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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-01-20] British Columbia. Supreme Court Jan 20, 1989

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 10982  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Vancouver B.C.  2 January 20, 1989.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia,  7 Vancouver, this Friday, January 20, 1989.  Calling  8 Delgamuukw versus Her Majesty the Queen.  9  10 SYLVIA LOUISE ALBRIGHT, resumed:  11  12 THE REGISTRAR:   I caution the witness you are still under oath.  13 THE COURT:  Mr. Willms.  14  15 CROSS-EXAMINATION BY MR. WILLMS:  16 Q   Miss Albright, can you please open Exhibit 844, your  17 opinion report to page 3-20, and Dizkle.  I am showing  18 you notes starting off with Dizkle Summary Area.  Are  19 these the notes prepared by Linda Burnard-Hogarth in  20 respect of the Dizkle survey area?  21 A   Yes.  22 MR. WILLMS:  My lord, 849A-28.  2 3 THE COURT:  I don't think I have them, have I?  24 THE REGISTRAR:  I started off great today.  25 THE COURT:  This is 28, is it?  26 MR. WILLMS:  28.  27 THE REGISTRAR:  Yes.  28 THE COURT:  Wait a minute.  I'm sorry.  I don't have 27 marked  29 yet.  27.  All right.  30 THE REGISTRAR:  27 is July 8.  No.  I am sorry.  27 is the —  31 MR. WILLMS:  27 were the site inventory forms.  32 THE COURT:  No.  I have it, yes.  Thank you.  33 MR. WILLMS:  34 Q   The primary ethnographic reference here was Jenness?  35 A   Two -- yes.  Two volumes of Jenness.  36 Q   And Jenness is a well-respected Canadian  37 anthropologist from the northwest for the northwest of  38 British Columbia?  39 A   He's worked in a number of areas, yes.  40 Q   Well-respected?  41 A   Yes.  42 Q   And Jenness' comments, and this is in the big three  43 ring binder, my lord, Exhibit 847 put in by the  44 plaintiffs, at tab 13.  Tab 13 which is a paper  45 entitled "The Carrier Indians of the Bulkley River  46 Their Social and Religious Life".  This was a  47 reference to your report? 10983  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 A   Yes.  This is a reference used.  2 Q   And you'll note on page 477, which is the third  3 photocopied page in, Jenness on the right-hand side  4 says this third paragraph down:  5  6 "I have examined the supposed site of Dizkle, and  7 Harlan I. Smith archeologist of the National  8 Museum of Canada, has visited the traditional site  9 of Temlaham.  In neither place did we discern any  10 traces of a permanent settlement.  One may  11 reasonably doubt, therefore, whether the two  12 villages, glorified by similar legends, ever held  13 the prominent place that tradition assigns to  14 them, if indeed they ever existed outside the  15 fertile imaginations of the Indians."  16  17 Now, you accept that, don't you?  18 A   No, I don't.  19 Q   Well, you found no evidence of Dizkle, no  20 archeological evidence of Dizkle?  21 A   Not in the specific area investigated.  It doesn't  22 mean that there might not still be remains there that  2 3 we didn't find.  24 Q   But just turning to the top of page 3-22 of your  25 report, Exhibit 844.  You said in your report:  26  27 "No evidence of early occupation was found in the  28 immediate area defined by Jenness as the location  29 of the village site of Dizkle."  30  31 And then you say in your summary paragraph down below  32 that -- partway down that first paragraph:  33  34 "Given this interpretive framework then, evidence  35 of earlier occupation and land use activities has  36 been recorded in four of the five ancestral  37 village localities."  38  39 And Dizkle is the exception, correct?  40 A   Yes.  41 Q   So I'm suggesting to you that the archeological  42 evidence with respect to Dizkle tends to refute the  43 reliability of the Wet'suwet'en oral tradition?  44 A   Not necessarily.  45 Q   The necessarily is because perhaps you were looking in  46 the wrong place, is that what you mean by that?  47 A   There was a site recorded for the mouth of the Suskwa 10984  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 from the information given by Jenness.  Our area  2 investigated was somewhat more restricted and there  3 were parts of that study area that we did not -- we  4 were unable to examine at that time.  5 Q   So you didn't do a very thorough research job, is that  6 what you're saying?  7 A  We did the best that -- that we could.  8 Q   Now, in respect of the Gitksan oral histories, I  9 suggest that the archeological evidence that you  10 reviewed confirms the reliability of the Gitksan oral  11 histories only if the villages referred to were late  12 prehistoric to historic?  13 A   Could you repeat that, please?  14 Q   I am suggesting that the archeological evidence that  15 you reviewed in respect of the four other villages  16 confirms the reliability of Gitksan oral histories  17 only if the villages existed in late prehistoric to  18 historic times?  19 A   No.  20 Q   Carrying on in your report to page 5-2 where you  21 discuss a section on warfare and you refer in the  22 first paragraph to evidence of warfare from about 3000  23 years ago and your reference there to MacDonald 1979  24 is to the Kitwanga research that Dr. MacDonald did?  25 A   Here I'm referring to the MacDonald 1979 reference  26 deals with his investigations at Kitwanga fortress.  27 Within it he has also summarized evidence of warfare  28 at Prince Rupert harbour and which is also noted in  29 MacDonald and Inglis.  30 Q   Now, in your evidence in chief you were referred to  31 the Epic of Nekt which is Exhibit 847 tab 19, and I'd  32 like you to turn to that.  It's the large binder  33 again.  34 THE COURT:  Where is this reference?  35 MR. WILLMS:  Tab 19, my lord.  36 THE COURT:  No, I have that.  You said the witness referred to.  37 MR. WILLMS:  847 it's the Epic of Nekt.  38 THE COURT:  I thought you said it was referred to in the report  39 of the witness.  40 MR. WILLMS:  No.  It was referred to her by her in chief.  She  41 was directed to it in her evidence in chief.  42 THE COURT:  Oh, all right.  43 MR. WILLMS:  44 Q   You read this and relied on it in preparing your  45 report?  46 A   I made reference to certain notes or notations or  47 statements in this, yes. 10985  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   Dr. MacDonald is a renowned archeologist in Canada and  2 has done a considerable amount of work in the  3 northwest region including the Skeena?  4 A   Yes.  5 Q   And the Kitwanga fort which is on the first page of  6 the Epic of Nekt at tab 19 is within the area claimed  7 by the plaintiffs in this action?  8 A   It is within Gitksan territories, yes.  9 Q   And if you turn to page 75, you'll see that Dr.  10 MacDonald has on map three set out trading trails in  11 the northern interior of British Columbia?  12 A   Yes.  13 Q   All right.  Are these archeologically accepted as,  14 maybe not all of them, but the major trading trails?  15 A   Yes.  In mapping these trails I believe he refers to  16 the -- the number of sites disputed along the sections  17 of the trail.  18 Q   Now, turn to page 78 where Dr. MacDonald discusses the  19 trails and it's the paragraph, the second full  20 paragraph on the page where Dr. MacDonald says, "It  21 appears."  Do you have that paragraph?  22 A   Yes.  23 Q  24 "It appears that two points of view apply to the  25 use of the trails.  Where the resource was  26 inexhaustible, such as the oolachan fish run on  27 the Nass, and to a lesser extent on the other  28 oolachan rivers like Kitimat, the use of the trail  29 was open to all.  There appears to have been no  30 attempt at control.  For rare goods, exactly the  31 opposite approach prevailed.  Local strong men  32 could, and did, impose their control on trade  33 through their regions by building forts.  34 Rivalries between these local chiefs are clearly  35 in evidence in the accounts."  36  37 Now, just pausing there, that is ethnologically  38 accurate, is that correct?  39 MR. RUSH:  What is?  40 MR. WILLMS:  41 Q   That whole paragraph.  Is that whole paragraph  42 ethnoarcheologically accurate?  43 A  Well, this is MacDonald's interpretation based on his  44 research and reading.  45 Q   Do you accept that?  46 A   Yes, I think I would.  47 Q   Now, just turning the page, there is a paragraph to 10986  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  which you were referred in your evidence in chief, at  the bottom of page 79, and it's the paragraph  beginning -- and it wasn't read to you, but the  paragraph that was directed to you begins:  "Summarizing the argument to date, we can see that  the Kitwanga Fort National Historic Site is set in  a complex framework of intertribal trade and  warfare, which dates perhaps as early as the first  millenium B.C., when trade and militarism appear  in clear evidence in the Prince Rupert Harbour  village sites."  You accept that statement by MacDonald?  Yes.  He then carries on:  "From those times, a situation of relative  stability appears to have been prevailed until the  early 1700's.  By that time there is evidence for  a widespread destabilization of population  throughout most of the Northwest Coast."  Do you accept that as  is for  THE COURT:  "Much of the northwest coast  MR. WILLMS:  Sorry.  Q   "Much of the Northwest Coast."  accurate?  A   I'm not sure I understand what his basis  stating widespread destabilization.  Q   So you don't accept that?  A   Yes, I think he's referring here to -- he says the  early 1700s and discusses competition for trade goods  Q   So do you accept this statement as being accurate?  A   I would accept the general reliability of the -- of  the work.  Q   Then he carries on discussing the shifts and I won't  go through that.  But over at the top of page 80  you'll see about in the middle of the very top  paragraph starting with the words "in the interior."  It says:  "In the interior, it appears the Kitwankul and  other Gitksan tribes were pushing north at the  expense of their Tsetsaut and other Athapaskan  neighbours to secure the trading trails that  ultimately connected through to southeast Alaska  and the new sources of wealth." 10987  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 Do you accept that statement by Dr. MacDonald?  3 A   I'm not sure exactly what he means by pushing north,  4 but I believe he's referring to accounts of  5 hostilities between Gitksan and Athapaskan peoples to  6 the north.  7 Q   And he carries on in the next full paragraph  8 discussing warfare, which is the section that you're  9 dealing with in your report, and says this:  10  11 "The pattern of warfare became endemic as the  12 destabilization of traditional boundaries  13 continued throughout the eighteenth century.  14 Small forts proliferated at the pressure points  15 along the network of trails."  16  17 Are those two sentences ethnoarcheologically accurate?  18 A   The statement by MacDonald is based on his own  19 research, and I don't feel at this point that I have  20 done -- worked in enough areas in the territories or  21 the study area to -- to really form an opinion on that  22 particular paragraph or phrase.  23 Q   Well, how about the next two, because it refers to  24 oral accounts:  25  26 "The causes for warfare also changed radically.  27 Oral accounts are consistent that the traditional  28 objectives of warfare were mainly to capture food"  29  30 And then in parenthesis:  31  32 "(Skeena smoke houses were full of fish) and  33 secondarily to capture slaves (who were food  34 producers.)"  35  36 That's consistent with your review of the oral  37 histories, isn't it?  38 A   I have not examined the oral histories to particularly  39 investigate this -- the cause of warfare.  My  40 consultation of the -- my review of the ethnographic  41 literature and accounts of the description and the  42 accounts of the oral histories were used to direct the  43 survey investigations which we did.  44 Q   Well, just carry on with the paragraph.  MacDonald  45 says:  46  47 "The acquisition of new territory was not a 109?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 traditional cause for war.  Origin myths all  2 stated how certain tribes were created in certain  3 localities, and it was not just a crime but a  4 sacrilege for one tribe to displace another from  5 its ancestral territory."  6  7 Just pausing there.  Certainly you must have reviewed  8 that when you were reviewing the origin myths.  You  9 accept those two statements, don't you?  10 A   The oral histories describe the migration and  11 movements of people into and out of Gitksan -- what  12 are described as Gitksan territories.  13 Q   But from your review of the ethnography, don't you  14 agree that warfare was not territorial early on?  15 A   It seems very -- very likely that claiming of -- or  16 competition for resources and which might have caused  17 people to expand their -- their territory would have  18 caused some hostilities with the neighbouring groups.  19 Q   Well, just turning back to your report, you have said  20 at 5-3 in the second paragraph last sentence:  21  22 "The presence -- "  23  24 Sorry, do you have that?  25  26 "The presence of a number of dawdzep, fortified  27 village, in Gitksan territories reflects the need  28 to protect rights to land and trade routes during  29 an earlier period in the history of the Gitksan  30 and Wet'suwet'en people."  31  32 Now, earlier period there means protohistoric,  33 historic, doesn't it?  You are relying on MacDonald  34 and Kitwanga, aren't you?  35 A   No.  36 Q   Well, what else are you relying on in making that  37 statement that the presence of a number of -- the  38 presence of a number of Dawdzep that I just read to  39 you?  40 A   The Dawdzep at Kitwanga is well documented for late  41 prehistoric and early historic period.  42 Q   Yes.  That's the period you are talking about here,  43 isn't it?  Earlier period in that sentence is late  44 prehistoric, early historic, isn't it?  45 A   No.  There is evidence at the Dawdzep that there was  46 pre -- that it had been occupied in precontact times  47 for an unknown period of time.  And this statement is 10989  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 also on the fact that obsidian had been traded into  2 the area from -- from early times, from the early  3 period at Hagwilget canyon and --  4 Q   Well, what's the relevance?  5 A  And dated before -- before 3500 years ago.  6 Q   What's the relevance of obsidian to dating this?  7 A   It's a very valuable resource that is restricted in  8 its source and was traded in the northwest area.  9 Q   Isn't it true —  10 A  And —  11 Q   Sorry?  12 A  And in his paper MacDonald acknowledges that these  13 trade routes were routes that had been used over --  14 had been well established in earlier times before the  15 specific late -- late period that he's referring to in  16 the -- in this account of Nekt.  17 Q   Isn't it true that Edziza obsidian continued to be  18 carried far from its source up to the historic period?  19 A   Yes.  There is evidence of it being traded into  20 late -- late precontact time.  21 Q   And in fact there is artifacts from dated sites  22 throughout north B.C. indicated that Edziza obsidian  23 continued to be widely distributed into the last few  24 hundred years of prehistory and protohistory, correct?  25 A   Prehistory, I'm -- I'm not exactly clear on the point  26 in time which it was no longer --  27 THE COURT:  Will you remind me, please, what is protohistory?  28 MR. WILLMS:  Protohistory is the period where there is some  29 indication of European influence such as material  30 culture but no contact.  I am showing you an extract  31 from "Glass and Ice, the Archeology of Mt. Edziza" by  32 Dr. Fladmark.  There is a reference that you relied on  33 quite heavily in your report, isn't it?  34 A   It's a reference I referred to.  35 Q   All right.  Please turn to page 13 and you'll see at  36 the very last sentence just above quaternary  37 environments Dr. Fladmark says:  38  39 "Artifacts from other dated sites throughout  40 northern B.C. indicate that Edziza obsidian  41 continued to be widely distributed into the last  42 few hundred years of prehistory and protohistory."  43  44 Now, you accept that, don't you?  45 A   Yes.  There is a basis for his statement.  46 Q   Yes.  So the presence of Edziza obsidian doesn't date  47 something at 3500 years ago or 4500 years ago.  It's 10990  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  very problematic, isn't it?  No.  Obsidian has been found in a variety of sites at  earlier time periods.  And Fladmark states in the same  paragraph that obsidian related to Edziza types has  been identified in nine to 10,000 year old artifact  assemblages on the north coast at Groundhog Bay.  Well, if you turn --  As well Namu during the early period 9000 to 5000  years ago, the obsidian that -- from Hagwilget canyon  which we had analysed and sourced to Mr. Edziza from  that early zone three -- 3500 to 5000 years ago, 5000  to 6000 years ago.  The second page I have given you from Fladmark is at  page 207 in his conclusions and he starts the second  full paragraph on the page by saying:  "Edziza obsidian was being widely distributed as  early as ca. 9000 B.P. and continued to be carried  far from its source up to the historic period."  A  Q  Now, there is no question about that, is there?  I accept the statement as written.  Yes.  So just going back to using it to date,  you  can't use it to date anything, can you?  It's very  problematic as an instrument for dating?  A   No.  MR. WILLMS:  My lord, I would like to mark the extract Exhibit  849A --  THE COURT:  29.  MR. WILLMS:  29.  (EXHIBIT 849A-29:  AGBC document book Tab 3 0 - document  Glass and let The Aarchaeology of  Mt. Edziza by Knut R. Fladmark)  MR.  WILLMS:  Q   So just returning to trade and warfare in your report,  your evidence is that because of the presence of  obsidian at Kitwanga when you say "earlier period" on  page 5-3, you mean as far back as three or four  thousand years ago?  I 'm —  Well, in the third paragraph early period is  qualified as between 6000 and 3500 years ago.  MR. WILLMS:  All right.  Well —  THE COURT:  Is that the early period you are referring to or is  there a different one?  A  THE COURT 10991  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS:  2 Q   By earlier period, do you mean the early period you  3 discuss in the next paragraph or are they different?  4 A   The early period as described in the next paragraph.  5 Q   All right.  