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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-10] British Columbia. Supreme Court Mar 10, 1989

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 13144  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  5  THE  REGIS1  6  7  8  9  THE  COURT  10  MR.  RUSH:  11  12  THE  COURT  13  MR.  RUSH:  14  15  16  17  18  THE  COURT  19  MR.  RUSH:  20  21  22  23  24  25  THE  COURT  26  MR.  RUSH:  27  THE  COURT  28  MR.  RUSH:  29  30  31  32  THE  COURT  33  MR.  RUSH:  34  THE  COURT  35  MR.  RUSH:  36  37  38  39  40  41  42  43  44  THE  COURT  45  MR.  RUSH:  46  47  THE  COURT  VANCOUVER, B.C.  MARCH 10, 198 9  PRAR:  Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Friday, March 10, 1989.  Calling Delgamuukw versus Her Majesty the Queen at  bar.  I caution the witness you are still under oath.  :  Mr. Rush.  Before my friend starts, I wanted to readdress the  question of scheduling.  :  Yes.  I indicated at the first of the week I would be able  to advise you by the end of the week, and I can now  say that the plaintiffs can schedule the month of May,  and we are in a position to advise Your Lordship of  that.  :  All right.  And just to recapitulate, the week of May the first  you may recall is a non-sitting week.  The week of May  the 8th, 15th and 22nd we scheduled, and I can advise  Your Lordship and my friends that we intend to call in  the week of May the 8th, for a one week direct and  cross, Ms. Susan Marsden as our witness in that week.  :  What's her discipline?  It's ethnography and anthropology.  :  Yes.  Thank you.  We are not in a position to advise you of who the  witnesses will be for the weeks of May 15th and 22nd,  but we are presently taking instructions with regard  to that.  :  Yes.  The week of May the 29th is a non-sitting week.  :  Yes.  And we are not yet in a position to advise you about  the sittings in June, but I can say that we will be in  a better position closer to the end of this month.  And our proposal will be that on the 28th of March we  advise Your Lordship of the sitting weeks in June, and  the schedule that the plaintiffs perceive for that.  We again continue to be on the overall or general  schedule of completing the plaintiffs' case certainly  by the end of June, possibly sooner.  :  Yes.  Right.  But at this point I just can't say whether we will go  right to the end of June.  :  Yes. 13145  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. RUSH:  I should say -- I didn't say the other day, but I  2 perhaps should say now, that although I am mindful of  3 Your Lordship's comments about sitting in the month of  4 July, I must say that I -- it was not our assumption  5 that -- the plaintiffs' assumption that we would be  6 sitting in July.  If it's Your Lordship's wish that we  7 do, then of course we are prepared to do so, but I  8 think our preference would be that the months of July  9 and August be non-sitting months.  10 THE COURT:  Well, I would have preferred that, but I just see  11 serious difficulties in completing both defences and  12 rebuttals in the time that would be available in the  13 fall, and for that reason -- if you were to finish  14 earlier in June and could get a week or two of the  15 defence in June, and maybe one or two weeks in July,  16 then I would be agreeable to the proposal that we rise  17 at that time, but I just think we have to give the  18 defence and rebuttal enough time that they can  19 comfortably finish in the four months in the fall,  20 without having to work steadily through the whole  21 fall.  I think we have to have the occasional week  22 off.  2 3    MR. RUSH:  Yes.  24 THE COURT:  I have already cancelled my attendance at that  25 important cultural festival in July that I was  26 otherwise planning to attend, so I'm less anxious not  27 to sit than was formerly the case.  But I would like  28 to leave that.  It may be that the defence wouldn't be  29 able to advance their preparation or their scheduling,  30 rather, to get started in June.  Do you have anything  31 to say about that Mr. Mackenzie?  32 MR. MACKENZIE:  Yes, My Lord.  My Lord, the province is not in  33 favour of sitting in July for the purpose of  34 commencing the defence case, but the province would be  35 in favour of sitting in July, and I think from what  36 Your Lordship has said, that when my friends' finish,  37 starting in June to complete the plaintiffs' case in  38 June, complete the plaintiffs' case if it goes over  39 into July.  But with respect to getting ready for the  40 beginning of the defence case, there are a lot of  41 loose ends that in our submission should be resolved  42 before the beginning of the defence case, and those  43 may take two or three weeks to do.  They include  44 arguments on the purpose of archival documents and  45 admissibility of archival documents, admissibility of  46 expert reports, question of oral traditions, scope and  47 application of the hearsay rule to the oral histories, 13146  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 objections and arguments related to other questions of  2 admissibility, such as documents referred to by  3 experts, documents in for identification because of  4 objections.  And possibly we might be able to include  5 in that package of things filing alienation maps of a  6 non-controversial nature, subject to agreement or  7 subject to arrangements with the other parties.  8 At the present time we have no confirmation of  9 availability of experts for September, and the summer  10 period is to be used for the purposes of interviewing  11 and obtaining statements and affidavits of lay  12 witnesses.  Those were the plans as we had been  13 considering them to this time.  14 THE COURT:  Well, I am mindful of the difficulties that counsel  15 have in these matters, but there is quite a bit of  16 notice.  We are three and-a-half full months away from  17 the first of July, and I would hope that we could  18 muster enough resources to use up some time --  19 certainly to use up whatever time is left in June and  20 into July, if necessary, but I'll have to leave that  21 with counsel.  I have made my plans, and so I'm  22 available, but I understand the difficulties.  I think  23 we have to try and use up the time that's available,  24 and I would rather have some leeway at the other end  25 than at this intermediate point.  Thank you.  Mr.  2 6 Rush.  27 MR. RUSH:  My Lord, part of our submission was presented  28 predicated on the advice that Mr. Goldie tendered to  29 the court, I think it was on January the 6th, when we  30 had a brief pre-trial conference or at least a trial  31 conference, and that was on the basis that certain of  32 the affidavits -- he advised the court that some of  33 the lay witnesses that the province intended to call  34 would be called by way of affidavit, and that he  35 thought that those affidavits would be available by  36 Easter.  And our assumption was that if we were going  37 to elect to cross-examine on those affidavits, we  38 might have the same option available to us in  39 non-sitting time as is available to my friends in  40 terms of their cross-examinations, and that is we  41 might well chose to do some of that outside of court  42 hours.  And of course our being able to assess that  43 prior to the summer break and in fact perhaps invoking  44 some of that summer period to do that was factoring  45 into it.  46 THE COURT:  Yes.  Well, it's crunch time — no, it's not crunch  47 time, it's pre-crunch time, and there is time to 13147  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 adjust plans, and I know it sounds harsh, but the  2 judicial position is that if someone is to be  3 inconvenienced, it should be the witnesses, rather  4 than the whole of the apparatus of the court.  And  5 that sounds harsh and unfeeling, but I think it  6 doesn't take much analysis to see that it has to be  7 that way.  So please extend my compliments to the  8 witnesses, whoever they are, Mr. Mackenzie, and tell  9 them that they may be needed in June or July.  10              All right.  Thank you.  11  12    CONTINUED CROSS-EXAMINATION BY MR. MACKENZIE:  13  14 Q   Dr. Mills, in your report you say that the feast has  15 been a central feature of Wet'suwet'en government from  16 the most ancient times.  And you say that the clans  17 and the discreet territories, the chiefs' names and  18 the totem poles have also been features of  19 Wet'suwet'en society from the earliest times; is that  20 fair to say?  21 A   I mention -- I think I qualify that by saying that  22 totem poles are mentioned in the early Kungax that  23 relate to the earliest times.  24 Q   You say that long before the arrival of the white man  25 all these institutions and customs were in place in  26 Wet'suwet'en society?  2 7 A   I do.  28 Q   You say that the title Goohlaht may be the oldest  29 continuously held title in the world?  30 A   It's conceivable.  31 Q   You say that the largest village site has had  32 occupation for over 4,000 years?  33 A   The largest?  34 Q   Yes.  35 A  Moricetown --  36 Q   Yes.  37 A   Yes.  38 Q   You say that the -- there is evidence of occupation  39 for over 5,000 years?  40 A  Where?  41 Q   Well, you say that on page 14 of your report.  Sorry,  42 I just got the wrong page there.  At page 133.  I beg  43 your pardon, My Lord, I had the wrong reference there.  44 That is the reference to Goohlaht.  On page 133 at the  45 top you say:  46  47 "Dizkle is older than Kya Wiget and Ka Wiget 1314?  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 is over 5,000 years old, then the title  2 Goohlaht ranks amongst the oldest  3 continuously held titles giving exclusive  4 property rights recorded in the world."  5  6 So that's what you say and that's your opinion  7 today?  8 A   If that's true — the "if" is an "if", but —  9 Q   Well, the "if" is Dizkle is older than Kya Wiget,  10 correct.  11 A   That's part of the —  12 Q   You say Kya Wiget is over 5,000 years old?  13 A   There seems to be evidence of that, yes.  14 Q   And you have told Mr. Rush that the Wet'suwet'en  15 chiefs have held and distributed and passed down their  16 public titles from earliest history?  17 A   Yes.  18 Q   On page 78 you say of your report, you say in the  19 third paragraph:  20  21 "Undoubtedly there were poles erected  22 throughout Wet'suwet'en history."  23  24 And that's your view today?  25 A   I think they were -- yes, there were occasional poles  26 there.  They are recorded in the Kungax in places.  27 One of them, as I said, was the land of the dead, but  28 the others a place which doesn't exist.  We have --  29 Jenness records a pole in an outlying territory that  30 was not a summer village as well.  He also records a  31 pole at Moricetown that had rotted down in around  32 1850.  We know that the poles at Hagwilget have been  33 recorded, so I think there have been occasional poles.  34 The Wet'suwet'en don't claim that every House must  35 erect a pole.  They have never claimed that, and I am  36 not claiming that either.  37 Q   Well, I suggest to you there were -- the weight of the  38 authorities is that there were no poles before 1850.  39 Do you agree with that or disagree?  40 A  Well, the weight of the authorities, is that the word  41 you use?  42 Q   Yes.  43 A   I don't entirely concur with that, no.  We have a  44 record of a pole recorded at 1790 on the Queen  45 Charlotte Islands.  We have records of mortuary poles  46 recorded by the first Russian fur traders among the  47 Haida, and then obviously for the Wet'suwet'en we just 13149  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 don't have a record of any sort.  2 Q   I say that the authority says that there were no poles  3 in the Skeena Valley, upper Skeena Valley or Bulkley  4 Valley before 1850.  