that in the next paragraph, My  38 Lord.  39 THE COURT:  All right.  40 MR. WILLMS:  I will deal with the approach that was taken, I  41 say, by Dr. Mills, Dr. Daly and Mr. Brody.  I say  42 first of all that it appears clear from the contracts  43 signed by the experts for the plaintiffs, and your  44 lordship has seen those contracts where everything is  45 basically subject to the okay of the Gitksan,  46 Wet'suwet'en Tribal Council, that they were ready to  47 present the Native Canadian viewpoint when called upon 26905  Submissions by Mr. Willms  1 to interpret the cultural historical record.  And, my  2 lord, if you can turn to tab 44 in the yellow book,  3 you will see Dr. Robinson's cross-examination by Mr.  4 Grant, and Mr. Grant is putting -- starting to put a  5 proposition to Dr. Robinson here at line 29.  And what  6 Mr. Grant is reading from is a work by Dr. Leacock.  7 And he reads this:  8  9 "Indeed, it is sheer racism to imply that  10 somehow the latter should not have changed  11 greatly over time, and straight chicanery to  12 argue that since they have they are no longer  13 the same peoples."  14  15 And I emphasize the next.  16  17 "In the end, it is more than meticulous  18 scholarship that counts."  19  20 Which take to be objective scholarship.  21  22 "It is an anthropologist's ability and readiness  23 to participate in public hearings and present  24 the Native Canadian viewpoint when called upon  25 to interpret the culture historical record."  26  27 And I say, my lord, that that is the big  28 difference in the approach that Dr. Robinson took to  29 the approach of Dr. Daly, Dr. Mills and Mr. Brody.  30 All there's of the plaintiffs' experts that I have  31 mentioned, and you can put Dr. Galois in there as  32 well, because he admitted as much in his  33 cross-examination, were approaching everything from  34 the plaintiffs' viewpoint.  And that is the approach  35 that they brought to bear.  36 What I say is that Dr. Robinson didn't go in with  37 any approach.  She went in with an idea.  She went in  38 with a theory, a theory that she developed in the  39 dissertation, and a theory which she fleshed out in  40 her evidence presented to this court, so that she had  41 a theory before she started, and then found further  42 evidence to support that theory.  Here the plaintiffs'  43 experts have all, in my submission, been advocates for  44 the plaintiffs' point of view, not for their own  45 theories.  46 I'll come back to Dr. Ray in a moment, my lord,  47 because that's clear from Dr. Ray when he changed his 26906  Submissions by Mr. Willms  1 opinion, and it's clear as well from the fact that Mr.  2 Overstall deleted part of Dr. Rigsby's opinion, in my  3 submission.  4 Now, I am in particular in paragraph 44 dealing  5 with Dr. Mills, because Dr. Mills then herself wrote,  6 and this is a note to Dr. Galois:  7  8 "We are commissioning Lame Arthur's son  9 now."  10  11 We are now -- she as part of the plaintiffs' team  12 was taking part in the commission evidence of a lay  13 witness, and we are commissioning him now.  And  14 then -- and I would like to read the part of the  15 flowery funeral speech, and that's her words, at the  16 service for Moses David, and that's at page 8, my  17 lord, of tab 44.  And here is -- starting at line 13  18 of page 8.  This is quoting from what Dr. Mills  19 herself wrote.  She said:  20  21 Q      'I am working for the G.W.T.C. on the land  22 claims case.'  23 Do you see that?  24 A   Yes.  25 Q   And then you went on to say how you would come  26 to know Moses David?  27 A   Uh-huh.  2 8 Q   And you recount some meetings you had with  29 Moses David?  30 A   Yes.  31 Q   And at the bottom you say:  32 'Moses is no longer in the body so he  33 cannot carry on the land claims work, but  34 from wherever he is he is looking down and  35 hoping the injustice will end and that it  36 will be on earth as it is in heaven.'  37 A  My goodness.  Flowery funeral speech."  38  39 Now, it is my submission, my lord, that in  40 assessing the evidence of the experts in this case,  41 that comments like that, and I will come to a comment  42 by Dr. Daly a little later in my submission, and I  43 will come to Mr. Brody later in my submission as well,  44 but when you are considering those three individuals,  45 they were not only advocating a viewpoint, they were  46 partisan in their advocacy.  So it's more than just a  47 scientist who is advocating their own scientific 26907  Submissions by Mr. Willms  1 viewpoint.  In my submission these people were  2 advocating the plaintiffs' point of view as well.  And  3 I say that at the bottom, my lord, I say that the best  4 that can be said about the plaintiffs' anthropologists  5 is that they were advocates for the plaintiffs in  6 presenting the plaintiffs' viewpoint.  The other  7 alternative is that these anthropologists feel obliged  8 to provide expert paternalism and guardianship to the  9 plaintiffs.  And I say that because they appear to  10 think that they know what's in the plaintiffs' best  11 interests, in my submission.  This is a submission.  12 MR. GRANT:  I just want to be clear that that quote my friend  13 referred to that's in tab 43 is a quote from Eleanor  14 Leacock, which I asked Miss Robinson about.  But I  15 wonder if my friend has any evidence in support of  16 that last statement that he makes there.  I say there  17 is no evidence of that, and my friend, of course,  18 doesn't have any citation in support of that  19 proposition.  20 MR. WILLMS:  My lord, what I rely on is I rely on my friend Mr.  21 Grant's question to Dr. Robinson as my friend not  22 trying to mislead Dr. Robinson, but seriously  23 suggesting to Dr. Robinson that what he's quoting is  24 the appropriate way to do field work.  That's what I  25 am relying on to start with, that my friend wasn't  26 trying to trick Dr. Robinson, that he actually meant  27 what he said, and that that was an appropriate way do  28 field work.  29 The second thing that I am relying on in that  30 case, my lord, is the evidence of the witnesses  31 themselves.  And I have talked a bit about Dr. Mills.  32 The last line on the top of page 27 where I say the  33 only people who appear to have no say in what is in  34 their best interests are the inhabitants of the claim  35 area, native and non-native, who do not happen to be  36 hereditary chiefs.  And I say that because Dr. Mills  37 acknowledged -- Dr. Daly acknowledged that they only  38 talked to, except for very few exceptions, hereditary  39 chiefs in coming to their conclusions.  40 Dr. Daly in coming to his conclusions about the  41 seasonal round didn't consider that the seasonal round  42 for the native population might be very close to the  43 seasonal round for the non-native population in  44 Kispiox.  They might both go hunting for moose, and  45 your lordship heard some evidence from witnesses who  46 live in the land claim area, that they carried on  47 their lifestyle very similar to the way that the 2690?  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  plaintiffs carried on their lifestyle.  So that's the  non-natives.  And in respect of the native people who  aren't chiefs, just rely on Dr. Daly's admission,  which I am going to come to later, and Dr. Mills'  acknowledgement, that they basically talked to  hereditary chiefs and that was it.  I'll get to that  later on in my submission when I talk about Simgiget,  Lixgiget and the class society.  THE COURT: Mr. Grant, it seems to me that the bottom of page 26  Mr. Willms made it clear that he was making an  argument.  He said the other alternatives were that  these anthropologists feel obliged.  Seems to me that  is a submission.  Just the two sentences.  I just -- I mean, it's just  that none of this kind of a proposition was in my  submission put to the three experts which he is now  dealing with.  I think it clearly was put to them that they were not  objective.  The suggestion was made to them.  They  refuted it, as most subjective people do.  Most of us  think we are objective.  Sometimes we are.  Well, yes, and he's made it clear now what he is  referring to by reference to Eleanor Leacock's  statement to Dr. Robinson, and that's what he is  relying on, and that answered that question.  COURT:  All right.  Thank you.  WILLMS:  Carrying on, my lord, in paragraph 45.  I say that  if there is any consistent interpretational thread to  prehistoric, proto-historic and historic occupation in  the area, it is that the fur trade seems to have  spurred the Gitksan occupation of the middle Nass and  especially the Upper Nass and the Upper Skeena.  And  on that point, my lord, at tab 45, if I could ask your  lordship to turn to page 7, and at the top of the  page, my lord -- and this is Dr. Ames from the Skeena  River pre-history exhibit, but this is Dr. Ames  speaking.  Dr. Ames says in the first --  Excuse me a minute, Mr. Willms.  If I could find out  where the reference is that you are referring to, it  would make it easier for me to find it.  WILLMS:  The reference is Exhibit 881A-7, and, my lord, what  I have done in this document is the exhibit numbers  are on the first page.  When you go through the yellow  book.  COURT:  Yes.  WILLMS:  For example, if you look back two pages from page  7, if you look back to page 5, you will see up in the  MR. GRANT:  THE COURT:  MR. GRANT:  THE  MR.  THE COURT:  MR.  THE  MR. 26909  Submissions by Mr. Willms  1 upper corner 881A-7.  And that's the way the book is  2 set up, so that if there is an exhibit in here on the  3 very first page that comes from that exhibit.  4 THE COURT:  I haven't found it yet, but —  5 MR. WILLMS:  It's right across from the middle three-hole punch  6 on that page over the right-hand side, 881A-7.  7 THE COURT:  All right.  Thank you.  8 MR. WILLMS:  All right.  And, my lord, I am going to point to  9 two places in this exhibit.  The first line:  10  11 "Linguistic and ethnographic evidence indicated  12 that the Gitksan, the interior extension of the  13 Tsimshian, were the result of the enculturation  14 of Athapaskan speakers."  15  16 And Dr. Ames refers to Rigsby 1969 and John Adams,  17 "The Gitksan and Potlatch 1973".  And then over to  18 page 10.  19 THE COURT:  He says there was a major Gitksan settlement in  20 Hazelton in 1820.  21 MR. WILLMS:  In 1820.  22 THE COURT:  Yes.  23 MR. WILLMS:  My lord, I think the reference there may be to the  24 divided village, and there are some references to the  25 divided village.  But he does say that.  He says that  26 there is a village there at 1820.  We have been  27 through the historical documents, my lord, but he says  28 that.  2 9 THE COURT:  Yes.  30 MR. WILLMS:  My lord, over to page 10.  31 THE COURT:  Yes.  32 MR. WILLMS:  "From the data outlined above".  It's the last  33 paragraph.  34 THE COURT:  Yes.  35 MR. WILLMS:  36  37 "... we can develop a tentative schedule for the  38 upriver extension of Tsimshian social  39 organization within the last two millenia.  40 Some form of ranked society probably developed  41 within the Prince Rupert Harbour by 500 B.C.  42 This system had extended up the Lower Skeena by  43 A.D. 1000, relying upon both Rigsby's and  44 Allaire's dates.  It would appear that the  45 process above Kitselas had not been completed  46 by the 1830's judging by Adams' reading of  47 Barbeau's notes.  It may be that enculturation 26910  Submissions by Mr. Willms  1 was intensified by a development of a closed  2 population system within the last hundred years  3 or so."  4  5 Now, I am going to turn to the two references, the  6 Rigsby reference and the Adams reference, because they  7 were both the subject of comment by Dr. Kari.  8 THE COURT:  What do you think is a closed population system?  9 MR. WILLMS:  I think a closed population system, my lord, is  10 where there are -- there is no more enculturation  11 taking place, that things have settled down.  12 THE COURT:  Where culture is static?  13 MR. WILLMS:  My lord, the whole article deals with closed  14 population systems, and all I can do is commend the  15 article to you.  16 THE COURT:  You can't tell me what they suggested -- you think  17 it means --  18 MR. WILLMS:  The closed pop -- the theory of closed population  19 system, as I understand it, is that they are  20 attempting to determine where you get a stable  21 population in a particular location, and then you  22 figure out whether there are enough resources around  23 to maintain that population level, without in  24 migration and out migration.  That's what I understand  25 it to be.  2 6 THE COURT:  All right.  27 MR. WILLMS:  Now, the next reference, my lord, is to page 17 of  28 this tab, and this is to exhibit -- page 17.  This is  29 883-1.  That's the exhibit that is being referred to  30 here.  And this was a draft of the Rigsby, Kari  31 report.  And in the draft starting at the top of the  32 page the draft said:  33  34 "There is also some tantalizing evidence for  35 transitional bilingualism involving language  36 shift from Athabaskan to Gitksan.  Adams says:  37  38 ... as recently perhaps as the 1830s half the  39 inhabitants of Gitsegyukla spoke the Hagwilget  40 language and the village of Kitwancool was  41 'half Stikene'.  42  43 Adams was one of the Northwest Coast  44 Ethnologists for the National Museum of Canada  45 and he worked through many of Marius Barbeau's  46 unpublished fieldnotes.  And Jenness says:  47 26911  Submissions by Mr. Willms  1 "...Some Wet'suwet'en assert, indeed, that the  2 inhabitants of Gitwinkul itself once spoke the  3 T'set'saut Athabaskan tongue ..."  4  5 If these reports are correct, this provides  6 further support for the proposition that the  7 Gitksan were a primary reference group for  8 Athabaskan speakers rather than vice-versa."  9  10 Now, at page 18 you will see that I put that  11 deletion to Dr. Kari starting at line 34.  I said:  12  13 "Q   At the bottom of the page you have got the  14 words 'Thus the linguistic evidence', but the  15 whole paragraph about the tantalizing evidence  16 about transitional bilingualism --  17 A   That's missing, isn't it?  18 Q   That's all been deleted, hasn't it?  19 A   Gee, I didn't know that.  I certainly wouldn't  20 want to take that out.  21 Q   No.  You would want that in, wouldn't you?  22 A   Yeah.  There is nothing controversial about it,  23 I mentioned it here in court yesterday, and I  24 guess you are right, it really wasn't in our  25 report, was it, the Adams' quote is not in our  26 report?  27 Q   No.  28 A   That's a good point.  Can we add it?  29 Q   Well, all I want to know, the first page is if  30 you adopt that it can be added.  You think that  31 should be in?  32 A  Well, I —"  33  34 And your lordship said:  35  36 "It is in."  37  38 And there is a section of the report that was  39 taken out and put back in, and I submit it was taken  40 out by Richard Overstall, because it's inconsistent  41 with the plaintiffs' theory.  42 THE COURT:  When I said "It is in", I was referring to the fact  43 that it had already been read.  44 MR. WILLMS:  I would say not only that when your lordship said  45 that it's in, you are referring to the fact that it's  46 already read, but Dr. Kari clearly adopted it as part  47 of his evidence.  He thought it was great. 26912  Submissions by Mr. Willms  1 Now, turning over to page 21, I put another -- and  2 this is to Dr. Kari again.  I put another deletion,  3 and this is a deletion from the draft -- this did not  4 go into the final, but starting at line 9:  5  6 "Many small Athabaskan-speaking hamlets and  7 local groups, such as the Gitxsinjihl of  8 Caribou Creek must have been gradually and  9 peacefully Gitksanized in socioculture and  10 speach.  The fur trade seems to have spurred  11 the Gitksan occupation of the Middle Nass, and  12 especially the Upper Nass and Upper Skeena  13 territories.  As many oral traditions testify,  14 this was not a peaceful gradual process, but  15 some Athabaskan place names were retained.  It  16 is interesting to note that there were no  17 Gitksan permanent winter villages on the Middle  18 or Upper Nass, nor on the far Upper Skeena.  19 There were summer fishing camps and  20 hunting-trapping grounds in these territories,  21 but the real bases of operation were the large  22 winter villages at Kitwancool, Kispiox,  23 Kisgegas and Kuldoe.  It was during this same  24 period of the fur trade that the Nishga and the  25 Tlingit, along with epidemic disease, reduced  26 the Tsetsaut Athabaskans of Portland Canal to a  27 handful of survivors by the turn of the  2 8 century."  29 Now, just first of all, Dr. Kari, did you  30 have anything to do with taking that out of the  31 final?  32 A   No.  33 Q   But recognize that this is Dr. Rigsby's view in  34 1987?  35 A   Yes.  I think you are right."  36  37 So it is my submission, my lord, that the  38 statement that I make in the first part of the  39 paragraph on page 27 is not only supported -- and I  40 haven't read the other references, the references to  41 Dr. Robinson, the references to the "Epic of Nekt",  42 and the other references which are all consistent with  43 the Gitksan move into the Upper Skeena and the middle  44 and the Upper Nass in response to the fur trade.  45 The next point, my lord, carrying on after all of  46 the references that I have given there.  Well, perhaps  47 I will, my lord, refer to what Ms. Albright said, 26913  Submissions by Mr. Willms  1 because it's at page 29 of the -- I'll add one more  2 reference.  It's at page 29 of the yellow book, and I  3 ask Ms. Albright this because she did work with the  4 Tahltans, Tahltan Ethnoarchaeology.  And the question  5 is at line 4:  6  7 "Q   In your Tahltan ethnoarchaeology, did you  8 become aware during your research there or your  9 research in preparing for your  10 ethnoarchaeological evidence here, aware that  11 Tsetsault?  12 A   Yes.  13 Q   And at one point the Tsetsault were located as  14 a group somewhere between the Tahltans, who you  15 investigated, and the Gitksan?  16 A   Yes."  17  18 Now, the next point, my lord --  19 THE COURT:  I have lost a little bit of my recollection.  Is it  20 the case that at the present time there are no  21 T'set'saut in that area?  22 MR. WILLMS:  I don't think there are any T'set'saut at all.  And  23 I understand from the evidence that the language is  24 extinct, and that it was a combination of warfare and  25 disease.  26 THE COURT:  A moment ago we saw some reference, was it, that the  27 T'set'saut were at the Portland Canal.  28 MR. WILLMS:  Portland Canal across, my lord.  And I wanted to  29 put up Exhibit 875 on the board, and I may turn to  30 that later, but Exhibit 875 is the Suttles map.  Dr.  31 Kari gave evidence that that map represented  32 linguistic divisions at the time of contact.  33 THE COURT:  Yes.  34 MR. WILLMS:  And the Suttles — perhaps I could get the exhibit  35 and come back to this, My Lord.  But the Suttles map,  36 if you took a pen and went and drew a line from Kuldoe  37 about over to Bear Lake and went north, the word  38 "T'set'saut" is in there from that line north.  39 THE COURT:  Do you know the number of the Suttles map?  40 MR. WILLMS:  Exhibit 875.  Perhaps while we are waiting for the  41 map, I'll just finish -- I say towards the bottom of  42 page 27 the Gitksan also appear to have "lodged  43 between the Kitimat and the Bulkley River Carrier like  44 a wedge" in the last few centuries.  And the reference  45 there, my lord, is at page 36 of the yellow book,  46 which is an extract from Jenness.  47 THE COURT: I'm sorry, you move to where? 26914  Submissions by Mr. Willms  1 MR. WILLMS:  I have now moved to page 36.  2 THE COURT:  Yes.  3 MR. WILLMS:  And this is from Exhibit 908, which was marked  4 during Dr. Mills' evidence in chief, and at the bottom  5 of page 36, this is Dr. Jenness speaking:  6  7 "Still another coast people with whom the  8 Bulkley Carrier came into conflict were the  9 Kitimat Indians of Douglas Channel, a Kwakiutl  10 speaking people who sometimes hunted beyond the  11 divide of the Cascade Mountains within the  12 basin drained by the Zymoetz and Telkwa Rivers.  13 It is noteworthy that both the Kitimat and the  14 Carrier Indians were divided into five  15 phratries, one of which was named the Beaver,  16 and that neither a five-phratry division nor a  17 phratry called the Beaver seems to appear  18 anywhere else in Briitsh Columbia.  This  19 supports the tradition of the Bulkley Carrier  20 that they borrowed several features in their  21 peculiar social organization from the Kitimat  22 Indians, and suggests that a few centuries ago  23 the contact between the two peoples may have  24 been more intimate than in recent times when  25 the Gitksan have lodged between them like a  2 6 wedge."  27  28 THE COURT: The two people he is talking about is the Kitimat and  29 Bulkley Carrier.  30 MR. WILLMS:  The Kitimat and the Bulkley Carrier?  31 THE COURT:  Yes.  32 MR. WILLMS:  And for another movement of the Carrier, my lord, I  33 carry on at the bottom of page 2.  