So the presence of obsidian there allows  6 you to say that the presence of a number of dawdzep,  7 fortified village, in Gitksan territories reflects the  8 need to protect rights to land and trade routes from  9 6000 years ago in the history of the Gitksan and  10 Wet'suwet'en people.  Is that your evidence?  11 A   I'm not saying these Dawdzep are 6000 years old, these  12 specific ones.  13 Q   No.  They are only a couple of hundred years old,  14 aren't they?  15 A   No.  MacDonald's research indicates he suggests that  16 these have been occupied for longer than that.  No.  17 Q   Well, do you have -- still have open in front of you  18 tab 19, the Epic of Nekt?  Going back to page 78 where  19 I read you the paragraph "it appears that two points  20 of view applied to the use of the trails", and after  21 the paragraph I read to you, Dr. MacDonald discusses  22 the trading partners that each tribe had and then he  23 begins the next paragraph by saying:  24  25 "Throughout the eighteenth century these petty  26 rivals were busily engaged in building forts  27 throughout the Northwest."  28  29 Now, that is when most of these Dawdzep were built,  30 the 18th century, isn't that correct?  31 A   There is evidence that forts were built before then.  32 The materials from the Kitwanga fortress indicate an  33 occupation MacDonald has stated at least 200 years  34 before mid -- I am -- I am not sure mid 1700s or mid  35 1800s.  Mid 17 years I believe.  36 THE COURT:  200 years before the 1700s?  37 A   Yes.  And at least.  The lower deposits at the Dawdzep  38 were not -- were not dated and there are materials  39 there that indicate that it could have been occupied  40 for several hundred years or more.  41 MR. WILLMS:  42 Q   Well, turn to page 80 of Dr. MacDonald where he  43 finishes his discussion of warfare, this discussion  44 that you relied on in writing your report.  And he  45 says in that last -- second to last paragraph:  46  47 "Warfare on the Northwest Coast in the eighteenth 10992  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 century, I suggest, was motivated by the desire to  2 control a new and scarce valuable resource.  These  3 trade items include metal, and especially such  4 weapons as guns and knives.  The old view of the  5 contact period on the Northwest Coast is proving  6 to be far too simplistic.  We tend to look only at  7 the exploration records that came with Maritime  8 contact, overlooking the vast traditional  9 histories of the Indian people for earlier decades  10 of the eighteenth century and beyond.  11 Archeological research on the proto-historic  12 period in the interior has also be neglected."  13  14 When you read the Epic of Nekt, you knew that  15 MacDonald was referring to late prehistoric, early --  16 and protohistoric in discussing the forts and the  17 warfare that you are referring to?  18 A   I was aware that he was making his correlation between  19 the accounts and the oral histories of Nekt personage,  20 personality, and correlating that with the evidence at  21 the Dawdzep.  He also indicates here that -- that  22 traditional histories go beyond, that we need to look  23 at the traditional histories of the Indian people as  24 he has for earlier decades of the 18th century and  25 beyond his research at Prince Rupert harbour indicates  26 warfare from -- as he stated clearly evident in the  27 middle period from 3500 years ago and that is evident  28 in a variety of materials including skeletal material  29 and the stone clubs, stone and bone antler clubs that  30 have been found in the deposits.  The stone daggers as  31 well.  And there is increased evidence of trade at the  32 same time period.  He outlines this in his -- the  33 MacDonald and Inglis paper on Prince Rupert harbour.  34 Q   And he also says that warfare at that early time was  35 not related to acquisition of new territory and that  36 that is what changed in the 18th century.  That's what  37 MacDonald says, isn't that right?  38 A   He' s referring to the change in the 18th century was a  39 competition for newly introduced trade goods.  40 Q   And territory?  41 A  Well, the paragraph that you've outlined to me here or  42 referred me to that warfare in the 18th century I  43 suggest was motivated by desire to control new and  44 scarce resources.  45 Q   In any event, I think you said earlier that there were  46 some areas that you couldn't comment on because you  47 didn't feel that you'd done enough research in respect 10993  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 of warfare.  Well, I thought you said you didn't feel  2 comfortable either agreeing or disagreeing with some  3 of the statements from MacDonald that I put to you.  4 MR. RUSH:  Well, my lord, to be specific, there were two  5 sentences on page eight paragraph two that referred to  6 oral accounts, and I believe they were the second two  7 sentences in paragraph two beginning "oral accounts"  8 to which my friend's characterization of her evidence  9 I think applies.  10 MR. WILLMS:  11 Q   Well, let me put it this way:  Certainly in respect of  12 archeology and warfare, you would defer to Dr.  13 MacDonald in ethnoarcheology in British Columbia?  14 A   He's detailed one -- in this reference he's detailed  15 one aspect of one period of warfare in considerable  16 detail.  And I acknowledge and accept the evidence  17 that was found in -- at Prince Rupert harbour for  18 warfare starting -- evidence of warfare in at 3000  19 years ago.  20 Q   I am showing you an artifact recording sheet that has  21 a site location of Moricetown.  Did you fill this  22 sheet out?  23 THE COURT:  Are you — that's already —  24 MR. WILLMS:  I am moving back to Moricetown, my lord.  25 THE COURT:  I am not sure what the status is of these tabs in  26 Exhibit 847.  27 THE REGISTRAR:  They are all one exhibit, my lord, 1 to 39.  28 THE COURT:  1 to 39.  All right.  29 THE REGISTRAR:   I have it marked on the front of your book.  30 THE COURT:  All right.  Thank you.  31 MR. WILLMS:  32 Q   Now, I've put before you document entitled Artifact  33 Recording Sheet, Site Moricetown.  Did you fill this  34 sheet out?  35 A   Yes.  36 MR. WILLMS:  My lord, Exhibit 849A-30.  37  38 (EXHIBIT 849A-30: Document entitled Artifact Recording  39 Sheet, Site Moricetown)  40  41 MR. WILLMS:  42 Q   Were there similar sheets prepared for all artifacts  43 or other artifacts recovered at Moricetown?  44 A   No.  I believe this is the only one.  45 Q   Was there some reason why you decided not to prepare  46 artifact recording sheets other than this one?  47 A  Well, it's a standard form I had available and we were 10994  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 considering using these -- found it time consuming to  2 fill the -- complete these all in the field.  3 Q   Is it not a usual practice when you locate an artifact  4 just as it was when you located a feature to fill out  5 a separate sheet describing what you found?  Isn't  6 that accepted archeological practice?  7 A   No, not necessarily.  8 Q   Now, just to tie down which artifact this is, if you  9 would please turn in your appendix Exhibit 845, to  10 page A-5.  Can you confirm that this is artifact  11 number Gg St 2 85-872, the one referred to at the top  12 of page A-5.  The reason why I am suggesting that it  13 is, you will see under DBS on 849A-30 there is a  14 special note "tip down"?  15 A   Yes, it is.  16 Q   Now, one document that you did keep with respect to  17 the artifacts was, and we've already seen part of it,  18 a list with the catalog number of the artifact, the  19 location of the artifact, the layer of it and the  20 description of it?  21 A   The artifact catalog.  22 Q   Yes.  23 A   Yes.  24 Q   Now, I'm interested -- you have described on page A-4  25 of the appendix an artifact Gg St 2 85-1007.  And I'm  26 showing you page 59 from your artifact list.  Can you  27 confirm that the artifact that is referred to at page  28 A-4 is the artifact referred to in the list?  If you  29 go down the list you'll see that there is a -- there  30 are two breaks where there is nothing filled in and  31 then there is an artifact, it's called -- it looks  32 like 88 or maybe a different -- that's a five, isn't  33 it?   You didn't have any 88 artifacts?  34 A   That's 85.  35 Q   So the 82-1007, that is the artifact that you've  36 referred to on page A-4 of your appendix as the  37 leaf-shaped point?  38 A   Yes.  39 MR. WILLMS:  My lord, might this be 849A-31.  40  41 (EXHIBIT 849A-31: Tab 31 - copy p. 59 of Artifact  42 list)  43  44 MR. WILLMS:  45 Q   Now, in your --  46 A   There -- there appears to be an error in the -- in the  47 recording the horizontal provenience. 10995  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   I was just --  2 A   That was -- that was -- that point was recorded on the  3 south trench wall, not the north trench wall.  4 Q   Well, I was going to ask you that, because you say in  5 your report that the artifact was found close to the  6 bottom of layer C2 deposits in a unit on the south  7 side of the trench.  And this location number on  8 Exhibit 849A-31 shows that it was recovered from the  9 north side of the trench, correct?  10 A   Yes, but that's an error.  It was at the bottom of C  11 deposits, a hundred metres below surface and the  12 deposits on the south side were up to a metre or metre  13 ten, 20 -- a metre thick deposits.  14 Q   Who found this?  15 A  And this point was found at the base of the lower  16 level of the C, C2 deposits.  17 Q   Who found it?  Did you find it?  18 A   Yes, I was excavating that unit.  19 Q   So this was an artifact that you found?  20 A   Yes.  21 Q   And who wrote this list up?  22 A  Miss Ludowicz.  2 3 Q   And where --  24 A   You see that it is somewhat out of sequence in which  25 it was found.  Most of the catalogue we have -- the  26 items were recorded starting on the south wall.  27 Q   In fact, your artifact catalog begins with the first  28 number of pages, cataloging the south wall moving from  29 one end to the other, and then it shifts to the north  30 wall and this is in the north wall section, isn't it?  31 A   Yes.  And it had been set aside.  32 Q   Now, did you note the finding of this artifact on the  33 level note that you made when you excavated the south  34 wall?  35 A   I believe it was in -- noted at some point.  36 Q   In a level note?  37 A   Our first tests -- I believe our very first tests --  38 this is found very early.  Our very first tests we had  39 notes but not using this standard level notes.  40 Q   Yes.  That's why on a review of the material that  41 you've produced here, there is no level note where  42 this artifact is noted, is there?  43 A   I believe it's in the note somewhere that that was  4 4 found.  45 Q   And you kept a note of it?  46 A   I believe so.  Yes.  47 Q   All right.  And you have given everything to your 10996  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  A  3  Q  4  MR.  RUSH:  5  MR.  WILLMS  6  7  MR.  RUSH:  8  THE  COURT:  9  10  MR.  WILLMS  11  THE  COURT:  12  13  MR.  RUSH:  14  15  THE  COURT:  16  MR.  WILLMS  17  Q  18  A  19  Q  20  21  THE  COURT:  22  23  24  MR.  WILLMS  25  Q  26  A  27  28  29  30  THE  COURT:  31  A  32  THE  COURT:  33  A.  34  THE  COURT:  35  A  36  37  38  39  40  41  MR.  WILLMS  42  43  44  45  THE  COURT:  46  47  counsel that you have?  Yes.  And it's not there.  Well, is my friend giving evidence?  :  Well, my lord, we can do this the hard way.  I can  bring it all in and mark the whole pile.  Or we trust your assessment of it.  Why do either?  Why not just ask the witness if she  can identify --  :  Yes.  -- if she can what the level was at which this item  was located.  That's I think the proper way to go, my lord.  I  agree with you.  Thank you.  :  All right.  Now, reading this --  I —  Sorry.  Just reading this note here, can you tell from  reading --  Sorry, Mr. Willms, perhaps the witness wanted to say  something additional to what we were saying before you  go on to something else.  All right.  Yes.  In bagging the artifacts there was a tag put in  the bag with the artifact giving its -- its  provenience and this artifact was definitely found a  metre below the surface on the south trench --  Sorry --  -- wall.  What below the -- ?  One metre, a hundred centimetres.  You say it was found one metre below the surface?  Yes.  And I think the difficulty came in when  recording this, there are a number of elements from  the north side had been cataloged and the -- the  horizontal provenience giving a north designation was  continued on for this one, even though it was from the  south side.  :  My lord, I don't want to leave this, but I do want  to refer to another document and this may be an  appropriate time to break, or if I can have a moment I  might be able to find it.  Yes.  All right.  Well, we'll take the morning  adjournment now then. 10997  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein to the best of my  6 skill and ability.  7  8  9  10  11 Laara Yardley,  12 Official Reporter,  13 United Reporting Service Ltd.  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 1099?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 xh2 S.L. Albright (for Plaintiffs)  2 (PROCEEDINGS RESUMED PURSUANT TO MORNING RECESS)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Willms.  6  7 CROSS-EXAMINATION BY MR. WILLMS:  8 Q    Ms. Albright, could you just, keeping the artifact  9 list in front of you, 849A-31, turn in your report to  10 figure 2 which is the north and south wall profile at  11 Moricetown.  Can you point out where it was that you  12 located artifact 85-1007 on figure two?  13 A    It was found in units on the south wall.  14 THE COURT:  I'm sorry, you say it was on the south wall?  15 THE WITNESS: South wall, yes.  16 THE COURT:  I'm sorry, your text says south wall, but I thought  17 you said that was a mistake and it was on the north  18 wall.  Have I got that wrong?  19 THE WITNESS: The catalogue notation refers to north.  In my  20 opinion report, the appendix --  21 THE COURT:  So that south in the text is correct, is it?  22 THE WITNESS: South, yes.  23 THE COURT:  And the error is in 849A-31, is it?  24 THE WITNESS: Yes.  25 THE COURT:  So that M should be S4, should it?  26 THE WITNESS:  SO to 50 north.  27 THE COURT:  I'm sorry, at the moment it says N4-450.  What  28 should it say?  29 THE WITNESS:  It should say south SO-50 north, and that our base  30 line was at zero.  31 THE COURT:  All right.  32 MR. WILLMS:  33 Q    The horizontal provenience above; is that correct or  34 is that incorrect too?  35 A    That point was found 4 to 450.  36 Q    The point was found 4 to 450?  37 A    Yes.  38 Q    And not 3 to 4 as is shown on the Exhibit 849A?  39 A    No, it was found 4 to 450.  40 Q    So the horizontal provenience that is noted here is  41 incorrect as well?  42 A    Yes.  43 Q    I'm showing you pages 7 through 11 of the artifact  44 catalogue.  And you'll see -- this is from the south  45 wall.  And the way the artifact catalogue works,  46 generally speaking, is that you're moving east on the  47 horizontal units and then each unit east that you move 10999  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  A  3  Q  4  A  5  Q  6  7  8  A  9  Q  10  11  12  13  14  A  15  Q  16  A  17  Q  18  19  A  20  21  Q  22  23  24  A  25  26  Q  27  A  28  29  MR.  WILLMS  30  31  32  MR.  RUSH:  33  MR.  WILLMS  34  MR.  RUSH:  35  MR.  WILLMS  36  THE  COURT:  37  MR.  WILLMS  38  39  40  41  42  43  MR.  RUSH:  44  THE  COURT:  45  MR.  WILLMS  46  47  THE  COURT:  you go down to the bottom of the layer excavated?  Generally, yes.  Generally?  Mh'm.  If you turn to page 9 you'll see that page 8 ends  the 2.5 to 3.5 east provenience on the south wall.  And then over onto page 9 you start 4.5 to 5, correct?  Yes.  And then there are some that are at 5.  But if you  go through, and please do go through the next pages,  until page 11 when it moves from 5.5 to 6 at the  bottom, the deepest note in this artifact list is 90  centimetres?  There is one for 95.  Sorry, which horizontal provenience is that?  5 to 550.  5 to -- well, that's not where you found this,  though.  You found this at 4 to 4.5?  4 to 4.5 or 4 to 5.  That was a 50 centimetre unit  or a one metre unit.  But you'll agree with me there is no 100 centimetre  artifact recovery unit noted in your artifact list in  that horizontal provenience?  Well, that is the provenience for the point and it  was found in the basalt deposit.  See, I apologize, but I don't -- I'm showing you --  There are other materials found at 90 and 95 below  surface.  :  I'm showing you a south wall profile.  I apologize  for the fact that it is marked up.  I will get a clean  copy later.  But who drew that south wall profile?  Are you showing figure 2?  :  Yes, I am.  Can I see a copy?  :  Yes.  Figure 2?  :  Yes, my lord.  Perhaps we could mark the extract  from the artifact list 849A-32.  (EHXIBIT 849A-32:  Tab 32, Pages 7-11 Inclusive  Of Artifact List)  Thank you.  I've had a chance to review them.  Are you showing what is figure 2?  :  No, my lord, what I am showing her is a document  that we received from my friends.  All right. 11000  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  From her drawings,  Okay.  1  MR.  WILLMS  2  THE  COURT:  3  MR.  WILLMS  4  Q  5  6  A  7  Q  8  9  A  10  Q  11  12  13  A  14  Q  15  A  16  17  18  Q  19  20  A  21  22  MR.  RUSH:  23  24  25  MR.  WILLMS  26  Q  27  28  A  29  30  Q  31  32  33  A  34  35  36  37  38  39  40  MR.  WILLMS  41  42  THE  COURT:  43  THE  WITNES  44  45  MR.  WILLMS  46  47  THE  COURT:  It's entitled "South Wall Profile, 4 meters to 6.5  metres, July 29, 1985".  Did you draw that?  Yes.  You'll see that the surface mat is listed at 35  centimetres D.B.D.?  D.B.D., yes.  And you'll see that if you go over between 4 and 4.5  the lowest limit of the profile is at 130 centimetres  D.B.D.?  Yes.  So that the greatest --  Well, no.  We've mapped 130 at one side of the  profile.  At the other side we had mapped down to --  close to 140.  Well, where on that south wall profile drawing there  did you recover the point that is known as 85-1007?  Well, it is marked here on the profile "pp" for the  projectile point that is referred to right here.  Witness is pointing to two small P's in the bottom  right-hand corner of the document that is shown to the  witness.  It should be marked.  Well, it will be marked.  That's at the bottom, and  this mapping was done by you?  