I take it you disagree with that?  5 A   I suspect that there were some, yes.  6 Q   Yes.  I refer now to Mr. Jenness's work at tab 24 of  7 volume two.  About 10 lines down Mr. Barbeau says on  8 page 516 -- Jenness says, sorry, 11 lines down, page  9 516.  Do you have that reference, My Lord?  10 THE COURT:  Yes.  11 MR. MACKENZIE:  12 Q  13  14 "There seem, indeed, to have been no totem  15 poles at all in Carrier territory before  16 the nineteenth century with the possible  17 exception of one at Moricetown.  The oldest  18 pole that the Bulkley Indians remember stood  19 at Moricetown, where it fell at about 1870  20 and was burned.  One about 25 feet high,  21 uncarved, was erected at Francis Lake about  22 1875 and fell about 1919; and four, that  23 were erected at various dates during the  24 second half the nineteenth century are still  25 standing in the Hagwilget Canyon."  26  27 Diamond Jenness makes one exception there, one  28 pole at Moricetown, but apart from that, I take it you  29 disagree with Dr. Jenness's statement?  30 A   It's not as if I have claimed that the Wet'suwet'en  31 clans or Houses had to have a totem pole, and it's not  32 as if I have said that they have said that they had  33 them in any particular place or time other than what  34 Jenness records.  I have noted that one of their  35 Kungax, which relates to what they consider their  36 earliest history, describes the erecting of a pole at  37 a time when a Chief Goohlaht was erecting a pole to  38 mark that this particular site was both where he was  39 recreating a village after wars had decimated the  40 village that had been there, and that he erected a  41 pole, and it's associated with -- this has been a sort  42 of a watch out pole.  That's my testimony.  43 Q   You are referring to the Kungax about the origin of  44 the tribes?  45 A   Yes.  46 Q   And it's fair to say that that's the basis for your  47 opinion that there were poles erected throughout 13150  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 Wet'suwet'en history?  2 A   I think that there were probably the occasional pole.  3 I have not, you know, as I just finished stating, I  4 have not stated that the Wet'suwet'en erected numerous  5 poles or its particular places I have cited that they  6 refer to them in this Kungax.  They refer to them in  7 another Kungax which talks about a pole in the land of  8 the dead.  That's what I have said.  9 Q   And I have handed up an excerpt from Barbeau's work on  10 totem poles.  Mr. Rush has already marked a portion of  11 this, but I refer you to page four under that --  12 before I do, do you recognize this work of Marius  13 Barbeau?  And you referred to it in preparing your  14 report.  15 A   That's correct.  16 MR. MACKENZIE:   I tender that to be marked as the next exhibit,  17 My Lord, those excerpts.  18 THE REGISTRAR:  955-10, My Lord.  19  20 (EXHIBIT NO. 955-10 -  EXCERPT OF BARBEAU'S  21 WORK ENTITLED TOTEM POLES OF THE GITKSAN,  22 UPPER SKEENA RIVER, BRITISH COLUMBIA)  23  24 THE COURT:  What passage were you particularly referring to, Mr.  25 Mackenzie?  26 MR. MACKENZIE:  I am about to refer to page four, My Lord.  27 THE COURT:  The fourth page?  28 MR. MACKENZIE:  Page four.  It's numbered page four, the second  29 page.  30 THE COURT:  Yes, thank you.  31 MR. MACKENZIE:  Entitled "Age of Poles".  32 THE COURT:  Yes.  33 MR. MACKENZIE:  34 Q   And the beginning Mr. Barbeau says:  35  36 "The totem poles of the upper Skeena on the  37 average have been carved and erected in the  38 past forty or fifty years."  39  40 And he was writing in 1929, I think.  41  42 "The oldest, five or six in number, may  43 slightly exceed seventy years in age."  44  4 5 And then:  46  47 "Not a few are less than 30 years old.  The 13151  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 evidence clearly shows that the existing  2 poles constitute the first set of elaborate  3 memorials ever erected among the Gitksan.  4 Comparatively few have fallen, decayed or  5 been destroyed.  It is quite safe to say  6 that totem poles became a notable feature in  7 the majority - four out of the seven - of  8 the Gitksan villages only after 1870 or  9 1880."  10  11 And at the bottom of that paragraph he talks about  12 the Hagwilget poles.  13  14 "Of the four Hagwilget poles, two were  15 erected slightly before 1866 and and the two  16 others soon after.  The names of the carvers  17 of these poles, with the exception of less  18 than half a dozen are still remembered."  19  20 And then he is referring to all the poles he has  21 just discussed.  Then, My Lord, referring to page 149.  22 Dr. Barbeau refers to notes recorded by Mr. Diamond  23 Jenness among the Carriers in Hagwilget in 1922.  I  24 think we've heard that Mr. Jenness was there in 1924,  25 1925.  There Dr. Jenness apparently recorded there:  26  27 "There was a totem pole of spruce  - not  28 cedar - erected east of Francis Lake, at an  29 old village called Dzekonekaz.  It was about  30 25 feet high and uncarved.  On top of the  31 pole, inside a box, were placed the charred  32 bones of two or three relatives.  It was  33 erected by Tehasbet, of the Gilserhyu clan  34 '(what we call phratry elsewhere)' about  35 1875.  It rotted and fell about 1919.  This  36 is the only totem pole outside Hagwilget  37 (among the Carriers) of which Felix George  38 knows.  The uncle of the man who erected the  39 pole had a sister married to a Gitksan of  40 Gitsegyukla."  41  42 And the second paragraph after that Dr. Jenness  43 says:  44  45 "A pole was erected at the Moricetown Canyon  46 earlier than those at Hagwilget.  It fell  47 and was burnt after the construction 13152  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 of the Telegraph Line (1866)."  2  3 So according to Felix George, and Felix George was  4 in the House of -- I think he was Goohlaht, wasn't he?  5 A   He was Chief Goohlaht.  6 Q   Chief Goohlaht.  According to Felix George, the total  7 pole that he refers to is the only one outside  8 Hagwilget.  9 Now, having referred to those passages of Dr.  10 Barbeau, does that change your opinion to the fact  11 that there were Wet'suwet'en totem poles throughout  12 Wet'suwet'en history?  13 A   I'm not an expert on the Gitksan totem poles.  14 Basically I think that -- again I have not said that  15 they were frequent, or that they were required by  16 every House, but I suspect that there may have been  17 others throughout time.  Totem poles are typically  18 made of cedar.  Cedar grows up to the area of  19 Moricetown and not a great deal farther to the east.  20 The people have erected a totem pole of spruce, as it  21 said here at Francis Lake, but I think that the  22 occasional use of a mortuary pole throughout time  23 would have been fairly likely.  24 It's interesting to note that the Wet'suwet'en  25 today don't recall the totem pole that was mentioned  26 by Jenness as being at Moricetown, and having been  27 rotted and burned by 1866, but in terms of the  28 occasional pole on which the remains of the dead were  29 placed or marking poles such as in the Kungax, yes, I  30 think they were.  31 In terms of the Gitksan, I think you have other  32 experts for the Gitksan you can refer that question  33 to.  34 Q   Just speaking about this question of history.  Can you  35 agree with me that the fact -- the historical fact  36 seems to be that the Wet'suwet'en or Bulkley River  37 Carrier people first came to Hagwilget in 1820?  38 A   They came -- they definitely came to Hagwilget around  39 1820, yes, and the poles that they erected there were  40 after that move, yes.  41 Q   Yes.  42 A   I suspect -- I suspect that Hagwilget was a place that  43 had been occupied -- well, in fact there are  44 archaeological remains there.  It's probably a spot  45 that had been occupied off and on over a long period  46 of time, but obviously we won't have archaeological  47 records of totem poles, because they obviously 13153  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 decompose very quickly.  2 Q   On page 477 in Mr. Jenness's 1943 work.  That's  3 still —  4 THE COURT:  177?  5 MR. MACKENZIE:  477.  Does Your Lordship have the Diamond  6 Jenness 1943 --  7 THE COURT:  Oh, yes.  8 MR. MACKENZIE:  If Your Lordship could keep that handy, I am  9 going to be referring to that at length.  Does Your  10 Lordship have page 477?  11 THE COURT:  Yes.  12 MR. MACKENZIE:  13 Q   About three quarters of the way down the page Dr.  14 Jenness points out that:  15  16 "At the opening of the 19th century the  17 principal fishing place and village of the  18 Bulkley Carrier was at Moricetown.  19 Hagwilget was established only about 1820,  20 when a rock slide in its canyon almost  21 blocked the river and allowed very few  22 salmon to pass beyond.  Most of the  23 inhabitants of Moricetown then  24 moved en masse to the canyon and built  25 new homes on a narrow shelf below it."  26  27 And that's what Father Morice wrote as well, isn't  28 it, that Hagwilget -- the Carrier village of Hagwilget  29 was found in 1820?  30 A   I referred to that in my report as well, and I agreed.  31 Q   Yes.  Now, we were speaking about, just before I carry  32 on with the subject we started with, speaking about  33 Hagwilget.  You are not speaking necessarily about  34 Hagwilget, but Hagwilget is really in Gitksan  35 territory, isn't it, surrounded by Gitksan territory?  36 A   It's a borderline area.  37 Q   Yes.  Well, the boundary between the Gitksan and the  38 Wet'suwet'en claims today is at Porphry Creek just  39 north of Moricetown, isn't it?  40 A   You haven't finished your sentence.  Is the border, is  41 that what you're saying?  42 Q   No.  I am suggesting to you that the border of the two  43 areas, Gitksan and Wet'suwet'en areas, is at Porphry  44 Creek just north of Moricetown.  45 A   Yes.  46 Q   And I suggest to you that that is -- that the  47 Wet'suwet'en claim that that is the northern boundary 13154  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 of their traditional territories.  2 A   Sort of western.  3 Q   Yes.  4 A   Uh-huh.  5 Q   And you say in your report that Wet'suwet'en people  6 and the Gitksan people have interacted and  7 intermarried for an immensely long period of time?  8 A   I suspect that's the case, yes, indeed.  9 Q   You say that the Wet'suwet'en people and their  10 institutions have been in place over the millennia?  11 A   I suggest if we are talking about matrilines,  12 matrilineages, the evidence from Dyen and Aberle is  13 that the Wet'suwet'en partake of the Proto-Athabaskan  14 structure, which is matrilineages, matrilineages in  15 salmon fishing areas, which is what we are talking  16 about, particularly create clans, that these -- the  17 structure tends to be associated with a hierarchy of  18 chiefs who have jurisdiction over territories.  Yes,  19 that's what I am saying.  20 Q   And when you say over the millennia, and I see that  21 phrase used five or six times in your report, do you  22 have a sense of the actual time you are speaking of?  23 A   It's difficult to be very precise.  We know that the  24 language -- the Proto-Athabaskan languages are related  25 to the Tlingit language.  We have archaeological  26 evidence that people have been resident in this area  27 for many millennia.  We know also that there -- that  28 there have been various and sundry ice-ages which have  29 made this area sometimes more or less habitable.  We  30 also know that the last ice-age retreated largely so  31 that this area was probably habitable for around  32 10,000 years.  So -- but I am not trying to say that  33 we can know in exact detail, because all we have to go  34 on is the linguistics, the oral tradition and the  35 archaeology, and that's what I have set out in my  36 report.  37 Q   And you do not profess to be an expert in archaeology.  