The Bulkley River  34 Carrier appears to have moved south around Eutsuk Lake  35 in the 1830s.  And my reference there is to the  36 cross-examination of Dr. Kari at page 39 of this tab  37 of the yellow book.  And here Dr. Borden is being  38 quoted to Dr. Kari here, but Dr. Jenness came to the  39 same conclusion.  And here is the conclusion:  40  41 "The Cheslatta made annual trips to Tahtsa,  42 Whitesail, Eutsuk, and other lakes of this area  43 to hunt mountain-goat, bear, and caribou, and  44 to gather berries."  45  46 And then a little further down the author mentions  47 that: 26915  Submissions by Mr. Willms  1  2 "The Cheslatta are now almost extinct.  Only a  3 few of their ancestors survived repeated  4 smallpox epidemics in the late part of the last  5 century.  Later in the nineteenth century the  6 Bulkley River Carrier took over much of the  7 former hunting territory of their ill-fated  8 neighbours."  9  10 And then he refers to Jenness at page 475, which  11 is also an exhibit.  12  13 "Q   And you hadn't seen that anthropological  14 reference?  15 A   That is correct.  I've never seen this article  16 before.  17 Q   And you're not in a position to say whether or  18 not that is a reasonably accurate  19 reconstruction of what had happened in the  20 southern area?  21 A   I haven't researched Cheslatta territory and  22 it -- from what I know about Athabaskan  23 territory, I mean these folks could easily have  24 mutual territory."  25  26 And I take Dr. Kari's answer to apply to all of  27 the Babine, Wet'suwet'en and the Athabaskan people  28 that he studied.  This didn't surprise him in the  29 least, that Dr. Jenness had come to this conclusion  30 and Dr. Borden had come to the conclusion.  31 THE COURT:  These two quotes on your page 39 are from Dr.  32 Borden?  33 MR. WILLMS:  Both from Dr. Borden.  The quote from Dr. Jenness  34 is at page 42 of the yellow book.  35 MR. GRANT:  My friend said that Dr. Kari adopted Borden.  Is  36 that statement that my friend's quoted, is that where  37 he says he adopts Borden?  Is that what he is relying  38 on?  39 MR. WILLMS:  What I am suggesting is what I said just a moment  40 ago, that Dr. Kari was certainly not surprised that  41 the Cheslatta people might have been there, because  42 common or mutually held territory, as I understand Dr.  43 Kari's evidence, is quite common.  But on page 475, my  44 lord, at the very bottom of the page:  45  46 "Two or three families even roam occasionally as  47 far south as the Eutsuk Lake area, which the 26916  Submissions by Mr. Willms  1 Bulkley people incorporated into their  2 territory after the earlier inhabitants, who  3 seem to have formed a distinct subtribe, were  4 destroyed by an epidemic of smallpox about  5 1838."  6  7 And that's the reference to the Cheslatta people.  8 And I haven't read all the references, my lord.  All  9 the references are in this tab that I have cited, but  10 it is my submission that from the evidence as recently  11 as the time of contact there were massive population  12 dislocations in this area, and that the Gitksan moved  13 up the Skeena River in response to the fur trade and  14 into the Upper Nass in response to the fur trade, that  15 they moved into an area to interpose themselves  16 between the Bulkley River Carrier and the Kitimat  17 Indians, and further that the Bulkley River Carrier  18 moved south from the Bulkley River into the area  19 around Eutsuk Lake.  And that's in the 1830's.  20 Now, my lord, I will come back to this later on  21 when I talk about reputation evidence as to  22 boundaries, and also when I deal with the overlap  23 maps.  But it's very interesting to note that the  24 Carrier Sekani overlap coincides with Dr. Jenness's  25 conclusion and Dr. Borden's conclusion, and that the  26 Carrier Sekani are claiming this same territory.  27 My lord, this is the Suttles map, and over -- it's  28 the same view.  2 9    THE COURT: I'll come down.  30 MR. WILLMS:  And you can see, my lord, that the Nass Gitksan  31 language is shown about the middle coming up, and you  32 will see Kuldoe named there, and then to the north  33 T'set'saut, and then immediately if you follow to the  34 north end of Takla Lake, there is a lake there which  35 could be Bear Lake.  It's in that vicinity.  And the  36 Sekani area you got Thutade Lake further over to the  37 left.  38 THE COURT:  Yes, right.  Thank you.  39 MR. GRANT:  I just wanted -- where did he say the Gitksan -- my  40 note was you said the Gitksan moved up the Skeena in  41 response to the fur trade, and in my friend's  42 proposition where is he saying they moved from?  43 MR. WILLMS:  From down the river, my lord, then they moved up  44 the river.  Now, if I can carry on.  45 MR. GRANT:  Well, I'm sorry, was that -- there -- is he saying  46 that they moved from across all the way from the coast  47 inland, or from the interior part of the river up? 26917  Submissions by Mr. Willms  1 That's what I am trying to get clear.  2 MR. WILLMS:  Well, my lord, Dr. Rigsby and Dr. Adams talk about  3 a process that appears to have been settled to  4 Kitselas Canyon, but not settled beyond Kitselas  5 Canyon even as late as the 1830's.  So up river from  6 at least Kitselas Canyon.  7 Now, there is no question, my lord, that, for  8 example, the archaeological evidence of Dr. MacDonald  9 shows in the late prehistoric period someone  10 inhabiting Kitwanga Fort, that fortress site, which is  11 to north.  12 THE COURT:  I'm sorry, when?  13 MR. WILLMS:  In the late prehistoric period you will recall that  14 from the extract that I read there were five artifacts  15 that he assigned to the prehistoric level.  16 THE COURT:  Yes.  17 MR. WILLMS:  Late prehistoric.  The real point, though, my lord,  18 is that when you put Adams' work into this, and the  19 fact that you have Stikene speakers as late as 1830 in  20 Kitsegukla, and I am going to get to the oral  21 histories in a minute, the oral histories of all of  22 the warfare that is going on at this time between the  23 people called the T'set'saut people and the Kuldoe  24 people and the Kitwancool people, that what these  25 experts have concluded is supported by the plaintiffs'  26 own oral histories.  27 And that's where I turn to next, my lord, at page  28 28.  And I submit in paragraph 46 that it has been  29 suggested that the oral histories themselves are  30 evidence of occupation by the plaintiffs in the claim  31 area since time immemorial.  Although the use and the  32 value of oral histories has been dealt with in greater  33 detail in Part II.3 of this summary, here it is  34 sufficient to say that the oral histories in and of  35 themselves, where they contain mechanisms for dating,  36 are consistent with the recency of occupation.  37 And the appendix to follow, my lord, if I can hand  38 that up.  And this can be an appendix to this part, my  39 lord.  And I'll just describe how the appendix works.  40 In the appendix it starts off by listing the name of  41 where the oral histories are from and the exhibit  42 number.  So these are only the histories that are  43 exhibited in these proceedings.  And then throughout  44 what are pointed out here, and I don't intend to go  45 through these, but what are pointed out here are what  46 I submit are historical indicators in each of the  47 adaawks.  And some of the historical indicators, and 2691?  Submissions by Mr. Willms  1 your lordship may recall this from some of my  2 cross-examination of Ms. Marsden, are things like  3 copper shields, guns, sailing ships, sails, moose,  4 umbrellas, references to illnesses like smallpox.  And  5 I think it's pretty self-evident, my lord, when you go  6 through the way that it's set up, I tried to put a  7 page reference within the oral history and maybe a  8 better example, because the first -- "The Men of  9 Mediik" and "The Wars of Mediik", as I understand  10 them, are said to have a depth going back to Temlaxam.  11 And Temlaxam starts on page 6 here of the  12 appendix, and you will see I am suggesting that a two  13 story house is historic.  That's not a traditional  14 Daak style house.  15 I am suggesting that light hair, for example, in  16 1047-20 is an indicator.  17 I am suggesting that guns, and then down to  18 1047-62, Hai'mas, and that's because Miss Marsden  19 acknowledged that Hai'mas was really a pre-eminent  20 figure in the proto-historical period.  And then it  21 carries on.  Hudson's Bay Posts, copper shields and  22 going down to Victoria.  23 So what I submit, my lord -- as I have said, I  24 don't intend to go through this, but I submit in that  25 passage that when the oral histories are reviewed,  26 there are internal clues to date them, and of course  27 you may recall that Miss Marsden, except for the  28 grizzly bear which was a landslide or the landslide  29 which was a grizzly bear, hasn't attempted to date,  30 independently date anything which she's done.  31 Now, I do want to deal with one point, my lord,  32 and this is a point that was made in this trial, and  33 it's at the bottom I describe an instance at the  34 bottom of page 28 where when you read a story, an oral  35 history, it appears to be in the historic period,  36 because it says Kispiox was founded by an informant's  37 great grandfather, and further the great grandfathger  38 lived at Temlaxam.  And I say this would place the  39 founding of Kispiox and the existence of Temlaxam in  40 the proto-historic period.  41 Now, its been suggested from time to time, my  42 lord, that great grandfather just means ancestor, and  43 that you can't take a great grandfather from an adaawk  44 as meaning anything.  It doesn't mean great  45 grandfather.  Well, in my submission when you look at  46 the oral histories, and the oral history I would ask  47 your lordship to turn to is one at page 12 of tab 46. 26919  Submissions by Mr. Willms  1 THE COURT:  I'm sorry, look where?  2 MR. WILLMS:  I am at tab 46 of the yellow book, paragraph 46,  3 tab 46.  4 THE COURT:  Yes.  5 MR. WILLMS:  First of all -- and I also understand there may  6 have been a suggestion somewhere during this trial  7 that great grandfather and grandfather even mean the  8 same thing.  That when you read grandfather in an  9 adaawk it might mean an ancestor, and it doesn't mean  10 a grandfather.  So if you turn to page 12, and I've  11 taken this from one of the adaawks, Exhibit 1047-7,  12 the adaawk and its -- the informant is John Brown.  13 You will see:  14  15 "My great grandfather Neestarhoq".  16  17 And then if you go down about seven lines it says:  18  19 "My grandfather Kwiyaihl".  20  21 So that there is a distinction drawn in this  22 adaawk between great grandfather and grandfather.  23 The next one I would ask you to turn to, my lord, is  24 at page 14, and at page 14 this is an extract from  25 Exhibit 1043-9, which is another adaawk.  26 THE COURT:  What was the first one?  27 MR. WILLMS:  The first exhibit was —  28 THE COURT:  Yes, I have it.  1043-97.  29 MR. WILLMS:  The next one is 1043-97, and it's — you will see  30 partway down the first about seven lines down of their  31 uncles and grandfathers, the words of their uncles and  32 grandfathers, there is a circle around grandfathers.  33 THE COURT:  Oh, yes.  34 MR. WILLMS:  And then if you go down a little further, it says:  35  36 "They were now avenged on those that had killed  37 their ancestors."  38  39 So that there is a distinction drawn between  40 grandfathers and ancestors.  Now, the final point is  41 from evidence of Stanley Williams, which is at page 16  42 here in this tab.  And this was interpreted evidence.  43 It's from Exhibit 446-A, and there was an interpreter  44 there.  And you will see at the very bottom when he's  45 asked about feast where he took the name Gwisgyen, he  46 answered at line 46:  47 26920  Submissions by Mr. Willms  1 "I went -- I went through it.  I follow the  2 footsteps of my ancestors and my grandfather  3 ..."  4  5 The very bottom of the page.  Now, it's my  6 submission, my lord, that when you read the oral  7 histories, and it says grandfather or it says great  8 grandfather, or it says ancestor, that they mean what  9 they say.  And that contrary to an assertion that has  10 been made, you can trust the informant who relates to  11 the translator who takes these adaawks down to get it  12 right, and they got it right.  13 Now, on that point -- do you want to --  14 THE COURT:  I was going to take a break, split the morning in  15 half.  Another five minutes.  16 MR. WILLMS:  That's fine, my lord.  I will try to get over to  17 page 29, paragraph 47.  I say that -- and Dr. Barbeau  18 tried to date some of the oral histories.  19 THE COURT:  You say he dated.  You say now he tried to date.  20 MR. WILLMS:  He did date.  He engaged in that exercise.  He did  21 date this one.  He dated the begin -- I am at the top  22 of page 29.  23 MR. WILLMS:  He dated the beginning of the Eagle Clan to  24 historic times on the coast.  And that reference, if  25 you can -- if, my lord, you turn to page 11.  26 THE COURT:  Of tab 47.  27 MR. WILLMS:  Of tab 47, yes, you have here an extract from  28 Exhibit 902-5.  29 MR. GRANT:  Is this the summary -- Barbeau did summaries and  30 also did the actual transcription.  This is his  31 summary that you are referring to?  32 MR. WILLMS:  Yes.  33 THE COURT:  What exhibit number is this?  34 MR. WILLMS:  Exhibit 902-5.  35 THE COURT:  This is a Barbeau summary.  36 MR. WILLMS:  What he was trying to do was summarize or  37 chronologize, I don't like that word, but its been  38 used, Raven Clan Outlaws.  And he makes the point at  39 the top of the page, at page 11:  40  41 "The wolves split up into halves or moieties -  42 one of them, the Wolves proper, and the other,  43 the Eagles, in imitation of the Russian  44 imperial crest.  The Eagle moiety or phratry,  45 at the height of the fur trade with the  46 Russians and the British, rose to the first  47 rank among the Tsimsyans, the Haidas, and the 26921  Submissions by Mr. Willms  1 southern Tlingits.  But their Tlingit  2 originators, on the whole, maintained their  3 former allegiance to the older dual moieties of  4 the Ravens and the Wolves.  And the Eagles have  5 tended to remain the allies of their former  6 sires the Wolves.  7 The Kanhaades or Ravens, no less than the  8 Wolves and the Eagles, were still, in the last  9 century, on their way south along the seacost.  10 Of this there is no move vivid proof than the  11 fantastic adventures of their notorious leader,  12 Copper-Shield (Haimas), who at no time was a  13 match for the famous Stone-Cliff (Lewgyarh).  14 These two extraordinary leaders and  15 contemporaries, Copper-Shield and Stone-Cliff,  16 stand close comparison in the limelight of a  17 turbulent century.  Their backgrounds did not  18 senisibly differ, nor the span of their  19 existence; their forebears in the North were  20 Tlingitk yet with a souther admixture of  21 Kwakiutl blood; and their adopted nation and  22 field of action were Tsimsyan.  23 The name 'Legyarh' in Kwakiutl signifies  24 'Stone-Cliff,' and that of 'Haimas' in the same  25 language seems to have  meant 'Southwest-Gale'  26 or Southwest-Rain'.  However, 'Haimas' might  27 mean, in Tsimsyan, 'bark sheath for copper  28 shield', or 'copper-shield case'."  29  30 Now that's just one point.  Then what Dr. Barbeau  31 also -- excuse me.  32 THE COURT:  When he says the last century, he is meaning the  33 eighteen hundreds, is he?  34 MR. WILLMS:  Yes.  35 THE COURT:  He is writing the nineteen hundreds.  36 MR. WILLMS:  He is talking about the turn of the eighteen --  37 going from the eighteenth into the nineteenth century.  38 Now, I put -- of course Dr. Daly didn't agree, and I  39 am not going to suggest that any of the plaintiffs'  40 experts agreed with this proposition.  In fact I think  41 they universally didn't agree with it.  42 MR. GRANT:  My lord, Phillip Drucker or Dr. Wilson Duff —  43 MR. WILLMS:  I'll get to that in a moment.  My friend should be  44 patient.  But I would like to turn to what Dr. Daly  45 said about what the appropriateness of what Dr.  46 Barbeau is trying to do.  And that's at page 36.  And  47 this is in contradiction to what Miss Marsden did. 26922  Submissions by Mr. Willms  1 And I am at page 36, which is the cross-examination of  2 Dr. Daly at line 47.  3  4 "Q   But one thing that Dr. Barbeau did was he  5 actually tried to date the oral history by  6 reference to real things?"  7  8 Dr. Daly acknowledged that yes, he did try to do  9 that.  10 Now, the next point, my lord, is that Dr. Barbeau  11 and Miss Marsden gave a lot of evidence about the  12 dispersal from what she called Lachweep, which she  13 said was at the headwaters of the Stikene, the Nass  14 and the Skeena, somewhere in the headwaters area, and  15 that dispersal -- the dispersal in the oral histories.  16 Dr. Barbeau, I suggest, dated that to between 200 and  17 400 years ago.  And if you turn, my lord -- and this  18 is in the cross-examination.  I put these to Dr. Daly  19 starting at page 87.  20 THE COURT:  Who said it was 200 years ago?  21 MR. WILLMS:  Dr. Barbeau.  Between 200 and 400.  And I will read  22 the extracts.  2 3 THE COURT:  Yes.  24 MR. WILLMS:  Starting at page 87.  25 THE COURT:  Of the tab?  26 MR. WILLMS:  Of the tab, my lord.  And here what I am doing is I  27 am putting these extracts to Dr. Daly, and I am  28 putting Dr. Barbeau to Dr. Daly starting at line 33.  2 9 THE COURT:  Yes.  30 MR. WILLMS:  And the quote, whatever is in the quote is Dr.  31 Barbeau.  32  33 "The passages is familiar enough and the  34 traditions of the Eagle and Wolf clans not to  35 be a mere episodic pattern in a folktale devoid  36 of historical contents.  Experts -- the late  37 John Muir, explorer and geologist, the late  38 Forrest A. Kerr, and George Hanson, geologists  39 versed in the formation of the Stikene  40 region -- all accept the Indian narrative as a  41 fair indication of what the Stikene Glacier  42 must have been at one time not so long ago in  43 when the Indians were confronted with it in  44 their drives down this river.  It is now  45 receded a very short distance from the Stikene  46 River, perhaps less than a mile, after having  47 somewhat pushed it out of its course. 26923  Submissions by Mr. Willms  1 Now, just pausing there and turning to the  2 top of the next page, I won't read it to you,  3 but what Dr. Barbeau does from that is in his  4 first reference to time he dates that arch  5 ..."  6  7 My lord, this was an arch described in the adaawk  8 of Fladmark, "Glass and Ice".  9  10 "Q    ...from perhaps 200 to 400 years ago based upon  11 the geological evidence that he's referred to  12 and the explorer that he's referred to.  That's  13 what he does.  I'm not asking you whether you  14 agree with it.  15 A   Yes.  That's what he does.  16 Q   That's what he does.  And that is to do  17 something like that is an appropriate method,  18 is it not, to estimate, to date an oral  19 history?  20 A   Yes, it's an appropriate method."  21  22 Now, when he goes to page 11 he says this:  23  24 "The reference in this glacier tradition to  25 sea-otter hunting, after the Chiefs Hill  26 fugitives have reached the salt water and  27 joined a cross tribe is another detail  28 suggesting a historical date.  Intensive  29 sea-otter hunting developed only after the  30 Russians and other sea traders began to press  31 the natives from the Aleutian Islands down to  32 the Tlingit country, into their service; that  33 is less than 200 years ago."  34 Now, once again Dr. Barbeau has looked for  35 something in the historical record to compare  36 the oral traditional with, correct?  37 A   Yes.  That's right.  38 Q   And it's appropriate to do that, to search the  39 historical record in an attempt to date the  40 oral tradition?  41 A   Yes."  42  43 Now, finally at the top of the next page he draws  44 in the third comparative and says this:  45  46 "The passage under the glacier may not be much  47 older than two hundred years.  For the Wolf 26924  Submissions by Mr. Willms  1 fugitives no sooner had crossed the Tlingit  2 country, and entered the Nass River to the  3 south, than they experienced a fantastic  4 cataclysm, which deeply impressed itself upon  5 tribal memories.  They were smothered by  6 poisoned fumes and thrown back by a volcano in  7 full eruption."  8 Once again, pausing there, that's another  9 appropriate historical tool to use to date oral  10 history?  11 A   Yes, it is."  12  13 Now, the final point on this particular one, my  14 lord, is at page 104.  And page 104 is an extract from  15 Exhibit 1051-12, which was a history of the great  16 glacier area that was prepared for the  17 Gitksan-Wet'suwet'en Tribal Council.  18 THE COURT: We know the author?  19 MR. WILLMS:  The author is -- her name is June Ryder, R-y-d-e-r.  20 And she is referring to the same glacier, my lord.  21 And she says this just above the word "possibilities".  