Yes.  So it's up at the bottom or low level of the  C2 deposit.  And do you know why in the artifact list the  horizontal and the locational provenience is so far  out of whack?  Well, I remember that the exciting finds of some of  these larger points had been separated from their --  separated from other materials in the -- from units on  that side, and as we looked at them and discussed them  in our field lab.  So they have been placed to one  side.  That's why it's out of sequence in the  catalogue.  :  My lord, I will make copies of this and if we  could -- you might want to reserve.  Yes, all right.  We will reserve the next number.  S:  I can't understand why there is the discrepancies  in the horizontal view at the time of cataloguing.  :  And I'll make copies, my lord.  That will be  849A-33.  Yes. 11001  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 (EXHIBIT 849A-33:  Tab 33, Diagram, South Wall  3 Profile dated July 29, 1985)  4  5 MR. WILLMS:  Could Exhibit 849 proper be put before the witness.  6 And you'll recall --  7 THE COURT:  Sorry, what number please?  8 MR. WILLMS:  849.  It is the smaller — the starting grey book.  9 THE COURT:  And the number?  10 MR. WILLMS:  11 Q    And the number is 849-12.  And in your earlier  12 cross-examination, Ms. Albright, I asked whether or  13 not the feature that was referred to as the wishful  14 thinking post mold here was the feature identified at  15 the next tab 849-13 as feature 9.  You said that you  16 weren't sure it was the same feature, but if you  17 looked at the level note above that you could tell.  18 Have you checked those level notes to determine  19 whether or not the feature referred to is the same  20 feature?  21 A    I haven't had my level notes for the last few days.  22 MR. RUSH:   My lord, they've been in counsel's hands and they  23 should be -- I guess over the break they should be  24 given to the witness.  25 MR. WILLMS:  Yes, my lord, I thought I suggested that last week,  26 and so maybe we will just leave that.  I'm going to  27 complete before lunch, but I do want to leave that one  28 if the witness can find it.  2 9 THE COURT:  Yes.  30 MR. WILLMS:  31 Q    Now —  32 A    With these two documents in this binder as well to  33 compare them?  34 Q    Yes.  Now, you were giving evidence yesterday about  35 the significance of depths of cultural features --  36 sorry, depths of cultural material.  You said there  37 was some significance to having one to two feet of  38 cultural material.  39 A    In what context are you referring to?  40 Q    Well, the context was Exhibit 849A and the -- no,  41 the context was Ames, I'm sorry.  Exhibit 847 at tab  42 5.  And at tab 5, this is the Site Survey of the  43 Middle Skeena by Ames.  It is the very big black  44 binder.  45 A    I have a grey one here.  This was produced in  46 evidence yesterday?  47 Q    Yes, I referred you to it.  It is at tab 5. 11002  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 A    Oh, it is in the document binder?  2 Q    Yes.  3 A    Sorry.  4 Q    At tab 5.  And it was GfTc-2, the archaeological  5 site survey form that is about 11 pages in.  6 A    GfTc?  7 Q    2.  8 A    Okay.  I have it.  9 Q    And I asked you what it was on this form that  10 indicated to you that this was prehistoric, and you  11 pointed out the depth of deposit under item 6, one to  12 two feet?  13 A    Yes.  14 THE COURT:  I'm sorry, I've got the wrong document.  GgSw-2?  15 MR. WILLMS:  GfTc-1 and then that is followed by GfTc-2.  16 THE COURT:  I have it.  This is the five standing buildings and  17 drying racks?  18 MR. WILLMS:  Yes, the five standing buildings.  19 THE COURT:  Yes.  20 MR. WILLMS:  21 Q    And I asked you why you thought this was prehistoric  22 and you pointed out the depth of the deposit at one to  23 two feet.  Now, can you just explain again why that  24 depth of deposit has any relevance to whether or not  25 it's historic or prehistoric?  26 A    These are sufficient surface deposits with ash and  27 fire cracked rock.  Sub-surface deposits usually refer  28 to dark matrix -- dark carbon-stained cultural matrix  29 which in an exposed cut bank may reveal artifacts  30 within it.  31 Q    The depth of the deposit, though, is irrelevant,  32 isn't it?   It doesn't really tell you much about how  33 old the site is?  34 A    The depth of -- well, the buried deposits indicate  35 occupation and use over a period of time during the  36 prehistoric period.  37 Q    The depth doesn't tell you whether it is historic or  38 prehistoric, the depth of the deposit?  39 A    The buried deposits and the materials and matrix  40 indicated in the buried deposits indicate a  41 pre-contact occupation at the site.  42 THE COURT:  I'm missing something here because I don't see on  43 this document any buried deposits.  I think it relates  44 to five standing buildings and drying racks.  45 THE WITNESS:  Number 6 under the category 6.  46 THE COURT:  Depth of deposits one to two feet?  47 THE WITNESS: Yes. 11003  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  I took that to be the depth of the layer, isn't it?  THE WITNESS: No, that refers to cultural materials, cultural  deposits.  THE COURT:  What are the cultural deposits, the ash and the  baked dirt and the fire cracked rock?  THE WITNESS: Yes, and carbon-stained soil and charcoal.  MR. WILLMS:  Q    Well, you don't know that?  A    Well, the charcoal would indicate that there is  carbon staining there as well.  Q    But the depth of one or two feet yesterday you were  indicating that that has some significance to it, but  the depth is irrelevant.  It's what's in it is what's  relevant, not what depth that's relevant.  A    Well, the depth indicates an extended period of  occupation in the prehistoric period.  Q    Do you have Exhibit 849-22.  It's the grey -- the  first grey binder?  Can you please turn to 849-22.  This is the reference from "The Midden" by Ames.  This  was one of the references in your report?  A    Yes.  XXXXX  Q    If you turn to page 6.  The page numbers are in the  upper right-hand corner here.  You will see Ames  describing the excavation Hagwilget down under Carrier  Village paragraph.  "The Carrier Village, Zone C,  covers the surface of the site."  Page?  Page 6 in the upper right-hand corner?  Fourth paragraph.  I have it now.  A  MR. WILLMS:  THE COURT:  THE WITNESS  MR. WILLMS:  Q  And Ames says about Hagwilget:  "...covers the surface of the site, and  extends to a depth of three feet below the  surface.  Artifacts from this zone include  clay pipe fragments, ground slate abraders,  a gun flint, glass, and pottery beads.  Associated features include post molds,  house timbers, birch bark-lined pits, birch  bark caches, rolls, and hearths.  Fish  vertebrae constitute the major percentage  of faunal remains.  They were frequently  associated with seeds, vegetable fibers and  other floral material in the birch  bark-lined pits.  This occupation began ca.  1820 and continues to the present." 11004  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 Now, I'm suggesting to you again that the depth of  3 one to two feet or any depth doesn't really tell you  4 very much about the age of the site.  5 A    Depth of deposits are important in assessing a  6 period of occupation in pre-contact times.  This  7 reference -- in this very early summary report of his  8 findings by Ames 1973, this reference in 1820 refers  9 to a specific agreement between the Gitksan and  10 Wet'suwet'en peoples for their use of that site  11 because of blockage of the -- on the Bulkley River so  12 the fish weren't able to proceed at one point in time.  13 So that 1820 refers to a specific agreement, and Ames  14 has used that date to refer to a period of occupation  15 at the site.  The materials suggest that these may  16 have been there before that 1820 agreement or the use  17 of the site.  So there is nothing really to say that  18 without a specific radio carbon date for features in  19 that upper zone.  20 Q    Doesn't Ames use European artifacts?  That's what  21 he's talking about.  He is talking about nails.  He is  22 talking about clay pipes.  He is talking about  23 European materials in that upper zone that allows him  24 to date it, doesn't it?  25 A    Well, a period of occupation during the prehistoric  26 period.  27 Q    Down to three feet?  That's what he found down to  28 three feet, isn't that correct?  29 A    I believe that historic trade goods were  30 concentrated in the upper levels of the site.  31 Q    Well, he took five centimetre levels, right?  32 A    No.  33 Q    How large were his levels?  Do you remember how many  34 levels he had?  35 A    He used six inch levels.  36 Q    Six inch levels?  37 A    Yes.  38 Q    Well, I'm showing you a document which we received  39 from your files, and it appears to be a breakdown of  40 Ames' Level Bags GhSu-2 including historic artifacts  41 and faunal artifacts.  Who prepared this document?  42 A    This was a tabulation by Miss Ludowicz.  43 MR. WILLMS:  849A-34, my lord.  44 THE REGISTRAR:  34.  45  46 (EXHIBIT 849A-34:  Tab 34, Tabulation of  47 Artifacts, June 24th) 11005  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2 MR. WILLMS:  3 Q    You will see that the levels are down the side here  4 and then there are list of historic artifacts.  Do you  5 see that, Ms. Albright?  6 A    Yes.  7 Q    And down at level 13 there is a nail.  At level 11  8 there is a nail.  At level 12 there is a clay pipe?  9 A    Yes.  10 Q    That's not near the surface, that's at six inch  11 levels.  That's six feet below.  Your own research  12 confirmed in reviewing Ames' Level Bags that historic  13 artifacts were found quite deep, didn't it?  14 A    These are occasional items.  They are mostly  15 concentrated in the upper levels.  16 Q    But they extend down, as Ames noted, to three feet?  17 A   And it's possible they are found deeper through  18 disturbance in the site matrix.  19 MR. WILLMS:  Yes.  20 THE COURT:  What is the word beside "clay pipe" in block A at  21 level 12?  It looks like "large" something?  22 THE WITNESS:  "Large mammal" I think referring to faunal  23 remains.  2 4 THE COURT:  Mammal?  25 THE WITNESS:  Yes.  26 MR. WILLMS:  27 Q    So without digging into the cultural deposit, the  28 depth of the deposit certainly if it is under three  29 feet in this area doesn't tell you very much about how  30 old the deposit is, does it?  31 A    The depth is significant within the context of each  32 site.  33 Q    Yes, exactly.  Now, I just want to confirm because I  34 don't think it was marked with your report that this  35 is the reference list that was submitted along with  36 your report.  That was the reference list submitted  37 with your report?  38 A    Yes, I believe so.  39 MR. WILLMS:  My lord, I ask that that be 849A-35.  40 THE COURT:  Looking at the index of your report, Ms. Albright,  41 should it be part of the index?  You have references  42 A, B and C.  Is this part of the report so it should  43 be perhaps indexed with the report?  44 THE WITNESS:  Is it not part of the report itself?  45 THE COURT:  I don't know.  Well, there is a reference listed.  46 THE WITNESS: Yes.  47 THE COURT:  It is already here, Mr. Willms. 11006  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  MR.  WILLMS  2  THE  COURT:  3  MR.  WILLMS  4  THE  COURT:  5  6  THE  WITNES  7  8  MR.  WILLMS  9  10  11  THE  COURT:  12  MR.  WILLMS  13  Q  14  15  16  17  A  18  MR.  WILLMS  19  20  21  22  23  MR.  WILLMS  24  Q  25  26  27  28  29  30  31  A  32  Q  33  34  A  35  36  Q  37  38  39  A  40  MR.  WILLMS  41  THE  COURT:  42  MR.  WILLMS  43  THE  COURT:  44  MR.  WILLMS  45  THE  COURT:  46  MR.  WILLMS  47  THE  COURT:  :  I'm sorry, my lord.  It is the same thing.  :  In Exhibit 844?  Yes.  I haven't compared them, but they look the  same.  S: Yes, I believe it is the same list, the same  bibliography as part of the report.  :  I'm sorry, my lord, it just wasn't in mine so I  didn't know it had been marked, but if it's an  exhibit.  Thank you.  I'm showing you a document that is a handwritten  document that is entitled "Radio Carbon Samples,  Moricetown, Trench I, GgSt-2, Collected July/ August  1985".  This was prepared by Deanne Ludowicz?  Yes.  :  Could that be 849A-35, my lord.  (EXHIBIT 894A-35:  July/August 1985)  Tab 35, Radio Carbon Samples,  Turning to page 2 of the list, you'll see at the top  there is a description:  "Radio Carbon Samples:  all  have been cleaned and numbered - total = 33.  Ten  selected for submission including samples for 5  features and 5 layers".  So what you did was you  collected 10 radio carbon samples and five were to  date features and five were to date layers?  No, we collected 33 samples.  Oh, you submitted 10 samples to Beta Analytic, five  were to date features and five were to date layers?  To obtain dates associated with those layers and  features, yes.  And just dealing with the features first, the sample  numbers that were sent off to date features were  sample 12, that's from the hearth?  Yes.  :  Sample 17 --  We've got 12 twice, have we?  :  I think that's a 17.  At the second page?  :  That's supposed to be a --  That's a 17?  :  A crossed 7.  Yes, all right. 11007  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  MR.  WILLMS  2  Q  3  A  4  Q  5  6  7  A  8  Q  9  10  11  A  12  Q  13  14  15  A  16  17  Q  18  19  A  20  21  Q  22  23  A  24  25  26  Q  27  28  29  30  31  A  32  33  34  MR.  WILLMS  35  36  37  38  39  40  THE  COURT:  41  42  THE  WITNES  43  44  MR.  WILLMS  45  Q  46  A  47  17 was from a feature, correct?  Yes.  And then over to the next page the last three from  the features are 27, 28 and 30.  27 is a hearth, 28 is  a post, 30 is a post?  Yes.  Now, the layer features -- sorry the layer samples,  sample number 3 was one of the two to date layer B.  That was to date layer B, not a feature, correct?  That was not from a specific feature.  I'm just referring -- it says you are going to try  to date five layers, and it has got two for B, two for  C and one for A?  Well, the samples were submitted to obtain -- to  obtain -- yes, to retrieve dates.  Yes, and so you sent off sample number 3 to try to  date layer B?  This is based on -- provenience is based on the  first recorded field notes.  Yes, and you sent off sample number 3 to try to date  layer B, right?  Samples were selected on the basis of their size and  consistency, and the largest and best samples from  several -- from layers within the site were selected.  Did you or did you not send sample 3 in an attempt  to date layer B?  Maybe if I come at this a different  way.  Which two samples were sent from this list to  date layer B?  I'm referring to the second and third  page.  I believe we were -- the most reliable samples were  from hearth areas, and I believe we sent two from B  layer hearths.  :  Well, maybe I will try it this way.  Why did you  send sample 3 to Beta Analytic?  What were you trying  to date with sample 3?  It might help you to look at  the second page where it says why these were sent.  Can you tell me why sample 3 was sent to Beta  Analytic?  What were you trying to date?  Well, obviously you are trying to date the sample,  aren't you?  S:  Yes, date the sample.  It was selected from the  middle layer, middle layers at the site.  Yes, layer B?  Well, it was thought to be layer B in the field  notes. 1100?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q    Yes.  And when you got the radio carbon date back  2 from Beta Analytic you got back a date around 3680  3 B.P.?  4 A    Yes.  5 Q    And so on figure 2-8 in your report which has your  6 list of dates you had to change the layer to CI?  7 A    Based on our re-examination of the stratigraphy, the  8 profiles.  9 Q    When did you re-examine the stratigraphy, after Beta  10 Analytic told you by phone what the dates were or  11 before?  12 A    The -- well, the stratigraphy was examined while we  13 were at the site in September.  14 Q    Was that after you knew what the dates were from  15 Beta Analytic or before?  16 A    It was before.  17 Q    It was before?  18 A    Yes.  I didn't receive the dates back until I  19 believe it was Christmas.  2 0 Q    You knew what the dates were from a telephone  21 conversation, didn't you, though, before then?  22 A    No.  23 Q    In your archaeological research in the area, did you  24 take into account the effect of the Neoglacial period,  25 the "Little Ice Age"?  26 A    I'm aware of discussion of the Neoglacial period in  27 the literature.  28 Q    And you're aware from the archaeological literature  29 that in high elevation areas they were relatively less  30 intensively exploited in the last few thousand years  31 than before?  32 A   Are you referring to Fladmark's discussion in  33 Edziza?  34 Q    Or any other literature that may have said the same  35 thing.  You know that that's the archaeological view  36 of exploitation in high elevation areas that it has  37 been relatively less in the last few thousand years  38 than it was before?  39 A    No.  40 MR. WILLMS:  I'm showing you an extract from Glass and Ice, the  41 Archaeology of Mount Edziza.  You relied on this in  42 preparing your report?  43 THE COURT:  Didn't we mark this just a few minutes ago?  44 MR. WILLMS:  45 Q    Just a few pages.  I am trying not to mark the whole  46 book.  47 A    I have reviewed this work and referred to it. 11009  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q    And could you turn to page 199.  You will see at the  2 paragraph at the bottom, the full paragraph Dr.  3 Fladmark says this:  4  5 "An hypothesis of diminishing aboriginal  6 exploitation of alpine and sub-alpine zones in  7 the last few thousand years of prehistory  8 satisfies both the apparent relative absence  9 of recent cultural horizon markers, and  10 the implications of paleoenvironmental  11 studies in the Edziza region and adjacent  12 areas.  As noted earlier, the Neoglacial  13 period locally began about 3000 B.P.  14 culminating in the particularly cool episodes  15 of the Little Ice Age ca. 200-400 years  16 ago."  17  18 Now, that's consistent with the archaeology of the  19 area, isn't it?  "Diminishing aboriginal exploitation  20 of alpine and sub-alpine zones in the last few  21 thousand years"?  22 A    This is a hypothesis posed by Fladmark based on his  23 investigations on Mount Edziza.  24 MR. WILLMS:  We are at 849A-36.  