38 You would defer to Dr. Albright in that respect?  39 A   I would.  40 Q   And the same with linguistics, you would defer to Dr.  41 Kari in that respect?  42 A   I would.  43 Q   Really we come back again to the principal basis, and  44 my suggestion to you is that Kungax, you rely on the  45 Kungax showing the antiquity of the Wet'suwet'en  46 people and their culture?  47 A  Well, despite the fact that I defer to people who are 13155  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 greater experts in these fields than I am, I think  2 it's entirely within my anthropological expertise to  3 incorporate what they say.  So it's not as if I am  4 only using the Kungax to the exclusion of the  5 archaeological record or the linguistic record.  I am  6 combining all three approaches.  That's why I felt it  7 was significant and important to put all three in my  8 report, despite the fact that I was aware that experts  9 in the fields of archaeology and linguistics would  10 also be giving their testimony which of course would  11 be more detailed than mine.  12 Q   You say that -- you say that the Kungax are really the  13 primary source of -- to determine Wet'suwet'en  14 history.  15 A   I just told you, I consider all these three sources  16 significant.  The fact that there is archeaological  17 remains that -- in this area that have been analyzed,  18 the fact that we can use linguistic techniques, and  19 this has been done by scholars such as Dyen and  20 Aberle, Kari among them.  But I agree that we should  21 not ignore the testimony that's in Kungax, but I am  22 not claiming that it's easy to put any particular time  23 depth.  24 Q   On page 8 you say in your report on the first  25 paragraph:  26  27 "The Wet'suwet'en Kungax are a primary but  28 not the exclusive source of our  29 understanding of Wet'suwet'en history."  30  31 So it's fair to say you consider them to be a  32 primary source of Wet'suwet'en history?  33 A   Yes.  34 Q   And it's fair also to say that you now or you hold the  35 opinion now that the Wet'suwet'en people did not  36 borrow their customs, traditions, institutions  37 primarily from the Gitksan, but it was a more two-way  38 interchange?  39 A   That's what I think is probably the case, yes.  40 Q   And you -- do you rely on the Kungax also for that  41 evidence?  42 A   In part.  In part.  But again the other things that  43 testify to this are the linguistics, the fact that  44 people have been in place here for a very long period  4 5 of time.  46 Q   Now, the Kungax that you rely on as showing the most  47 antiquity is the origin of the tribes, which is found 13156  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 in Dr. Jenness's 1934 collection, correct?  2 A   That's right.  3 Q   And could we have the reference to that please.  Tab  4 25.  5 THE COURT:  Volume two?  6 THE REGISTRAR:  Volume three, My Lord.  7 MR. MACKENZIE:  And, My Lord, that is found on page 240 of Dr.  8 Jenness's 1934 —  9 THE COURT:  I'm sorry, what page?  10 MR. MACKENZIE:  Page 240, number 60.  11 Q   And on page 241 the Kungax that you referred His  12 Lordship to were number C, D -- C and D and also, I  13 guess, A.  Is that correct?  14 A   I see A in a different sense, yes.  15 Q   But C and D are the ones that relate to the founding  16 Dizkle —  17 A   That's correct.  18 Q   And they also speak about the dispersal from Dizkle?  19 A   Yes.  20 Q   Okay.  Now, in C there is a reference to Hagwilget as  21 being the boundary between the two tribes, the Gitksan  22 and the Carrier Indians.  So do you regard that as  23 being something of great antiquity as well as the rest  24 of that Kungax?  25 A   That was the borderline?  26 Q   Yes.  27 A   It's a possibility.  Basically what we have here is a  28 Kungax talking about this village at a particular spot  29 where salmon is being caught in weirs, and Dizkle is a  30 good site for that.  Archaeologists agree that that's  31 the kind of site that would have the greatest kind of  32 antiquity.  33 Q   Earlier yesterday in your testimony we looked at a  34 process which you went through with the Beaver Indians  35 in trying to date one of their traditions, and that  36 involved trying to find whether there were historical  37 events that could be matched to the events recounted  38 in the tradition.  Do you recall that discussion?  39 A   I recall the discussion, but it was quite a different  40 discussion in some senses, in the sense that that was  41 in the historic period.  42 Q   Yes, that's right.  43 A   Uh-huh.  44 Q   But that's how you dated the tradition in that case?  45 A   That's right.  46 Q   Yes.  And then following that, looking still at C on  47 page 241, there is a sentence: 13157  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 "Something caused the Mosquito Flat people  3 to scatter.  They went to Moricetown, Fraser  4 Lake, Babine and even to the land of the  5 Sekani."  6  7 So do you regard that dispersal from Dizkle as  8 being something of great antiquity?  9 A   I think, yes, I think that this is talk -- when they  10 say to the land of the Sekani, they are not  11 necessarily saying that the Sekani Indians were  12 occupying that territory at that time.  That would be  13 an incorrect inference.  14 Q   And in D, this is another version of the Kungax, it  15 said that:  16  17 "Long ago there were Carrier-Gitksan and  18 Sekani Indians all living together at  19 Mosquito Flat."  20  21 And do you regard that as a true fact of  22 antiquity?  23 A  Well, if we think of it in terms of our new  24 perspective on how the Athabaskans likely spread to  25 their present locations, we understand that we are  26 talking about a long time period.  The  27 Proto-Athabaskans appear to have been on salmon  28 streams that had a specific drainage, then as the  29 subartic area became habitable, Dyen and Aberle are  30 suggesting these areas became occupied by Athabaskans  31 as well, and in the absence of salmon streams their  32 matrilineal principles changed.  So you are talking  33 about a -- if people having expanded into areas that  34 were -- became habitable, they had been obviously  35 habitable at times in the past.  Either was a time  36 when it was so warm there were hairy marmots in the  37 subartic.  But we are talking about a considerable  38 time depth, and it's important to keep that in mind.  39 So the people called Sekani were probably part --  40 part of the groups that had gone -- had expanded into  41 the subartic time a very long time ago, and then it's  42 the -- they arrived back towards Bear Lake after  43 contact time.  So -- but the use of the term Sekani  44 here could either be referring to the people that are  45 known about in historic time or very ancient time.  46 The word itself Sekani comes from Tsegnene, and  47 Tsegnene means Rocky House people.  It's referring to 1315?  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 people who live in a particular area.  2 THE COURT:  You said that Rocky House people refers to what?  3 THE WITNESS:   It refers actually to people around the Rocky  4 Mountain trench, and there is -- in the Rocky  5 Mountains.  Referring to people who live in that  6 particular area.  7 MR. MACKENZIE:  8 Q   Dr. Mills, would you say that the time we are speaking  9 about could be characterized as time immemorial?  10 A   That Dizkle took place at time immemorial?  11 Q   Yes.  12 A   I guess time immemorial is usually used as an  13 expression for time that is pre-contact.  Are we  14 defining it as pre-contact and great antiquity but  15 unknown depth?  16 Q   I don't know --  17 A   -- definition, yes, I think that would be --  18 Q   And so it would be your feeling that all these people,  19 the Gitksan, the Carrier and Sekani, were all living  20 together in this area at that time?  21 A   It's a good -- yes, it's a good guess that they were  22 converging on these places that were particularly good  23 for getting salmon.  These were either the canyons  24 such as at Moricetown or the places where are the good  25 weir sites, yes.  26 THE COURT:  I'm sorry, but I am not following you.  What are you  27 saying, that people spread from Dizkle towards the  2 8 Rocky Mountains, or did they come from the Rocky  29 Mountains to Dizkle and then spread out again from  30 there?  31 THE WITNESS:   It's difficult to know exactly where people had  32 retreated to when the glaciers came down at various  33 times, but we are talking now about tremendous time  34 depths, because we know that people were on North  35 American continents at least 40,000 years ago, and we  36 know also that there were these glaciers that came and  37 covered this particular area significantly enough so  38 that we can presume that at the height of that ice-age  39 there probably weren't people able to make a living  40 there.  And then you have the glaciers retreating and  41 people coming into areas where there are salmon and  42 where you can make a living, and it's considered that  43 one -- there was an area that remained ice-free in  44 that sort of corner of Alaska-Yukon, it's kind of  45 Yukon, and that a number of peoples may have lived  46 there during some of the ice-age, and then returned  47 into the area as the area became habitable again. 13159  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  What I am trying to focus on is your connection with  2 the Sekani or the similar name that you spelt a moment  3 ago, which you say is referrable to Rocky Mountains  4 with the dispersal from Dizkle.  And I know that you  5 can only speak in terms of anthropological theory, but  6 what is the theory that you are advancing by making  7 that connection?  8 THE WITNESS:  What the theory is, is that if you had people  9 living in this particular ice-free zone coming down at  10 the end of the ice-age, converging on salmon areas and  11 then from that centre dispersing in some directions as  12 the habitat became possible, and this Rocky Mountain  13 trench would probably be one of the areas that they  14 could move into.  15 THE COURT:  Which they would be dispersed?  16 THE WITNESS:  Right.  17 THE COURT:  And anyone to the east of Dizkle would take on the  18 colouration of a Rocky Mountain --  19 THE WITNESS:  It's talking about a specific area.  20 THE COURT:  Sekani?  21 THE WITNESS:  Right.  22 THE COURT:  The Sekani that we know called by that name are  23 nowhere near the Rocky Mountains?  24 THE WITNESS:  They are in the Rocky Mountain trenches, the —  25 THE COURT:  Oh, I see, you're saying that's part of the Rocky  26 Mountains.  27 THE WITNESS:  But there is some evidence that the people called  28 Sekani now or Sekani may have moved into that area  29 fairly recently from farther east.  30 THE COURT:  Yes, all right.  You are reminding me — I am  31 thinking Rocky Mountains in the southern context,  32 which is a long way to the east of the northern Rocky  33 Mountains.  All right.  Yes.  34 MR. MACKENZIE:  35 Q   Now, assume that a Laksilyu chief told you that her  36 grandmother lived at Dizkle with the Gitksan and left  37 Dizkle when everyone left the town.  Would that change  38 your opinion as to the antiquity of this --  39 A   I don't think that a person would be referring -- when  40 they said that, that they would be referring to  41 necessarily the ancient village, but at the place of  42 Dizkle.  43 THE COURT:  I have to tax you about one other matter.  44 THE WITNESS:  Certainly, My Lord.  45 THE COURT:  I am not sure of where the name Rocky Mountains came  4 6 from, but is it your theory that that name may have  47 come from the word you described a moment ago which I 13160  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 can't pronounce?  Is that your theory?  2 THE WITNESS:  That the — the English usage of the name Rocky  3 Mountains came from that?  4 THE COURT:  Yes.  5 THE WITNESS:  I doubt it.  