22  23 "When the ice stood at that Moraine the river  24 would have flowed very cross to it, probably at  25 the foot of a steep ice slope, and possibly in  26 a canyon with one side of steep rock and the  27 other of steep ice.  Could this have been the  28 'tunnel?'"  29  30 She asks.  And then she dates it down at the  31 bottom on age of moraines.  She says:  32  33 "The heavily forested outermost ridges could  34 have been formed during an early phase of  35 late-Neoglacial expansion (i.e., late 17th to  36 early 18th century), thus allowing about 250  37 years for development of the present forest.  38 Alternatively, they could date from an earlier  39 (2,000 year) advance.  The first possibility is  40 most likely."  41  42 Now, Miss Ryder was not called as a witness by the  43 plaintiffs, but what she says is perfectly in keeping  44 with what Dr. Barbeau concluded.  And if I can just --  45 with one minute I will finish this paragraph, my lord.  4 6    THE COURT:  Yes.  47    MR. WILLMS:  Because Lachweep is the name that Susan Marsden 26925  Submissions by Mr. Willms  1 uses, and that's in the adaawk.  Lachweep is in the  2 original adaawk with the rainbow houses and the  3 dispersal, and I say this:  4  5 "People known as the Lachweep appear to have  6 lived near the headwaters of the Nass and the  7 Stikene in historic times and Miss Marsden  8 acknowledged that Lachweep is another name for  9 T'set'saut, and the only Eagle village in the  10 claim area is Kitwanga, although the Eagle  11 clans significant on the Nass."  12  13 And what I suggest there, my lord, is that not  14 only is the Eagle clan recent, but that's further  15 evidence of the recency of the arrival of the Gitksan,  16 that they haven't gone beyond Kitwanga, which your  17 lordship will recall is at the end of the grease trail  18 from the mouth of the Nass River or the end of one of  19 the grease trails.  20 MR. GRANT:  That grease trail continues across, as I recall.  21 It's not the end of the grease trail.  22 MR. WILLMS:  Okay.  It's the part of the grease trail when it  23 gets to the Skeena.  24 THE COURT:  All right.  We'll adjourn.  Thank you.  25 THE REGISTRAR:  Order in court.  Court stands adjourned for a  26 short recess.  27  28 (PROCEEDINGS ADJOURNED AT 11:30 A.M.)  29  30 I HEREBY CERTIFY THE FOREGOING TO BE  31 A TRUE AND ACCURATE TRANSCRIPT OF THE  32 PROCEEDINGS HEREIN TO THE BEST OF MY  33 SKILL AND ABILITY.  34  35    3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47 26926  Proceedings  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 PURSUANT TO SHORT RECESS)  THE COURT:  Mr. Grant.  MR. GRANT:  My lord, before my friend starts, there was a  question -- two questions I had.  And one was in  discussions with Mr. Rush he and I had two -- we were  not clear about the schedule you proposed for the end  of the month after June 1st.  My basic question is  whether there was going to be one week off or two  weeks off commencing June 1st?  THE COURT:  A week.  MR. GRANT:  Okay.  That's —  THE COURT:  The week of June 4th.  MR. GRANT:  The week of June 4th.  THE COURT:  I could even be back on the Friday.  MR. GRANT:  Okay.  THE COURT:  Whether you want to —  MR. GRANT:  That's what I had thought, but between us there was  some mix up.  There was some suggestion there was two.  I was sure there was only one.  The other question I just raised with my friend is  if there was any possibility he could stop today at  four instead of 4:30.  I know the problems, but it  would give me some latitude to leave this evening  rather than in the morning.  I have to be back Tuesday  morning, of course.  I think being a long weekend, and the Queen's  birthday, and I do recognize that important fact, if  four o'clock is the convenient time to adjourn this  afternoon by all means.  I discussed this with my friend.  He suggested if  the court is concerned a half hour could be made up.  COURT:  We'll make it up sometime.  WILLMS:  A short lunch today or some other time.  COURT:  I can't do that.  I think counsel should consider  whether they would like to sit that Friday the end of  the week of June 4th.  WILLMS:  Yes, we would.  COURT:  All right.  WILLMS:  Yes.  That's the 8th, is that —  COURT:  Yes.  I have the conference.  And knowing Miss Rosie  Abella is a member of our committee, and she's getting  a degree in Halifax on the Friday so we can't sit that  day I know we'll be back on Thursday night and we can  sit on Friday.  You'll have to keep me awake.  MR. WILLMS:  Yes.  THE COURT:  You've been able to do so up to now.  THE COURT  MR. GRANT  THE  MR.  THE  MR.  THE  MR.  THE 26927  Proceedings  Submissions by Mr. Willms  1 MR. WILLMS:  This is all exciting, my lord, but we'll have the  2 most exciting part of the argument for that day.  3 THE COURT:  All right.  Now, we'll settle now that we'll sit  4 that day.  Thank you.  5 MR. WILLMS:  My lord, I was up to the bottom of page 29.  And I  6 say that, when Dr. MacDonald reviewed oral histories  7 in conjunction with the archeological evidence at  8 Prince Rupert, Kitselas Canyon, Kitwanga and Hagwilget  9 he concluded -- and, my lord, this may look familiar.  10 This is from The Epic of Nekt based on his excavations  11 at Kitwanga, and he talks about population  12 stablization.  And he said:  13  14 "From those times, a situation of relative  15 stability appears to have prevailed until the  16 early 1700s.  By that time there is evidence  17 for a widespread destabilization of populations  18 throughout much of the Northwest Coast.  From  19 the central coast there was a northern shift,  20 presumably to get closer to the source of the  21 new trade goods filtering through from Siberia.  22 The Haida from the Queen Charlotte Islands  23 pushed the Tlingits further north from the  24 Prince of Wales archipelago about 1720.  At the  25 same time, the Tsimshian pushed out of the  26 Skeena estuary and dislodged the Tlingit,  27 possibly from the Prince Rupert Harbout as well  28 as from such islands as Dundas at the mouth of  29 the Nass River.  The Tlingits in turn pushed on  30 the Eyaks to their north.  In the interior, it  31 appears that Kitwankul and other Gitksan tribes  32 were pushing north at the expense of their  33 Tsetsaut and other Athapaskan neighbours to  34 secure the trading trails that ultimately  35 connected through to southeast Alaska and the  36 new sources of wealth.  In the interior, the  37 Chilcotin and Carrier were also locked in a  38 struggle over trade.  Southward from the  39 central coast, the shift may have been in the  40 opposite direction, as seen in the southern  41 movement of the Kwakiutl.  42  43 The pattern of warfare became endemic as the  44 destabilization of traditional boundaries  45 continued throughout the eighteenth century.  46 Small forts proliferated at the pressure points  47 along the networks of trails.  The causes for 2692?  Submissions by Mr. Willms  1 warfare also changed radically.  Oral accounts  2 are consistent that the traditional objectives  3 of warfare were mainly to capture food (Skeena  4 smoke houses were full of fish) and secondarily  5 to capture slaves (who were food producers).  6 The acquisition of new territory was not a  7 traditional cause for war.  Origin myths all  8 stated how certain tribes were created in  9 certain localities, and it was not just a crime  10 but a sacrilege for one tribe to displace  11 another from it's ancestral territory.  12  13 Warfare on the Northwest Coast in the  14 eighteenth century, I suggest, was motivated by  15 the desire to control a new and scarce valuable  16 resource.  These trade items include metal, and  17 especially such weapons as guns and knives."  18  19 And I have a number of other references, my lord,  20 at tab 48.  And the first one is at page six of that  21 tab.  And this is, my lord, an extract from Exhibit  22 1191A-46.  It was marked by my friend in his  23 cross-examination of Dr. Robinson.  And it's Dr.  24 Robinson's work of 1987.  And he says this in respect  25 of warfare, my lord, on page six, which is page 75  26 from his work, on the left-hand side.  27  28 "It is argued..."  29  30 It's just underneath the quote.  31 THE COURT:  Yes.  32 MR. WILLMS:  33 "It is argued that the juxtaposition of trade,  34 ranking, and conflict.  Is not coincidental.  35 If control over trade networks generated  36 ranking, then such control could have been a  37 source of intergroup conflict.  Certainly,  38 during the early historic periods, wars were  39 not only fought to capture slaves and material  40 goods, but also to control trade networks.  41 Early European traders noted that certain  42 Indian groups forcefully attempted to prevent  43 others from trading with the ships.  Fisher  44 states many coastal groups obtained most of the  45 furs that they traded to Europeans from other  46 Indians at large profits.  Coastal Indians  47 'collected furs from those who lived deeper 26929  Submissions by Mr. Willms  1 inland either as plunder or trade.  Some chiefs  2 quite frankly told white traders that if they  3 would wait they would go and fight for furs.'"  4  5 And I'm not going to read, my lord, the extract  6 that follows which is Ferguson on warfare, the next  7 page, Warfare and Redistributive Exchange on the  8 Northwest Coast, but the next few pages are some  9 detail of the change in warfare that Dr. MacDonald  10 mentions only briefly in The Epic of Nekt, and the  11 causes and the changing causes for warfare.  12 THE COURT:  The passage you read in the last was from The Epic  13 of Nekt, was it?  14 MR. WILLMS:  The passage that I read from my argument is from  15 The Epic of Nekt.  16 THE COURT:  I'm sorry.  17 MR. WILLMS:  This is — what I read from the yellow book was Dr.  18 Bishop.  19 THE COURT:  This is —  20 MR. WILLMS:  Yes.  21 MR. GRANT:  Just if — my friend's left out at the beginning of  22 his quote on page 30 of his argument "it's from those  23 times", my lord, "a situation of relative stability  24 appears."  From those times Dr. MacDonald is saying is  25 that -- is referring to the first millenium B.C..  26 That's in the sentence immediately before.  And I  27 think that should be noted.  My friend excluded that  28 previous sentence.  29 MR. WILLMS:  Right.  Even that part's inconsistent with Ms.  30 Marsden's theory, because she's got stability from  31 7000 years ago.  But, in any event, I thank my friend  32 very much for that.  33 I have more evidence, my lord, at page 13 of the  34 yellow book.  And this is a meeting between O'Reilly  35 and the Indians at Kitwanga in 1893.  And Chief Kawk,  36 for example, says this to the commissioner:  37  38 "I am glad to see you, you have come to do us  39 good.  My grandfather told me what you did  40 before long ago.  He did not want strangers  41 here.  Then we fought for the land now we  42 don't.  That is why we are glad to see you, it  43 will settle all disputes."  44  45 And then from the same extract over to page 16.  46 And then over to page 16, again the same chief:  47 26930  Submissions by Mr. Willms  1 "I was here when you were here before."  2  3 O'Reilly was there in 1891.  4  5 "Before my grandfather's time I did not want  6 white men here before we had to fight about the  7 land now we don't fight.  I am glad you have  8 come to settle our land troubles."  9  10 And your lordship may recall that Mr. Grant --  11 sorry.  That Mr. Plant read an extract to you from the  12 1900s about the Kitwanga people complaining about the  13 Kitsegukla people coming on to their reserve, and that  14 they didn't want strangers on their reserve.  And this  15 was foreshadowed by what Mr. O'Reilly ran into in  16 1893, a frank acknowledgement they used to fight for  17 land before and now Mr. O'Reilly was going to settle  18 all that.  19 THE COURT:  Well, do you think that's what he refers to, "we had  20 to fight about the land", he's talking about 1891?  21 MR. WILLMS:  No.  No.  I think he's talking about an earlier  22 time than 1891.  When O'Reilly came up he did lay out  23 some reserves at both Kitsegukla and Kitwanga, but  24 there was a dispute about An de marl.  The dispute  25 about An de marl was the subject of the correspondence  26 that Mr. Plant read to you two days ago.  27 THE COURT:  Yes.  All right.  28 MR. WILLMS:  The Loring letter and the statement from the chiefs  2 9 at Kitwanga.  30 MR. GRANT:  That letter was read — I think Mr. Plant referred  31 to Gook or Sakxum Higootx.  It's probably the same  32 chief's name here that's significant.  33 MR. WILLMS:  I think it is Gook Simadiik.  34 MR. GRANT:  It's — it's Gook, G-O-O-K.  Simadiik.  35 S-I-M-A-D-I-I-K.  That letters of the 1905, I believe,  36 or 1884 was written by that same person.  37 THE COURT:  Thank you.  38 MR. WILLMS:  All right.  39 Now, carrying on in my argument, my lord, at page  40 49.  Sorry.  Page 31.  41 The clear picture emerging from the available data  42 is that, up to the 1860s, peoples of the Northwest  43 Coast were living in a constant state of war.  44 Furthermore, and this is from Dyen and Aberle, and  45 this will have more importance in the next part of my  46 argument.  This is what Dyen and Aberle noted about a  47 linguistic impact. 26931  Submissions by Mr. Willms  1 "such an impact from the Northwest Coast could  2 have resulted from trading relationship and  3 inter marriage predating the fur trade, but the  4 relative recency of these innovations may  5 indicate that the impact of the Northwest Coast  6 was more recent and resulted from the fur  7 trade, which impelled the Northwest Coast  8 tribes to strengthen ties with the interior and  9 in some instances to expand into the interior."  10  11 Now, I say at the bottom of page 31, oral  12 histories, especially the oral histories of warfare,  13 are certainly consistent with this theory of movement.  14 And, my lord, I won't turn to any -- I've listed a  15 number of adaawks which are at the tab in the yellow  16 book.  But the interesting point to note from all of  17 these is that the adaawks describe warfare between the  18 Kispiox and the Nishga, for example, Kuldo and the  19 Tsetsaut, Kisgegas and the Nishga, Kitwancool and the  20 Tsetsaut, Kuldo and the Nishga, and Kisgegas and the  21 Tsetsaut.  22 And there's two points to take from that, my lord.  23 The first point is, of course, as my colleague Mr.  24 Plant urged two days ago, you can see the strong  25 village reference in these oral traditions.  People  26 refer to themselves by villages in the oral  27 traditions, not by houses and not by calling  28 themselves Gitksan, but by their village.  29 The second thing is that it is quite clear that  30 the Nishga, the Tsetsaut and the Gitksan were all  31 battling over the same areas, because the warfares  32 that took place took place not only on the Nass and on  33 the Skeena, but the other raiding parties came to  34 Kispiox and came to Kisgegas and came to Kuldo.  So  35 that when you look at the oral histories of warfare  36 not only are the people who now call themselves  37 Gitksan battling with the Nishga on the Nass, and  38 battling with the Tsetsaut up north, but the Tsetsaut  39 and the Nishga are coming to Kuldo, to Kisgegas, to  40 Kitwancool, and to Kispiox.  41 Now, I then go on to say at page 32, nothing in  42 the historical record refutes the proposition that  43 Tsimshian speaking groups expanded their territory  44 along the trade routes at the expense of Athapaskan  45 speakers.  I refer there to Dr. Ray, and it's at the  46 yellow book, page 21, my lord, at tab 50.  Sorry, 121.  47 THE COURT:  Tab 32? 26932  Submissions by Mr. Willms  1 MR. WILLMS:  At tab 50.  Tab 50 is a very thick tab because I  2 put all the oral histories in that I referred to  3 there.  4 THE COURT:  Yes.  5 MR. WILLMS:  If you go -- it might be easier to work in from the  6 back, because it's page 121.  7 THE COURT:  Yes, I have it.  8 MR. WILLMS:  And this is in the cross-examination of Dr. Ray.  9 And I put the proposition to him at line 41.  10  11 "Q   Let me put this proposition to you:  There  12 is nothing in the Hudson's Bay records that  13 you reviewed that would refute the  14 proposition that MacDonald makes, that  15 Tsimshian speaking groups expanded their  16 territory along these trade routes at the  17 expense of the Athapaskan speakers?  18 A   I never said there was.  What I am saying  19 is there is no evidence to the contrary  20 position."  21  22 And certainly there's no historical evidence,  23 because it was prehistoric.  But there is other  24 evidence, and that's the evidence that Dr. Robinson  25 and Dr. MacDonald and Dr. Rigsby and all of the other  26 people who have come to the same conclusion relied on.  27 And I'm not faulting Dr. Ray, because Dr. Ray did not  28 have an anthropological background so he couldn't make  29 use of anthropological tools to interpret the  30 historical record, he just had to make due with the  31 record that he had.  But fortunately Dr. Robinson did  32 have the tools to make use of the anthropological  33 record, as did Dr. MacDonald and Dr. Rigsby and Dr.  34 Bishop, and the legion of other people who have come  35 to the same conclusions.  And I'll be getting to those  36 people in a later argument -- later part of the  37 argument.  38 Now, I carry on, my lord, at page 32 by concluding  39 here and saying, that linguistic evidence suggests  40 that Gitksan speaking people and Babine Wet'suwet'en  41 speaking people did not live in parts of the claim  42 area even as late as the time of contact, about 1850.  43 And there, my lord, I refer to the Suttles map during  44 the examination in chief of Dr. Kari.  I already  45 referred your lordship to the boundary line between  46 the Tsetsaut and the Nass Gitksan speakers.  And if  47 you look on the map there is also the Babine speaking 26933  Submissions by Mr. Willms  1 group distinguished from the Carrier speaking group.  2 And the Babine speaking group boundary on the  3 linguistic map does not accord with Exhibit 646-9B.  4 It's far smaller.  It's around the Babine -- north end  5 of Babine Lake and around the Bulkley River.  6 Now, I say this, my lord, in paragraph 51.  The  7 plaintiffs said in their outline of argument at page  8 59:  9  10 "The era of dispersal, first from the north,  11 and then from Temlaxam, is the last era of  12 large scale population movement into and within  13 the Gitksan territory.  It ends the Temlaxam  14 era and ushers in another, in which Gitksan  15 villages, as we know them today, were formed  16 and House territories as opposed to the larger  17 clan/village territories, were delineated.  On  18 the basis of years of careful analysis and  19 comparison with data such as Dr. Mathewes, Ms.  20 Marsden concluded that this happened between  21 4,000 and 3,000 years B.P.."  22  23 And, my lord, I submit not only when you consider  24 the hard evidence, but when you consider the oral  25 histories that statement is without foundation.  26 And, I say that, the plaintiffs acknowledge as  27 much when, relying on Dr. MacDonald's work, in another  28 part of their outline they quote from those times, a  29 situation of relative stability appears to have  30 prevailed until the early 1700s.  31 Now they quote that for a different purpose at  32 another part of their outline.  That's Dr. MacDonald,  33 The Epic of Nekt.  34 So I conclude this section, my lord, by pointing  35 out that the first reliable census in the claim area,  36 and Dr. Galois said it was the first reliable census,  37 placed the populations of seven villages:  Kispiox 33,  38 Kitenmax 182, Kuldo 57, Kitsegukla 196, Kitwanga 225  39 and Kisgegas 270 at 1263, and the largest village  40 being Kispiox.  Hagwilget was enumerated in 1866 as  41 having 260 inhabitants.  From all of the evidence I  42 submit that the villages; Gitenmax, Kisgegas, Kuldo  43 and Hagwilget, that is the villages that were first  44 occupied in historic times.  I submit that the  45 location of villages called Kitwanga and Kitsegukela  46 changed in the proto-historic/historic period and that  47 Kispiox may have become a village in the 26934  Submissions by Mr. Willms  1 proto-historic period.  And I say that relying on the  2 oral history Moricetown was occupied by the Bulkley  3 River Carrier in the historic period after being  4 abandoned in the 1820s for a period of time.  5 And to sum up, there is no location in the claim  6 area where prehistoric occupation continued at the  7 same location to the present day.  Even where sites  8 were occupied at more than one time, the occupations  9 were discontinous.  10 Now, my lord, the next section is B, and I have  11 another yellow book.  12 THE COURT:  Mr. Willms, with these addendums and other changes I  13 suppose I'll get an amended or revised diskette some  14 time?  15 MR. WILLMS:  What I'm going to do -- what I will do, my lord, is  16 for the most part the references that are in the  17 exhibit.  18 THE COURT:  Yes.  19 MR. WILLMS:  Sorry.  