25  26 (EXHIBIT 849A-36:  Tab 36, Extract from K.  27 Fladmark's Glass and Ice)  28  29 MR. WILLMS:  30 Q    Finally, you referred on the very first day of your  31 evidence to ethnoarchaeological work by people  32 including Yellen in Australia?  33 A    Yes.  Yellen has worked in Africa.  34 Q    Oh, well you said in your evidence in chief that:  35  36 "Yellen is an example of ethnoarchaeological  37 research, the Kung bushmen in Australia."  38  39 A    The Kung bushmen in Africa.  I also mentioned White  40 who had worked with aboriginal peoples in Australia.  41 Q    Oh, it's Kung bushmen in Africa?  42 A    Yes.  43 Q    All right.  And the reference that you were  44 referring to is -- and I'm just showing you the  45 reference page to Tahltan Ethnoarchaeology.  46 Archaeological Approaches to the Present.  Models for  47 Reconstructing the Past.  That's the reference from 11010  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  Yellen that -- the ethnoarchaeological reference that  you relied on?  A    I have reviewed it, yes.  WILLMS:  And if you turn to page 4 of Yellen under the  section where he is talking about Archaeological  Theory And Ethnographic Fact, he says at the very top  of page 4 in concluding his discussion of ethnographic  data --  I'm sorry, this is --  It's number 4.  Yes.  In the upper left-hand corner.  Yes.  COURT:  WILLMS  COURT:  WILLMS  COURT:  WILLMS  Q  He says:  A  A  Q  A  "To conclude this consideration of why  ethnographic data - in the form of  ethnographic analogy - have played and will  continue to play such an important role in  archaeological interpretation, I would stop  short of Chang's position and emphasize the  lack of such readily available alternatives  and the all too often direct applicability  of ethnographic information.  One can also  note the educational and historical biases  in this same direction among North American  anthropologists.  But I would not let the  matter stand at that.  The difficulties  archaeologists face when they turn to  ethnographic data are real, and, because of  them, such material should be labeled,  'Handle with extreme care'."  Now, you accept that, don't you?  He is referring here to one level of ethnographic  analogy where analogies might be drawn in conducting  archaeological research in one area and relying on  ethnographic examples from far distant environments  and cultures.  But this was the theatrical approach and methodology  that you reviewed and relied on in writing your  report, didn't you?  In my report on what?  Your report here that has been marked as an exhibit  in this case?  This is a reference in my -- in my publication. 11011  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  Q  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  A  20  Q  21  22  A  23  24  25  Q  26  27  A  28  Q  29  30  31  32  A  33  Q  34  A  35  36  Q  37  A  38  39  40  Q  41  A  42  43  44  MR. WILLMS  45  46  47  Well, on your first day giving evidence you were  asked by my friend:  "Q  Now, I think that you've identified  ethnoarchaeology as an approach within  archaeology, is that correct?  A  Yes, it is.  It is a theoretical approach  and methodology for conducting research  which has been used extensively in areas  such as Africa, Richard Gould and White  are two names that come to me, people that  have conducted ethnoarchaeological  research extensively with aboriginal  peoples in Australia, and Yellen is an  example of ethnoarchaeological research,  the Kung bushmen in Australia."  And you said in Australia, but you meant in Africa?  I meant in Africa, yes.  Now, that was the basis for your ethnoarchaeological  research, wasn't it?  That question was directed at me in terms of where  was I familiar with or could I indicate where the  ethnoarchaeological approaches had been used.  And did you use any one that had been used before or  did you invent your own?  I'm sorry, I don't know what you mean.  Did you use an ethnoarchaeological approach that had  been used before like Yellen who you referred to or  did you invent your own ethnoarchaeological approach  in writing this report?  I didn't invent an approach.  You used approaches set up by others?  I used an approach similar as has been used in a  variety of other contexts.  But in contrast --  In comparing archaeological evidence with  ethnographic -- ethnographically recorded information  for the same area.  But you didn't --  With particular reference to locating of  archaeological evidence at sites within the area of  study.  :  849A-37, my lord.  (EXHIBIT 849A-37:  Tab 37, Tahltan  Ethnoarchaeology - Archaeological Approaches to the 11012  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 Present - John Yellen)  2  3 MR. WILLMS:  That concludes the cross-examination except for the  4 location of that level note, my lord.  5 THE COURT:  Yes, all right.  Thank you.  Mr. Macaulay, are you  6 ready to proceed or do you want to start at --  7 MR. MACAULAY:  Well, we are going to start at 1:30?  8 THE COURT:  You're suggesting we adjourn now until 1:30?  9 MR. MACAULAY:  Yes.  10 THE COURT:  Yes, all right, 1:30.  Thank you.  11 THE REGISTRAR:  Order in court.  Court will adjourn until 1:30.  12 (PROCEEDINGS ADJOURNED)  13  14  15  16 I hereby certify the foregoing to  17 be a true and accurate transcript  18 of the proceedings herein to the  19 best of my skill and ability.  20  21  22    23 LISA FRANKO, OFFICIAL REPORTER  24 UNITED REPORTING SERVICE LTD.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 11013  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE COURT:  Mr. Willms, are you completed?  4 MR. WILLMS:  Well, just subject to — I don't know if this is  5 what my friend is going to rise to, subject to finding  6 that level note.  7 THE COURT:  Yes.  8 MR. RUSH:  Just to advise your lordship that Miss Albright over  9 the luncheon break looked at 849-12 and 13, which were  10 the two relevant documents, and as well the copies of  11 the level notes and other notes from Moricetown and  12 just to advise that she's looked at them and I can't  13 say anything further than that.  14 THE COURT:  All right.  Mr. Willms.  15  16 CROSS-EXAMINATION BY MR. WILLMS:  17 Q   And in looking at them, were you able to find a level  18 note which would indicate that it was some other  19 feature than feature nine that Mr. Burley was  20 referring to?  21 A   In -- at tab 12, the level note, refers to -- yes, a  22 minor stain in the soil which he had mapped on the  23 floor plan and tab 13, the feature record form number  24 nine for a post feature in the same unit refers to a  25 distinctly different feature.  26 Q   You —  27 A  Which he notes in subsequent level notes and is also  28 marked on floor plan one of which was the -- also an  29 exhibit or a document presented to me.  30 Q   What level note?  Can you produce that level note, the  31 one that you must have referred to over lunch that  32 shows the post mould?  33 A   It was one of the level notes also produced as a  34 document last week and in -- also in -- with a floor  35 plan.  And also in the profile view.  So it would have  36 been the wall of that unit prior to excavation.  The  37 profile refers to the adjacent unit.  38 MR. WILLMS:   Well, my lord, I don't want to take up any more of  39 the time.  I do want to mark that note at the break.  40 The witness can produce the note through counsel to  41 me.  I'll have it copied and I think we should mark  42 it.  43 MR. RUSH:  I certainly don't have any trouble with that.  And if  44 it's in the material already identified, then I think  45 we can just refer to the exhibit number.  4 6 THE COURT:  Yes, all right.  47 A   It is. 11014  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Willms  1  THE COURT:  2  A  3  4  5  6  7  8  9  MR. WILLMS  10  Q  11  A  12  13  Q  14  A  15  Q  16  A  17  18  Q  19  20  A  21  Q  22  23  24  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  33  Q  34  35  36  A  37  38  39  Q  40  A  41  42  43  44  45  THE COURT:  46  47  MR. WILLMS  It's already an exhibit.  It's already an exhibit at tab 15 as well as an  additional profile in the notes.  And so the level  note at tab 15 refers to a floor plan at 40 where  there is stain of the post mould, I believe it is, as  it's first identified and it's also followed through  in subsequent level notes.  If you like, I could  produce the subsequent level notes and profile.  Well, if you turn back to the nine, feature nine.  The feature nine refers to a post followed through a  depth of 30 centimetres.  And what's --  From 42 to 72 centimetres.  DBU?  DBU.  In that unit I think the DBU and the DBS were  within a couple of centimetres.  Oh, I don't think so.  Would you turn to page 2-5 of  your report?  For this unit.  Page 2-5 of your report.  Exhibit 844.  Unless maybe  there is a mistake in your report.  This is the  feature summary page and you can see feature nine is a  post mould?  Yes.  You see the depth?  Yes.  That's 30 centimetres?  It's the depth of the feature itself.  Below the surface?  No.  The depth of the feature.  How far down in the  deposits it was followed.  Oh, so that's the -- these lengths here are not where  the mould was -- where these were found.  This is the  length of the feature?  The depth refers to the depth of the feature itself,  how big the feature was.  In other words, how deep a  post mould was or how thick a hearth was.  The post mould was 30 centimetres in diameter?  Yes.  And it was 30 centimetres of deposits that it  was followed down.  The feature record form for nine  indicates that it was followed through 42 centimetres  to 72 centimetres, which is visible on both the floor  plans for each level as well as a profile.  I have written down here under the word depth CM, I  wrote down DBS.  I assume I --  :  I thought the witness said that in her earlier 11015  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 evidence that that's what that meant, DBS.  2 THE COURT:  Well, I wrote it down.  I can't recall what the  3 witness said about it.  But you are telling us now  4 that it's not depth below surface?  5 A   The diameter and depth are the dimensions of the  6 feature itself.  7 THE COURT:  I will cross out what I wrote down.  8 MR. WILLMS:  My lord, I would like to conclude, but I have been  9 on the understanding that that was DBS and I have  10 looked at all of the forms the same way.  11 THE COURT:  Yes.  12 MR. WILLMS:  And I would -- and I have got the feature forms  13 with me.  I can look at them.  If anything arises out  14 of it, I would like to make your lordship aware I may  15 want to ask a question or two after I take a look at  16 that.  17 THE COURT:  Well, you look at whatever you have to look at and  18 you may speak to the matter again at the end of the  19 day.  All right.  Thank you.  Mr. Macaulay?  20  21 CROSS-EXAMINATION BY MR. MACAULAY:  22 Q   Miss Albright, could you turn to tab 18 of your book.  23 It's Exhibit 847.  Your own book.  Not Mr. —  24 A   Tab —  25 Q   Yes, that's it.  Tab 18.  It's your paper on Tahltan  26 Ethnoarcheology.  And could you refer to page 6 of  27 that.  On the right-hand column the paragraph starting  2 8 with the words:  29  30 "One of the major problems confronting  31 archeologists"  32  33 Do you see that?  34 A   Yes.  35 Q   And if I can read that to you.  My lord, it reads as  36 follows:  37  38 "One of the major problems confronting  39 archeologists in their attempts to reconstruct  40 subsistence patterns from archeological remains is  41 that of archeological visibility."  42  43 And then you go on to explain what the problem is.  44 Now, isn't that problem one that you face in the  45 Gitksan as well as in the Tahltan territory, that is  46 the problem of very little in the way of visible  47 archeological remains? 11016  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   There are both very visible sites as well as sites in  2 the area which are likely to be difficult to detect.  3 Q   Well, is the Gitksan area better in that respect than  4 the Tahltan area?  5 A   In both areas there is -- there are permanent village  6 sites which are clearly visible.  7 Q   And -- but there are no shell middens in either case?  8 A   Not shell middens as on the coast, no.  9 Q   Well, shell middens for archeologists on the northwest  10 coast are the most fertile mine of artifacts, aren't  11 they?  12 A   They are easily -- they are very visible sites.  13 Q   Well, they are not only very visible, but the shells  14 for some reason seem to preserve artifacts better than  15 the acid soil?  16 A   They preserve bone material better.  17 Q   Right.  18 A   But stone artifacts are preserved in shell and  19 non-shell context.  20 Q   And at the bottom of the same page you say:  21  22 "Since a large proportion of the material culture  23 of culture of hunter-gatherer peoples are  24 manufactured from organic materials would leave  25 little or no trace in the archeological record."  26  27 That applies to both the Tahltan and the Gitksan, the  28 large proportion of the material culture being of  29 organic materials leaving very little trace?  30 A   The organic materials such as wood and bark.  31 Q   Fibre?  32 A   Fibre, are rarely preserved.  Depending on individual  33 context.  34 Q   Well, you have assumed from what you've read that the  35 principal economic activity of the Gitksan was  36 fishing, the principal and most productive economic  37 activity, do you agree with me on that?  38 A   It was -- yes, it was a major focus of the economy.  39 Q   And yet there is just -- you found almost nothing  40 except for cache pits of the remains of the Gitksan  41 fishing activities?  42 A   No.  There are other materials that represent fishing  43 activities as well.  44 Q   What were they that you found in your examination of  45 the sites?  46 A   There are bone tools used in fishing technology, bone  47 points, work bone points.  There are abrasive stones 11017  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2  3  4  Q  5  6  A  7  8  Q  9  A  10  11  12  Q  13  14  15  16  A  17  18  Q  19  THE COURT  20  21  A  22  MR. MACAU  23  Q  24  A  25  26  Q  27  A  28  Q  29  A  30  31  Q  32  33  A  34  Q  35  A  36  Q  37  A  38  39  40  Q  41  A  42  Q  43  44  45  A  46  47  used for manufacturing bone points.  There are fish  remains and birch bark liners within cache pits at the  lower levels at Hagwilget.  Yes.  All right.  Now, the bone points, did you  find --  As well as a variety of tools that are used for  processing.  What tools?  As well.  Bifaces and flake tools used for butchering.  There are other tools indicative of, oh, preparing  poles within a drying situation, drying racks.  Well, now, take the first thing you mentioned, bone  points.  Did you list the -- I don't see any reference  to bone points in your report itself.  Did you list  bone points?  Yes.  I do mention bone points in -- and Ames refers  to I believe --  No, I'm talking about your investigations now.  :  Mr. Macaulay is asking you where you mention bone  points.  Oh.  You mean the investigations at Moricetown?  EAY:  Anywhere.  There -- there are bone tools on the table of artifact  classes and types.  Oh, where is --  And this --  What page is that?  Page 2-10.  And additional work bone points were found  going through the faunal material from the site.  Well, I see at page 2-10 you have bone tools numbers  one in strata A, that's the top area?  Yes.  Would that be historic?  No.  It's precontact.  Precontact.  So you found one at that particular site?  One tool that was identified immediately during  excavation and is illustrated and discussed in the  Appen -- the Appendix A.  Where in the appendix do we find that?  On page A-l.  Page A-l.  Okay.  Where you say, "Bone tools do not  preserve well in acidic soils"?  And then you go on to  talk about one bone point?  Yes.  Recovered from layer A.  Examination of other  bone remains from the site indicate three fragments  from layer B had also been worked for points. 1101?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q You got fragments that you consider were part of bone  2 tools, is that it?  3 A Yes.  In -- yes.  4 Q Did you -- were you able to date these bone tools?  5 A In the context of the radiocarbon dates for the layers  6 in which they were found.  7 Q Well, you've -- what was layer A -- what date have you  8 got for that?  9 A Layer A is -- we obtained one date on a sample  10 collected from layer A.  A layer -- a date of 1650  11 plus or minus 90 B.P.  12 Q To when?  1650 till historic times?  13 A No.  That was the date of the sample.  14 Q That bone point or a sample taken in that layer?  15 A The sample.  16 Q Is layer A all about 1650?  17 A No.  This is one -- one charcoal sample from the  18 layer.  19 Q From the layer?  20 A Yes.  21 Q And you assume that the bone point is about the same  22 age, is that it?  23 A The bone point was found in layer A.  I have  24 interpreted layer A from about the time of this sample  25 to late prehistoric times.  26 Q And where was that found, at Moricetown, was it?  27 A Yes.  28 Q Did you find any bone points elsewhere?  29 A I believe Ames refers to bone points at -- from his  30 excavations at Hagwilget.  31 Q Yes.  And you refer to that in your report, but did  32 you find any other bone tools other than the one  33 listed here, the bone tool in layer A?  34 A Bone tools from layer B.  35 Q Those are fragments of bone tools?  36 A They are work bone, yes.  37 Q And how many of them did you find?  38 A Three.  39 Q Three of those?  40 A There may have been more, but three were easily  41 identified or recognized.  42 Q And that's what, 3000 years ago?  43 A B is -- or the context of layer B is estimated at 2500  44 to 1500.  45 Q Okay.  Now, did you find any bone tools at any of the  46 other sites other than Moricetown?  47 A We have just mentioned the bone tools. 11019  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   I know Ames found some.  2 A  Ames.  3 Q   But did you find any?  4 A   The bone material from the large surface site at --  5 surface-collected site at Hagwilget canyon, the bone  6 remains there were fragment material.  I don't recall  7 whether we identified any bone tools.  8 Q   You found animal bones?  9 A   Yes.  The bone tools are manufactured from --  10 Q   From that?  11 A  Animal bones, yes.  12 Q   Well, I am trying to draw the distinction between bone  13 tools and animal bones.  Did you find any bone tools  14 at Hagwilget on the surface?  15 A   None that I -- were identified.  16 Q   And one of the problems is that they don't preserve  17 well in acidic soils?  