I think it's just a convergence that  6 the mountains are really rocky without much  7 vegetation, and so I think it's just a -- therefore  8 the people living there, the native people call them  9 by a similar name to the one that has been adopted by  10 explorers and white men become the accepted name.  I  11 have never heard that anyone took the name from the  12 Sekani Indians.  13 THE COURT:  You think that's just a coincidence?  14 THE WITNESS:  I think it's a coincidence because it's  15 descriptive.  16 THE COURT:  All right.  Thank you.  17 MR. MACKENZIE:  Now, I have handed up, My Lord, a passage from  18 the cross-examination of Lucy Bazil, and starting on  19 line three on page 10249:  20  21 "Q   And your father's mother moved to  22 Mosquito Flats?  23 A   Somewhere, yes.  24 Q   And that's Dizkle?  25 A   Yes."  26  27 And then going down to line 14.  28  29 "Q   That's the ancestral home of the  30 Wet'suwet'en people?  31 A   Yes.  32 Q   And your mother's -- your father's  33 mother, your grandmother, met your  34 father's father there?  35 A   Yes.  36 Q   That's where they married?  37 A   I don't know exactly where.  38 Q   And then what happened after that?  39 A   I think they moved to Moricetown after  40 that.  41 Q   Is that when the people of Moricetown  42 founded the village?  43 A   Yes.  Described they moved -- they found  44 Moricetown and they moved there because  45 it's easier to fish there.  46 Q   And the other people from Dizkle went  47 where? 13161  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Some move down to where Hagwilget was  2 already there.  Some moved there.  And  3 some of them, to I understand, moved to  4 Skinner Crossing ..."  5  6 I think she means Skeena Crossing.  7  8 "... or else they get married and  9 they move there.  10 Q   Your grandmother was quite elder when  11 she died, about 90 years old?  12 A   Yes.  13 Q   When was that, about 1939?  14 A   Something like that, yes.  15 Q   So this move from Dizkle to Moricetown,  16 would that be some time late eighteen  17 hundreds?  18 A   Quite awhile back.  I can't remember.  19 Q   Your understanding is that your  2 0 grandmother told you all the people came  21 to Moricetown?  22 A   Yes."  23  24 Now, having read that, Dr. Mills, does that change  25 your opinion as to the antiquity of this dispersal  26 from Dizkle?  27 A   Not in the least.  No, I don't think you should  28 confuse this account of people living at the place of  29 Dizkle with the accounts of Dizkle being the ancient  30 homeland.  The site at Dizkle has been indeed occupied  31 by numerous people.  Emma Michell talked about being  32 there in her commissioned evidence, but no, Lucy Bazil  33 was not by any means trying to say that her great  34 grandmother was -- this was the time of the founding  35 of the original village of Dizkle.  If you had asked  36 her, is this the time when there was the fish weirs  37 across the river and the squirrel came, she would have  38 clarified it and said no.  39 Q   She is speaking about the founding of Moricetown after  40 the dispersal of Dizkle.  Well, My Lord, I would  41 submit that as the next exhibit.  42 THE REGISTRAR:  Exhibit 555-11.  4 3    THE COURT:  Thank you.  44  45 (EXHIBIT NO. 555-11 - EXCERPT OF DECEMBER 8,  46 1988 TRANSCRIPT - VOLUME 160)  47 13162  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  2 Q   Now, Dr. Mills, the reason that you interviewed the  3 chiefs is that you felt that they were a reliable  4 source of information, correct?  5 A   Yes.  6 Q   And you believed your informants, the hereditary  7 chiefs?  8 A   The job of an anthropologist is to take the testimony  9 of their informants, and then an anthropologist  10 assesses the information they are given on that  11 various and sundry criteria.  12 Q   Well, if your informants, the chiefs, told you that  13 the -- speaking again about antiquity, if your  14 informants, the chiefs, told you that the traplines  15 had been distributed only five generations before  16 1940, wouldn't that change your opinion about the  17 antiquity of the trapping and the trapping  18 territories?  19 A  Well, the trapping territories -- you are getting me  20 to use that term.  The territories at -- are the  21 feature that have been recognized as being in place a  22 very long time.  I thought the question was really  23 whether they were controlled by matrilines or  24 bilateral bands, but -- or that that is one question.  25 Obviously people used and had a sense of who was to  26 use particular territory long before the fur trade  27 developed.  28 Q   But I am saying to you, if the chiefs had told you  29 that the territories were distributed, the trapping  30 territories as they call them and as you understand  31 they use that term were distributed five generations  32 before 1940, that would have to change your opinion as  33 to the antiquity of those territories as discrete  34 parcels owned by Houses?  35 A  What do you mean by were distributed?  36 Q   Distributed to the House, the Chief Houses.  37 A  Well, if -- I would not take one statement to that  38 effect to counteract the necessity of an  39 anthropologist trying to figure out what happened more  40 than five generations ago.  That's part of the job of  41 an anthropologist, is understanding what -- what was  42 in place more than five generations ago.  Five  43 generations is a long time.  It's about the memory  44 that's sort of recorded as recent history among these  45 people, but one has -- as an anthropologist one needs  46 to also make some kind of sensible portrayal of what  47 existed earlier than five generations ago. 13163  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   You say five generations is about 100 years or a 150  2 years?  3 A   If -- often 25 years is taken as an estimate.  So that  4 would be 125.  It depends, as I went through in that  5 piece that you put into evidence yesterday, there is  6 some controversy about how long a generation should be  7 considered to be.  8 Q   Well, just carry on on this topic.  You say now that  9 the Houses that own the resource territories, if I can  10 use a neutral term, have had these since great  11 antiquity since time immemorial.  Is that fair to say?  12 A   Yes, I think these areas have been controlled by  13 matrilines since time immemorial.  14 Q   So I have to ask you again, if you were advised by a  15 chief that they were distributed five generations ago,  16 would that change your opinion?  17 A   I just told you what my opinion was, that the  18 statement of one chief that they were distributed five  19 generations ago would not absolve me from some  20 responsibility of figuring out what had happened, what  21 was in place before that, and I -- that's what I have  22 done is used my -- whatever knowledge I have to try to  23 figure out what was in place earlier as well.  24 Q   You would therefore disbelieve what the chief said?  25 A   I wouldn't -- I think that that's an unfair  26 characterization.  They may be -- first of all you  27 were, I hope, going to put this to me, and I can see  28 what they say, and I can interpret for you what my  29 interpretation of what they said was.  30 Q   This is Exhibit 88-A.  It's a letter written by —  31 apparently written by Thomas George on September 7,  32 1945, and on page 2 Thomas George says -- he refers in  33 the first long sentence to a meeting discussing the  34 trapline dispute in Telkwa, and then the next sentence  35 he says:  36  37 "Our Uncle Joseph now is the fifth generation  38 from the time this trapping place was given  39 to our ancestors."  40  41 A  Well, that doesn't mean that it wasn't owned by  42 someone before that.  He is talking about a particular  43 bestowal of a particular territory five generations  44 ago, and these are kinds of things that the  45 Wet'suwet'en remember.  But that doesn't mean that it  46 wasn't owned by a named House within the clans of the  47 Wet'suwet'en previously.  I have described in my 13164  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 report that it's perfectly acceptable to the  2 Wet'suwet'en to make some change in transfers, and I  3 am not presuming to say that every single House has  4 been in exactly its present location since time  5 immemorial, but that this basic clan has been held by  6 these people since way before contact.  That seems to  7 make sense, and that they have held the areas within  8 it in conformity to their matrilineal system, but I --  9 no, I don't think one could in the least interpret  10 this to say that he is saying that the system didn't  11 exist five generations ago.  He is saying I can trace  12 back my ancestors five generations to when this  13 particular piece was given to them.  It's completely  14 within the Wet'suwet'en system.  15 Q   Thomas George was Gisdaywa?  16 A   Yes.  17 Q   And in this letter he is speaking about his trapline  18 dispute with Matthew Sam.  He is really discussing an  19 area around Owen Lake.  And you are aware that --  20 MR. RUSH:  Excuse me.  I think that should be clarified.  I  21 think he should cite that in the letter.  That's not  22 my understanding.  23 MR. MACKENZIE:  24 Q   Yes.  It's just to the west of Owen Lake, and the  25 territory in which Owen Lake is now located.  But --  26 so can you agree with me that that statement,  27 though -- you disagree with it, but can you agree with  28 me that it's consistent with Dr. Kobrinsky's theory  29 that these territories were distributed as fur  30 territories as a result of stimulus of the fur trade  31 in the late 19th century -- sorry, the late 18th  32 century?  33 A  Well, I don't think you should misunderstand Dr.  34 Kobrinsky either.  Dr. Kobrinsky is saying that the --  35 what he calls septs owned lands in -- before contact,  36 and if you wanted to use that word time immemorial,  37 you could, that's Kobrinsky's thesis.  And then what  38 Kobrinsky is saying is that the matrilineal principle  39 developed as a result of fur trade.  And as I have  40 said yesterday, I don't think that that interpretation  41 is the best one, and that he made that interpretation  42 before -- before Dyen and Aberle's book had been  43 published.  And yes, I would take exception to that  44 interpretation, but --  45 Q   I'm sorry --  46 A   But I certainly also take exception to the idea that  47 this is saying that this -- these territories came 13165  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 into existence five generations ago from this letter.  2 Q   Could you agree it's consistent with Dr. Kobrinsky's  3 theory about distribution of the fur territories?  4 A  Well, you have to ask who gave it to them.  Someone --  5 there is a process of rights being transferred five  6 generations ago.  This was obviously before it was  7 being done by the Department of Fisheries and  8 Wildlife, and there is no suggestion that that  9 territory was occupied by the Gitksan or other people,  10 so there is no -- the obvious inference is that this  11 is a piece of territory that's being passed, the  12 rights to which are being passed, and that the  13 rights -- obviously don't pass rights unless rights  14 are important.  15 Q   Now, I am going to suggest to you that this is not an  16 unusual statement that Thomas George makes.  I am  17 going to suggest to you that Julian Steward says  18 exactly the same thing about the distribution of  19 traplines and hunting grounds at Steward Lake.  Can  20 you agree with that?  21 A   I reviewed in my evidence in chief what Julian Steward  22 had said.  He again went from this principle that  23 there were originally these septs or kind of bilateral  24 bands devolving into matrilines, and he said that  25 the -- these -- there -- the matrilines then became  26 confused in the historic process of trapline  27 registration.  