In the argument are the ones in the  20 exhibit.  The only thing that I've done is I've added  21 some more references and I will provide an erratum  22 sheet that lists the exhibits that I've added and  23 points out to which paragraphs they relate.  Now, is  24 that —  25 THE COURT:  But in the sections that you've added, like for  2 6 example the adaawks, will that be on an amended  27 diskette?  28 MR. WILLMS:  I'll get a diskette for the adaawks section.  I  29 don't think I've added anything else.  Yes, wherever  30 there has been a change or addition we'll provide an  31 additional diskette or amended diskette.  32 THE COURT:  All right.  You will provide disketts, of course,  33 for everything in the yellow books as well?  Probably  34 not.  35 MR. WILLMS:  When did you want that, my lord?  36 THE COURT:  Well, I wouldn't be long, but we wouldn't be  37 ready -- we're experimenting with scanners and they're  38 not working too well yet.  39 MR. WILLMS:  The next section, my lord, is entitled "Resources  40 and Society in the Claim Area".  And, once again, the  41 focus of this section will be, as with the focus to  42 the previous section, the prehistoric, proto-historic,  43 late prehistoric, proto-historic and historic period.  44 That is at about the time of contact ranging from 1750  45 through the 1800s, late 1800s.  46 And I say in paragraph one that, historical  47 documents can provide direct or descriptive evidence 26935  Submissions by Mr. Willms  1 of historic, but not prehistoric, resource use and  2 social organization.  Since archeological data has  3 limited use for the interpretation of anything to do  4 with resource use and management, prehistoric society  5 and resource use must be inferred from archeological  6 and historical evidence.  Archeology does not  7 specifically tell you about social organization, and  8 you have to imply social organization from it.  9 Inferences of resource use and society are based on  10 historical records and comparative studies of culture  11 change.  And I say that inference is the foundation  12 for all opinions concerning prehistoric and  13 proto-historic resource use and society.  14 The artifacts unearthed at Moricetown appear to be  15 consistent with fishing and hunting.  The geographic  16 location is consistent with exploitation of fish, and  17 I say that notwithstanding the dearth of artifacts  18 related to fishing, I think Miss Albright was only  19 able to find one bone point that she could tie solely  20 to fishing.  But I say that it is a reasonable  21 inference from the archeological evidence of the claim  22 area and geographical location of occupation sites,  23 that the salmon resource appears to have been abundant  24 and exploited at canyon locations.  25 The early historic records indicate that game was  26 never really plentiful in the claim area, and that  27 fishing was the mainstay of the economy.  The  28 exploitation of animals by the Atnahs or the Carrier  2 9 was pretty minimal in terms of food.  And that's from  30 Dr. Ray.  31 The plaintiffs' expert biological evidence  32 indicates two things.  First, moose and deer came into  33 the claim area relatively recently, and the caribou  34 population has declined, probably in response to  35 climatic changes.  Second, there is no doubt from the  36 evidence that the climate in the claim area was colder  37 during the period known as the Little Ice Age which  38 extended into the mid-19th century and that glaciers  39 expanded and came down to levels as low as 1200  40 metres.  And that's the first -- the first reference  41 I'd like to take your lordship to is at tab 4, at page  42 13, from the evidence of Dr. Hatler.  And this is  43 where I'm asking at page 13 of tab 4, my lord --  4 4    THE COURT:  Yes.  45 MR. WILLMS:  And what I'm asking Dr. Hatler about is the maps  46 that he prepared here.  And I say at line eight:  47 26936  Submissions by Mr. Willms  1 "Q   In all of these maps, you've assumed that  2 the vegetation in relation to climate and  3 major disturbances like fire have been  4 relatively constant over time, is that  5 correct?  6 A   Constant over time.  You mean within a  7 short time period or long time period?  I  8 think that the early discussions were -- or  9 the discussions of the records since the  10 glaciation were designed to show that in  11 fact that has not been the case.  12 Q   All right.  And maybe if I can get to that.  13 You know from the research that you've done  14 on this report, that the climate in the  15 area has gotten warmer since the Little Ice  16 Age?  17 A  Apparently it has, yes.  18 Q   And so it's likely that the habitat that  19 you've discussed with respect to some of  20 these animals is different today than it  21 was at the beginning or even in the  22 mid-1800s.  23 A   Yes.  24 Q   And I think -- and correct me if I'm  25 wrong -- your premise with almost all of  26 these animals, or maybe all of them, is  27 that habitat is of primary importance in  28 the ability of each species to populate a  29 particular area?  30 A   It's the basic perimeter that decides  31 whether or not a species can occur in an  32 area for sure.  33 Q   Now, I'm going to suggest that since the  34 habitat has likely changed since the Little  35 Ice Age, you cannot say today what the  36 range and distribution of these species was  37 in early 1800s.  38 A   I don't think what I have said what the  39 range and distribution was in the early  40 1800s.  I've indicated sightings pre-1860,  41 but I haven't by any means tried to map  42 those out, because although I don't expect  43 that the habitat has changed as much as the  44 climate, and in that time -- and that was  45 my thesis with regard to the moose -- that  46 it seems like a lot of those same habitats  47 were there but yhe -- under the climatic 26937  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  conditions pertaining, it was difficult for  the animals to subsist anyway.  Q   So what you have depicted here is a --  within a relatively recent history, a  snapshot of the distribution and range of  each of those animals?  A   Basically, yes.  Although there is some  additional information on the moose sheet  and on the caribou sheet and deer sheet as  well.  There was enough infromation to  indicate changes, so there are more than  one snapshot for some of them.  Q   All right.  You've mentioned moose and  then -- which you, I think, said came down  from the north and the east and the deer  which came up from the south and the west?  A   That's right.  And the caribou range has  receeded."  Now --  THE COURT:  What do you say is the start of the Little Ice Age?  MR. WILLMS:  The start of the Little Ice Age it ranges, but I  think the 1300s.  MR. GRANT:  I don't think you make reference in this tab of  yours to Mr. Chilton, do you?  MR. WILLMS:  I get to Mr. Chilton.  I definitely get to Mr.  Chilton's the mountains and the west wind.  I wouldn't  leave that out for a minute.  Now, but the next expert, plaintiffs' expert is  Dr. Gottesfeld at page 15 of the yellow book.  And Dr.  Gottesfeld is a geologist.  And he puts it to about  1500.  THE COURT:  Yes.  MR. WILLMS:  But I'm at line 29, my lord.  "Q   And just on the Little Ice Age, that's from  about 1500 AD to about 1800 AD?  A   Or even 1850.  Q   Or even 1850.  From your experience as a geologist in the  Pacific Northwest, northwest British  Columbia, you've noted that since about  2500 years ago, the regional climate has  been more conducive to glacier expansion?  A   Yes.  Q   And just generally, does that mean that the  regional climate has become generally  cooler to at least the Little Ice Age? 2693?  Submissions by Mr. Willms  1 A   Or wetter or both.  Cooler or wetter or  2 both cooler and wetter.  3 Q   And in fact, during the Little Ice Age,  4 some of the glaciers in the mountains  5 expanded as much as a kilometre and reached  6 elevations below 1200 metres?  7 A   Yes.  Some even more than a kilometre, two  8 or three or four.  9 Q   Since the Little Ice Age, the climate in  10 northwestern British Columbia has been  11 warming?  12 A   Yes.  Apparently consistently warming or  13 drying or both."  14  15 Now, the next plaintiffs' expert, my lord, is Dr.  16 Mathewes, the palaeobotonist.  Someone who  17 specifically is concerned with climate change over  18 time.  That's his expertise.  Page 17, my lord, line  19 26.  20  21 "Q   What was the Little Ice Age?  22 A   The Little Ice Age is a geological term  23 which refers to a period beginning around  24 five to 6000 years ago, well after the main  25 ice age had ended, when there is evidence  26 in various parts of western North America  27 of glacier activity starting again in the  28 higher mountain areas.  And different  29 authors have used different definitions for  30 exactly what the neoglacial or the Little  31 Ice Age is.  Some people talk only of  32 events since the year 1400, othere people  33 talk about the neoglacial ice age as  34 representing several thousands of years.  I  35 don't think there is a clear consensus  36 exactly on how that term should be applied,  37 but it definitely refers to relatively  38 recent, in the order of a few thousand  39 years, resurgence of glacial activity,  40 particularly in North America.  41 Q   All right.  Is that something that you are  42 able to detect in your palaeoenvironmental  43 research?  44 A   Yes.  In fact, evidence of climates  45 becoming wetter and/or colder in the pollen  46 diagrams that are constructed for various  47 areas.  Effects such as the growth of 26939  Submissions by Mr. Willms  1 peatbogs where previously there weren't any  2 growing on level terrain indicates that the  3 conditions for peatbog growth have  4 improved, which is generally an indication  5 of increased wetness and perhaps cooling.  6 And I've just directed a masters  7 degree student in Simon Fraser University  8 who completed a thesis on muskeg growth in  9 the Queen Charlotte Islands which confirmed  10 very nicely, and we are hoping to publish  11 it soon, that there was clearly an  12 expansion of the peat lands on the Queen  13 Charlottes during the period that's  14 generally referred to as the Little Ice  15 Age, within the last 5,000 years.  16 Q   And in fact, perhaps, leading up to as late  17 as 1850, mid-1800s?  18 A   Yes."  19  20 Now, as Dr. Hatler -- oh, and there's one other  21 reference to the Little Ice Age, my lord.  You'll see  22 at page 19 of the yellow book the first page of the  23 Holocene Glacial History of the Great Glacier Area by  24 June Ryder, which is Exhibit 1051-12.  That's at page  25 19.  And then I have an extract from her report at  26 page 20, or her outline, and what she says about the:  27  28 "Late-Neoglacial Advance (the most recent  29 glacial expansion; commonly referred to as the  30 Little Ice Age).  31  32 Glacier advance began as early as about 900  33 B.P. ..."  34  35 I think that means B.P., before present, carbon  36 dated.  37  38 "(1000 A.D.) at some sites (e.g. southern Coast  39 Mountains, see Ryder and Thomson manuscript),  40 and is generally considered to have been well  41 underway during the 15th to 17th centuries.  42 Glaciers reached their maximum extent during  43 the 18th and 19th centuries (the actual date of  44 the maximum varies from glacier to glacier  45 dependent on local conditions.  Recession then  46 commenced and continued at varying rates until  47 close to the present time.  (Some glaciers are 26940  Submissions by Mr. Willms  1 now expanding once again.)  2  3 In the Coast Mountains, most glaciers were  4 larger during this time interval than at any  5 time during the preceding 11,000 years (i.e.  6 since the melting of the last Pleistocene ice  7 sheet)."  8  9 What I suggest from that, my lord, is that on  10 the -- and I'll get to Dr. -- Mr. Chilton, sorry, a  11 little later on.  But Dr. Hatler, Dr. Mathewes and Dr.  12 Gottesfeld and June Ryder, whose report was introduced  13 during cross-examination, all acknowledge the Little  14 Ice Age in this area.  15 And the effect of the Little Ice Age is  16 acknowledged, as I say, on page three by Dr. Hatler.  17 The climate during the Little Ice Age would have been  18 hard on everything.  That's what Dr. Hatler said.  And  19 I'm right at -- on page three, my lord.  In fact, he  20 said that -- he said that in re-examination by Mr.  21 Grant including the vegetation.  And I say that while  22 some areas for drying may still have been better than  23 other areas for drying in the claim area, drying  24 capabilities would generally be lower when the climate  25 was colder and wetter and the climate difference may  26 also affect the relative ability to dry anything.  27 Aboriginal exploitation of alpine and subalpine  28 resources diminished in the last few thousand years of  29 prehistory up to the culmination of the Little Ice  3 0 Age.  31 And, my lord, if you could turn to page 39 at the  32 yellow book.  Page 39 is from Dr. Fladmark.  It's  33 Exhibit 849A-36.  And it's from his book called Glass  34 and Ice.  You'll cover -- the cover page is the  35 previous page.  And he says in that last paragraph, my  36 lord:  37  38 "An hypothesis of diminishing aboriginal  39 exploitation of alpine and subalpine zones in  40 the las few thousand years of prehistory  41 satisfies both the apparent relative absence of  42 recent cultural horizon markers, and the  43 implications of palaeoenvironmental studies in  44 the Edziza region and adjacent areas.  As noted  45 earlier, the neoglacial period locally began  46 about 3000 B.P., culminating in the  47 particularly cool episodes of the Little Ice 26941  Submissions by Mr. Willms  1 Age circa 200-400 years ago.  This cooling  2 trend saw renewed and greatly expanded  3 glaciation in alpine regions, particularly in  4 the St. Elias and Boundary Ranges.  Glaciation  5 could have physically impeded access to some  6 alpine areas, while the growth of permanent  7 snow cover may have reduced the value of high  8 altitude lithic resources and hunting areas."  9  10 Now, the point that is particularly important, my  11 lord, is that the historic evidence backs up this  12 scientific evidence, in my submission.  And I make  13 that point at the bottom of page three.  The early  14 historic observations of the relative scarcity of game  15 and Dr. Ray's conclusion that salmon was the mainstay  16 of the economy is supported and explained by the  17 different climate in the early 19th century.  18 Now, I say this:  Surprisingly, the plaintiffs  19 make the following bald assertion in Part I, page 161  20 of the outline of their argument:  21  22 "The biophysical, archeological and linguistic  23 evidence of Mathewes, Gottesfeld, Haeussler,  24 Chilton, Hatler, Morrell, Albright and Kari  25 suggests that there has been a remarkable  26 degree of ecological continuity through time in  27 the claim area and the surrounding regions."  28  29 And I say that the assertion is surprising not  30 only because it is contradicted by the plaintiffs' own  31 evidence, it is also difficult to reconcile with the  32 statement at pages 160 to 161 of their outline of  33 argument that:  34  35 "Summing up his evidence on the species range  36 and distribution, Hatler stated that of the  37 nine species mapped, six have maintained their  38 general abundance and range since 1860."  39  40 So it is since 1860 for Dr. Hatler, and for all of  41 those maps for the very recent time.  That is since  42 the end of the Little Ice Age.  43 Now, I say, and this assertion is not supported by  44 the evidence unless the plaintiffs mean by ecological  45 continuity that the claim area still had the mountains  46 and still had the air flow from the west generally.  47 Now, that's Dr. Chilton's, or Mr. Chilton's 26942  Submissions by Mr. Willms  1 observation which I say is an unremarkable  2 observation.  3 The plaintiffs' experts acknowledged, and it is  4 common sense, that the existence or abundance of  5 vegetation and animals is directly related to the  6 climate.  7 And at this point, my lord, at tab 5, I'd ask your  8 lordship to turn to page five, and here my friend Mr.  9 Grant is leading the evidence of Dr. Hatler.  At line  10 34 he says:  11  12 "Q   Okay.  Well, just referring to the preface  13 of -- I take it Professor Darlington and  14 his text on zoogeography is an accepted  15 text in the field of biology on  16 zoogeography; is that right?  17 A   It would probably be described as a classic  18 in the field.  It was the first major,  19 major text, and was the text that I used  20 when I took a course in zoogeography in  21 university.  22 Q   And its a standard reference for biologists  23 I gather?  24 A   It would be referred to in most -- in most  25 commentaries on zoogeography I'm sure.  2 6 Yes."  27  28 And now I'm going to turn to a couple of points  29 and then I can end this.  The next page, my lord.  30 THE COURT:  How long will it take, Mr. Willms?  31 MR. WILLMS:  My lord, I'm only going to read three or four lines  32 over the next three pages.  33 THE COURT:  All right.  34 MR. WILLMS:  Because on the next page at page six of the yellow  35 book --  3 6    THE COURT:  Yes.  37    MR. WILLMS:  — This is Darlington.  You'll see under climate:  38  39 "Climate is principally a matter of temperature  40 and rainfall."  41  42 And I harken back to cooler and wetter or both.  43 Then over to the next page, which is page eight  44 from Darlington, under vegetation.  45  46 "Vegetation, the plant cover of the world, is  47 distributed primarily according to climate, 26943  Submissions by Mr. Willms  1 especially temperature and rainfall, modified  2 by the nature and history of land and by other  3 things."  4  5 And then over to the next page talking about range  6 of animal distribution.  7  8 "The particular area occupied by a group of  9 animals.  Ranges often have to be shown on maps  10 as if they had fixed, continuous boundaries, or  11 as if they were solid blocks.  Zoogeographers  12 sometimes make the mistake of thinking of them  13 that, as if ranges were blocks which could be  14 taken from their places and moved about and  15 fitted together like building blocks.  They are  16 not.  They are areas inhabited by living  17 populations, and they are as complex, unstable,  18 and dependent on their particular environments  19 as living populations are.  20  21 And I just conclude before the break, my lord, to  22 say that it is clear from the evidence that the  23 climate was different during the contact period than  24 it is today.  That it was cooler -- to use Dr.  25 Gottesfeld's words, cooler or wetter or both, and that  2 6 that had a direct impact on animal range and  27 distribution and vegetation.  28 And I also, as I said before, I say that the early  29 historic records confirm that there was just no big  30 game in this area at all.  31 THE COURT:  Well, you'd include caribou in big game?  32 MR. WILLMS:  I would include caribou, my lord.  But even for  33 caribou the one thing we've got to watch is Dr.  34 Hatler's range and distribution doesn't say how many,  35 and even today it's not that many.  We are not talking  36 about large populations.  I just rely, and I refer  37 later on, my lord, to the Hudson's Bay records where  38 you see references like New Caledonia is destitute of  39 large game.  4 0    THE COURT:  All right.  Thank you.  Two o'clock.  41 MR. WILLMS:  Thank you, my lord.  42 THE REGISTRAR:  Order in court.  Court stands adjourned until  43 two o'clock.  44  45  46  47 26944  Submissions by Mr. Willms  1 (PROCEEDINGS ADJOURNED)  2  3 I hereby certify the foregoing to  4 be a true and accurate transcript  5 of the proceedings transcribed to  6 the best of my skill and ability.  7  8  9  10  11    12 Peri McHale,  13 Official Reporter,  14 UNITED REPORTING SERVICE LTD.  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 26945  Submissions by Mr. Willms  1 (PROCEEDINGS RESUMED AT 2:00 O'CLOCK P.M.)  2  3    THE COURT:  Mr. Willms?  4  5 MR. WILLMS:  My lord, I was on the Little Ice Age and my friend  6 reminded me of Mr. Chilton, and I apologize that I  7 don't have this portion of the evidence in the binder.  8 But your lordship may want to make a note, the note  9 could be where we left off.  10 THE COURT:  Yes.  Page five?  11 MR. WILLMS:  At the top of page five, about the Little Ice Age.  12 Because this is on -- transcript 147, 9402, starting  13 at line two and, this is after Mr. Chilton had said  14 that he just -- he didn't know whether the Little Ice  15 Age had any effect on this area.  And then your  16 lordship asked him:  17  18 "THE COURT:   You say you don't know whether the  19 Little Ice Age, as it's called, had any effect  20 on this area at all?"  21  22 Then Mr. Chilton said this:  23  24 "No, I don't.  There has certainly been warmer  25 periods and colder periods.  Back 12,000 years  26 ago there was a colder period right after the  27 glaciers retreated and a warmer period around  28 7000 years ago.  