18 A   Yes.  19 Q   And by and large you were dealing with acidic soils in  20 the Gitksan country?  21 A  Well, at the area that we excavated at Moricetown had  22 poor bone preservation.  23 Q   How about --  24 A   The materials were fragmentary.  And -- and they were  25 also fragmentary at -- from the surface-collected site  26 at Hagwilget.  The deposits excavated by Ames had much  27 better preservation.  28 Q   And you found them at Hagwilget, in Kits -- well, then  29 a layer found in Gitaus canyon?  30 A   Yes.  31 Q   But your investigation which turned up one  32 identifiable complete tool at level A and you say  33 three at level B?  34 A   Yes.  35 Q   That is not a very substantial quantity, is it, on  36 which to base conclusions?  37 A  Well, my conclusions are not based on just the bone  38 tools.  39 Q   But, for instance, you mentioned fish bones.  Do you  40 identify in your lists any fish bones, any substantial  41 quantity of fish bone?  42 A   The excavations by Ames retrieved fish bones from the  43 lower levels.  44 Q   At Hagwilget?  45 A  At Hagwilget, yes.  46 Q   Did you —  47 A   Early zone. 11020  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   How about you, did your excavation show any --  2 A  Again, the material was very fragmentary and there  3 were -- there were scattered bone remains from  4 throughout the deposits.  5 Q   Did you carbon date any of the fish bones that you did  6 find or have them carbon dated?  7 A  Well, the bone material itself was not large enough,  8 of sufficient quantity to submit, but the layers --  9 there are dates for layers and features within those  10 layers.  11 Q   Apart from Moricetown, did you find any fish bones in  12 the various layers where you made excavations?  13 Leaving aside Moricetown.  14 A  Are you referring to Ames' excavation?  15 Q   No.  To your excavations.  Did you find any fish  16 bones?  17 A   The bone material at the large surface-collected site  18 at Hagwilget canyon were fragmentary and the items  19 that were identifiable to class indicate that were  20 preserved were mainly mammal bones.  21 Q   They were mammal bones?  22 A   Yes.  That were preserved.  23 Q   Yes.  So that you didn't find fish bones in your  24 excavations, in your own excavations?  25 A   Fragments were found at Moricetown.  2 6 Q   Some fragments were found at Moricetown?  27 A   Yes.  28 Q   Anywhere else?  29 A  Well, Moricetown is the only area where I have  30 conducted extensive or more detailed excavation.  31 Q   I see.  And you found no remains of nets or traps or  32 barricades of prehistoric vintage?  33 A   No.  34 Q   And you found no evidence of gaffs, fish gaffs of  35 prehistoric vintage?  36 A   The bone tools are part of the fishing technology.  37 Q   Well, yes.  But a bone tool that serves as a gaff will  38 be sort of V-shaped, won't it, so that you can attach  39 it to a stick and use it as a gaff?  40 A   Yes.  And the bone point may have been part of that  41 device.  42 Q   Might have?  43 A   Yes.  44 Q   Yes.  45 A   Or spears.  46 Q   Or it could be part of a spear?  47 A   Or harpoons. 11021  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   There were harpoons used?  Do you know whether that's  2 how fish were caught with harpoons?  3 A  Well, there are various elements, there are various  4 tools are described as spears, or harpoons if they  5 have detachable points.  6 Q   You didn't find anything that you could identify for  7 certain as part of a harpoon?  8 A  Well, the points are indicative of -- the points could  9 have been part of a spear or a harpoon.  10 Q   Could have been either?  11 A   Yes.  12 Q   And it could have been something else?  13 A   No.  It's part of —  14 Q   You don't think it could have been something else?  15 A   No.  16 Q   Well, do you base your findings about fish on those  17 items that we've mentioned and that you found that the  18 one point at level A at Moricetown and the fragments  19 of three bone points at level B at Moricetown and  20 some -- is that what you base your conclusions on  21 salmon processing on?  22 A   The indications of fishing are broader than that.  23 Those are some elements that are indicative or part of  24 the fishing technology.  25 Q   Well —  26 A   There are a number of other lines of evidence or --  27 Q   Well, what are the other lines of evidence about  28 fishing?  29 A   The -- the tools that are used for processing.  30 Q   You mentioned the --  31 A   Biface.  32 Q   The bifaces?  33 A   Yes.  And other flaking tools which are used for  34 butchering and processing salmon.  35 Q   Well, how do you know that those -- that the biface  36 you found were used in fishing rather than hunting?  37 What characteristics did they have which told you that  38 is a fishing instrument?  39 A  Well, it's the combination of information that is  40 there.  The location of the site itself at the canyon  41 is significant in that it is one of the best --  42 considered one of the best locations for capturing  43 salmon because of its restrictive nature.  44 Q   Because it's a narrow canyon?  45 A   Yes.  With access to salmon.  46 Q   Yes.  47 A  And as well as the level benches for -- for village 11022  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 sites.  2 Q   Well, the artifacts listed at page 2-10 of your report  3 are the artifacts on which you base your conclusion  4 concerning fishing, the conclusion that you came to  5 concerning fishing?  6 A  My -- my interpretations and conclusions are based on  7 analysis and study of the tools.  8 Q   Yes.  9 A  As well as the features at the site, the location of  10 the site.  11 Q   But these are all the tools or are they not, that's  12 what I'm asking?  13 A   Yes, these are.  14 Q   You have —  15 A   These are —  16 Q   You have a lot of tools listed in table three here at  17 page 2-10?  18 A   Yes.  19 Q   Are those the tools on which you base -- I know you  20 say --  21 A  Which I sited.  22 Q   The site is important, but are those the artifacts on  23 which you base your conclusions concerning fishing?  24 A   Yes, they are the identified tools.  25 Q   And they are all taken from one area, that is at  26 Moricetown?  27 A   Yes.  Within the excavation units.  28 Q   There isn't a similar list of yours for Hagwilget, for  29 Temlaxhan, for Dizkle, Kisgegas, Gitangat and so on?  30 A   There is a list of similar tables for the  31 surface-collected material at Hagwilget canyon.  32 Q   Did you base --  33 A  And I have also referred to Ames' description of  34 artifacts recovered from --  35 Q   Hagwilget?  36 A   Hagwilget, yes.  37 Q   But the Hagwilget -- at Hagwilget it was a surface  38 collection and you can't tell at what time they were  39 used?  40 A  Well, I have done what is referred to as cross-dating  41 by comparison with artifact collections, artifact  42 assemblages from stratified deposits.  43 Q   And where is your list -- you say there is a list that  44 you have for Hagwilget, the surface collection?  45 A   Yes.  Page 2-17.  46 Q   And do you assume that those are all fairly recent?  47 A   No, I don't. 11023  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   You don't.  Why would they be on the surface then?  2 A   I have indicated that they were brought to the surface  3 through plowing of a field.  They were collected from  4 plowed fields.  5 Q   How deep was the furrow?  6 A   That varied in test units.  It's averaged 15  7 centimetres.  8 Q   And would that be in layer A or what corresponds with  9 layer A in Moricetown or can you not say that?  10 A   No.  It's just the surface of the site investigation.  11 Q   And did you assume that all these -- we will take a  12 look -- looking here that all the tools listed at page  13 2-17 were used for fishing?  14 A   No.  15 Q   That wasn't a site that was right on the water, was  16 it?  17 A   It's on the edge of the canyon.  18 Q   But it's a way up above, is it, rather than down at  19 the water level?  20 A   It's a village site on a level bench above the water.  21 Q   And you considered that and the -- what, the fact that  22 there was another canyon and came to the conclusion  23 that some of those must have been used for fishing,  24 some of those Hagwilget surface artifacts?  25 A   Yes.  For processing of a fish, for manufacturing  26 fishing implements, for building of structures, drying  27 racks, poles.  28 Q   Did you find drying racks and poles at Hagwilget?  29 A  At this —  30 Q   This site?  31 A   This site, Gh Sv-85-A.  32 Q   Yeah.  33 A   The superstructures, no, are not preserved.  34 Q   No.  But did you find any evidence of them?  35 A   There was -- there were patches of ash and scorched  36 earth observed at the site and in which there were  37 concentrations of artifacts indicative of --  38 Q   Some kind of activity?  39 A  With bits of charcoal, yes.  Indicative of probable  40 locations of house structures there.  41 Q   Of house structures?  42 A   Yes.  43 Q   Oh.  And did you come to the conclusion on the basis  44 of that archeological information that the Gitksan and  45 Wet'suwet'en managed and conserved the fishery?  4 6 A   I've reviewed the evidence from excavations at  47 Moricetown, excavations conducted by Ames, the 11024  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 location of the large -- the large surface scattered  2 Gh Sv-85-A, the location of a number of other sites  3 indicating storage of dried fish resources and the  4 distribution of sites along archeological sites,  5 archeological materials along the river that are  6 correlated with named fishing places, places which are  7 still used by Gitksan-Wet'suwet'en peoples today for  8 fishing.  9 Q   And what led you to the conclusion that the Gitksan  10 and Wet'suwet'en conserved the fishery?  What part of  11 all that led you to the opinion that they did conserve  12 the fishery?  13 A   In using of -- in using fish resources over a period  14 of time to ensure that the resource is abundant, then  15 there is concern for how that resource is used.  16 Q   Well, that's logical.  17 A   Yes.  18 Q   Okay.  That's logical assuming that there wasn't a  19 superabundance --  20 A  Well, even —  21 Q   -- in prehistoric time?  22 A   Even with abundance, there is a concern for the  23 resource that's being used.  24 Q   But what, either your or other archeological findings,  25 evidence did you use on the basis of which you can  26 support the proposition that the Gitksan and  27 Wet'suwet'en conserved the fishery, that particular  28 resource apart from saying well, it just makes common  29 sense if you are fishing there for a long time, you  30 know, you are going to do it.  That's not based on  31 archeological finding.  32 A   The resource is still abundant.  If it hadn't been  33 conserved, it wouldn't have been abundant.  34 Q   So it's -- that's the basis of your assumption, isn't  35 it, that there was conservation is that the fact that  36 there are still lots of fish?  37 A  Where in my report do I --  38 Q   Well, at page 5-1, for instance, you say:  39  40 "The distribution of archeological sites -- "  41  42 This is the second paragraph,  43  44 " -- in Gitksan and Wet'suwet'en territories is  45 consistent with the settlement patterns recorded  46 in ethnographic literature for recent times.  This  47 evidence of early settlement patterns gives 11025  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 support to the chiefs' assertions that they  2 and their ancestors have occupied their  3 territories, have harvested, managed and conserved  4 the resources within their territories."  5  6 And so on.  And then at --  7 A   Yes.  The evidence indicates that they have harvested  8 their resources.  9 Q   Yes.  You —  10 A  And —  11 Q   You say that on the basis of your archeological  12 findings you can say yes, those are fishing implements  13 which show that people fished there in prehistoric  14 times.  But I'm talking now about managing and  15 conserving, you know, and I'm trying to find the  16 archeological evidence on the basis - of which you  17 didn't quarrel with me when I said you had drawn that  18 conclusion; perhaps I misunderstood you - do you draw  19 any conclusion about management or conservation in  20 your report?  21 A  Managed the resource indicates that -- that there is  22 an organization, an organization of people for both  23 procuring and processing that resource in -- at  24 certain locations.  25 Q   Yes.  26 A  And that aspect of social organization, organization  27 of people, is an aspect of a complex social  28 organization which is characteristic of the Gitksan  2 9 and Wet'suwet'en.  30 Q   All right.  Let's look at Gitksan.  Leave the  31 Wet'suwet'en for a minute.  What did you find that led  32 you to the conclusion that there was a complex social  33 organization?  What archeological finding did you base  34 that proposition on?  35 A   There are -- there are a number of aspects of culture  36 which are indicative of complex society, complex  37 social organization and --  38 Q   All right.  I want to know what you found --  39 A   Those are —  40 Q   -- that you relied on.  41 A   Those are settlement patterns, large villages with  42 numerous house structures in -- the large house  43 structures in terms of groups of people are house  44 groups, groups of people working together and living  45 together and working together to -- in subsisting  46 activities to procure and process a variety of  47 resources and -- and use of those resources.  And 11026  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 social ranking with --  2 Q   Where did you find evidence of social ranking?  3 A  Within the materials.  4 Q   What did you find that told you that there was social  5 ranking?  6 A   There are a number -- a number of indicators of social  7 ranking and wealth differentiation.  8 Q   In the investigations you did?  9 A   Yes.  Trade is -- trade is very closely allied with  10 ranking.  11 Q   The only —  12 A   In that -- in that rare items or items not found in  13 abundance in -- within this -- within the Gitksan  14 ter -- or Wet'suwet'en territories were obtained  15 through -- through trade with other peoples.  Items  16 such as -- scarce items such as obsidian would have  17 been traded into the area and that access and  18 controlled access and to that material and use of that  19 material may have been controlled by leading a higher  20 ranking chief.  Items such as copper which is also  21 traded into the area.  22 Q   You didn't find any copper?  23 A   Yes, we did.  24 Q   Where did you find that?  25 A   Oh, copper was found at Moricetown.  Copper rolled,  26 copper beads.  27 Q   You didn't find that, though?  28 A  Well —  29 Q   Did you?  30 A   I have referred to it in my investigation.  31 Q   Somebody else found it?  32 A  Well, I have referred to those as part of my -- part  33 of my report.  34 Q   Is that Turnbull's investigation?  35 A   Yes.  At Moricetown, which is on the terrace  36 immediately below where we did our excavations.  37 Q   But that was never tested to determine whether it was  38 European or Native copper?  39 A   Yes.  He indicates that it was Native copper, that  40 these are sheets of Native copper that had been  41 cold-hammered and then rolled into shape.  42 Q   Well, I mis —  43 A   There are copper beads have also be found at Kitwanga  44 fortress site which have been identified as Native  45 copper and they have also be found at Prince Rupert  46 harbour in the middle period of occupation, Native  47 copper middle period 35 -- from 3500 years ago.  So 11027  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 being a scarce resource traded into the area, they  2 would be identified as an indicator of social ranking.  3 THE COURT:  Miss Albright, how do you know that it was traded in  4 and not just brought in by somebody who had it and  5 left it there?  6 A  Well, it would indicate that there was, you know,  7 communication between peoples of two different areas.  8 THE COURT:  Would it mean that?  9 A   Yes.  10 THE COURT:  Or would it mean that somebody just came through and  11 left something behind and carried on?  12 A  Well, copper beads are found with cremation burial in  13 buried deposits.  14 MR. MACAULAY:  15 Q   Well —  16 A   So the items were on the person -- most likely  17 belonged to person who they were found on.  18 THE COURT:  How does that indicate trade?  19 A   In that the major copper sources are not within this  20 area.  21 THE COURT:  I am sorry, Mr. Macaulay.  22 A  MacDonald also refers to trade of copper at Prince  23 Rupert harbour.  2 4 MR. MACAULAY:  25 Q   Now, MacDonald found two instances of copper that he  26 refers to in his work you rely on?  27 A   Yes.  28 Q   One of them was European in origin and the other was  29 he considered to be Native?  30 A   Native copper.  31 Q   Isn't that right?  32 A   Yes.  33 Q   But Turnbull doesn't identify the source of the seven  34 copper beads that he found near Moricetown, does he?  35 A   They were with -- they are part of a cremation burial.  36 Q   Well, yes, but that -- they could still have come from  37 a European source just like the ones at -- in the  38 fort, unless they were carbon dated or the site was.  39 I just wondered why you came -- how you came to the  40 conclusion that those seven beads that you referred to  41 in your report were Native copper and of a  42 considerable age?  That's at tab three I think.  43 A   Yes.  44 Q   Tab three of your book.  45 A   The social with cremation burial which is a  46 prehistoric burial pattern in this area.  47 Q   All right.  How long did cremation continue after the 1102?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 white settlement of the Bulkley valley, the first  2 white settlement?  3 A  Well, I think missionaries preceded most settlement.  4 Q   The first missionary -- who was the first missionary  5 of Moricetown and when did he arrive?  6 A   I don't recall.  7 Q   Wasn't the Hudson Bay Company already at the forks  8 when the first missionary came to Hagwilget?  I am  9 referring to Father LeJacque.  10 A   I prefer to leave a discussion of events in the  11 recorded -- in historical documents to --  12 Q   To other people?  13 A   To other people, yes.  14 Q   Okay.  But you don't know how long cremation continued  15 in the 19th century?  16 A  Well, burial patterns were one of the first aspects  17 of -- one of the first aspects of culture, along with  18 introduction of metal materials, to change.  