28 Q   Dr. Mills, I am listening to you.  Don't be upset when  29 I am trying to get documents, but I am listening to  30 you.  I am trying to move onto other things as well,  31 but don't let that disturb you.  32 What I suggested to you is Julian Steward in 1940  33 was able to work -- was able to do genealogical  34 studies tracing the hunting grounds in that area back  35 five generations.  And I am handing to you a letter  36 from Julian Steward to Diamond Jenness dated June 30,  37 1940.  And, My Lord, this is a letter taken from a  38 file of correspondence between Diamond Jenness and  39 Julian Steward between February to July, 1940 from the  40 Archives of the Canadian Ethnology Service, Canadian  41 Museum of Civilization.  And I tender that as an  42 archival document.  43 THE COURT:  What do you want to do with Exhibit 88-A?  44 MR. MACKENZIE:  It's already an exhibit.  If Your Lordship  45 wishes for convenience to add it in to this --  46 THE COURT:  I think that I will just put it away as tab 12, but  47 it can be left as its original number, so it will be 13166  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  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  in the sequence of this examination.  I don't think  that will disturb anything, and I will have a better  chance of finding it when I want it.  So you are  tendering this, then, June 30th, 1940, as an archival  document, and will be Exhibit 955-13.  (EXHIBIT NO. 955-13 - LETTER DATED JUNE 30,  194 0 FROM STEWARD TO JENNESS)  MR. RUSH:  My Lord, I don't wish my silence in the face of the  tendering of this document to in any way suggest that  the outstanding issues of these documents is still --  THE COURT:  Of course not, Mr. Rush.  The issue is at large.  MR. RUSH:  Okay.  MR. MACKENZIE:  Q   Page two Dr. Julian Steward -- Julian Steward says:  "Five generations ago the Steward Lake  hunting grounds were distributed in two  solid blocks, one belonging to each  phratry."  You see that on the third line on page two?  A   I do.  Q   Now, you didn't have an opportunity to review this  letter of Dr. Steward to Dr. Jenness before you wrote  your opinion, did you?  A   I'm not sure that I did or did not.  Q   Well, I am going to suggest to you that you didn't,  because it's not in the -- in Dr. Steward's  unpublished -- unpublished papers at the Smithsonian  Institute, it's found in the Museum of Man in Ottawa,  but I understand that --  MR. RUSH:  I will accept my friend's evidence on that subject,  if he wishes to give it.  MR. MACKENZIE:  I understand — I have already said that, My  Lord, in tendering --  THE COURT:  Yes.  MR. MACKENZIE:  Q   I understand your view is that you can't remember if  you reviewed this or not?  A   Right.  Q   Now, you have said in your evidence earlier that  feasts in other --  THE COURT:  Are you going to a new subject?  MR. MACKENZIE:  It's the same item, My Lord.  I just wanted to  just say one -- just have one question. 13167  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   I'll just put the question succinctly to you, then,  2 Dr. Mills.  Assuming this statement by Dr. Steward is  3 true, one can presume, can one not, that the same date  4 can be attributed to the distribution of hunting  5 grounds and trapping territories for the Wet'suwet'en?  6 A  Well, first of all I think it has been made abundantly  7 clear that the eastern Carrier are not to be confused  8 with Wet'suwet'en, the western Carrier.  I think that  9 James Kari, Dr. James Kari's evidence is that the  10 linguistic divergence between these two groups, that's  11 still subsumed under the title Carrier, is around a  12 thousand years.  So it would be a mistake in inference  13 to think that when -- in talking about the eastern  14 Carrier, you are also talking about the western  15 Carrier.  I made that distinction in talking about the  16 recorded history of Harmon as it applies to the  17 eastern Carrier to begin with.  18 MR. MACKENZIE:   Fine.  We'll perhaps discuss that after we  19 return.  2 0    THE COURT:  Yes.  All right.  21    THE REGISTRAR:  Order in court.  22  23 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  24  25 I HEREBY CERTIFY THE FOREGOING TO BE  26 A TRUE AND ACCURATE TRANSCRIPT OF THE  27 PROCEEDINGS HEREIN TO THE BEST OF MY  28 SKILL AND ABILITY.  29  3 0    31 LORI OXLEY  32 OFFICIAL REPORTER  33 UNITED REPORTING SERVICE LTD.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1316?  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  15  16 THE REGISTRAR:  Order in court.  17 THE COURT:  You're not going to finish this witness today, are  18 you, Mr. Mackenzie?  19 MR. MACKENZIE:  No, I'm — no, my lord.  20 THE COURT:  Well, if that's so, I wouldn't say this if it  21 weren't -- I think I'm going to ask counsel if we can  22 adjourn at 20 after 12:00 then.  There's a matter that  23 I can conveniently look after.  It may add ten minutes  24 extra to tomorrow's entertainment, but I impose that  25 on counsel if I may.  Thank you.  26 MR. MACKENZIE:  27 Q   We were looking at Dr. Steward's letter, Exhibit  28 955-13.  And on page 1 at the bottom Dr. Steward  29 writes -- he's writing about, in this letter, about  30 how he was able to work the traplines back  31 genealogically, and then he says:  32  33 "This procedure worked very well, with  34 interesting results.  I find that Stuart  35 L. had only two phratries, though there  36 were 4 at Babine Lake."  37  38 And you agree with that, Dr. Mills?  39 A   I see it here.  40 Q   Do you agree with that statement?  41 A  Well, it could well be that there were two phratries  42 at Stuart Lake.  He's -- this is obviously -- doesn't  43 pertain to the Wet'suwet'en.  44 Q   No, you're right.  No, I'm just -- you have a table in  45 your report of the phratries in the --  4 6          A  At what page?  47    MR. MACKENZIE:  On page 105. 13169  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  I'm sorry, I haven't found that passage.  2 MR. MACKENZIE:  Bottom of page 1, my lord.  3 THE COURT:  Oh, on page 1.  I'm sorry.  All right.  And then  4 you're going to where?  5 MR. MACKENZIE:  6 Q   I was referring to page 105 of her report, my lord.  7 I can't find -- I can't find in that table a  8 comparison with what Dr. Steward says in his letter,  9 Exhibit 955-13, so I have to ask you whether you know  10 of your own knowledge whether there were -- whether  11 that's a correct statement in Dr. Steward's letter?  12 A  Well, I've never done field work with the eastern --  13 Q   I see.  14 A   -- Carrier.  I put in the Cheslatta and the Fraser  15 Lake and Nutseni, and I took my reference from Duff as  16 you see in this table.  17 Q   Well, on page 2, and I'll just continue on in Dr.  18 Steward's letter following that sentence that we read,  19 he referred to the distribution of the hunting  20 grounds.  Then he said:  21  22 "Within these blocks, however, were some half  23 dozen areas each controlled by and really  24 belonging to nobles and adjoining the  25 village in which the owner lived.  It is  26 easy to see in such distribution of land, a  27 former village ownership of land (i.e. a  28 band ownership) which was overlaid by the  29 matrilineal potlatch institutions.  The last  30 3 generations, however, have seen a decline  31 of phratry exogamy and the large territories  32 cut into smaller pieces that are family-  33 owned and inherited patrilineally."  34  35 And you agree that Dr. Steward or I think you already  36 testified that Dr. Steward believed that or concluded  37 that the matrilineal system was imported by the Stuart  38 Lake Carrier and overlaid their former band level  39 patrilineal system.  Was that your understanding of  40 Steward's theory?  41 A  Well, he is -- he makes it fairly clear.  42 Q   And would you say that also applies to the  43 Wet'suwet'en?  44 A   No.  And it's quite possible that with this new  45 interpretation that we're having of proto-Athabaskan  46 kinship that this -- this would be incorrect for the  47 eastern Carrier as well.  This -- the confusion -- one 13170  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 of the points of confusion has been this concept of  2 whether the land is owned by a band or something like  3 a phratry, which we refer to as a clan, and that can  4 be a matriline.  You can have territory held by a  5 band.  That happens.  And that typifies the eastern --  6 the people to the east of the Rocky Mountains.  And  7 you can have land that's controlled by matrilines.  8 And I think I've said this a number of times, but I'll  9 say it again, you tend to have lineages when you have  10 salmon or some kind of resource that allows a  11 development of the population so that you have a  12 larger population size.  And that -- these conditions  13 pertain to the eastern Carrier as well, but their  14 salmon supply was not as abundant as the Wet'suwet'en  15 salmon supply.  They're on the Fraser River drainage.  16 They're getting at the very headwaters of the Fraser  17 River drainage, and the salmon are periodic there.  It  18 goes on a four-year cycle so -- but there's a -- a  19 good presumption that these areas that -- that were  20 owned were owned by matrilines or clans rather than  21 bands originally.  That would -- I think that would be  22 the -- the -- the best interpretation with the  23 knowledge that we have today that we could make of the  24 situation.  25 Q   And in the next paragraph on page 2 Dr. Steward says  26 to Dr. Jenness:  27  28 "I have kept your manuscript at hand  29 constantly.  It is a grand piece of work."  30  31 And you're aware that he had Diamond Jenness'  32 manuscript or his work available to him?  33 A   Yes, he passed through Ottawa, picked it up from  34 Jenness on his way, and yes, I'm aware of that.  35 Q   And you also noted in your report, as is indicated  36 later in that same paragraph, that Dr. Steward in fact  37 arranged for the publication of the Jenness-1943  38 monograph?  39 A   I'm aware.  40 Q   Yes.  41 A   Um hum.  42 Q   Now, it's fair to say, is it not, Dr. Mills, that Dr.  43 Julian Steward is an eminent anthropologist in North  44 America?  45 A   Yes.  46 Q   Someone has said that he was indeed the complete  47 American anthropologist.  Would you agree with that? 13171  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  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  MR.  A  Q  A  Q  A  Q  The complete American anthropologist.  I -- I guess I  wouldn't dispute it.  I'm not sure that I would have  characterized him that way.  He has been said to have one of the most creative  minds in anthropology, and his theoretical writings  were striking in their transcendence of the work of  his teachers.  Was that your understanding of his  career and writing?  Has this come from an obituary?  No, it's a description of Dr. Steward's career by  Robert Murphy, who himself was a very eminent  anthropologist; is that correct?  Um hum.  Yes.  So you do not disagree with that  characterization?  I'll let it stand, um hum.  "Steward received almost every honor that  can come to an anthropologist."  Can you  A   No.  MACKENZIE:  you don't disagree with that  9  "Anthropological interests and directions  have grown exponentially within the past  decade,"  this is a 1977 writing,  "as much a consequence of the loss of  confidence that climaxed the period as of  the internal growth of the discipline.  Steward's theories are probably holding  their own as well or better than most."  You don't disagree with that, do you?  MR. RUSH:  I wonder if you would just advise me what document  you're producing to the witness?  Thank you.  The  comments that you've made, are these an introduction  to the Essays on Social Transformation by Julian H.  Steward?  MR. MACKENZIE:  Yes.  MR. RUSH:  Thank you.  