But most of the work, it looks  29 at pollen samples and so on and they don't  30 consider that time frame."  31  32  33 Now, I just refer to that point for two points, my  34 lord.  First of all, Dr. Matthews does consider pollen  35 samples as a paleobotanist and in fact he used pollen  36 samples to reach his conclusions in this case.  And so  37 to that extent I take it that Mr. Chilton is certainly  38 deferring to Dr. Matthews.  But the second point is  39 that Mr. Chilton quite frankly said right there, he  40 doesn't know whether it had any effect or not on the  41 area.  That's just something that Mr. Chilton doesn't  42 know.  However, fortunately, Dr. Matthews knew, Dr.  43 Gottfeld knew, Dr. Hatler knew and apparently June  4 4 Ryder.  45 MR. GRANT:  Well, just if your lordship is making reference I  46 think it's very important that the reference commence  47 at -- where your lordship asked Mr. Chilton questions 26946  Submissions by Mr. Willms  1 on page 9401 of the same volume, starting at line 22  2 and following.  Because Mr. Chilton makes it clear  3 that the analogy in your -- is from Europe, which has  4 a far longer record.  5 MR. WILLMS:  Yes, he says that's what he knows about but, you  6 know, he says "I am not aware of any great degree of  7 work that's been done in that area here."  He just  8 didn't know.  But, yes, I do, as my friend indicated,  9 I commend the previous page as well because it amounts  10 to the same thing.  11 THE COURT:  All right.  12 MR. WILLMS:  Now I am at page five, my lord, of my argument,  13 paragraph 6.  And there I say that although the  14 eastern Carrier appear to be clothed in fur, some  15 clothing in the Claim Area was made of fish skins, a  16 fact that was not known to Dr. Ray.  17 I say that people in the Claim Area were at times  18 poorly clothed and, my lord, if, for example, if your  19 lordship turns at tab 6 in the yellow book to page 10,  20 and you will see that this is from Trader Brown, 1822  21 to 1823, and you will see the third line in the second  22 paragraph, the third line down:  23  24 "Their shoes are made of the skins of these  25 fish..."  26  27 That's referring to salmon,  28  29 "...which with a Siffleux..."  30  31 And Siffleux, my lord, is a groundhog or marmot,  32  33 "...with a Siffleux robe composed the dress of  34 the greatest part of them."  35  36 And this is a reference to the Atnah.  37 THE COURT:  And this is 1822?  38 MR. WILLMS:  1822-23.  The report is written in '23.  39 Going over to the next page, my lord, at page 11,  40 this is an exhibit from Turner-Turner, and at page 12,  41 and I won't read it, my lord, but there is a  42 description on page 12 of Mr. Turner and the interior  43 of a lodge at Hazelton and what the people were  44 wearing in the lodge.  45 MR. GRANT:  Is that an exhibit, Turner-Turner?  46 MR. WILLMS:  Yes, my lord, Turner-Turner is Exhibit 1035-73.  It  47 was marked in the evidence of Dr. Galois in chief. 26947  Submissions by Mr. Willms  1 The next reference, my lord at page 14, this is a  2 note of McGillivray in 1833 on his voyage to the forks  3 of the Skeena and the Bulkley.  And at the top of the  4 page, and this is after he gets to Hagwilget, my lord,  5 about eight lines down, he said:  6  7 "These Indians are destitute of woolens."  8  9 And then further down he described the dress of one  10 of the individuals:  11  12 "He had on a new inferior red bar 3 pt. blanket,  13 bordered with a little red cloth."  14  15  16 Page 16 is from Exhibit 1033-13, this is Morison in  17 1866.  18 THE COURT:  1033-13?  19 MR. WILLMS:  1033-13.  It's actually in it in a number of  20 places, my lord, but this is where I have taken this  21 one from.  22 THE COURT:  From Morison?  23 MR. WILLMS:  From Morison.  And he is describing himself at  24 Mission Point.  And if you go down about eight lines  25 you will see the word appetite in the column on the  26 left-hand side, if you come down eight lines from  27 "alone at Mission Point", there is the word appetite  28 on the far left-hand side.  29 THE COURT:  If there is I can't read it.  Anyway, eight lines  3 0 down?  31 MR. WILLMS:  Yes, eight lines from -- into the first paragraph,  32 where it should say, your first paragraph should say  33 "alone at Mission point, Skeena Bulkley River."  And  34 in the column the first word would be appetite, "...  35 then down came about 100 Hagwilgaits to look at the  36 white boy; they were a fierce looking crowd, not a  37 pair of trousers amongst them."  38 And then over to page 21, and page 21 is an extract  39 from Harmon, and the exhibit is 913, but -- and this  40 is, of course, Harmon is returning into the eastern  41 Carriers.  He is outside the Claim Area here.  And he  42 says:  43  44 "Their clothing consists of a covering made of  45 the skins of the beaver, badger, muskrat, cat  46 or hare.  The last they cut into strips about  47 one inch broad, and then weave or lace them 2694?  Submissions by Mr. Willms  1 together, until they become of a sufficient  2 size to cover their bodies, and to reach to  3 their knees. This garment they put over their  4 shoulders and tie about their waists.  Instead  5 of the above named skins, when they can obtain  6 them from us, they greatly prefer and make use  7 of blankets, capots, or Canadian coats, cloth  8 or moose and red deer skin.  They seldom use  9 either leggins or shoes in the summer.  At this  10 season the men often go naked."  11  12 Then if you drop down, my lord, after the word  13 creation to "the women..."  14 THE COURT:  Yes.  15 MR. WILLMS:  16  17 "The women, however, in addition to the robe of  18 beaver or dressed moose skins, wear an apron 12  19 to 18 inches broad, which reaches nearly down  20 to their knees.  These aprons are made of a  21 piece of deer skin or salmon skin sewed  22 together.  Of the skin of this fish, they  23 sometimes make leggins, shoes, bags, et cetera,  24 but they are not durable and therefore they  25 prefer deer skins and cloth which are more  26 pliable and soft.  The roughness of salmon  27 skins renders them particularly unpleasant for  28 aprons."  29  30 And if -- I would ask your lordship to turn to page  31 25, and this is from Ogden, A Tale of Western  32 Caledonia.  33 THE COURT:  What's the exhibit number?  34 MR. WILLMS:  The exhibit number, my lord, is Exhibit 914.  And  35 about the middle of the page on the far right-hand  36 side you will see "one grim-looking fellow...", the  37 one starts on the far right-hand side.  3 8    THE COURT:  Yes.  39    MR. WILLMS:  40  41 "One grim-looking fellow stood eminently  42 conspicuous in a scarlet coat, unaccompanied by  43 that nether appendage which a delicate  44 spectator might have deemed necessary to  45 decorum;  while another, his nearest neighbour,  46 rejoiced in a regimental coat of the Sappers  47 and Miners, and the very decorous adjunct of a 26949  Submissions by Mr. Willms  1 half-worn pair of corduroy trousers."  2  3 Now, in terms of the ability of these people to  4 make observations, my lord, and your lordship has  5 heard some suggestion throughout this argument that  6 certain people you have to read, you have to find out  7 what their bias is before you can determine whether or  8 not you can believe that they actually saw what they  9 say she saw.  Dr. Mills dealt with that at the next  10 page, at page 26.  And, she is asked at line three, in  11 chief by Mr. Rush:  12  13  14 "Q   Now, Dr. Mills, in terms of the passage  15 that I have directed your attention to, which  16 is found at tab 27, that is to say the Harmon  17 journals and as well the journals of -- or the  18 accounts rather of the passages referred to  19 Peter Ogden, do you accept these accounts and  20 the passages that I have directed you to in the  21 accounts as reliable accounts of what was going  22 on at the time and what was observed?  2 3                 A   I do.  24 Q   Can you tell his lordship why?  25 A   These are eyewitness reports of the  26 observations of these people.  There seems to  27 be no reason to presume they would be in any  28 way inaccurate."  29  30 My lord, I suggest that that applies to any of the  31 historic records, where what is happening is a person  32 is saying what he saw.  33 Now the last --  34 MR. GRANT:  Just on that point, my friend probably is better at  35 this than myself, but my understanding of the first  36 reference of Brown of 1823 was that the Atnahs'  37 description is not what he saw, the Atnahs being, as I  38 understand and my friend understands as well, the  39 Gitksan, that he wasn't -- he was describing what he  40 was told about them.  Because I think that's  41 significant because of -- I am not sure if my friend  42 is going to come to his later report where he actually  43 observed what the Atnahs were wearing.  44 MR. WILLMS:  Yes, I am going to come to the part were he  45 observes what someone was wearing on his second trip  46 right now.  47 THE COURT:  Is there something being led now — 26950  Submissions by Mr. Willms  1 MR. WILLMS:  My friend is quite correct, that some of the  2 reports, some of what Brown says about the Atnahs is  3 based on what the Babine people told him.  4 MR. GRANT:  That's the reference that my friend has referred to  5 thusfar, the 1823 report.  6 MR. WILLMS:  Right.  7 MR. GRANT:  And I think that he describes in his later report  8 what the Atnahs actually were wearing, which is quite  9 different, and he repudiates what he heard earlier.  10 MR. WILLMS:  Not on this point, my lord.  But I am sure my  11 friend will be able to clear that up completely in  12 reply.  But he doesn't repudiate this point, my lord.  13 THE COURT:  All right.  14 MR. WILLMS:  Now, the next is page 30, which is an extract from  15 Brown's journal of his trip down the Babine River.  16 And the exhibit reference, my lord, is 964-14, and if  17 you look on page 30, over to the right hand column, he  18 is describing events on Thursday the 9th of March,  19 1826.  And down to the line, it's about 12 lines down,  20 it said "phone guaem..."  "found guaem..."  21 THE COURT:  Is it in where the ink changes?  22 MR. WILLMS:  Yes, it's right beside.  It looks like the words  23 "descending in concert" or something like that, but  24 you can see --  25 THE COURT:  I have that, yes.  26 MR. WILLMS:  Now he says, "Found Guaem nearly in his birthday  27 suit.  He made a long harrangue to us about his  28 poverty, et cetera."  29 Now he does -- this is the part that my friends  30 quoted in their argument, Brown then goes on to note  31 that:  32  33 "...Guaem then bedecked himself out in regalia  34 and did a dance for Trader Brown."  35  36 But when they came upon him, that was the condition  37 that he was in.  And so I say, my lord, back at page  38 five, paragraph 6, that it was the Eastern Carrier,  39 who from historical description were warmly clothed in  40 the winter while the Atnahs did not appear to be as  41 warmly clothed, at least in non-European garments. I  42 would suggest, my lord,  this may be another piece of  43 evidence of the recency of the arrival of the coastal  44 Gitksan into an unfamiliar interior territory.  45 At the bottom of page five, the beaver appears to  46 have been important for food for the Carrier but not  47 for the Atnahs who considered the meat unclean.  A 26951  Submissions by Mr. Willms  1 variety of furs were traded at Fort Kilmaurs and Brown  2 received reports -- and, my lord, if you could put in,  3 in 1823, above reports, in 1823, that Atnah country  4 abounded with beaver and other animals of the fur  5 kind, although this may have been an exaggeration as  6 Brown suspected by 1826.  And if your lordship could  7 add after the words "suspected by 1826", and I say  8 that because if you turn in tab 7 to the second to the  9 last page at the tab, which is page 12, and this is  10 from Brown's 1826 report, Brown says, the first full  11 paragraph on the page, starting at the first full  12 paragraph on the page.  13 THE COURT:  Do you know the exhibit number?  14 MR. WILLMS:  The exhibit is 964-12.  He says:  15  16 "From my own observations and the different  17 questions I put to them, I do not think there  18 are many beaver in their country, it being, in  19 my opinion, too mountainous."  20  21 And then he goes on to note two of the three  22 chiefs said that they didn't have much beaver in their  23 territory and the third chief said that he did but he  24 didn't know how to work it.  25 MR. GRANT:  Well, my lord, if I can just say, because I think my  26 friend misunderstood me, this report he is now  27 referring to exhibit 964-12, I just ask if you note  28 with respect to the clothing at page 9 of that report,  29 he refers to observing the Atnah with groundhog robes  30 and caribou leggings and that's what my friend did not  31 refer you to.  In 1825 he observed them personally.  32 MR. WILLMS:  Yes.  33 THE COURT  34 MR. GRANT  35 THE COURT  Where will I find that, Mr. Grant?  Exhibit 964-12, page 9.  For evidence of clothing.  36 MR. WILLMS:  Now I carry on, my lord, on page 6, paragraph 8,  37 and say that Loring's reports in 1899 show that the  38 only location in the Claim Area where you could  39 describe almost exclusively or entirely native  40 traditional activities taking place, was Kuldo, which  41 was later abandoned.  And my reference there is to Dr.  42 Galois, Dr. Galois acknowledged that, so that the  43 people from Kuldo could obtain non-traditional food  44 like flour, potatoes, sugar, et cetera.  And at tab 8,  45 my lord, if you would turn to page 3, tab 8, this is  46 Exhibit 901-11, Jeffery Harris, interviewed by Violet  47 Smith, and you will see down near the bottom in the 26952  Submissions by Mr. Willms  1 margin, "J. H." near the bottom:  2  3 "Our ancestors didn't live in Kispiox, they  4 lived in the Village of Kuldo about 50 miles  5 from the Kispiox village.  There weren't many  6 people in Kuldo when the white people settled  7 in the Hazelton area.  Our people desired some  8 of their food like flour, potatoes, sugar, et  9 cetera, but it was a long hard trip to pack the  10 food to Kuldo so they moved to Kispiox."  11  12 And then over to the next page is an Ellen Johnson  13 interview by Violet Smith.  But the part I want to  14 read from the Ellen Johnson interview is on page five,  15 the next page over.  16 And, here Violet Smith, in the middle of the page  17 by the three-hole punch:  18  19 "Q   Now will you tell me of the history of your  2 0 family?"  21  22 And Ellen Johnson said:  23  24 "A   Our family came from Kuldo. My grandmother and  25 my mother were there but I have never been  26 there.  It was too far away to come and get the  27 food of the white man that they desired so they  28 moved down to Kispiox."  29  30  31 Now, carrying on in the argument, my lord, at  32 page -- paragraph 9, residents of the Claim Area moved  33 mid-June to mid-August en masse to the coast to work  34 in the canneries from about 1884 to 1885.  And I cite  35 Dr. Ray and Dr. Galois there for that proposition, as  36 well as Mr. Hobenshield's affidavit at that location.  37 And then over to the top of page seven, paragraph  38 10, residents of the Claim Area were also involved in  39 packing, both before and after the introduction of  40 the horse.  The horse was introduced by the Collins  41 Overland Telegraph in 1866 and was adopted by the  42 inhabitants of the Claim Area as a transportation  43 resource.  By 1887 they had virtually monopolized  44 packing and claimed it as a privilege.  45 At this point, my lord, I would ask that you turn  46 to tab 10, and pages three and four of tab 10, there  47 is a letter from Allan Graham dated July 27th, 1887, 26953  Submissions by Mr. Willms  1 to the provincial secretary.  And the exhibit number  2 is in the upper right hand corner, 1180-111A.  At the  3 very bottom of the first page of the letter -- are you  4 at page 3, my lord?  It folds down.  5 THE COURT:  I am sorry, I am not.  I am at tab 10.  I am sorry.  6 Where do you want me to be?  7 MR. WILLMS:  Page 3 of tab 10 there should be a letter that  8 folds down.  Has yours been reduced?  9 THE COURT:  Mine is letter size.  10 MR. WILLMS:  Mine is big so I can read it.  11 "The Hudson's Bay Company..."  do you have that at  12 the very bottom of the letter?  13 THE COURT:  Yes.  14 MR. WILLMS:  15  16 "The Hudson's Bay Company are sending a pack  17 train to pack their freight across this  18 portage, a distance of 60 miles, Hazelton to  19 Babine Lake.  This freighting, 100,000 pounds  20 during a season has been previously done by  21 Indians.  They claim this packing as their  22 privilege and are opposed to pack trains.  I  23 will remain here till further order."  24  25  26 So it's my suggestion, my lord, that by 1887 the  27 inhabitants of the Claim Area had claimed packing as  28 their privilege.  29 THE COURT:  This is exhibit —  30 MR. WILLMS:  It's 1180-111A.  31 Now turning to my argument at paragraph 11, by 1910  32 the residents of the Claim Area were so involved in  33 the white economy that the "majority of the able  34 bodied Indians were having steady employment on the  35 Grand Trunk Pacific right-of-way."  36 And the two references there, my lord, are letters  37 written by Mr. Loring to the Department of Indian  38 Affairs.  That's 1035-322, and 1035-323.  This was an  39 observation that Dr. Galois terms dubious.  4 0 THE COURT:  An observation by whom?  41 MR. WILLMS:  The observation that the — the observation that  42 they were having steady employment.  He had the letter  43 put to him in cross-examination.  Well, I will go to  44 the cross-examination, my lord.  The cross-examination  45 of Dr. Galois is at page 3.  46 THE COURT:  Of tab 10?  47 MR. WILLMS:  Of tab 10. 26954  Submissions by Mr. Willms  1  MR.  GRANT:  2  3  4  5  6  7  8  9  10  11  12  MR.  WILLMS  13  MR.  GRANT:  14  MR.  WILLMS  15  16  17  18  19  THE  COURT:  20  MR.  WILLMS  21  THE  COURT:  22  MR.  WILLMS  23  24  25  THE  COURT:  26  27  MR.  WILLMS  28  29  THE  COURT:  30  MR.  WILLMS  31  THE  COURT:  32  MR.  WILLMS  33  THE  COURT:  34  MR.  WILLMS  35  36  37  38  39  40  41  42  43  44  45  46  47  Well, before that, my friend says that residents of  the Claim Area in his argument "were so involved in  the white economy the majority of able bodied Indians  were..."  is my friend referring to his extract at  page one, which refers to the able bodied Indians of  the villages below here and at Hagwilget and  Moricetown, thereby presumably excluding the Kispiox,  Kuldo and Kisgegas, or is he referring to the second  one?  It doesn't appear that Mr. Loring is saying what  my friend is saying and if my friend could clear that  up --  :  Well, I will see if I can help my friend here.  Just tell --  :  We will go to tab 1, my lord, and read it and maybe  we can clear up my friend's confusion.  I thought it  was clear but -- at tab 1 Loring says:  "Nearly all  the able bodied Indians of the villages below of  here..."  I am sorry?  :  I am at tab 11, page 1.  I am still on ten.  :  Page 1.  Now, first of all, to help my friend,  Loring is writing from Hazelton, so that he can -- we  can get above and below straight.  That's what I was trying to figure out.  Who is  writing?  Is this Loring?  :  This is Loring on page one and two.  I am reading  from page one right now.  Well, I am sorry, Mr. Willms, are we on tab ten?  :  11.  All right.  Now this is --  :  March 31st, 1910.  This is a letter from Loring.  Yes.  A letter from Loring. Okay.  :  He says:  "Nearly all the able bodied Indians  of  the villages below of here..." now, just stopping  there, below I would take as meaning below Hazelton,  which is the way that the railroad went, below  Hazelton along the river.  So I take that being  Kitwanga, Gitsegukla, below Hazelton, "...and the  Hagwilgets between here and Moricetown are busy on the  right-of-way of the Grand Trunk Pacific line."  Now, I take it that perhaps that some of the  Kispiox people weren't involved and some of the Kuldo  and the Kisgagas people were not involved, but I think  that's pretty clear.  Now, I was asking your lordship to turn to tab --  to page 3 of this tab.  And this is Mr. Adams leading 26955  Submissions by Mr. Willms  1 the evidence in chief of Dr. Galois, line 32.  And he  2 is referring to the second letter at this tab and he  3 says -- he reads the letter:  4  5 "'As formally made note of, the majority of the  6 able bodied Indians are having steady  7 employment on the Grand Trunk Pacific right-of-  8 way and this fact keeps them out of contact  9 with contaminating influences and with  10 opportunities for nonsensical vapourings, that  11 they should be the masters of the land, which  12 in their minds does not rest with certain  13 concessions, but comprises all or none.  It is  14 quite plain that parties in position to advise  15 them on the lines that tend to develop  16 affection, loyalty and truth are sub rosa  17 fostering the torment and keep it aglow.'"  