19 Q   Well, it was only after the missionaries arrived and  20 started having some influence that cremation stopped,  21 isn't that right?  Is that your understanding of it?  22 A   There are —  23 Q   Or if you have no understanding, fine.  You mentioned  24 missionaries before I did.  25 A   Yes.  2 6 Q   Do you agree with me that that's when cremation  27 stopped, after the missionaries arrived and started  28 converting people?  29 A   I am not sure at what time that pattern shifted.  30 There are other burials at Moricetown along the -- at  31 Moricetown canyon.  32 Q   Acidic soil tends to remove all evidence of burial,  33 doesn't it?  It eats up the bones?  34 A   The cremation, the burning of bone helps in its  35 preservation.  36 Q   Oh, does it?  I see.  37 A   Yes.  So the -- you know, burned bone will preserve  38 better than natural bone.  39 Q   Now, going back to the management and conservation of  40 the fishery.  You haven't found any village sites  41 yourself, have you, in your investigations?  42 A  Moricetown is a village site.  43 Q   Yeah.  But you didn't find it; somebody else did?  44 A   No.  We found evidence of --  45 Q   You found some evidence.  All right.  You found some  4 6 evidence.  You made an excavation and found additional  47 evidence about -- 11029  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   Of -- yes, of occupation of that village site.  2 Q   But other than that you didn't find in your  3 investigations any village site, any site that you  4 could --  5 A  Well, there -- there is archeological evidence at  6 several village sites along the Skeena and Bulkley  7 rivers.  8 Q   Which ones did you find that you could say here is a  9 village?  Starting with Temlaxhan, for instance, did  10 you find --  11 A   The site at Moricetown -- site at Moricetown canyon,  12 the large surface scatter and at the site.  13 Q   Did you find --  14 A  And then —  15 Q   -- house depressions?  16 A   -- Hagwilget canyon excavated by Ames, those are both  17 interpreted as village sites.  18 Q   I am talking about your excavation, not Mr.  19 MacDonald's or anyone else's.  Which ones did you  20 find, which sites did you find in your investigations  21 that led you to the conclusion that there was a  22 village, independently of other people's work?  23 A  Well, as part of my investigations I looked at the  24 information recorded by other archeologists.  25 Q   Right.  26 A   Yes.  27 Q   Well, it's the —  28 A  And there are -- there is archeological evidence of  29 prehistoric occupation at several villages.  30 Q   Well, it's the work of those others on which you rely  31 in coming to your conclusion about the existence of  32 villages, isn't it, not your own investigation?  33 A  My conclusions are based on study of -- a study of all  34 of the archeological evidence that is available, that  35 is present within the territories.  36 Q   That —  37 A   Investigated directly on the ground by myself or by --  38 recorded and investigated on the ground by other  39 archeologist.  40 Q   Did you work on -- other than at Moricetown, did you  41 work on a site where you were satisfied there was a --  42 had been a village in prehistoric times as distinct  43 from a, you know, one or two dwellings?  44 A   Gh Sv-85-A at the canyon.  45 Q   That's Hagwilget site?  46 A   Yes.  47 Q   Where you made the surface collection? 11030  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A   Yes.  Q   And were there house depressions there?  A   There are indications of house -- location of house  features there.  Q   Well, the only location you get for prehistoric  village sites would be the depressions, wouldn't  there?  Everything else has gone?  A   That — no.  Q   Well, what did you find on your surface survey that  told you that was a village site?  A   The association of artifactural material, the variety  of artifactural material and its association with  distinctive features including ash and scorched earth,  bits of charcoal, burnt bone from those areas.  Q And isn't that consistent with an occasionally  occupied hunting or fishing site rather than a  village?  A   No.  Q   It isn't?  Well, what distinguishes it from a seasonal  fishing or hunting site?  A   The size of the site.  Q   Yes.  A   The variety of tools -- tool types found at the site,  the variety of the materials found at site of which  those tools are made.  The artifacts from that site  include both groundstone implements as well as flaked  stone implements which are equivalent in the function  for felling of trees, heavy duty woodworking  activities such as house building.  The -- there is  evidence of ceremonialism at the site.  Q   Are you talking about the list of tools --  RUSH:  Excuse me.  I just want to interject to make sure the  witness has completed her answer to that point.  MACAULAY:  Q   I was going to refer the witness to page 2-17 and ask  her if these are the tools she is referring to?  Yes, these are.  And on the basis of those findings -- is it on the  basis of those findings you decided there was a  village there, a permanent village, if that's what you  are talking about?  Well, my lord, she has just gone through a list of  five items, some of which included the items on page  2-17, and I think my friend's question should at least  reflect the extensive answer the witness has just  given.  THE COURT:  I think the question was:  Are these the tools that  MR.  MR.  A  Q  MR. RUSH 11031  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 led her to conclude that there was a village rather  2 than a temporarily occupied site, was it not, Mr.  3 Macaulay?  4 MR. MACAULAY:  That's right, my lord.  5 MR. RUSH:  Yes, I appreciate that.  But I took the question to  6 mean are these the only tools or the only factors.  If  7 that wasn't the intent of my friends' question, I am  8 misspeaking.  9 THE COURT:  I think the question has now become sufficiently  10 blurred that you should put it again, Mr. Macaulay.  11 MR. MACAULAY:  12 Q   You relied on your surface collection of tools amongst  13 other things to decide there was a village there, is  14 that right?  15 A   The —  16 Q   And this is —  17 A   Yes, the study of the tools, the artifactural  18 materials from the site.  19 Q   And that —  20 A  And the range of activities that they indicate.  21 Q   And that's found at page 2-17?  22 A   Yes.  2 3 Q   And was --  24 A  And described -- some of these are described in more  25 detail in Appendix A.  26 Q   And is there anything else that you found there in  27 addition to this list of artifacts that led to your  28 conclusion that there was a village, a permanent  29 village?  30 A   I've just itemized several -- several other.  31 Q   You mean the location?  32 A   The location.  33 Q   Yes.  House depressions?  34 A   The house features, I would call them features in that  35 they are concentrated locations of ash, scorched  36 earth, charcoal, burnt bone and concentration of tools  37 in those specific areas.  38 Q   These tools?  39 A   Yes.  And the -- as well as the flaking detritus that  40 is ever present.  41 Q   You didn't find any house depressions, did you, on  42 this site?  43 A  We did not observe house depressions.  We observed  44 features in the -- within the matrix.  45 Q   Well, if there were plank houses, and that's what you  46 expect there were, is that right, plank houses?  47 A   Yes.  Most likely. 11032  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   Then you would find the hearth, that would be easiest  2 enough to find?  3 A   Yes, if they were carbon dated.  4 Q   You didn't find any remains, that is the kind of  5 excavation you expect where you find the site of a  6 plank house, you didn't find that on this site?  7 A  We conducted limited -- very limited subsurface  8 testing, but the subsurface testing did reflect, did  9 indicate cultural deposits with concentrations of  10 charcoal, carbon staining and compacted lenses  11 indicative of floors, living floors.  12 Q How far down --  13 A Those are —  14 Q -- did you record?  15 A Those are noted in the field notes, yes.  16 Q And how far down were they, the floors?  17 A I would need to refer to the field notes to say how  18 deep the test units were.  About 30 to 40 or 30 to 50  19 centimetres.  20 Q   Well, we can find your testimony.  21 THE COURT:  Mr. Macaulay, I think that we'll have to change  22 reporters shortly and so perhaps we should take the  23 afternoon adjournment now.  2 4    MR. MACAULAY:  Fine.  25  2 6 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON BREAK)  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein to the best of my  31 skill and ability.  32  33  34  35  36 Laara Yardley,  37 Official Reporter,  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47 11033  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2 (PROCEEDINGS RESUMED PURSUANT TO AFTERNOON RECESS)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Macaulay.  6 MR. MACAULAY:  7 Q    I will ask the witness to turn to 849A, that's the  8 second of the grey books, tab 16, the third page in  9 it's marked B-23.  Are those notes of this  10 investigation of the site we've just been talking  11 about?  12 A    Yes, this form refers to GhSv-85-A.  13 Q    And it reads in part:  14  15 "Three small test units were excavated in  16 area A.  All of these proved sterile of  17 cultural materials.  But none yielded  18 anything below 20 centimetres B.S. once sod  19 layer removed.  One of three test units  20 excavated in area B-2 exposed a compacted  21 yellowish silt zone that may be related to  22 a burned soil layer or housefloor, but few  23 cultural remains were otherwise recovered  24 from a buried context here."  25  26 Now, the reference to the yellowish silt zone that  27 may be related to a burned soil layer, is that the one  28 you were referring to just before the adjournment when  29 you said there was evidence of housefloors?  30 A    This is a compacted silt zone in the test unit.  31 Q    Mh'm.  32 A    There is also indications of ash and charcoal in the  33 soil matrix at that location.  In area B-l test units  34 recovered cultural materials in the context below 30  35 centimetres below surface.  36 Q    Yes, and it says:  37  38 "Including obsidian debitage."  39  40 That means the remains of a stone left after it was  41 worked on or chips manufactured of an obsidian object,  42 is that what debitage means?  43 A    Yes.  44 Q    Well, coming back to the -- I'm interested in the  45 housefloor.  Is there any of the test units other than  46 that one you refer to there, one of them, where there  47 was the yellowish silt zone that you recorded 11034  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 may be related to a burned soil layer or housefloor?  2 Is that what you were referring to or is there some  3 other evidence of housefloors?  4 A    The test in B-l I believe also in the field notes  5 indicate a compacted silt zone.  6 Q    Is that consistent with a forest fire?  7 A    No, in this context the charcoal was found and the  8 carbon-stained lensing is found in association with  9 cultural materials, not cultural artifacts.  10 Q    You say because they were cultural artifacts it must  11 have been a housefloor rather than a forest fire or a  12 fire for whatever reason?  13 A   A housefloor is recognized by the compaction of  14 silts, the carbon -- the straining, bits of charcoal,  15 the artifacts associated.  16 Q    Well, you didn't find that in the unit where you  17 found compacted yellowish silt zone.  That was a place  18 where you found -- it was described as "few cultural  19 remains"?  20 A    Well, there were a few cultural remains obtained  21 from test units.  22 Q    Well, isn't what you found there consistent with  23 occasional occupation of that site by people who were  24 there for a limited period from time to time?  25 A    No.  26 Q    Why?  What excludes that?  27 A    I believe I've already noted the evidence indicating  28 a village site at this location which includes the  29 artifacts, the soil lensing, the restricted patches of  30 ash and burned bone, the range and variety of  31 artifacts and materials from which they are made of,  32 the size of the site.  33 Q    And you drew the conclusion from the size of the  34 site and the range of materials that we have a list of  35 here on page 2-17 that this was a village?  36 A    Yes.  37 Q    Of what size, can you tell that?  38 A    Well, we were able to map the distribution of  39 materials that we collected.  It would appear that it  40 is quite likely that the site was much larger than the  41 actual area of collection.  42 MR. MACAULAY:  Did you make some notes June 23, 1985?  My copy  43 is marked up.  44 MR. RUSH:  May I see the copy that you are going to show the  45 witness?  4 6    MR. MACAULAY:  47 Q  Are those your notes concerning that site? 11035  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A    Yes, some of the notes.  2 Q    Some of them.  Is that incomplete?  3 A    There are also field maps showing the distribution  4 of artifact locations on the site.  5 Q    Yes, but those are the notes that you made at the  6 time of the site?  7 A    Yes.  8 Q    And there is nothing in those notes that records the  9 site of the village, is there, or in tab 16?  10 A    These are some of our first field notes of the site.  11 Q    Yes.  12 A   And the interpretation is based on study and  13 analysis of all of the evidence.  The interpretation  14 is based on some considerable time studying the  15 material evidence as recorded for the site.  16 Q    But those are the notes made at the time, the  17 relevant notes made at the time or are there others,  18 that is tab 16 and this document dated June 23, 1985,  19 Four Mile Creek?  20 A    Well, there are a number of materials and notes and  21 artifacts catalogued relevant to the site.  22 Q    Of your own notes?  You mean more of your own notes?  23 A    More field notes.  24 Q    More of your field notes?  25 A    Yes.  26 Q    Where are they to be found?  27 A    They are in the --  28 Q    Dig through the pile, do I?  29 A    In the field notes you received last week.  30 Q    And is that the kind of discovery, if I can call it  31 that, of the site that leads you to the conclusion  32 that there was management and conservation of the  33 fishery?  34 A    These are just a few of the field notes and the  35 materials relevant to my interpretation of this  36 particular site.  And I reviewed the -- I reviewed the  37 evidence available from a number of sites of the  38 territories.  39 Q    Yes.  40 A    Which led me to my opinion as presented from my  41 opinion report.  42 Q    Where in your report do you say that you found the  43 site of a village at GhSv-85-A?  44 A    I think it's dealt with at page 2-15 and the  45 following page.  2-15 outlines the -- describes the  46 location of the site.  The location of the site areas  47 that were examined and mapped and from which materials 11036  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 were collected.  It describes the features,  2 concentrated features observed at the site.  3 Q    Well, surely it must be summarized at pages 2-15 and  4 2-16?  5 A    2-16 outlines the artifact assemblage.  6 Q    Yes.  7 A   And table 4 presents the -- in tabular form the  8 frequency of class and types.  9 Q    Yes.  Well, at the bottom of page 2-15 sub-surface  10 testing, that's when you dug some test units.  11 Sub-surface testing was carried out in the centre of  12 the artifact concentrations in area A and in both the  13 north and south portions of area B.  That's the  14 summary of your testing, isn't it?  15 A    I mentioned the interpretation of the village is  16 noted on page 2-18 which refers to a comparison of the  17 artifact assemblage from GhSv-85-A with those of other  18 stratified sites which have dates indicative of a  19 period of occupation.  And the fact that there is  20 evidence of burning of concentrations of ash and  21 burned materials indicative of features, featural  22 remains of house structures at those locations  23 suggesting that the village at this site that may have  24 been disturbed by fire, that the structures themselves  2 5 may have burned down.  26 Q    Anyhow, what you found there satisfied you that  27 there had been a village there?  28 A    Yes.  29 Q    A permanent village as distinct from the temporary  30 kind?  31 A    Yes.  32 Q    And you went from that to the conclusion -- that  33 kind of finding to the conclusion that there was  34 management and that's where we began management and  35 conservation of the fishery?  36 A    That opinion or conclusion is based on not only the  37 study of this specific site --  38 Q    But sites like it?  39 A    Other excavated sites and stratified deposits as  40 well as the location and distribution of  41 archaeological sites with prehistoric components along  42 the rivers and their location at sites which are used  43 today that have -- they have by Gitksan and  44 Wet'suwet'en peoples.  Also that those sites are named  45 locations and that the names of those have been  46 recorded by various researchers.  47 Q    You mean the names of various sites? 11037  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A    Yes.  Yes, villages and fishing areas.  2 MR. MACAULAY:  Was there a village name for this particular  3 area, for instance, the one we have just been talking  4 about?  5 THE COURT:  At Four Mile Creek?  6 MR. MACAULAY:  7 Q    Yes?  8 A    I did not record a name for this site except its  9 location at Four Mile Creek.  10 Q    Where there has been a forest fire, what kind of --  11 say 2,000 years ago, what kind of layer of soil do you  12 expect to find when you do an excavation?  13 A    I'm not an expert in forests, sir, or forest fires,  14 but evidence of forest burning that I have seen some  15 chunks of charcoal, bits of charcoal.  16 Q    What does it look like 2,000 years later when it is  17 a few feet under the ground?  18 A    Dark matrix at the point of time of the burning.  19 Quite often very irregular or erratic maybe  20 followed -- for example, in cut banks I have seen  21 evidence of forest burning.  It can be followed  22 through at the cut bank.  There is some variable in  23 terms of thickness and concentration.  24 MR. MACAULAY:  Let's turn to another subject.  Perhaps the  25 witness could be shown the Whitesail map.  It's just  26 the first one, I think, in that series which forms  27 part of appendix C.  28 THE REGISTRAR:  Is that the original?  