MR. MACKENZIE:  Q   I just asked you that you don't disagree with those  statements, do you, Dr. Mills?  A   No. 13172  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  No.  2 THE COURT:  Do you know Mr. Murphy?  3 THE WITNESS:  Pardon?  4 THE COURT:  Do you know Mr. Murphy?  5 THE WITNESS:  Not — no, not well.  6 MR. MACKENZIE:  7 Q   Do you know of him, Dr. Mills?  8 A   Not very well, no.  Jane C. Steward is Julian's wife.  9 I read his correspondence to her while he was in the  10 field.  11 Q   Well, my lord, I just tender this introduction to the  12 anthropological theories of Julian Steward by Robert  13 F. Murphy as the next exhibit.  14 A   Oh, sure, I remember Murphy, sure.  He co-authored the  15 work on tappers and trappers.  Yes, he's an  16 anthropologist who had done work in Brazil.  17 THE COURT:  An anthropologist of good repute?  18 THE WITNESS:  Oh, yes, um hum.  19 THE COURT:  All right.  20 THE REGISTRAR:  Exhibit 955-14.  21  22 (EXHIBIT 955-14 - TAB 14 - "EVOLUTION AND ECOLOGY," J.  2 3 STEWARD)  24  25 MR. MACKENZIE:  Now, I've handed up a letter from Dr. Jenness to  26 Dr. Steward dated July 8, 1940.  I tender that also as  27 an archival document from the same source as the Dr.  28 Julian Steward letter.  29 THE REGISTRAR:  955-15.  30  31 (EXHIBIT 955-15 - TAB 15 - LETTER DATED JULY 8, 1940, TO  32 STEWARD FROM JENNESS)  33  34 THE COURT:  Yes.  35 MR. MACKENZIE:  36 Q   In the first paragraph of that letter, which is  37 written about a little over a week after Dr. Julian  38 Steward's letter, Dr. Jenness says:  39  40 "I think your diagnosis of the super-  41 imposition of a phratry organization on a  42 band ownership of land is correct, and that  43 the same process took place among the  44 Tahltan also."  45  46 And did you have an opportunity to review this letter  47 when you -- before you prepared your report, Dr. 13173  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Mills?  2 A   I did.  3 Q   And did this change your opinion as to the antiquity  4 of the matrilineal and the crest system of land tenure  5 in the Wet'suwet'en community?  6 A   No.  I -- the distinction between bands and matrilines  7 is important, and you tend to go from a band kind of  8 organization, which is typically bilateral in  9 conditions that allow population growth, and salmon  10 are certainly one of them.  And the Wet'suwet'en are  11 in this kind of territory or area that allows this --  12 the development into a lineal principle.  So it's  13 difficult to know exactly at what time point people  14 arrived in this area, but from the time that they did,  15 we can presume there was salmon there and that,  16 therefore, you'd have the -- have the circumstances in  17 place for a matrilineal principle.  18 MR. MACKENZIE:  Now, I want to refer you again to Dr. Jenness'  19 work on the oral traditions or the myths, and I refer  20 you to number 69.  I think that's tab 24 in Volume 2.  21 I'm sorry, it's tab 25 in Volume 2.  22 THE COURT:  Yes.  2 3 THE REGISTRAR:  Volume 3.  2 4 MR. MACKENZIE:  Volume 3.  25 THE COURT:  What number is it?  26 MR. MACKENZIE:  Tab 25, my lord.  27 THE COURT:  Yes.  Whereabouts?  28 MR. MACKENZIE:  29 Q   Page 250, number 69.  30 This is a myth about the origin of snow-shoes, and  31 you'll agree with me it has some -- it has a  32 discussion between man and Grouse and Grouse showing  33 man how to make snow-shoes?  34 A   I would agree to that.  35 Q   Yes.  And you recall in your testimony you said that  36 the more improbable the circumstances, the more likely  37 the antiquity of the myth?  You said that to his  38 lordship yesterday?  39 A   Yeah.  I think it was the day before.  40 Q   Yes, the day before.  And so would you say this was  41 also an ancient myth?  42 A   Oh, I think they've had snow-shoes for a very long  43 time, yes.  44 Q   Well, I am going to suggest to you that the  45 authorities say that there were no snow-shoes before  4 6 white contact among the Wet'suwet'en.  Do you agree  47 with that? 13174  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Jenness says that the climatic conditions were such  2 that there was a long period of time when you couldn't  3 use snow-shoes.  Maybe he said -- well, you point to  4 the reference, and I'll say whether I agree or not.  5 There is a long period of time in which one cannot use  6 snow-shoes in the Wet'suwet'en territory because  7 the -- the snow melts and is too soft for a long  8 period of time, which is very inconvenient, so under  9 those conditions you can't use snow-shoes.  10 MR. MACKENZIE:  On page 532 of Jenness-1943 — that's in Volume  11 3, tab 24.  It should be right in the same book.  12 THE REGISTRAR:  Volume 2.  13 MR. MACKENZIE:  Sorry, my lord, it turns out it's Volume 2.  14 Referring to page 532 in that Jenness --  15 THE COURT:  532.  16 THE WITNESS:  Which tab again?  17 MR. MACKENZIE:  Tab 25.  18 THE REGISTRAR:  It's the last one.  19 MR. MACKENZIE:  20 Q   I'm sorry, it's tab 24.  21 A  Which page?  22 MR. MACKENZIE:  Page 532.  Does your lordship have that  23 reference?  2 4 THE COURT:  Yes.  25 MR. MACKENZIE:  26 Q   At about three quarters of the way down the page in  27 the middle of the second full paragraph:  28  29 "Down to the nineteenth century they lacked  30 even snowshoes and toboggans, though they  31 sometimes improvised a toboggan from an  32 animal's hide, and, in crossing wide  33 expanses of glare ice, dragged their loads  34 on sticks and branches."  35  36 You were aware of that passage in Dr. Jenness' work?  37 A   I had seen it, and I had puzzled over it, and I had  38 discussed it with Dr. Annette McFadden-Clark, who is  39 the chief ethnologist at the Museum of Man, and we  40 both agreed that it seemed improbable.  But what do  41 you make of it?  There it is.  42 Q   Did that change your opinion as to the antiquity of  43 this myth, the Origin of the Snowshoes?  44 A   I think they've had -- Dr. McFadden-Clark and I agree  45 they probably had snow-shoes for a very long time, and  46 we just -- we couldn't account for why Jenness thought  47 they hadn't, though we agreed that they wouldn't be in 13175  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 use for -- there's a long period of time in the year  2 when you can't use snow-shoes.  It's very difficult  3 for -- to get around.  4 Q   And Father Morice also said that they didn't have  5 snow-shoes, were you aware of that, before contact?  6 A   I vaguely recall him saying that.  That's probably  7 where Jenness got it from.  8 THE COURT:  Are you suggesting that anthropologists, like other  9 experts, drink their own bath water?  10 THE WITNESS:  I guess so.  11 MR. MACKENZIE:  12 Q   I just refer to that then to assist your recollection.  13 My lord, I've handed up to your lordship and put  14 before the witness the document entitled "Notes  15 Archaeological, Industrial And Sociological, on the  16 Western Denes," and there are several excerpts from  17 this book.  This monograph or article was one of the  18 references that you cited in your report, Dr. Mills?  19 A   Yes, I've read this.  20 MR. MACKENZIE:  I refer you to page 151.  And, my lord, I wish  21 to mark that as the next exhibit, the excerpts.  22 THE COURT:  Yes, 955-16.  23 THE REGISTRAR:  Yes.  24  25 (EXHIBIT 955-16 - TAB 16 - "WESTERN DENES," A.G. MORICE)  26  27 MR. MACKENZIE:  I'm sorry about the staples, my lord.  28 THE COURT:  That's all right.  Don't worry about that, Mr.  29 Mackenzie.  I can follow you.  30 MR. MACKENZIE:  31 Q   Halfway down the page 151, under the diagram or the  32 picture, Father Morice says:  33  34 "It seems almost incredible that in a  35 country, where for at least five full months  36 every year snow covers the ground,  37 snow-shoes should have been practically  38 unknown until a comparatively recent date.  39 Yet, if we are to credit the natives, this  40 was formerly the case with the Carriers, the  41 most populous, and, actually, the most  42 progressive of the four Western Dene tribes.  43 The Tse'kehne used snow-shoes from time  44 immemorial; but we are told that not more  45 than 100 years ago, only the most prominent  46 among the Carriers possessed that  47 indispensable adjunct to winter travelling. 13176  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Therefore with that tribe winter hunting was  2 formerly well nigh impossible."  3  4 And that does -- that does -- did you take that into  5 account when you were making up your report, preparing  6 your report?  7 A   Yes, I did read this.  8 Q   Now, Dr. Mills, just speaking about the theory of the  9 transfer -- the distribution of the traplines, can you  10 agree with me that most scholars agree that the  11 Carrier obtained the rank system from the Northwest  12 Coast as the European fur trade stimulated trade and  13 contact?  14 A   No, I wouldn't agree with you.  15 Q   What I'm saying is that the majority of scholars have  16 that view of the development of the rank system among  17 the Carrier?  18 A  Well, Morice, who wasn't an anthropologist, stated it.  19 Jenness said there had been interchange certainly with  20 the Gitksan.  Then -- and Steward mentioned it as  21 well.  And then we have a lot of people like John Ives  22 and Dyen and Aberle suggesting that these people have  23 been in situ for a very long period of time and it has  24 been a mutual process of the interchange between the  25 Wet'suwet'en and the -- the Tsimshian in particular.  26 Q   Just on this point, I'm handing up to you an excerpt  27 from an article by Dr. Charles A. Bishop, which has  28 been marked as Exhibit 881-A-8 already in these  29 proceedings.  On page 153 I just refer you to the  30 passage under the title "The Significance of Trade."  31 Here Dr. Bishop writes:  32  33 "Most scholars argue that the Carrier  34 obtained the rank system from the Northwest  35 Coast as the European fur trade stimulated  36 trade and contact.  While there must have  37 been some prehistoric trade between the  38 coast and the interior, the fur trade  39 altered the nature of exchange relationships  40 and led to an increase in the volume and  41 regularity,"  42  43 and he refers to Dr. Steward.  You disagree with Dr.  44 Bishop's characterization of that as most scholars  45 agree to that principle?  46 A  Well, I think this was the older interpretation, which  47 has been corrected now.  I've forgotten the exact year 13177  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 that Bishop said this.  2 Q   Sorry, this is a 1979 paper, as indicated at the top  3 of the first page.  4 A   Right.  And this was just before people were beginning  5 to re-interpret the data in terms of Dyen and Aberle,  6 but basically now the -- the conception is that --  7 that the Wet'suwet'en were integrated into a rank  8 system long before the fur trade.  9 Q   And Dyen and Aberle's book, as you already testified,  10 was published in 1974?  11 A   Um hum.  12 MR. MACKENZIE:  Yes.  My lord, would it be convenient to tender  13 this excerpt as an exhibit in this continuity of  14 documents?  15 THE COURT:  Well, I'm just going to file it under 955-17, even  16 though it's already marked as an exhibit under a  17 different number.  18  19 (EXHIBIT 955-17 - TAB 17 - COPY OF EXHIBIT 881A-8  20 "LIMITING ACCESS TO LIMITED GOODS," C. BISHOP)  21  22 THE WITNESS:  It's worth pointing out that Bishop does not refer  23 to Dyen and Aberle, as I recall or -- as I recall.  24 MR. MACKENZIE:  25 Q   Yes, my lord.  Dr. Mills, as it turns out, Dr. Bishop  26 refers to Dyen and Aberle on page 152, and he refers  27 to their 1974 book, and that book is also included in  28 Mr. Bishop's references cited, so it looks as if Dr.  29 Bishop disagrees with Dyen and Aberle.  Were you aware  30 of that?  31 A   Yes, I was.  