18  19 Then he says "'and so on.'"  20  21 "And I want to ask you whether those passages  22 are examples of the materials you rely on to  23 describe Loring as offering his superiors  24 optimistic comments on the current mood and  25 dubious explanations for the former behaviour?"  26  27 And he says, answer, "yes."  28 But, Dr. Ray, if you go to page six at this tab,  29 Dr. Ray in his draft, Exhibit 962, says this:  30  31 "One very important but brief source of  32 employment was in connection with the  33 construction of the Pacific Grand Trunk Railway  34 through the Bulkley Valley and down the lower  35 Skeena River to come to the Prince Rupert  36 terminal.  Beginning in 1907, local Indian  37 people, particularly the Kitwancool,  38 Get-an-max, Kitwanga, and Rocher Deboule bands  39 worked on the survey crews and later  40 right-of-way construction."  41  42  43 And what I suggest there, my lord, is that as Mr.  44 Williams concluded -- I am in -- back in the argument,  45 as Mr. Williams concluded:  46  47 "...by the time of the arrival of the Grand 26956  Submissions by Mr. Willms  1 Trunk Pacific and the negotiations with the  2 Indians over acquisition of land, that as I  3 said in my report, that the pattern of the  4 relationship between the whites and Indians had  5 already been settled by then."  6  7  8 And the point I make there, my lord, which is  9 important, about the Grand Trunk Pacific Railroad, is  10 that the antithesis of ownership and jurisdiction has  11 to be surveying and helping to build a railroad.  12 THE COURT:  Yet Loring reported, just a moment ago, that they  13 were making that assertion.  14 MR. WILLMS:  My lord, there is no question, and we will be  15 making a submission, and it's a continuing submission,  16 that really, and I will deal with this a little bit  17 more when I deal with reserves and O'Reilly, but that  18 you really have to look at what the people did and  19 then consider what they said in light of what they  20 did.  And there is no question that at this time there  21 were some people saying that the land is all ours and  22 there were other people who were building a railroad  23 and surveying the railroad right through the land that  24 they say is ours.  25 Now, I say, my lord, that in law those two don't  26 stand together; that when you look at the people's  27 conduct in this case, action speaks far louder than  2 8 words.  29 Now, I then turn in my argument, my lord, at the  30 top of page eight, paragraph 12, and say this:  The  31 opinion evidence respecting prehistoric resource use  32 and society in the Claim Area depends primarily on  33 inferences and assumptions.  The assumptions that have  34 been made form the core of the disagreement between  35 the inferences drawn by the plaintiffs' experts and  36 those drawn by Dr. Robinson.  Each of the plaintiffs'  37 experts, at one point or another, appears to assume  38 that aboriginal society and resource use was static  39 for long periods of time in the past or if not static,  40 relatively unchanging.  Dr. Robinson assumes that  41 cultures always change depending on outside influences  42 and internal change.  Dr. Robinson documents the  43 likelihood that protohistoric influence has changed  44 aboriginal society while the plaintiffs' experts,  45 adopting, as I say, the "Indian World View", deny  46 this, primarily because they say it does not accord  47 with the plaintiffs' view of themselves.  The only 26957  Submissions by Mr. Willms  1 real difference, though, between the opinions of Dr.  2 Robinson and Dr. Ray revolves around furs and  3 trapping.  In other respects, Dr. Robinson and Dr. Ray  4 agree that the primary resource and the basis for the  5 subsistence economy in the early 19th Century, and  6 likely the prehistoric and protohistoric period, was  7 salmon.  It is the importance of furs that leads to  8 differing opinions.  9 And I say, in paragraph 14, there is no direct  10 evidence that resource use in society in the Claim  11 Area and in the historic period was either the same or  12 different from the resource use and society in the  13 prehistoric period.  Dr. Ray.  However, Dr. Ray  14 concludes the picture of resource use and society in  15 the 1820s more accurately reflects prehistoric  16 resource use because he doubted "very much that the  17 system in place, given how well articulated that  18 system was, was created in that short a period of  19 time."  20 And just on that point, my lord, if you could turn  21 to tab 14.  At tab 14, at page five, and this is an  22 extract, my lord, from Wilson Duff, The Impact Of The  23 White Man.  And I should point out, my lord, that  24 although parts of Wilson Duff are marked as Exhibit  25 855, the pages which I am about to refer to were not  26 marked at the exhibit.  27 MR. GRANT:  So this isn't an exhibit, what you are referring to  28 here?  29 MR. WILLMS:  No, this is like the additions to Dr. Coupland that  30 my friend added, in that vein.  31 Now, at the top of page five, my lord, under the  32 Nature Of The Trade, and Dr. Duff is referring to the  33 fur trade, he said:  34  35 "It is important to understand how intense the  36 trade quickly became.  Within a very few years  37 after 1785 the entire coast was glutted with  38 trade goods."  39  40 Then he describes a cultural difference over to  41 page six of the extract, my lord.  Bottom of page six and  42 top of page seven where he talks about potlatching, and  43 he says this:  44  45 "A potlatch was a large gathering to which  46 important people were invited in order to  47 witness some event such as a young person 2695?  Submissions by Mr. Willms  1 assuming a new name or the completion of a new  2 house or the erection of totem pole.  On such  3 an occasion the host would display his wealth  4 and present gifts to his guests.  The more he  5 gave away the more prestige he acquired.  Every  6 person wanting to raise himself in rank, and  7 most had some claim through inheritance to more  8 important positions, but it was only by means  9 of potlatching that one could assume and hold  10 the positions of high rank.  After the time of  11 contact, potlatches became more numerous and  12 larger.  More wealth was available and the  13 higher death rate resulted in more positions of  14 importance being opened.  The competition to  15 fill them was keen.  Potlatching also changed  16 in character.  Among the Kwakiutl at least, it  17 became a substitute for war.  Before the  18 imposition of British law, war had been a major  19 method of humbling enemy tribes and gaining  20 prestige.  During the 1850s and 1860s, warfare  21 decreased and potlatching increased.  Energies  22 formerly expended in war were now put into  23 potlatches which were organized like war  24 campaigns and referred to in the speeches as  25 wars.  One old Kwakiutl said in a speech in  26 1885:  'When I was young I saw streams of blood  27 shed in war but since that time the white man  28 came and stopped up that stream of blood with  29 wealth.  Now we fight with our wealth.'"  30  31  32 Now, my lord, in terms of the impact there on the  33 Claim Area, I want to remind your lordship of the  34 comment from Kitwanga when O'Reilly came:  "We used to  35 fight about our land" and after O'Reilly came,  36 O'Reilly settled it all.  And also the fact that the  37 warfare in the oral histories dies out in about the  38 1860s.  39 Now, carrying on on page nine, my lord, paragraph  40 14.  And, I just finished quoting from Dr. Ray in my  41 argument there, and then "he" is Dr. Ray, explains the  42 difference between his opinion and Dr. Robinson on the  43 ground that Dr. Robinson's conclusions, as with other  44 anthropologists, such as Dr. Goldman, Dr. Steward, Dr.  45 Kobrinsky, Dr. Jenness and Father Morice, was reached  46 in the absence of any good historical records.  But  47 it's here that I say that Dr. Robinson considered 26959  Submissions by Mr. Willms  1 historical records from the Hudson's Bay Company on  2 the coast, and in the interior, as well as other  3 coastal historical records, in reaching conclusions.  4 And we will come back to that, my lord, in respect of  5 Dr. Robinson's report or dissertation.  But at this  6 particular point I want to emphasize, my lord, that  7 Dr. Robinson did not have a focus on only Hudson's Bay  8 records, which was Dr. Ray's focus.  Dr. Robinson was  9 free to, and did in her dissertation, look at coastal  10 records, including the Fort Simpson records from The  11 Bay, and brought that knowledge to the report that she  12 gave in this court and added to it some references to  13 the Fort St. James journal and also Brown, she  14 referred to both Brown and Fort St. James in her  15 bibliography and, most importantly, my lord, when she  16 was confronted with the proposition that her  17 conclusions were contrary to Brown, that she didn't  18 consider Brown, she said she did.  And that she knew  19 of Harmon as well.  And it is my suggestion, my lord,  20 that in terms of an historical analysis, while Dr.  21 Robinson may not have looked at as much of The Bay  22 record as Dr. Ray did, she brought a much broader base  23 of historical analysis to bear than Dr. Ray did.  24 Now, with that in mind, my lord, I say at the  25 bottom of page nine that historical analysis alone  26 cannot be used to predict prehistoric resource use of  27 society.  There must be an ethnological analysis which  28 takes the historic record into consideration.  And  29 there, my lord, you might recall that drawing from Dr.  30 Bishop and Dr. Ray, where it had backstreaming by  31 ethnologists, where there is an ethnological  32 perspective brought to bear, and what I say here, my  33 lord, is that Dr. Robinson has overwhelming knowledge  34 of historical information for the whole northwest  35 coast.  36 I say also --  37 THE COURT:  Well, was -- what do you understand is the  38 difference between them?  39 MR. WILLMS:  In their opinions?  4 0    THE COURT:  Yes.  41 MR. WILLMS:  Well, the principal difference in the opinions,  42 which I deal with later, is that Dr. Ray says when he  43 looks at Trader Brown he is getting a snapshot of what  44 the plaintiffs looked like in the prehistoric past.  45 And what Dr. Robinson says is that can't be, there is  46 a continuum of change going on and Brown gives you, if  47 I can put it this way, a snapshot of what it looked 26960  Submissions by Mr. Willms  1 like at the time Brown was there.  And if I can -- if  2 you drew a graph and you had change in society on one  3 arm and time on the bottom, Dr. Robinson's graph  4 would -- there would be some change and there would be  5 periods of rapid change, but Dr. Ray's graph would  6 plug along at a horizontal line until 1831, when even  7 he acknowledged a radical change in his evidence given  8 in this case.  So he is going along like this and then  9 at 1831 it heads up.  Well, what I submit is that's  10 the difference.  11 Now I am at page --  12 THE COURT:  I would have thought what he was saying was that I  13 found an organized society carrying on a -- enough  14 resource gathering to engage in some trade in the  15 early 1830s, and Dr. Robinson -- and it was such a  16 state that it must have been there for some time,  17 where Dr. Robinson said it's all a reaction to the fur  18 trade.  Is that too simplistic?  19 MR. WILLMS:  No, that's not too simplistic, my lord.  And that's  20 what I deal with now in paragraph 15.  21 THE COURT:  All right.  22 MR. WILLMS:  With the difference between the change approach and  23 the static approach.  And I say --  24 MR. GRANT:  I think my friend has cast Dr. Ray, I think, in a  25 completely incorrect frame, and I just ask your  26 lordship --  27 MR. WILLMS:  Well, my lord, this is argument and I am going to  2 8 deal with the evidence now and my friend can make his  29 argument in reply.  Now, I just -- for the last three  30 minutes I didn't cite any evidence, so my friend can't  31 be straightening me out on any evidence.  I made  32 argument for the last three minutes.  33 THE COURT:  I think Mr. Willms is right, Mr. Grant, I don't  34 think this is a place for an interjection.  35 MR. WILLMS:  Now, paragraph 15, my lord, I say this, that there  36 are two points that are important in assessing Dr.  37 Ray's static interpretation.  First, it differs from  38 an earlier opinion he held for at least part of the  39 Claim Area.  At one time, Dr. Ray thought that the fur  40 trade radically altered the local economy.  And if  41 your lordship could turn to tab 15, and at tab 15,  42 this -- these are comments on Skip Ray's Kemano paper,  43 so this is Dr. Cove, and I think Dr. Clark, giving  44 some comments on a paper that Dr. Ray wrote.  And  45 starting on page 3 -- and what they do, they give the  46 page reference to Dr. Ray's paper, and then they give  47 a comment.  So at the middle of page 3 you will see 26961  Submissions by Mr. Willms  1 they refer to page 6 of Dr. Ray's paper, and they say:  2  3 "A problem with tone -- that the fur trade  4 'radically altered' the local economic  5 situation.  It may have had an impact but  6 'radically altered' is too strong."  7  8 Now, over to the next page, where -- and it's just  9 above the three-hole punch, the reference pages six  10 and seven there?  11 THE COURT:  Yes.  12 MR. WILLMS:  13  14 "Ray implies a radical change in their native  15 economy in 1821 -- not so."  16  17  18 Further down, at page seven:  19  20 "Ray suggests that the fur trade enabled the  21 Gitksan to extend their influence into Carrier  22 land and society and to 'bring about major  23 changes in the socio-economic organization of  24 northern Carrier sub-tribes, particularly the  25 Wet'suwet'en and the Babine."  26  27 Of course, Dr. Cove's comment, "this is speculative  28 and unsubstantiated."  29 Over to the next page, page --  30 THE COURT:  Do we know the date of this?  31 MR. WILLMS:  The date of this is October of '84, that's Dr.  32 Ray's handwriting, October of '84 on the front, which  33 I take it is when he got these comments back from  34 Clark and Cove.  35 On page five, and this is a continuing comment on  36 page seven, about page seven of the Kemano paper,  37 fourth line down:  38  39 "Ray's implication here is that prior to the fur  40 trade the Wet'suwet'en were nomadic hunters who  41 did not have the sophisticated socio-economic  42 organization."  43  44  45 Over to page six, down towards the bottom, where  46 it says "pages 8-9".  47 26962  Submissions by Mr. Willms  1 "There are problems here with evidence on the  2 logic of the argument.  First, the terms  3 'prehistoric' and 'protohistoric' should not be  4 used.  Second, Ray seems to be lumping all  5 pre-contact Carrier into the same mould:  that  6 is, nomadic band-oriented social organization  7 unlike the post-contact and present  8 Wet'suwet'en.  In so doing, he is setting up to  9 argue that the fur trade radically changed this  10 form of social organization."  11  12  13 Finally, my lord, over on to page eight -- I  14 shouldn't say finally, but over on to page eight of  15 these comments, beside page 19:  16  17 "It is not clear from the data that pre-contact  18 Carrier society had been radically transformed  19 by the 1820s. "  20  21 Are you with me, my lord?  22 THE COURT:  Yes.  23 MR. WILLMS:  And then beside pages 20 to 21:  24  25  26 "If a transformation did take place, it would  27 likely take longer than 20 years to develop to  28 the stage Ray claims it had reached by 1820."  29  30  31 And then the final reference here, my lord, is at  32 page nine beside page 70, it says:  33  34 "Ray states that hunting territories were held  35 by nobles on behalf of their lineages.  The  36 term lineage should be defined.  We use it to  37 indicate a family line through time within a  38 house.  See land claim report.  It would be  39 better to say that hunting territories were  40 controlled by chiefs on behalf of their  41 houses."  42  43  44 Now, what I say from that, my lord, is that it is  45 quite clear that at one point Dr. Ray agreed with  46 everyone else that Dr. Robinson referred to in her  47 evidence, and that is that the fur trade radically 26963  Submissions by Mr. Willms  1 altered the social organization in the Claim Area.  2 Now, carrying back on in the argument, my lord, I  3 say after that, second, Dr. Ray admits that in  4 assessing the historical record you cannot assume that  5 what's happening in 1858-1860 to 1870 is what was  6 happening in 1820, and his point was that the way you  7 normally would work is to go from the earliest known  8 record and work forward.  So that's how he approaches  9 the historical record.  But he assumed that what was  10 happening in 1820 from the historical record was  11 happening prior to 1820, even though -- and he  12 admitted again, my lord, there is no concrete evidence  13 to tell us what existed before.  14 Now what he did do is he did agree that from 1831  15 on the fur trade changed not only one aspect of the  16 Gitksan or the Wet'suwet'en system, but it had an  17 impact on every, almost every aspect.  So I say that  18 Dr. Ray's evidence appears to be that resource use and  19 social organization were static until the 1830s, at  20 which time radical changes in resource use in society  21 are evident and obvious from the historical record.  22 Now, I say this in paragraph 16, my lord, that it  23 is submitted here that to the extent of working  24 backward from the known into the unknown is  25 appropriate.  Dr. Ray's initial opinion of radical  26 change, consistent as it is with Dr. Robinson's  27 opinion, is the appropriate method of assessing what  28 the local resource use in society was prior to the  29 beginning of the 19th century.  And Dr. Robinson  30 concluded that the reference in the 1822 and 1826  31 reports by Brown, of tracts of land associated with  32 beaver hunting territories was in keeping with the  33 post-European influence situation.  And she also  34 described it, this is from her cultural ecological  35 background, my lord, and I say it also accords with  36 common sense, and watching the world change around us  37 even today, that it's a truism that any human is  38 living societies that are not static, human societies  39 are dynamic, ongoing processes.  40 I say, at the bottom of page 11, that there has  41 been a great debate in Canada, sometimes called the  42 Algonkian hunting debate, about the importance of  43 trapping and territoriality and the effect of the fur  44 trade on the aboriginal populations of Canada.  On the  45 one hand, some scholars assert that the fur trade  46 merely intensified pre-existing subsistence economies  47 and resource use and other others argue that the fur 26964  Submissions by Mr. Willms  1 trade radically changed resource use in aboriginal  2 societies.  3 And I say in paragraph 18, my lord, that there are  4 at least two reasons why Dr. Robinson's view of  5 resource use in society in the prehistoric period is a  6 more likely reflection of what was actually taking  7 place than Dr. Ray's newly-held static view.  First,  8 there is no question that Claim Area resource use in  9 society radically changed after 1831.  Dr. Ray  10 acknowledged this.  The change in subsistence economy  11 and resource use continued and is documented in the  12 historic record to the present.  If this change can be  13 documented in the historic period, then there is no  14 reason to discount changes in the protohistoric period  15 and assume little change, as Dr. Ray did.  I say this,  16 that there is no basis for a presumption of stasis.  17 Protohistoric influences I submit, my lord, clearly  18 existed prior to contact.  19 And the -- my lord, if you could turn to tab 18,  20 and what we have here, and I have to read both for  21 your lordship to see which part Dr. Daly felt  22 confident in and which part he wasn't confident in,  23 but at page five, this is a extract from Dr. Daly's  24 report at tab 18, and he says:  25  26 "As George MacDonald has argued, it appears  27 that the trade in European metal goods along  28 the grease trails preceded the European  29 explorers on the Northwest Coast by at least a  30 century.  It is my opinion that as historical  31 studies of the Pacific Coast develop we will  32 also find that the proto-contact tempo of trade  33 picked up momentum from eastern and southern  34 influences as well - from aggressive  35 transcontinental push that the Great Lakes and  36 Plains fur trade exerted in the course of its  37 westward expansion, throwing one nation or  38 people against another and thereby creating  39 confederacies of tribes joined together for  40 defensive and retaliatory purposes in the  41 course of the scramble to control trade routes  42 and access to furs; and also from the Spanish  43 to the south, whose horses, guns and knives,  44 together with the market activity of the  45 west-moving fur trade, facilitated the Chinook  46 slave-taking and the increased volume and tempo  47 of trading and raiding all along the Pacific 26965  Submissions by Mr. Willms  1 Coast."  