29 MR. MACAULAY:  It is.  30 THE REGISTRAR:  Exhibit 848-1.  31 MR. MACAULAY:  32 Q    This is one of the maps that forms part of your  33 opinion?  34 A    This is a map showing the distribution of  35 archaeological sites in this area and is part of  36 appendix C.  37 Q    And now on this map there is a location marked 135.  38 Do you see that up in the upper left-hand corner  39 opposite the words Tsah Mountain, T-S-A-H?  40 A    Oh, on Nanika Lake.  41 Q    Yes.  That represents an archaeological site, does  42 it?  43 A    135 refers to a historic cabin recorded at this  44 location.  45 Q    And does that have any significance so far as your  46 opinion is concerned?  I wonder why it's there.  47 A    It refers to -- refers to a cabin at the camp at 1103?  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 that area.  2 Q    Yes, but what does that tell us archaeologically, if  3 anything?  4 A    That there has been a camp there in recent times.  5 Q    In historic times?  6 A    The notation is a historic cabin.  7 Q    Yes.  8 A    I would need to look at the specific notation on the  9 site form to know if there are other materials there,  10 but what we have listed is a historic cabin.  11 Q    Did you ever look at the site form for that site?  12 A    Not the specific site.  13 Q    So you're not in a position to tell us if there is  14 anything significant at that location 135, anything  15 prehistoric?  16 A    There is -- the notation refers to a recent historic  17 camp at this location.  18 Q    Right.  That's why I'm asking you how that forms  19 part of the material on which you base any opinion or  20 conclusion you come to?  21 A    My conclusions are in terms -- or discussion in  22 terms of distribution of sites relates to the  23 discussion.  In terms of the distribution of sites as  24 outlined in chapter 4, section 4 of the report is  25 based on discussion of archaeological sites with  26 prehistoric components to them.  For the most part, in  27 that discussion I did not consider sites that were  28 referred to only as historic sites.  29 Q    So that you've got nothing -- well, how about 136?  30 There is another one at the other end of the lake,  31 isn't there, and that's a historic cabin?  32 A    Yes, there is historic cabin remains there, yes.  33 Q    And you have no particular view or opinion on Nanika  34 Lake who was there, what was going on there and so on  35 in prehistoric times, pre-contact times?  36 A   As outlined in my discussions on the distribution of  37 sites in the Wet'suwet'en territories, I refer to --  38 refer to the distribution of sites on several of the  39 lakes.  40 Q    Yes.  41 A    My discussion concerning the distribution of those  42 sites led me to the conclusion that the distribution  43 of archaeological sites is consistent with recorded  44 settlement patterns as recorded in ethnographic  45 literature for the Wet'suwet'en people in that area or  46 for the Gitksan settlement patterns in areas described  47 as Gitksan territories. 11039  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q    Well, I want to understand what you're saying.  Have  2 you reached a conclusion about the area around that  3 lake as a result of your noting that there are two  4 historic sites on the lake?  Is it Wet'suwet'en  5 country, is it somebody else's country?  6 A    It is referred to as Wet'suwet'en territories.  7 Q    By whom?  8 A    By contemporary Wet'suwet'en peoples.  9 Q    Yes.  10 A    Jenness also outlines territories in clans and house  11 groups.  12 Q    Have you correlated that material with Jenness?  13 Have you looked up Jenness and said:  Yes, he says  14 that this is Wet'suwet'en territory, Nanika Lake?  15 A    I have referred to his discussion of settlement  16 patterns and subsistance activities about what is the  17 pattern of -- what are those patterns, so I've  18 referred to his discussions on that.  19 Q    Was it your opinion that this is Wet'suwet'en  20 territory, the area around Nanika Lake?  21 A    It would be identified as part of the territories.  22 Q    By what, the authorities that you have included in  23 your binder or referred to in your list of  24 authorities?  25 A    I can't recall offhand the precise territories as  26 described by Jenness off the top of my head.  27 Q    No.  28 A    But I do believe that he has referred to  29 Wet'suwet'en territories in this area.  30 Q    Well, how about the next lake down, Tahtsa Lake?  31 According to the authorities you have relied on, is  32 that also a Wet'suwet'en territory?  33 A    Tahtsa Lake that is now Whitesail Reach and Ootsa  34 Lake are within the territories as defined for this  35 study.  36 Q    And you consulted the authorities about all these  37 territories and collected them all?  38 A    Well, Jenness' descriptions of the territories are  39 outlined in his paper.  I refer to Jenness in terms of  40 the -- more specifically in terms of the settlement  41 and subsistance patterns of the Wet'suwet'en people.  42 Q    Yes.  43 A    So I was not so concerned with boundaries as such as  44 I was with plotting of sites within the area as  45 described as my study area.  So I'm comparing the  46 distribution of the sites along lakes and rivers with  47 Jenness' description of subsistance activities and 11040  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 settlement patterns, general land use patterns of the  2 Wet'suwet'en people as described in his ethnographic  3 work.  4 Q    Now, could I ask you to look at Mr. Borden's work,  5 tab 20 of your collection of ethnographic material.  6 Have you got tab 20 there?  7 A    Yes.  8 Q    And at page 34 of the excerpt that you have provided  9 about the middle of the page, the author says:  10  11 "The Cheslatta made annual trips to Tahtsa,  12 Whitesail, Eutsuk, and other lakes of this  13 area to hunt mountain-goat, bear, and  14 caribou, and to gather berries."  15  16 Then he goes on to say a couple of paragraphs down:  17  18 "The Cheslatta are now almost extinct.  Only a  19 few of their ancestors survived repeated  20 smallpox epidemics in the early part of the  21 last century.  Later in the nineteenth  22 century the Bulkley River Carrier took over  23 much of the former hunting territory of their  24 ill-fated neighbours."  25  26 There the reference is to Jenness, 1943, page 475.  27 Did you consider that and the excerpt from Jenness  28 when you expressed the opinion that you did express,  29 whatever it is in chapter 4?  You've provided this for  30 the court.  This isn't something we dug up.  Had you  31 read that and looked at Jenness at page 475 of his  32 report?  33 A    I've reviewed Jenness, yes.  34 MR. MACAULAY:  So the ethnographic material seems to indicate  35 that this was Cheslatta territory until they died out  36 fairly recently, historic times?  37 MR. RUSH:  Well, my lord —  38 THE WITNESS:  Well, I've not —  39 THE COURT:  Just a moment, please.  Mr. Rush?  40 MR. RUSH:   I just don't think that my friend's conclusion that  41 they died out out in historic time is borne out here.  42 THE COURT:  Well, it didn't say died out, Mr. Macaulay, it says  43 "almost".  4 4 MR. MACAULAY:  45 Q    "Almost".  Well, it does say that the Bulkley  46 Carrier, that's the Wet'suwet'en, isn't it?  47 A    Yes. 11041  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q    Moved in there -- well, to use the author's words:  2 "Later in the nineteenth century."  Had you noticed  3 that when you were reviewing your material?  4 A    I noted that.  5 Q    Yes.  6 A    It was not relevant to the -- it's not relevant to  7 the interpretation I've presented or the opinion that  8 I've presented in chapter 4.  9 Q    What, you're not expressing an opinion as to where  10 boundaries are; where the Cheslatta country is and  11 where the Bulkley Carrier country is?  12 A    Not specific boundaries, no.  13 Q    And there are no archaeological sites on Tahtsa Lake  14 or Whitesail that you've recorded anyhow?  15 A    Borden recorded sites, numerous sites.  16 Q    Yes.  17 A    Within that area that was subsequently -- the lake  18 which was subsequently flooded by the construction of  19 the Kenny Dam, and those sites are noted in the  20 appendix as well.  21 Q    But there are no numbers for Tahtsa Lake?  you  22 haven't put any numbers along Tahtsa Lake or the north  23 side of Whitesail Lake on your map, I think that's the  24 best indication.  25 A    There is an indication in the appendix C.  26 Q    Yes.  27 A    That a number of the sites were not plotted because  28 of provenience for plotting.  If we plotted it, it  29 would be out in the lake itself.  30 Q    Yes.  31 A    So it was hard to know what feature the site was on  32 when he recorded it.  But I think I've mentioned that  33 there was -- according to the Borden numbers there is  34 a relatively regular distribution of sites along the  35 lakes in that area.  36 Q    Did you determine what kind of sites they were?  37 A    There is a notation as to the range of sites.  38 Q    What sort of sites are they?  39 A    There are a variety of lithic sites, cache pit  40 sites.  He notes camps where there may have been berry  41 drying activities, roasting pits.  42 Q    But that kind of site wouldn't identify the occupier  43 of the site, would it, as between say the Cheslatta  44 and the Bulkley Carrier?  45 A    The sites are described according to the kinds of  46 remains that are there and with reference to the kinds  47 of activities that may have been taking place there. 11042  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 And then that description refers to how resources were  2 being used in that area or where settlements were  3 located or what kinds of remains were found in that  4 site, and that reflects land use patterns, use of the  5 land and resources.  6 Q    It tells you how the land was used, but not by whom,  7 isn't that so?  8 A   As noted earlier, the cache pit or the artifact does  9 not have the name of the maker inscribed on it nor the  10 language of the person who made it, so they are  11 interpreted according to the --  12 Q    Who is there now?  13 A    The activities that were taking place there at the  14 time that these remains represent.  15 Q    But you couldn't tell if you looked at a cache pit  16 or lithic scatter whether it was a Cheslatta or a  17 Bulkley Carrier Indian cache pit or lithic scatter,  18 could you?  19 A    No.  20 Q    Can we turn to Gitanka'at, the site on which you did  21 find a house depression?  22 A    Gitanka'at, yes.  23 Q    Gitanka'at.  24 A    Gitanka'at.  25 Q    And it was a square depression about five meters by  26 five meters.  27 A    The central depression, yes.  28 Q    That was a house depression?  29 A    Yes.  30 Q    And you saw .75 of a metre deep?  31 A    Yes.  32 Q    And you did make an excavation there?  33 A    Yes, I did one test unit within the house and one  34 outside the house.  35 Q    And did you find the floor?  Did you find the area  36 that you were satisfied was the floor of that house,  37 in other words where the hearth would be?  38 A    I found carbon staining within the cultural matrix.  39 Q    And did you assume that was where the floor would  40 have been?  41 A    Yes, it appears to be at floor level.  42 Q    So how much further down would that take us?  You  43 have .75 of a metre, that's without excavation, is  44 isn't it?  The house depression itself without any  45 excavation was .75 of a metre deep, half a metre deep?  46 A    Well, it was a depression of the house excavated  47 into the ground. 11043  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  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  When you looked at it before you started excavating,  was it three quarters of a metre deep?  Yes.  Yes.  The ground surface at the interior of the --  Depression?  -- feature, yes.  And when it was occupied the floor of that house  would have been still deeper because it has filled in  over the centuries?  Yes.  And how much deeper?  How far did you go down before  you found what you were satisfied was the sort of  hearth area?  At page 3-6 I think is the answer.  The test unit was excavated to a depth of 80  centimetres.  Yes.  And is it at the bottom of the excavation that  you found the --  Carbon-stained silt.  Carbon stains?  Well —  Well, it is all on figure 10, isn't it?  Yes, figure 10.  Three pages further on.  So the bottom of the feature would be in  relationship to the basalt gravels.  MACAULAY:  Q    So that that house must have been -- had been  excavated with sides about, what, five feet high, four  or five feet high when it was originally used?  Yes, likely.  Yes, likely.  And they are sometimes called pit houses, aren't  they?  No, this style house is referred to as a da'ak site  house in the literature.  Well, what is the difference between a da'ak style  house and a pit house?  A da'ak style house is a square or rectangular in  outline.  Yes.  And has maybe excavated with one or two grades to it  within the house.  So it may have more than one aspect  to it in terms of the depression.  There may be two  levels within the depression itself, the central  depression in the house.  And is the roof formed by sloping poles with boards  then either on top in the case of a da'ak house?  A  Q  A  Q  A  Q  A  Q  A  A  Q  A  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MR.  A  Q  A  Q  A  Q  A 11044  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A    My understanding is that it had vertical walls and a  2 gabled roof.  3 THE COURT:  I'm sorry?  4 THE WITNESS: Vertical walls.  5 THE COURT:  Yes.  6 THE WITNESS: And a gabled roof.  7 THE COURT:  How do you spell this da'ak?  8 THE WITNESS: D-A-A-Q or D-A-A-K.  9 THE COURT:  Thank you.  10 MR. MACAULAY:  11 Q    And did you look for post holes?  Did you  12 excavate -- you found a house site.  Did you look for  13 the post holes that there must have been?  14 A    Well, our test was limited to the two test units as  15 described.  16 Q    I know where you -- but in addition, did you look  17 for what must have been the site of post holes?  18 A    We did not investigate the whole feature, no.  19 Q    And why was that?  20 A    Well, I had limited time and resources to  21 investigate a number of areas.  22 Q    It wasn't --  23 A   And I had scheduled a certain amount of time for  24 this study area.  If I had had more time to continue  25 the excavations or to go back I would have.  26 Q    If you had done an excavation of the kind I am  27 suggesting to locate the post holes, if they were  28 diagonal instead of vertical, would that have told you  29 something about the type of house you were dealing  30 with?  31 A    The angle of the —  32 Q    House posts?  33 A    -- posts would be indicative of the nature of the  34 structure itself in terms of posts and support posts.  35 Q    Yes.  And that might have been significant in  36 determining who built it, isn't that right?  What  37 people built it?  38 A    I don't understand the question.  39 Q    Well, I'm referring -- if you had found the remains  40 or the traces of diagonal main house posts instead of  41 vertical main house posts, the diagonal ones would  42 have suggested to you the kind of dwelling that must  43 have been found at Gitangasx, that is where the  44 People-of-the-Wild Rice used to live?  45 A    My understanding of house posts as support posts are  46 generally vertical posts and they may be for a  47 superstructure. 11045  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q    Can I refer you to pages 3-15 and 3-16 of your  2 opinion.  You read in Barbeau, and in fact it's  3 recorded in your sources, a number of the Gitksan  4 Houses traced their history to the Wild Rice Clan, do  5 you remember that?  Two of them are at Kitwankool and  6 one of them is Moose, in fact.  Do you recall that?  7 You summarize it by saying:  8  9 "According to the oral histories, the  10 village of Gitangasx is said to be as old  11 as, or older than, Temlaxam...which trace  12 their origin back to the ancestral village  13 of Gitangasx as members of the Gitangasx or  14 'Wild Rice Clan".  Barbeau suggests that  15 the Houses of the Wild Rice Clan are of  16 Athapaskan origin.  He identifies Wild Rice  17 Houses in three of the 'phratries'."  18  19 He gives the name.  And then there is reference to  20 "People-of-the-Smokehole" or  21 "People-of-the-Smokehole-Ladder" and  22 "Boards-of-the-Smokehole".  And you are there just  23 quoting from Barbeau?  Do you see that?  24 A    These are People-of-the-Smokehole, that's a  25 translation of the name of a crest.  26 Q    Yes.  That's their crest today, isn't it?  At this  27 present time they have a crest that makes some  28 illusion anyhow to the People of the Smokehole.  And  29 they say that they come from Gitangasx and they have  30 that crest?  31 A   As recorded by Barbeau.  32 Q    Yes.  33 A    Yes.  34 MR. MACAULAY:  And Barbeau makes the note at page — my lord, I  35 am at tab 15 now of the book of ethnographic  36 materials.  37 THE COURT:  I'm sorry?  38 MR. MACAULAY:  Paragraph 15.  Tab 15 at page 61.  And this is  39 where the witness got this information which she  40 summarizes.  And he makes the note:  41  42 "The smoke hole and the notch ladder here  43 are not of the North West Coast type,  44 but belong to the semi-subterranean lodges  45 of the nomadic tribes of the interior."  46  47 And then a further note, note 5: 11046  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2 "Round lodges, half sunk underground, with  3 dome roofs, and the entrance through the  4 roof; a log with deep notches served as a  5 ladder.  The boards were, we presume, used  6 as a rim or a movable cover for the  7 entrance."  8  9 So what he is suggesting there is that those three  10 houses had their origins with either Tahltan or other  11 Athapaskan race or nation; is that right, the ones who  12 say they are connected with the People of the  13 Smokehole?  14 A    The Wild Rice Clan?  15 Q    Yes.  16 A    Having these crests?  17 Q    Well, the obvious difference is the Wild Rice Clan  18 people have that kind of house?  19 A    Could you point out on the page to me the reference  20 to the house?  21 Q    Now, under origin partway down.  22 A    Yes.  23 Q    And then note 5.  24 A    Yes, this is his understanding that this was a house  25 used by interior peoples.  26 Q    And he is suggesting that these people who still  27 have in their stories a reference to  28 People-of-the-smokehole well may have been descendants  29 of those Athapaskans who lived at Gitangasx?  