Yes, he does characterize them, saying:  32  33 "Dyen and Aberle...in contrast to other  34 Carrier ethnologists ... favour the view that  35 the prehistoric Carrier were 'matrilineal,  36 organized, with bilateral cross-cousin  37 marriage and Iroquois cousin terms.'"  38  39 MR. MACKENZIE:  Dr. Mills is reading from page 152 in that  40 exhibit, my lord --  41 THE COURT:  Oh, yes.  42 MR. MACKENZIE:  — at the paragraph at the bottom of the page.  43 Does your lordship have that reference?  44 THE COURT:  Yes, thank you.  45 MR. MACKENZIE:  46 Q   Dr. Mills, I haven't referred at length to Dr.  47 Bishop's paper because it's already an exhibit, but 1317?  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 you'll agree with me that he is one of the scholars  2 that holds a very -- appears to hold a very strong  3 view that the transfer of the rank and -- rank system  4 from the Tsimshian to the Carrier took place in proto  5 and pre -- proto and historic times as a result of the  6 fur trade?  That's his view, and he's a strong  7 proponent of that?  8 A   Yes.  This is a sort of theoretical paper.  It's  9 not -- he hasn't done field work in the area, to my  10 knowledge.  11 Q   And you've already indicated that Dr. Goldman holds  12 the same view, that the rank systems were transferred  13 from the Tsimshian as a result of the stimulus of the  14 fur trade?  15 A  Well, Dr. Goldman is particularly talking about the  16 Alkatcho Carrier, which are the southern Carrier and  17 linguistically probably more differentiated from the  18 Babine-Wet'suwet'en and from the eastern Carrier than  19 the eastern Carrier are from the Babine-Wet'suwet'en.  20 And he's talking about their -- their social  21 structure, and yes, I have stated in -- in my evidence  22 in chief that I agree with Dyen and Aberle's  23 interpretation of that -- that situation rather than  2 4 Goldman's.  25 Q   And you also are aware that Dr. Goldman has concluded  26 that the matrilineal system could not have moved to  27 the Wet'suwet'en or the Upper Carrier until the latter  28 part of the 18th century?  29 A   Based on his work with the Alkatcho Carrier.  Yes, I'm  30 aware he says that.  31 Q   Yes.  And he comments that -- you're aware that Father  32 Morice stated that at the time of the coming of the  33 first whites not all the Carriers had adopted the clan  34 system from the coast?  Are you aware of that theory?  35 A   That theory?  36 Q   Or that observation.  37 A   That Morice had said that?  38 Q   Yes.  39 A   Yes, I think Morice had -- had come to the Carrier  40 first from the southern Carrier.  41 THE COURT:  What did you say, they hadn't adopted the clan  42 system from the coast?  43 MR. MACKENZIE:  Yes, my lord.  44 THE WITNESS:  He's referring to the southern Carrier.  4 5    THE COURT:  Yes.  46 MR. MACKENZIE:  He's saying — well, I guess I'll have to put  47 this in. 13179  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  Well, when you say southern Carrier there, are you  2 talking about Alkatcho?  3 THE WITNESS:  Right.  4 MR. MACKENZIE:  I'm handing up a copy of Exhibit 881-17, an  5 excerpt from that.  6 THE COURT:  What is the number again?  7 MR. MACKENZIE:  881-17, my lord.  8 THE COURT:  Yes.  9 MR. MACKENZIE:  10 Q   And I think your lordship has heard quite a few  11 passages from this particular exhibit, but I'll just  12 refer now to page 406, entitled "Historical Background  13 of Alkatcho Carrier Crest Groups."  And as the  14 background -- Dr. Goldman is discussing the Bulkley  15 River Carrier as a background to his discussion of the  16 Alkatcho Carrier, and just under that, about ten lines  17 down, Dr. Goldman says:  18  19 "The westernmost group of Carrier, the  20 Bulkley River Carrier, settling close to the  21 Gitksan, a Tsimshian group who controlled  22 the trade route down the Skeena river,  23 traded and intermarried with them.  As a  24 direct consequence of trade and inter-  25 marriage the Bulkley River Carrier grouped  26 themselves into five exogamous matrilineal  27 phratries corresponding to the Gitksan  28 phratries."  29  30 And you disagree with that?  31 A   Yes, I do.  32 Q   On page 414 —  33 A   Or perhaps I should qualify that.  If you -- it  34 depends on the time frame, for one thing.  The  35 Wet'suwet'en have indeed developed phratries, and they  36 have five of them.  I agree with that.  And I agree  37 that they do link to the Gitksan, but obviously it's a  38 very complex situation.  You don't -- if it was just a  39 simple borrowing, you wouldn't have five phratries or  40 clans, as we have been calling them, among the  41 Wet'suwet'en because you don't have five among the  42 Gitksan.  It's not a simple borrowing situation.  And  43 the evidence is that these people have been in place  44 for an extremely long period of time and that what  45 were formerly thought of as being the typical  46 Athabaskan format of the bilateral band is the -- is  47 in fact adaptations to -- to newer environments as 13180  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 they became available.  2 Q   And on page 417 is the passage that I was referring  3 to.  4 A   417?  5 Q   Yes.  Dr. Goldman, as you know, his theory and the  6 argument he makes is that the Northwest Coast  7 influence came as a result of expanding trade  8 relations.  He says first paragraph:  9  10 "If the argument that Northwest Coast  11 influence made itself felt on the social  12 organization of the Indians of the interior  13 as a result of expanding trade relations is  14 valid, then we have a basis for establishing  15 some chronology to the process.  It follows,  16 therefore, that the matrilineal sib system  17 could not have moved to the Upper Carrier  18 until the latter part of the 18th Century.  19 Morice has stated that at the time of the  20 coming of the first whites not all of the  21 Carrier had adopted the clan system from the  22 coast."  23  24 You disagree with that chronology, I take it?  25 A   I would, um hum.  Right.  The evidence is that -- that  26 the integration of the Wet'suwet'en with -- into clans  27 that integrated them with their -- the neighbouring  28 Gitksan was way, way before white contact in the fur  29 trade.  30 THE COURT:  I'm going to put Exhibit 881-17 in my book as if it  31 were Exhibit 995 tab 18.  32 THE REGISTRAR:  955.  33 THE COURT:  955, yes.  34  35 (EXHIBIT 955-18 - TAB 18 - COPY OF EXHIBIT 881-17, "THE  36 ALKATCHO CARRIER," I. GOLDMAN)  37  38 THE COURT:  Have we reached a convenient place to adjourn, Mr.  39 Mackenzie?  40 MR. MACKENZIE:  Oh, yes, my lord.  41 THE COURT:  All right.  Thank you.  We'll reconvene at two  42 o'clock, please.  43 THE REGISTRAR:  Okay.  Order in court.  Court will adjourn until  44 2:00.  45  4 6 (PROCEEDINGS ADJOURNED AT 12:25 P.M.)  47 13181  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7  8 Leanna Smith  9 Official Reporter  10 United Reporting Service Ltd.  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 13181  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 (PROCEEDINGS RECOMMENCED AFTER A BRIEF RECESS)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Mackenzie.  6 MR. MACKENZIE:  Yes, My Lord.  7 Q   Dr. Mills, before lunch you were telling us that in  8 your valuation of these myths, a criterian that you  9 sometimes use is the more improbable, the more ancient  10 or greater the antiquity that the myth probably has;  11 is that fair to summarize your opinion?  12 A   I stated that a few days ago, uh-huh.  13 Q   One of the myths that you discussed in your work is  14 located in Dr. Jenness's myths at tab 24, I think --  15 at tab 25, volume three.  16 THE COURT:  I'm sorry, which one?  17 MR. MACKENZIE:  Tab 25, volume three, My Lord.  And referring to  18 number 19 at page 168.  This is the story of a girl  19 who married the frog.  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  22 Q   You are familiar with that myth, Dr. Mills?  2 3 A   Yes, I am.  24 Q   And you would, I take it, say that the improbability  25 of the events noted in that myth seem to indicate that  26 it's a myth of some antiquity?  27 A   Yes.  I have also explained in my opinion report that  28 from the Wet'suwet'en perspective these aren't things  29 that seem necessarily improbable, and -- but from the  30 vantage point of anthropology, often these things --  31 that statement that the more improbable, the earlier  32 the -- an account may be dated, remains true.  But  33 I've given the qualifications and expressed how the  34 Wet'suwet'en see this in my report, but they don't  35 necessarily see this as having ceased at some time in  36 the past.  37 Q   Am I correct in saying that this myth is -- represents  38 the origin of the Frog crest of the two Frog clans?  39 It doesn't seem to say that, but I'm just wondering if  40 that's your opinion.  41 A   It may well be, yes.  42 Q   And you had discussed this -- and so you would say  43 that -- you would say that as far as the -- let me  44 just go back and ask you the question.  You said that  45 the more improbable, the more ancient.  Can you now  46 say this, that this number 19 is true, or how would  47 you characterize it being the truth of that story? 13182  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   I don't know how you are meaning the word true.  This  2 is a kungax of the Wet'suwet'en and is often  3 interpreted as the origin of the Frog crest, which is  4 the crest of two clans, both the Gilseyhu and the  5 Laksilyu, and that it's placed at Moricetown.  And I  6 also said that we know that Moricetown has been  7 occupied for a very, very long period of time, and  8 this is part of the kungax that relates to this  9 particular place which we know from independent  10 archaeological sources has been in existence for a  11 very, very long period of time.  So in a sense the  12 archaeology confirms in a certain sense the antiquity  13 of the kungax.  14 Q   And on page 186 in your report you discuss this  15 particular kungax.  The last paragraph on the bottom  16 of the page you say:  17  18 "Madeline Alfred, Chief Dzeeh, told the  19 kungax of the girl who married the frog at  20 Moricetown in More Stories From Moricetown.  21 The kungax ends with Chief Dzeeh saying that  22 when they built the highway through  23 Moricetown (in the 1950's) the pond the frog  24 lived in was drained and the frog was seen  25 to go down to the Bulkley River.  This is  26 the same frog that had married the  27 Moricetown chief's daughter, the origin of  28 the frog crest of the two frog clans, which  29 the Wet'suwet'en say are thousands of years  30 old."  31  32 So it's your opinion that the Wet'suwet'en  33 continue to regard that as true, even up into the  34 1950's?  Is that fair to say?  35 A   Yes.  They are not talking about an ordinary frog  36 obviously.  37 Q   No, certainly not.  I take it you agree with me that  38 in that case the improbability of that particular  39 story does not seem to indicate that is the end of the  40 story going down to the Bulkley River, does not  41 indicate antiquity in fact?  42 A   Could you repeat that.  43 Q   The improbability doesn't seem to indicate antiquity.  44 A   It's referring to this same frog, which is considered  45 a very important and powerful crest among the  46 Wet'suwet'en, which they also see of great antiquity.  47 It's referring to that same frog.  And this is an 13183  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 example of how this tradition which the Wet'suwet'en  2 as well as this anthropological adage about the  3 improbability and the time depth coincide, in saying  4 that this is something that has a great time depth,  5 and I am adding it on here to say that this is  6 something that the Wet'suwet'en still consider  7 important today.  It's not something that they see as  8 having finished in some point in the past.  