2  3  4 Now, he backed away slightly from part of that, my  5 lord, and it's the part from the south that he backed  6 away a bit from, but not the part from the east.  And  7 that's on the next page is an extract from Mr. Grant  8 leading the evidence of Dr. Daly.  9 THE COURT:  Before you leave that, Dr. Daly's — I am sorry.  I  10 am sorry.  This is Dr. Daly's report?  11 MR. WILLMS: Yes.  12 THE COURT:  I am sorry, I thought it was Dr. Mills.  13 MR. WILLMS:  No, this is Dr. Daly.  14 THE COURT:  Exhibit number is 824?  15 MR. WILLMS:  884, I think this page is from dash 2.  The report  16 was broken into two parts.  I think that 507 is from  17 the dash 2.  Yes, it's from dash 2.  18 THE COURT:  The exhibit number then is —  19 MR. WILLMS:  884-2.  20 Then I was going to ask your lordship to turn to  21 page six.  22 THE COURT:  Would it be right to say that Dr. Daly here tends to  23 support Dr. Robinson, that trade preceded the European  24 explorers by a century?  25 MR. WILLMS:  Oh, yes.  And he didn't change that part.  He  26 didn't resile from that part.  27 THE COURT:  And that's what she said?  28 MR. WILLMS:  That's what she said, yes.  2 9 THE COURT:  All right.  Where are you going now?  30 MR. WILLMS:  I am going to page six and this is at line 16, my  31 friend says this:  32  33 "My lord, I just ask if you could note that I  34 asked Dr. Daly that question, that that second  35 part of that first paragraph..."  36  37 And he means the first full paragraph,  38  39 "...really shouldn't be regarded in terms  of  40 the report, as it's something that is not  41 established in the field.  He is just  42 commenting on research that's been done in an  43 ongoing way."  44 THE COURT: Do you agree with that?  45 THE WITNESS:  I agree, yes. I was a bit too  46 enthusiastic for the available facts."  47 26966  Submissions by Mr. Willms  1 And then Mr. Grant carries on:  2  3 "Q   You don't have to say anything more about it.  4 It's your opinion that there is a possibility  5 of finding further evidence.  This would be  6 consistent with what you found on the east  7 coast?  8 A   Yes.  Oh, it certainly pertains to the northern  9 snowball effect of the fur trade from east to  10 west.  11 Q   Yes?  12 A  And that had an effect from east to west.  13 Q   Right.  14 A   Just as the coastal trade had an effect from  15 the west towards the east.  16 Q   Right.  17 A   But there is not enough data available for the  18 effects coming up from the south and the  19 southwest."  20  21  22 And that was the part that Dr. Daly wanted to say  23 that he was a bit enthusiastic about in the paragraph  24 that I read to your lordship.  But he was -- he didn't  25 resile from the effect on the coast and from the  26 effect east to west coming across.  27 Now, if I can turn back to the argument, my lord,  28 and then perhaps I can read this part and then take  29 the break.  But I am on the top of page 13, and I say  30 this, Dr. Ray acknowledges the problem of inadequate  31 attention to changes in the protohistoric period in an  32 earlier treatise where he says, and this is Dr. Ray  33 and Dr. Bishop who co-authored this statement:  34  35 "The assumption is often made that the proto-  36 historic period was generally short and the  37 amount of change that could have taken place  38 would have been necessarily slight.  Since  39 documents are almost always scanty for this  40 period, prehistorians frequently connect their  41 archeological records directly to what is  42 designated as the historic period; while  43 ethnologists working backward through the  44 historic period assume that data pertaining to  45 the latter period provide us with a reasonably  46 accurate picture of aboriginal cultural  47 conditions.  Such mental jumps have caused a 26967  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  THE  COURT:  15  16  17  18  MR.  GRANT:  19  20  MR.  WILLMS  21  22  23  24  25  26  27  28  29  THE  COURT:  30  MR.  WILLMS  31  32  33  34  THE  COURT:  35  MR.  WILLMS  36  THE  COURT:  37  38  39  MR.  WILLMS  40  THE  COURT:  41  MR.  WILLMS  42  THE  COURT:  43  44  45  46  47  MR.  WILLMS  great deal of confusion since changes that took  place during the protohistoric period are  rarely considered adequate."  And the point I make there, my lord, is that when  he wrote his paper, along with Dr. Bishop, on how to  do this kind of research he, in effect, says, don't  discount the protohistoric influences and don't think  that when you get there and see the first historic  records that that's an accurate reflection of  prehistoric society.  He is saying that if you do  that, you fall into error.  And that, my lord, is  exactly what Dr. Robinson said.  Is that an accurate quote?  Is that what he said?  Because it doesn't seem to me to be a complete  thought.  Did he mean not considered adequately or if  not, adequate for what?  Just for -- this is from his paper on the central  sub-arctic with Bishop; is that right?  :  Well, my lord, it's a quote, that's an exact quote  from the paper but I can say this, that when you read  the paper, that it is clear -- this is called, for my  friends, this is called Ethnohistorical Research In  The Central Sub Arctic - some conceptual and  methodological problems", Exhibit 902-6.  I don't  think that Dr. Ray and Dr. Bishop wrote a paper called  Ethnohistoric Research in the claim area, so we just  have to go with these.  The quotation is accurate though, is it?  :  The quotation is accurate.  The sense, when you  read the article, my lord, and when you read what they  are concerned with in the article, it is that the  protohistoric period has been ignored.  Or not considered adequately.  :  Or not considered adequately.  The passage that you read me on the previous -- from  tab 18, page 6, that's Daly's report, that's not a  paper he wrote on the subarctic?  :  That's Dr. Daly's report.  On this case.  :  On this case, yes.  All right.  Then if there is trade in European metal  goods along the grease trail preceding European  explorers on the northwest coast, European explorers I  suppose start with Cook or the Spaniards arounds 1778  or just before?  :  In that area, yes. 2696?  Submissions by Mr. Willms  1 THE COURT:  So he is talking about in the 1600s, late 1600s?  2 MR. WILLMS:  That's Dr. Robinson and the Russian metal trade.  3 THE COURT:  Must be Russian or Asiatic or European goods.  4 MR. GRANT:  Or from east of the Rockies, that's what Dr. Daly is  5 talking about, coming from the east, my lord.  6 THE COURT:  Funny way to put it if he is exploring the northwest  7 coast, if he is talking about trade goods on the  8 grease trail coming, if he is coming from the south or  9 east.  10 MR. GRANT:  He corrected it, that there was research on the  11 south but they were coming from the east.  And that  12 was the point that he was making,  they were from  13 eastern and southern influences from the  14 transcontinental push.  That's what the statement says  15 that my friend quoted.  And I think that that's what  16 he is making reference to there, and he corrected the  17 south but he said the east.  18 MR. WILLMS:  I think, my lord, when you refer to what Dr.  19 MacDonald said about the Russian trade, I would really  20 prefer that if my friend was going to take up time  21 making submissions like that, he took up his reply  22 with submissions like that.  Because Dr. MacDonald is  23 totally contrary to that.  He doesn't suggest that the  24 iron trade came across the continent at all.  25 THE COURT:  Somebody said that.  26 MR. WILLMS:  Dr. Daly suggests here, and so did Dr. Robinson.  27 Dr. Robinson suggests that there is a convergence of  28 trade, Russian, Asiatic coming from the coast and east  29 to the west.  30 THE COURT:  All right.  We will take the afternoon adjournment.  31 Thank you.  32  33 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  34  35  36  37  38  39 I hereby certify the foregoing to be  40 a true and accurate transcript of the  41 proceedings herein to the best of my  42 skill and ability.  43  44  45  46 Wilf Roy  47 Official Reporter 26969  Submissions by Mr. Willms  1 (PROCEEDINGS RECOMMENCED AFTER BRIEF RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Willms.  5 MR. WILLMS:  My lord, I was at page 13, paragraph 19, and I gave  6 your lordship the first reason why Dr. Robinson's view  7 should be accepted over Dr. Ray's.  The second reason  8 is that Dr. Robinson gave evidence of cultural  9 ecological theory based on world-wide investigations  10 which not surprisingly I say accord with common sense,  11 that is societies are always changing and always  12 evolving.  Dr. Robinson's conclusions are not only  13 based on historical information, but also on a broad  14 basis of comparison from both cultural ecological  15 theory, and also from the other comparative examples  16 in the adjacent region, which she had been citing  17 throughout her evidence.  18 I say in paragraph 20, when the evidence is  19 considered, there appears to be no doubt that the fur  20 trade from the coast, including the Russian trade  21 influenced the society and resource use in the claim  22 area prior to the observations of Brown in the 1820's.  23 And just on that point, at Tab 20, my lord, at Tab  24 20, page 3, just an extract at page 3 from the  25 cross-examination of Dr. Ray, and at line 6:  26  27 "Q   One thing is clear that by the time Brown got  28 to Babine Lake there had been fur-related trade  29 European fur-related trade with the people of  30 the lake from two sides, from the coast and  31 from Fort St. James prior to Brown getting  32 there?  33 A   Yes.  I say so in my report."  34  35 Now, I carry on, my lord.  The land-based fur  36 trade influenced the claim area by the latest 1806  37 when Fort St. James was founded.  The plaintiffs argue  38 that the fur trade influence in a claim area may  39 extend back to the French fur trade in the 18th  40 century.  And I have a reference to the plaintiffs'  41 outline there, my lord.  42 The historic records of Brown follow  43 proto-historic influence by at least 16 years from the  44 east and probably 40 years, and possibly, I say, when  45 you consider the Russian influence, 150 years from the  4 6 west.  47    THE COURT:  What are those references?  16 years from east is 26970  Submissions by Mr. Willms  1 what?  2 MR. WILLMS:  16 would be 1806 to 1822.  I say that's the latest.  3 By the time Fort St. James gets found, that's the  4 latest, probably earlier, and the 40 years from the  5 west is what I am going to refer right now, it's from  6 Dr. Ray from his cross-examination, and it's at page  7 10, my lord.  8 You will see at the bottom, line 46:  9  10 "Q   That the point I am suggesting here is that  11 this trade, which influences inland started  12 from 1780, had been going on for 40 years  13 before Brown got there.  14 A   That's right."  15  16 Now, I do suggest, as Dr. Robinson's suggested, my  17 lord, and as Dr. MacDonald suggested when he found  18 some Russian artifacts, that there was a Russian trade  19 and an Asian trade that may have come even earlier,  20 but that in my submission there is no question that  21 from the point that the coast was glutted, in the  22 words of Dr. Duff, with trade goods, I think the date  23 that he used was 1785, but from that date on from the  24 coast.  And the trading ships followed hard on his  25 heels year after year after year.  That's clear, my  26 lord, that's another problem, because Dr. Robinson's  27 dissertation, Dr. Robinson gave evidence about this,  28 but there were hundreds of ships that came to that  29 coast over that 40 year period.  Hundreds of ships.  30 THE COURT:  I can understand that, but I have trouble seeing how  31 they could have been -- how they could have glutted  32 the coast for seven years.  33 MR. WILLMS:  Well, my lord, all you need at that time for  34 European goods, considering the population on the  35 coast, is -- and there was certainly more than a dozen  36 ships, but that's all clear from Dr. Robinson's  37 research.  There were traders, my lord, called -- the  38 American traders were called the Bostons, there were  39 American traders, Russian traders, there were English  40 traders.  There was even some suggestion of an  41 isolated Spanish trade in the area.  People came from  42 all over.  43 MR. GRANT:  I take it my friend is referring to the entire coast  44 or the north coast just in this discussion.  45 MR. WILLMS:  I am referring to the northwest coast.  That's what  46 I am referring to.  47 THE COURT:  All right. 26971  Submissions by Mr. Willms  1  MR.  WILLMS  2  THE  COURT:  3  4  MR.  WILLMS  5  6  THE  COURT:  7  MR.  WILLMS  8  9  10  11  12  13  14  THE  COURT:  15  MR.  WILLMS  16  17  18  19  20  THE  COURT:  21  MR.  GRANT:  22  23  MR.  WILLMS  24  THE  COURT:  25  MR.  WILLMS  26  27  28  THE  COURT:  29  MR.  WILLMS  30  31  THE  COURT:  32  MR.  WILLMS  33  34  35  36  37  38  39  40  THE  COURT:  41  MR.  WILLMS  42  43  44  45  46  47  :  Now, I say, my lord, at the top of page 15 --  If you can give me a citation for glutting the coast  in 1785, I would be grateful.  :  And I may have -- my lord, the reference is at tab  14 in the yellow book, page 5, and it's Dr. Duff.  Page 5.  :  He says within a very few years after 1785 the  entire coast was glutted with trade goods.  It's at  tab 14, page 5.  At the top:  "It's important to understand how intense trade  quickly became."  Yes.  "Within a very few years after 1785 the entire  coast was glutted with trade goods."  And that is --  That's the piece that isn't an exhibit, my lord.  I  take it my friends --  :  I think it --  This says Exhibit 855.  :  There is an extract from this book marked at 855.  This is just -- I am supplementing the exhibits as my  friends did with Dr. Coupland.  Yes.  All right.  :  Now, I am back over, my lord, to page 15, paragraph  21.  Yes.  :  And I say that it is more likely than not that  prehistoric society and resource use in the claim area  was different than historic society and resource use,  because as poorly understood as were the processes of  change occurring in the proto-historic and early  historic eras, the fact that changes were occurring is  irrefutable.  And, my lord, the page reference there  should be 607, not 21606.  607.  :  21607, yes.  That's a reference from Dr. Robinson's  evidence.  And then the next extract, my lord, is an  extract from Dr. -- I'll just confirm this.  The next  extract, my lord, is from Dr. Robinson's report.  "Most modern scholars engaged in North American  ethnohistoric research agree that indigenous 26972  Submissions by Mr. Willms  1 populations were profoundly affected by  2 indirect contact with Europeans before they  3 experienced direct contact with them.  Although  4 the nature, timing, intensity and repercussions  5 of protohistoric European influence varied  6 considerably from region to region, research  7 indicates that no native groups in what is now  8 known as British Columbia were isolated from  9 stimulus stemming from the European presence in  10 the New World."  11  12 And then I say in paragraph 22.  13  14 Ethnologists working in or near the claim area  15 since the turn of the century, Father Morice, Dr.  16 Jenness, Dr. Cranny, Dr. McClellan, Dr. de Laguna, Dr.  17 Oberg, Dr. Garfield, Dr. Tobey, Dr. Steward, Dr.  18 Krause, Dr. Goldman, Dr. Hudson, Dr. Kobrinsky, Dr.  19 Ames, Dr. Adams, Dr. Yerbury and Dr. Bishop, all  20 conclude that the potlatch rank complex was borrowed  21 by Athabaskan people, including the Carrier from the  22 Coast Tsimshian and late prehistoric protohistoric and  23 historic times.  24 Now, I say in paragraph 23, again in an earlier  25 work, Dr. Ray appears to have accepted this theory,  26 however, he later changed his view and concluded that  27 there was no concrete evidence to tell us what existed  28 before contact.  And here in paragraph 24 in an  29 earlier draft of her report, Dr. Mills said, "There is  30 no doubt that the Wet'suwet'en adopted a system of  31 clans, houses and titles from the more coastal  32 neighbours".  And I say this.  It is on this important  33 point that the plaintiffs' evidence is more suspect.  34 While each of the plaintiffs' anthropologists used a  35 comparative analysis of other anthropological research  36 to come to his or her conclusion, and I just list the  37 references, and they are all in the yellow book, my  38 lord.  They are not meant to be exhaustive.  Each  39 rejects the conclusions of admittedly eminent  40 reputable anthropologists who worked in or near the  41 claim area before this litigation was commenced.  42 And I say this in paragraph 26.  The fieldwork of  43 others was done in the absence of land claim  44 litigation, and none of it was coordinated and edited  45 by one person, in this case Richard Overstall, an  46 employee of the Tribal Council.  I say he wrote the  47 introduction to the Kari/Rigsby report, and Dr. Kari 26973  Submissions by Mr. Willms  1 acknowledged that, and a reference is there, and  2 engaged in wholesale butchering of Miss Albright's  3 report.  And I say his hand is evident in all of the  4 plaintiffs' experts opinions.  Prior scholars were  5 free to come to their own conclusion, and owed no  6 allegiance except to their own independently  7 formulated theories.  8 In the face of the overwhelming evidence of the  9 recent borrowing of culture by the Carrier, the  10 plaintiffs primarily rely on the evidence of Dr. Daly  11 and Dr. Mills, and also cite the work of Drs. Dyen and  12 Aberle, and each of these will be considered in turn.  13 The first point is Dr. Daly, my lord, and I say  14 that his evidence has virtually no value in determing  15 resource use and society in the prehistoric period.  16 First, the bulk of the data pertaining to his report  17 has been gathered by means of participant observation,  18 largely undocumented, conducted since the commencement  19 of this lawsuit.  And Dr. Daly's -- and perhaps on  20 that point, my lord, and there is another book that  21 I've handed up.  22 THE COURT:  Are we out of this one?  23 MR. WILLMS:  I am out of this one, and there is -- go onto the  24 next one.  And I ask your lordship to turn to Tab 28  25 at page 5.  And this is the cross-examination of Dr.  26 Daly by Ms. Koenigsberg, and I am starting at line 37,  2 7 my lord.  28  29 "Q   And of your participants observation, you  30 recorded some of what you observed and heard,  31 specifically, we have 27 interviews of, I  32 believe, 34 or 35 persons, and two documents  33 which are notations of -- concerning feasts; is  34 that correct?  35 A   There is -- well, there is one document  36 concerning the events in Burns Lake.  37 Q   Yes.  That was the All Clans Feast?  38 A   Yes.  39 Q   Yes.  Now, there is -- there is that body of  40 notes with Mary McKenzie and Pearl Trombley  41 which was, in effect, a series of interviews?  42 A   Yes.  43 Q   Yes.  And those are part of the 27 interviews?  44 A   Yes, yes.  45 Q   I'm sorry, 27 persons and I believe there are  46 35 interviews.  You had more than one interview  47 with several people? 26974  Submissions by Mr. Willms  1 A   Yes.  2 Q   You did not record numerous other interviews or  3 discussions that you had which you have  4 classified as informal?  5 A   I did -- well, I record them directly into the  6 computer, that's the -- that's problem with  7 this evidence on that front.  Many things in  8 the course of formulating my thinking came  9 directly in as I was inputting the arguments."  10  11 Note the words "and I tried to indicate that here  12 and there."  13  14 "Q   All right.  But the kind of notation that we  15 would think of as a specific recalling of what  16 you were observing, we find evidence only in  17 the 27 — or the — I'll call them the 35  18 interviews in the notes of the feast.  19 A  Well, part of the problem is it's the same  20 situation I had when I was doing my doctoral  21 dissertation, that I wasn't -- I agreed with  22 the people not to take notes, so I had to  23 remember all the events I had been engaged in  24 and put it directly into the work that was  25 under -- on the go at the time.  26 Q   Did you keep a journal?  2 7 A   No, I didn't."  28  29 And I'm going to come back to that one point, my  30 lord, in a minute about what people told him about  31 what to do and what not to do.  But that's the essence  32 of his, Dr. Daly's recorded information, 35 interview  33 notes with two people.  34 Now, I carry on to say that Dr. Daly's observation  35 in this case was conducted in a different manner than  36 he had conducted it before.  And for support for that,  37 my lord, if you turn to page 16 at this tab, you will  38 see the way that he conducted his PhD dissertation.  39 Page 16.  This is from Dr. Daly's PhD dissertation.  40 And you will see there he says in the second  41 paragraph:  42  43 "Sensitive to the general antipathy toward  44 anthropologists and their work, the writer did  45 not try to use a tape-recorder, or to take on  46 the spot notes.  