30 A    That is his interpretation, yes.  31 MR. MACAULAY:  Now, in order to pursue the question about your  32 investigation, I am going to hand the witness -- it is  33 just a diagram, my lord, showing a cross section plan  34 what I understand to be a pit house, my lord.  35 MR. RUSH:   What's the source of this information?  3 6    MR. MACAULAY:  37 Q    Oh, it is Fladmark.  It is an illustration he uses  38 in his work.  39 A    Could you show me the original?  40 Q    You've seen that before?  41 A    Yes, I have.  42 Q    It's just a blowup of that.  43 A    Yes.  44 Q    It's not my own work, my lord, it is someone else's.  45 A    This is a typical house style described by James  46 Tait as used by inter Salish people.  47 Q    Right. 11047  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A    In the Tompson Fraser River area, yes.  2 Q    But modified versions of it appear in the Skeena  3 River Valley that have square outlines rather than  4 round?  5 A    No, the house structures used in the Tsimshian area  6 are quite distinct.  7 Q    Oh, I'm not suggesting that Tsimshians use it, but  8 that Athapaskan people use it.  Some Athapaskans use  9 modified versions of that.  10 A    In the Skeena Valley you said?  11 MR. MACAULAY:  At say Gitangasx.  Well, I haven't invented that  12 either.  I am relying on your friend Mr. Fladmark for  13 that proposition.  He says you don't find them north  14 of the Skeena.  15 THE COURT:  You don't find them north of the Skeena?  16 MR. MACAULAY:  North of the Skeena River watershed.  17 THE COURT:  Sorry.  18 MR. MACAULAY:  19 Q    That is you don't find them north of that area.  It  20 says:  21  22 "Have never been found north of the Fraser,  23 Nechako and Skeena River drainages in  24 British Columbia."  25  26 And he refers to variations in square outline rather  27 than square plan.  Now, I am not really asking you  28 whether or not it is to be found at Gitanka'at.  What  29 I'm suggesting to you is that you see where the house  30 posts come down into the ground on this type of  31 structure of semi-subterranean house?  32 A    Those are not the support posts, those are the roof  33 poles.  34 Q    Yes.  Well, there are also support posts that go  35 right into the ground.  Well, wouldn't it be  36 significant to an archaeologist to determine what kind  37 of half submerged -- by that I mean half underground  38 house that you are dealing with?  If, for instance,  39 the posts along the sides, the rims are vertical then  40 you know you are not dealing with that kind of house?  41 A    But this house style has a distinct distribution.  42 Q    It does now.  I mean it did in the last maybe 200  43 years.  But you can see where the name people of the  44 smokehole came from, can't you, when looking at that  45 diagram?  46 A    But the large plank houses also used to have roof  47 boards that could be shifted to let out the smoke. 11048  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q    But it is certainly not what Barbeau suggests as the  2 meaning of "People-of-the-smoke-hole" or  3 "Real-people-of-the-ladder" or  4 "Boards-of-the-smoke-hole" or the like.  He is talking  5 about this kind of house, isn't he, as the origin of  6 the names that some Gitksan have even today?  That's  7 what he's saying.  I am not asking you to agree with  8 him, but he's saying this is the kind of structure.  9 He says in words what that diagram sort of sets out in  10 plan and section.  11 A    Mr. Barbeau would have been familiar with working in  12 the southern interior.  13 Q    Yes.  14 A   And he may have been thinking of this house type  15 described by Tait in his own interpretation of what  16 the crests referred to.  17 Q    Well, if he thought that there were some of those  18 people at Gitangasx it would have been interesting to  19 know if they were also a Gitanka'at.  If they had come  20 down that far along the Skeena 3,000 years ago or  21 whenever it might be.  22 A    Well, the ethnographic references that are listed in  23 appendix C refer to Gitanka'at as visually an Eagle  24 village.  25 Q    But the Eagles came --  26 A   And Gitangasx is referred to as the Wild Rice Clan.  27 Q    Well, there we are.  28 A    So they are coming into the area from, you know,  29 different parts of the territories, different  30 directions.  31 Q    But we know from the oral histories, don't we, that  32 the Eagles came in quite recently.  I mean if it  33 wasn't in historic times, it was in the last 150,  34 200 -- well, couple of hundred years before historic  35 times?  36 A    No.  37 Q    We don't know that?  You disagree with that that the  38 Eagles came in relatively recently in either proto or  39 just before proto-historic times?  40 A    No, that's not my understanding.  41 Q    How long did traditional fishing technology continue  42 in the claim area?  I'm talking about baskets and  43 wiers.  You've heard of those techniques?  44 A    Yes.  45 Q    And barricades?  46 A    Fences.  47 Q    Fences? 11049  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A    Yes.  2 Q    How long did they continue before the present day,  3 before 1989?  4 A    Well, people are still gaffing salmon at Moricetown.  5 They are still fishing.  6 Q    I know.  Along the Skeena, say among the Gitksan?  7 A    I can't put a date to when one implement or type of  8 facility was used and then not used and then another  9 used.  10 Q    But you know it was within historic times, within  11 the lifetime of people still alive?  Let's say  12 barricades were used or fences?  13 A    I don't know for sure when one -- what implement was  14 used over another or one type of facility was used  15 over another.  They are often related to the nature of  16 the river itself, so different kinds of implements or  17 facilities would be used in different parts of the  18 river depending on the topography of the river at that  19 point in time whether it was fast flowing or slow  20 flowing or whether the waters were shallow or deep.  21 Q    Well, it also relates to fishing regulations,  22 doesn't it?  Anyhow, if in the twentieth century there  23 was still traditional, that is prehistoric fishing  24 techniques being used, if that were so then other  25 traditional methods concerning fishing might also be  26 used such as the use of cache pits.  Does that seem  27 logical to you?  28 A    I understand the technology used for fishing shifted  29 gradually over time to use of metals in the case of  30 knives.  31 Q    But if barricades were being used in the year 1900  32 or 1890, why would you be surprised to hear that cache  33 pits were still being used in is 1890 by the Gitksan?  34 A    I don't know whether they were or not.  35 Q    And it's not possible to date a cache pit within a  36 hundred years or to date it at all unless you find  37 something you can carbon date; is that right?  38 A    The cache pit features -- there are indications of  39 relative age of cache pits in relationship to each  40 other in terms of the characteristics of the feature  41 themselves indicating the degree of weathering of  42 features as well as the location where they are found  43 whether there are other cultural materials associated  44 with them or not.  45 Q    Well, if you find a cache pit relatively close to  46 Gitsegukla, the Old Gitsegukla, the one that was  47 abandoned or flooded in 1936, can you tell whether it 11050  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 is 100, 200 or 300 years old or 500 years old just by  2 looking at it?  3 A    Just by looking at the pit feature itself, one pit  4 feature?  5 Q    One pit feature in a location near Gitsegukla?  6 A    No, not by looking at one pit feature.  One would  7 look at the context of a feature.  Cache pit features  8 are usually found in clusters.  9 Q    Yes.  10 A    They are identified in clusters of cache area, and  11 the clusters may vary in size.  At Kisgegas we  12 recorded over 230 cache features.  13 Q    And what is it that tells you that they weren't used  14 150 year ago and that by 150 years ago they were no  15 longer in use?  16 A    There were no materials, artifact materials that  17 would indicate that they were used within that time.  18 Q    What would you expect of a cache pit in 1840, to  19 find around cache pits in 1840 that you don't find --  20 that you wouldn't find in 1740?  21 A    No evidence of any Euro-Canadian trade items or  22 metals, materials produced since that time with glass  23 or metal.  If referring to a period -- depending on  24 what date one wants to define for the historic,  25 proto-historic period.  26 THE COURT:  How long are you going to be, Mr. Macaulay?  27 MR. MACAULAY:  Not very long, my lord.  28 THE COURT:  Do you think we should carry on?  2 9 MR. MACAULAY:  Yes, my lord.  30 THE COURT:  Are you all right, Madam Reporter?  31 THE REPORTER:  I'm fine.  32 THE COURT:  Thank you.  33 MR. MACAULAY:  34 Q    What oral histories did you read and rely on in  35 reaching your conclusion about the reliability of oral  36 histories?  37 A    The oral histories as recorded by Barbeau and Beynon  38 which are found in field notes, found in manuscripts  39 by Barbeau are found in copies of Barbeau files held  40 by Duff at U.B.C.  41 Q    And did you make a collection of them, the ones that  42 you are now prepared to confirm as being reliable?  43 A    Well, I have references to the ancestral villages  44 that were used for the basis of our investigation of  45 ancestral village localities which are all presented  4 6 in appendix B.  47 Q    Is it then -- you are saying that your 11051  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 investigations confirm the reliability of oral  2 histories; is that right?  Is that a fair summary of  3 your position?  4 A    That our investigations -- results of our  5 investigations tend to support information that is  6 recorded within the oral histories as to occupation at  7 particular locations in earlier times.  8 Q    So when you're talking about confirming the  9 reliability of oral histories, you are talking about  10 the oral histories about Dizkle, Tehlaxham,  11 Gitanka'at, Kisgegas and those places that you  12 examined?  13 A    What page in my report are you referring to?  14 MR. MACAULAY:  Last page, 5-6.  15 THE COURT:  5?  16 MR. MACAULAY:  17 Q    5-6, my lord, under the heading Conclusions in the  18 last paragraph.  So you start off by using the term  19 "tends to confirm".  And then you say:  20  21 "Evidence of earlier occupation recorded in  22 four out of five ancestral village  23 localities investigated also confirms the  24 reliability of the oral histories."  25  26 And my question is simply in that context what are  27 the -- are the oral histories you are talking about  28 there only the oral histories about the original  29 villages, the ancient villages and their location?  30 A    The investigations within the ancestral village  31 localities support statements made within the context  32 of the oral histories that the people have occupied  33 those localities or village areas in those localities.  34 There is a correlation between the evidence of  35 occupation and those localities with statements  36 concerning occupation and use of those areas.  37 Q    So what you're confirming is the content of oral  38 histories to the extent that they specify where the  39 villages were and what activities were carried on in  40 those villages in ancient times?  41 A    The archaeological evidence can suggest that, yes.  42 Q    Well, you used the word "confirmed".  There is a  43 difference between suggest and confirm, isn't there?  44 A    Well —  45 Q    You say "confirmed".  I'm asking you what does it  46 confirm?  47 A    The evidence which I have -- which I'm referring to 11052  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 is evidence that goes back up to earlier in the  2 paragraph:  3  4 "Archaeological evidence from stratified  5 sites in the Moricetown and Hagwilget  6 Canyon indicates continuous occupation in  7 the middle Skeena River drainage from about  8 6,0000 years ago up to present.  Evidence  9 of salmon processing activities, food  10 storage facilities, large house structures,  11 evidence of participation in widespread  12 trade networks, and evidence of warfare all  13 seem to support the position that the  14 ethnographically known cultural patterns of  15 the Gitksan and Wet'suwet'en people have  16 been operating in their present territories  17 for a considerable period of time."  18  19 Q    Well, are you saying that they managed and conserved  20 the fishery?  The archaeological evidence confirms  21 that they managed the conservation fishery?  22 A    I used "confirm" in that one sentence.  23 Q    Yes.  24 A    So that word should be read in that one sentence.  25 Q    Well, do you say that the evidence -- the  26 archaeological evidence confirms that they managed and  27 conserved the fishery in the places you investigated?  28 A    I'm saying that the archaeological evidence supports  29 these assertions.  The archaeological evidence  30 indicates the development of a cultural pattern within  31 the territories that includes the evolution of  32 complex -- a complex social system with sophisticated  33 fishing technology, intensive exploitation of fish  34 resources, storage for later use as well as the  35 organization of people for the procurement and  36 processing of resources at specific localities which  37 is carried out by -- which is facilitated by  38 leadership within a social ranking, a ranked society  39 which we have evidence of ranking in warfare and  40 trade.  Those are all aspects of ranking in complex  41 social organizations.  42 Q    And you can --  43 A    That is all a part of managing a resource.  How do  44 you —  45 Q    And you can deduce all that from what you found at  46 the Four Mile site?  47 A    I'm not saying that's deduced from one site, I'm 11053  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 saying --  2 Q    And the like.  3 A    I'm saying that that opinion is based on my  4 examination of sites which have been excavated in the  5 area, the distribution of many other sites within the  6 territories, their assocation with named villages and  7 fishing places along the river.  You know, there is a  8 variety, several lines of evidence which have been  9 considered in coming to this opinion.  10 Q    All of it archaeological or is it mostly  11 ethnographic?  12 A    No, an analysis of the archaeological evidence.  13 I've used the ethnographic material for directing  14 the -- as a method for directing the investigations  15 and in cases for interpreting the use of materials.  16 Q    Are you relying on Jenness as much as you are  17 relying on Ames?  18 A    I've used a wide range of references, archaeological  19 and ethnographic.  20 THE COURT:  I'm not sure what the answer to Mr. Macaulay's last  21 question was.  He said:  Are you using Jenness as much  22 as Ames?  You said:  I am using a wide variety.  Are  23 you able to qualify the relative use of those two  24 authors?  25 THE WITNESS: Oh, I would say that I am relying more on Ames'  26 reports of his investigations.  2 7 THE COURT:  More on Ames?  28 THE WITNESS: The archaeological evidence.  29 THE COURT:  More on Ames than Jenness?  30 THE WITNESS: Yes, in my report I use the archaeological  31 references to refer to the archaeological data and the  32 ethnographic references have been used as a basis for  33 directing investigations.  34 MR. MACAULAY:  35 Q    You mean you chose the sites in that manner or what  36 do you mean about "a basis for directing  37 investigations"?  38 A    Well, a basis for directing the survey within the  39 ancestral village localities.  40 Q    Choosing the locations?  41 A   And also in terms of comparison of archaeological  42 evidence with ethnographic settlement patterns,  43 subsistance and settlement patterns.  44 MR. MACAULAY:  Those are my questions.  45 THE COURT:  Mr. Macaulay, were you proposing to mark these June  46 23, 1985 notes?  They may already be in, but I'm not  47 sure. 11054  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  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. MACAULAY:  I don't think they are in, but the witness has  said that those are not all her notes.  THE COURT:  It's of no particular consequence to me, I am just  curious to know if you wanted it in or you didn't want  it in.  MR. MACAULAY:  No, I don't think I need to have that marked.  THE COURT:  What about the blue plan?  MR. MACAULAY:  Perhaps that should be marked, my lord.  THE COURT:  What exhibit will that be?  MR. MACAULAY:  No, it's an exhibit.  THE REGISTRAR:  The exhibit will be 857.  THE  MR.  THE  MR.  THE  THE  (EXHIBIT 857:  House Diagram)  COURT  RUSH:  Rush, it's getting  THE COURT  MR  All right.  Thank you.  Well, Mr.  late.  What do you suggest?  Things are starting to fall around me.  I think we  should perhaps adjourn for the evening and proceed  tomorrow morning.  I can't say that I will be the hour  that I thought at one time I would be.  I will be more  than an hour.  I think that's probably wise then.  Is that  convenient?  WILLMS:  If my friend is just going to be a couple of hours  if the afternoon would be better than the morning.  I  know it is an imposition on the court, but I have got  10 six-year-old soccer players waiting for me at 11.  I can make other arrangements clearly.  I'm afraid they have to suffer like the rest of us,  Mr. Willms.  WILLMS:  Only if it's agreeable to everyone and my friend is  going to be a short time.  I would never think to  suggest it if there was a possibility that we would  take the whole day tomorrow.  Well, I wouldn't think that what Mr. Rush has said  that you are going to be free by 11 o'clock.  I am happy to accomodate my friend to this extent  that if we want to start at 9:30.  9:30 is fine.  Madam Reporter, will you see that we  are properly looked after tomorrow, please.  REGISTRAR:  Court will adjourn until 9:30 tomorrow.  (PROCEEDINGS ADJOURNED TO January 21, 1989 at 9:30)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  THE COURT  MR  COURT  RUSH:  COURT 11055  S.L. Albright (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 best of my skill and ability.  2  3  4  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  5 LISA FRANKO, OFFICIAL REPORTER  6 UNITED REPORTING SERVICE LTD.  7

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