Indeed, he was asked by some  47 of the traditional people, not to do so if he 26975  Submissions by Mr. Willms  1 had any such intentions.  As a result he would  2 discuss and observe for relatively short  3 periods of time, and then immediately record  4 the contents of the interview following the  5 chronology of the discussions."  6  7 Now, just to follow-up on this, my lord.  On page  8 22 of the yellow tab I asked Dr. Daly about notes in  9 this case.  At line 17 I say:  10  11 "Q   Dr. Daly, who told you not to make any notes of  12 what you observed while you were with the  13 Gitksan and the Wet'suwet'en people?  14 A   Nobody told me not to make any notes.  But a  15 number of the people I interviewed were very  16 hesitant about me writing things down and they  17 wouldn't -- they wouldn't give me any instances  18 of the institutions that we were describing  19 about how it worked and what the rules were and  20 how people would break the rules and how it  21 would be -- how the rules would be then used to  22 deal with the braking of rules.  These sorts of  23 things.  Because people -- it's a small  24 community and people are afraid of being  25 treated as gossips.  26 Q   Well, putting you --  27 A   So the same people knew that I was going to be  28 rendering an opinion in relation to the case,  29 so they were very careful about what they were  30 saying or else they would say, 'I'll give you  31 examples as long as you don't write.'  So that  32 was my guiding principles.  33 Q   I want you to put your interviews to one side  34 and who told you --  35 A   I wasn't talking about any interviews.  I was  36 talking about my general approach.  37 Q   Who told you not to make any notes of what you  38 saw?  39 A   Nobody did."  40  41 And then if we go over, my lord, to page 36, which  42 is still the cross-examination of Dr. Daly, and this  43 is where I put some extracts from Pelto on  44 anthropological research, in particular participant  45 observation.  And I also put extracts from McClellan,  46 Dr. McClellan who did work in the Yukon.  And at this  47 point I am putting the Dr. McClellan's extracts to Dr. 26976  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Daly on page 36.  And starting at line 9:  "As my fieldwork progressed I took more and more  notes verbatim".  And just skipping the rest of that paragraph and  carrying on at the next paragraph:  "'My method is to take all my notes in pencil  adding in ink as soon as possible after an  interview the general circumstances and  anything else of importance that I was not able  to record at the time.'  And just pausing there.  That's a pretty  good practice, isn't it, for taking field  notes .  A   It depends on the context.  When you are  working with informants or with a community  that notes that your findings are going  directly into the public domain, you have to be  as sensitive as to the whole question of how  to -- how can you maintain some anonymity and  some respect of their inner secrets which is  part of the whole ethics of being an  anthropologist.  So this exercise I was engaged  in this time was quite unique.  And I had had  some training in this approach because of the  strictures put on me by the Iroquois when I was  working with them."  I just pause there, my lord, to note that when he  was working with the Iroquois on the same strictures,  he would go back and make notes, which is not what he  did here.  can carry on over on it to page 37, my  put some more of McClellan to Dr. Daly  Now, if  lord, where  of --  THE COURT: 37?  MR. WILLMS:  Page 37, line 37, and I say:  "Q   Now, just skipping down to that last paragraph  on page eleven, on the left-hand column, you'll  see that Dr. McClellan said:  'In 1948 and 1949 Dr. Libby and I shared in the  writing of ethnographic events from memory and  in keeping a daily journal which supplemented 26977  Submissions by Mr. Willms  1 our formal notes.'  2 Now you did not keep a daily journal, did  3 you?  4 A   No, I didn't.  5 Q   There was absolutely nothing preventing you  6 from keeping a daily journal to describe each  7 day's events, was there?  8 A   Just the stricture that I have already outlined  9 with you.  10 Q   And I am going to suggest to you, Dr. Daly,  11 that there was nothing to prevent you after  12 observing an event from immediately recording  13 it at the time of the event or as soon as  14 practicable after the event had occurred.  15 A  Well, I think that falls under the same -- same  16 rubric.  People would not have been as free  17 with me had they known that everything I was  18 hearing was going to be committed to paper in  19 that direct form.  That they said, 'We want you  20 to understand our system, but the best way is  21 just don't write.  You listen to what we have  22 to say and when you get to the lay of the land  23 then we -- then we'll see where we go from  24 there.'  And that's more or less the approach  25 that I took.  26 Q   And just finally dealing with the interviews.  27 There was nothing to prevent you from recording  28 all of the conversations that you heard formal  29 or informal immediately after the interview and  30 away from the person that you interviewed?  31 A   You mean behind their backs?"  32  33 Now, that's a startling answer, in light of what  34 he did when he did his in Iroquois Long House, his  35 PhD, because that's exactly what he did, and here he  36 appears to be surprised that I would suggest he record  37 notes behind peoples back, while it's exactly what he  38 did during his PhD dissertation, and I said:  39  40 "Q   Yes, that's what I mean.  Nothing is stopping  41 you from doing that?  42 A   That is unethical."  43  44 And then your lordship.  45  46 "THE COURT:  Doctor, you are not suggesting that this  47 lady, perhaps Dr. McClellan and Dr. Libby, were 2697?  Submissions by Mr. Willms  1 doing something unethical?  2 A   No, certainly.  3 THE COURT:  It was your particular circumstances?  4 A   They weren't involved in these type of  5 circumstances that I had to work under."  6  7 Now, my lord, I say at the bottom of page -- back  8 to my argument, my lord, at the bottom of page 18.  I  9 say three lines from the bottom that Dr. Daly accepted  10 what he was told uncritically, apparently without  11 testing, and at the top of the next page "received  12 some information during his research which he  13 consciously decided not to incorporate into his  14 report".  15 I say in paragraph 29 that his conclusions ignored  16 information such as climate changes, and he was  17 unaware of statistics which would have assisted him in  18 assessing what he was seeing.  And I say there, my  19 lord, he acknowledged as much because Ms. Koenigsberg  20 put to him that Census, and the Census is at Tab 29.  21 MR. GRANT:  He was unaware.  22 MR. WILLMS:  Yes, he was unaware of it, but he said it certainly  23 would have been helpful if he had it.  He didn't even  24 know about it.  1979 Census which dealt with many,  25 many of the issues that Dr. Daly dealt with in his  26 report.  And the plaintiffs didn't even show it to  27 him.  28 Now, I then say at the bottom of 29 that he failed  29 to acknowledge the obvious when asked by your lordship  30 as to whether or not the market economy has completely  31 subsumed the subsistence economy.  And that, my lord,  32 is the very last page of Tab 29, which is the very  33 thick tab.  Tab 29 is a very thick tab and the very  34 last page, my lord.  35 THE COURT:  All right.  36 MR. WILLMS:  The reason why it is a thick tab is I have put the  37 Census in.  38 THE COURT:  All right.  39 MR. WILLMS:  At the very last page your lordship makes the  40 observation at line 23:  41  42 "Well I would have thought reading this that the  43 ..."  44  45 And the proposition at the top of the page that  46 the market factors have not eclipsed the subsistence  47 factors.  And that's a quote at the very top of the 26979  Submissions by Mr. Willms  1 page from Dr. Daly's report.  2  3 And then your lordship observes:  4  5 "THE COURT: Well, I would have thought reading this that  6 the automobile hadn't been invented.  Just  7 seems to me there is something missing in this  8 passage.  This is -- this is your evidence and  9 I don't question it in any sense at all if you  10 are looking at it from a cultural point of  11 view, that's an open question.  But from a  12 economic question I must say that that  13 statement surprises me.  Mr. Art Mathews, for  14 example, worked for 15 years in the Westar Mill  15 at Gitwangax.  16 THE WITNESS:  But he does that because he is a chief a  17 house and has a lot of responsibilities.  18 THE COURT:  But he does those other things as well, that  19 would you say that in his personal situation,  20 the market factors have not eclipsed the  21 subsistence factors?  22 THE WITNESS:  In terms of the overall social relations of  23 the economy he is engaged in, my assessments of  24 his work at the sawmill is very much -- is very  25 closely related to the fortunes of his house  26 group, and that's the consciousness of all his  27 members and members of the house.  And they,  28 from time to time, they have -- that house has  29 discussions about whether perhaps he should be  30 doing something else which will advance their  31 overall kinship interests in a better way."  32  33 And, my lord, even before I get to my comments  34 about Dr. Daly, I say that there are many statements  35 in Dr. Daly's report which are as inherently  36 improbable as the one about the market economy.  37 But in paragraph 30 I say that Dr. Daly completely  38 discounted Dr. Adams' work, the Gitksan potlatch, work  39 that was done over a period of thirteen months in the  40 mid-1960's, prior to community litigation.  Dr. Daly  41 acknowledged that the Gitksan that were observed by  42 Dr. Adams did not reflect the world that Dr. Daly saw.  43 And I say at the very bottom of page 19, my lord,  44 that Dr. Adams' informants were hereditary chiefs who  45 were succeeded by Dr. Daly's informants.  Dr. Daly  46 recorded interviews with chiefs, Simgiget, and not  47 with commoners, Lixgiget, and I say that while it may 26980  Submissions by Mr. Willms  1 be that Dr. Daly truly believed what he was saying,  2 the beliefs of an anthropologist as to the prehistoric  3 resource use and economy in the claim area are no more  4 useful in separating fact from fiction than the  5 beliefs of the informants themselves.  6 THE COURT: Well, I have been wondering about this, as to whether  7 or not there may be a semantical difficulty arising  8 out of this word eclipsed.  The market factors have  9 not eclipsed the subsistence factors.  None of us  10 identified that word.  I haven't read the whole  11 context, but -- I am not sure what eclipse means.  I  12 think I know what an astronomical eclipse is.  Partly  13 or completely blocks or obstructs something, but it  14 seems to me that there are -- there is a halfway  15 ground, an invention that you could have some  16 subsistence factors still operating and still live in  17 a market economy.  18 MR. WILLMS:  I don't think anybody disputes that, but Dr. Daly's  19 view, in my submission, and the whole context of his  20 evidence was that the subsistence economy that had  21 persisted among the Gitksan from millenia carried to  22 the present day, and all that happened was the market  23 economy was just slotted into the subsistence economy  24 at appropriate spots.  25 Now, that I took to be the tenor of Dr. Daly's  26 evidence, and the meaning of eclipse at that point was  27 that the subsistence economy was the only truly  28 important economy to the Gitksan, and that the market  29 economy really wasn't that important, that their life  30 revolved around the subsistence economy and the  31 seasonal round.  Maybe I misconstrued Dr. Daly and  32 read too much into that.  33 MR. GRANT:  I think that he may have.  34 MR. WILLMS:  I'm sure my friend will clear that up in reply.  35 MR. GRANT:  Yes, I will.  36 MR. WILLMS:  I say in paragraph 31, my lord, that the statement,  37 and this is a statement of Dr. Daly's, that the  38 Gitksan and Wet'suwet'en say that the land belongs to  39 them, does not assume any greater legal relevance when  40 uncritically parrotted by any anthropologist.  I say  41 that rights must spring from the nature of the use of  42 the land and not, as plaintiffs' counsel admitted  43 during the course of the case, from the subjective  44 beliefs of the claimants.  That Dr. Daly was an  45 advocat and not a scientist is evident from his  46 complaint during cross-examination that putting the  47 evidence of the plaintiffs to him to see whether it 26981  Submissions by Mr. Willms  1 affected his opinion was unfair, notwithstanding that  2 he did not doubt the veracity of what was said.  3 And, my lord, if you could turn to Tab 31 of the  4 yellow book, starting at page 3.  And this is where  5 Ms. Koenigsberg put some evidence of the plaintiffs to  6 Dr. Daly, starting at the bottom of the page, and she  7 says this, line 44.  8  9 "Q  We talked about, I believe yesterday we were  10 looking at page 17 of John Adams monograph on  11 the potlatch and you showed some surprise at  12 his use of a quote relating to being able to  13 hunt without permission.  It do you recall  14 that?  15 A   Yes.  16 Q   And I did ask you if I would be able to find --  17 A   Being able to hunt without permission is  18 surprising.  Hunting without permission is  19 engaged in quite often.  But as a customary  20 practice it is highly frowned upon.  21 Q   If we look at the first transcript, it's  22 cross-examination on the affidavit of Solomon  23 Jack ..."  24  25 I'm not going to go through these, my lord, but  26 Solomon Jack is gone through first at page 4, and then  27 if you go to page 6, Ms. Koenigsberg at page 6 puts  28 Pete Muldoe at the top of the page, line 6, and then  29 at the bottom of the page she puts Sylvester William,  30 the evidence of Sylvester William.  31 Over to the next page, page 7, she puts the  32 evidence of Walter Joseph.  The reference is in the  33 middle of the page.  And then over onto page 8 she  34 puts the evidence of Roy Morris.  And then she  35 summarizes, starts at line 9, and she says:  36  37 "And he goes on to say he is just a contracting  38 person.  39 Stopping there and dealing with the  40 evidence, can we fairly summarize that as --  41 A   I think it's unfair what you're doing.  I am  42 not the lawyer for these people.  I don't know  43 how representative this is of the overall  44 cross-examinations of all these witnesses.  45 Q   Do you doubt that these people said these  46 things.  47 A   No, I don't doubt that they said these things." 26982  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR.  Now, here, my lord, what we have is Dr. Daly's  initial reaction to this cross-examination of not how  does he fit that in as a scientist to his opinions,  how does he fit that evidence into his opinions.  His  first thing is to say that's unfair what you are  doing.  That's really unfair.  And he's being an  advocat, in my submission, at that point, my lord.  He's not being a scientist.  A scientist can answer  that question by saying that is completely contrary to  what I heard.  If that were true that would change my  opinion, but from what I know that's not the case.  That's what a scientist would do.  But an advocat  would say you are being unfair to these people by  putting their evidence to me.  He didn't say, "You are being unfair to these  people."  He said, "It's unfair what you are doing",  presumably to him.  That's what I have been wondering, about whether he  is saying you have put 10 pages of transcript and  asked me to absorb it all like a sponge, and then  spiel out an answer to a simple one line question.  I  often thought that counsel are unfair to witnesses  when they --  WILLMS:  Well, I'll carry on, my lord and read what he says.  "Q   Is it inconsistent with what you observed anded  heard yourself?  A   I have heard a great deal about trespassing,  and how people are considered to be trespassing  on one's land, whoever you are speaking to.  And you talk to people who are apparently  trespassing on other people's land and they  explain their behaviour in terms of the  pressure on the land and if we don't do it and  keep the values within our community, then it  will go outside the community and the land will  be used and quite often destroyed by  non-natives.  These sorts of explanations.  But  as to the -- it's just part of the whole  situation of the indigenous traditional system  carrying on and the pressures of the options of  the non-native world.  It's a classical  anthropological situation and actors in these  situations under some circumstances they go by  the rules of one system and in other  circumstances they go by the rules of their 26983  Submissions by Mr. Willms  1 commuity.  And to the extent that they can get  2 away with going by the rules of the outside  3 community, some people will do this.  But then  4 the community will try to redress the sitautuon  5 through various means at its disposal, such as  6 announcing, inadvertently perhaps, but very  7 pointedly, in a feast, that this trespass has  8 got to stop.  Or if you are going to cut any  9 other kogs on our territory, we have got to  10 know in advance.  That sort of thing.  Or  11 ostracism or gossip and various other  12 mechanisms are brought into play."  13  14 And, my lord, what I say there is that Dr. Daly  15 doesn't bring any scientific knowledge to bear, he  16 just apologies there and tries to explain -- instead  17 of saying what I say a scientist would do, which is  18 that my understanding is that that is not the way that  19 it works, but if that's the way that it works, my  20 opinion would change, Dr. Daly doesn't do that.  21 THE COURT:  I must say it doesn't seem like a terribly  22 complicated factual problem, but it is a five or six  23 page question with which maybe what he thought was  24 unfair.  25 MR. WILLMS:  Yes.  Well, the recurring theme was people hunting  26 without permission and people --  27 THE COURT:  It wasn't just hunting.  28 MR. WILLMS:  Log cutting.  2 9 THE COURT:  Pete Muldoe was running a sawmill.  30 MR. WILLMS:  He was cutting logs.  31 THE COURT:  Yes.  32 MR. WILLMS:  But the whole gist of trapping without permission.  33 THE COURT:  Yes.  34 MR. WILLMS:  And that was the -- and besides, my lord, it is my  35 submission that if your lordship was right, Dr. Daly  36 would have said that.  37 THE COURT:  All right.  38 MR. WILLMS:  Carrying on, and I'll just try to — if I can just  39 do paragraph 32, my lord.  4 0 THE COURT:  Yes.  41 MR. WILLMS:  Dr. Daly's views directly contradict the views of  42 Dr. Adams.  He also disputes conclusions of other  43 admittedly eminent ethnologists who have worked in the  44 area pre-litigation.  That is, Dr. MacDonald, Dr.  45 Ames, and even Dr. Rigsby.  46 And at this point, my lord, at Tab 32, if your  47 lordship could turn to page 31 of the tab.  At the 26984  Submissions by Mr. Willms  1 bottom of the page, line 45:  2  3 "I am not asking you that.  I am just asking you  4 Dr. Rigsby, and I read it to you a moment ago,  5 posited a linguistic argument that the fur  6 trade spurred the Gitksan occupation of the  7 Middle Nass and the Upper Nass and the Upper  8 Skeena.  9 A   That's not a linguistic argument.  That's an  10 ethnohistorical argument.  11 Q   It happens to be one that Dr. MacDonald appears  12 to share in the 'Epic of Nekt'.  Would you  13 agree with that?  14 A   Yes.  15 Q   It is just one that you don't agree with?  16 A   No.  I just don't think it's found or not well  17 founded."  18  19 And I say to conclude paragraph 32, he rejects  20 comparative cultural analysis where it does not  21 support his opinion, yet he accepts it when it does.  22 His evidence, I say, is a perfect example of the  23 acknowledged, and when I say acknowledged, this was  24 acknowledged by Dr. Daly, the acknowledged  25 ethnographic problem of thinking that one has found  26 what in fact one has created.  27 And, my lord, that was an extract where the  28 difficulty is that some ethnographers go into a  29 particular area, attempt to go clear their mind  30 completely of any preconceived notions, and then end  31 up finding what they were really were looking for in  32 the first place.  And that's what Dr. Daly found.  33 Those are my submissions today, my lord.  34 THE COURT: All right.  Thank you.  Do you want to start at 9:30  35 on Tuesday?  36 MR. WILLMS:  Yes, I would, my lord.  37 THE COURT:  We will adjourn then, and wish you all a pleasant  38 weekend.  Thank you.  39 THE REGISTRAR:  Order in court.  Court stands adjourned.  40  41 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  42  43  44  45  46  47 26985  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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