It's not  9 like a big bang theory of the origin of the universe  10 that things were set in motion once and then  11 nothing -- it just evolves from there.  I guess that's  12 a good paraphrase.  13 Q   One can certainly date part of that kungax by the fact  14 that the highway, as you say, was built through  15 Moricetown in the 1950's.  16 A   I do agree.  17 Q   Well, we have been speaking about the kungax and the  18 myths of time and your ancestral village.  I take it  19 you agree with me that Jenness indicates that he  20 searched for a site of Dizkle but was not able to find  21 any indication of the -- of Dizkle?  22 A   I think it's more significant that Harlon Smith tried.  23 I think he had -- Jenness didn't pretend to be an  24 archaeologist.  25 Q   That's noted on page 477 of Jenness's work, 1943,  26 which is at tab 25, volume three of the plaintiffs'  27 documents for reference.  28 A  May I see that?  29 MR. MACKENZIE:  It's tab 24.  I beg your pardon?  30 THE WITNESS:  It's the last tab.  31 THE COURT:  Very clever of you, Mr. Rush, to put them in  32 different books.  33 THE WITNESS:  What page was that again?  34 MR. MACKENZIE:  35 Q   Page 477.  36 A  What paragraph is it?  37 Q   It's about halfway down the page, the second full  38 paragraph.  39 A   Oh, I see.  I was mistaken.  I had thought that he was  40 saying that Harlon Smith had looked for Dizkle, and he  41 is not saying that, he is saying that Harlon Smith had  42 looked for Temlaham.  43 Q   Yes.  44 A   I am not surprised that Jenness found no evidence of a  45 permanent settlement at Dizkle.  For one thing, he  46 didn't conduct an archaeological surveyor dig at that  47 site.  It's not a site which one would expect to have 13184  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 remains well preserved.  It's on a floodplain.  I  2 visited the site myself.  It's on a floodplain.  So  3 that in years when the river is particularly high and  4 run off, the river bank changes a great deal and it's  5 a very, very poor site for the preservation of  6 archaeological remains.  The course of the river there  7 suggest that the village of Dizkle would have had to  8 be moved innumberable times over a long period of  9 occupation, because it would have to accommodate to  10 where the river was in different times, depending on  11 how it had flooded previously.  12 The trouble with archaeology is that when you have  13 evidence, then you have evidence, when you don't have  14 evidence, when you haven't found anything, you can't  15 conclude that something does not exist.  It could  16 still be there, it could still be washed away.  No one  17 has conducted a survey at Dizkle going two feet under  18 the ground in all the areas that could have been held,  19 where the village could have been, plus the fact that  20 the washing of the river over these areas could well  21 have obliterated any evidence very long ago.  22 Q   When you were there, you spoke to some white couples  23 who were campers at the site?  24 A   Yes.  25 Q   And they had found some arrowheads?  2 6 A   Right.  27 Q   And you thought that was significant?  28 A  Well, the fact that there are arrowheads there  29 indicates that there was worked stone implements that  30 were there.  These people were not archaeologists.  We  31 can't know whether -- where -- I don't have a -- they  32 didn't even indicate where they had found them.  So in  33 this kind of context it would be impossible to date  34 them, except by comparing them with the whole  35 chronology of types of blades.  And they didn't  36 produce the blades for me.  I don't know if Sylvia  37 Albright ever obtained any or not.  38 Q   You say on page 82 of your report, the second line:  39  40 "While Jenness found nothing at the site,  41 the retired white couples who were camped  42 there in their campers when I visited the  43 site in the summer of 1985 said they had  44 found some arrow heads they fished from the  45 gravel banks."  46  47 And you considered that in preparing your report? 13185  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  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  MR.  THE  MR.  THE  MR.  THE  MR.  A   I did.  Q   Yes.  A   It is hearsay in the sense that I had not observed the  arrowheads that they found.  Q   You are aware that Sylvia Albright was not able to  find any traces of Dizkle when she searched for the  site with the assistance of the plaintiffs?  A   I didn't -- I am aware that she didn't find any  particular archaeological remains, yes.  But I don't  think that she claims that she dug two feet deep in  the whole area that -- where the village might have  been, and I have just finished stating that even if  she had, the absence of remains would only say that  she hadn't found anything, not that there had ever  been such a village.  Q   That doesn't change your opinion, the fact that she  found no evidence of Dizkle?  A   No, it doesn't change.  Q   Okay.  Now, Dr. Jenness comments on the reliability of  oral tradition, and you note it in your report.  He  says that these oral traditions cannot be trusted even  for events of the early 19th century, unless they can  be confirmed for other sources.  And that's a fair  summary of his opinion?  COURT:  Where did you find that?  MACKENZIE:  It's at page 553 in Jenness (1943), which is at  tab 24, volume two.  COURT:  Thank you.  MACKENZIE:  Does Your Lordship have that reference, page  553?  COURT:  I will in a minute.  Yes.  Whereabouts?  MACKENZIE:  This occurs about halfway down the page, My  Lord.  COURT:  Yes.  MACKENZIE:  Q  "But our Canadian Indians seemed to have  lacked the historical sense, as we interpret  history, and many of the plains' tribes  embellished with impossible myths so recent  an event as the acquisition of horses; the  five Nations of the Iroquois failed to  preserve any credible acount of the  formation of their great confederacy about  about 1580; and the Ojibwa narrate fantastic  fairy tales about the part they played in  the War of 1812.  The Indians of the British 13186  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 Columbia coast and hinterland, who evolved a  2 complicated caste system in which the  3 inheritance of rank and property depended  4 largely on kinship and the memory of kinship  5 rights, have so interwoven fact and fancy in  6 their legends that, unless we can confirm  7 them from other sources, we cannot trust  8 them even for the events of the early 19th  9 century."  10  11 And you took that into account in preparing your  12 opinion?  13 A   I quoted the passage.  14 Q   Yes, you did.  And that does not -- you do not change  15 your opinion as a result of that comment by Dr.  16 Jenness?  17 A   If I use the quote, explain my opinion about it, then  18 I don't see how -- why the question is even relevant.  19 Q   Just want to know whether you changed your opinion as  20 a result of me putting it to you again Dr. Mills.  21 A  Well, no.  I considered this very carefully.  If you  22 look, what he is saying here, and this is something  23 that I discuss in my opinion report too, he is saying  24 whenever there is something that we find fancy -- and  25 I think you used the word fantasy, perhaps --  26 interwoven in the oral tradition, then it must be  27 unreliable.  That's not the way that modern  28 anthropologists would view an oral tradition.  And by  29 the way, you have been referring to him as Dr.  30 Jenness.  He didn't have a doctorate.  31 Q   I'm sorry, I made a mistake.  I tend to be  32 over-sensitive in that area.  But thank you for your  33 correction.  34 A   But in fact the proposition that I had made, that when  35 you do have something that seems improbable in an  36 account, it may give some indication of antiquity, is  37 a statement that was made by a very eminent  38 anthropologist, Edward Sapir, who did a great deal of  39 work on the Northwest Coast, a great deal of work with  40 mythology, and was also probably the greatest linguist  41 that North America has produced, anthropological  42 linguist.  The fact that the accounts of the Northwest  43 Coast people do include both things that from perhaps  44 a western perspective seem fanciful with events that  45 occurred, doesn't mean that they should be disregarded  46 in terms of the indication they give about historical  47 process.  I then in my report go on to quote Drucker, 13187  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 whose a very eminent source on the Northwest Coast,  2 and his indication of how exact and precise the oral  3 tradition has been proven to be on the Northwest  4 Coast.  5 Q   So you consider that Mr. Sapir and Mr. Drucker  6 supported your views on the reliability of the oral  7 tradition?  8 A   They are saying somewhat different things.  Drucker is  9 looking at it in terms of the -- of the correctness,  10 and yes, I think that's what -- that was his opinion.  11 Q   Okay.  12 A  And Sapir was aware of the tremendous time depth that  13 we are talking about in working out these linguistic  14 relations between the Athabaskan speaking people and  15 the Tlingit.  He was not saying that these were  16 recent, these were recent divisions, he was  17 thinking -- suggesting that these were very ancient  18 divisions between people who must have spoken then an  19 ancestral language that's even ancestral to  20 Proto-Athabaskan.  So we are talking about great time  21 depths, and I think that Sapir would be very sensitive  22 to the fact that it's difficult to make an exact  23 chronology from an oral tradition, and I would also  24 agree that it's very difficult to make an exact  25 chronology.  26 Q   Well, I will just respond to your comments one after  27 the other.  First I want to direct your attention to  28 page 557 in Jenness's work.  And you have also  29 discussed in your report the background to this  30 statement on page 557.  You refer to Bini, B-i-n-i, in  31 your report in some detail, didn't you?  32 A   I did.  33 Q   Yes.  And at page 557 Mr. Jenness says:  34  35 "The discrepancies and impossibilities in  36 these biographies of the same reformer, all  37 furnished by contemporaries and eyewitnesses  38 of some of the events, show how little we  39 can rely on Carrier traditions for  40 reconstructing their earlier history.  The  41 natives have always lived in an age of  42 miracles, and even today they look upon the  43 interference of the supernatural world as an  44 everyday affair, and see supernatural forces  45 at work in most trivial events.  The mundane  46 details of these events signify little  47 compared with the necessity of maintaining a 131?  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 proper rapport between the Indian and the  2 unseen world so that he may enjoy long life  3 and successful hunting."  4  5 And were you also familiar with that passage when  6 you prepared your report?  7 A  Very much so.  8 Q   And that didn't alter your opinion in any way?  9 A   Not in the least.  I explain that I consider the  10 various reports of Bini, which he says are indicative  11 of how unreliable the report is, as being quite  12 remarkably consistent.  These are talking about a  13 person who is not ordinary, and the events that are  14 described for him are extraordinary.  He was  15 considered an extraordinary figure, and yet what --  16 though you get different accounts given by the  17 Gitksan, different accounts given by the Wet'suwet'en,  18 the basic themes are -- remain the same in all of  19 them.  20 Q   Yes.  Let me just ask you about this document that  21 I've handed up.  This is a forward to Diamond  22 Jenness's work, "The Indians of Canada", and the  23 forward is written by William Taylor, the director of  24 the National Museum of Man in July, 1977.  And you  25 refer to this work in your citations in your report?  2 6 A   I do.  27 MR. MACKENZIE:   And I submit that as the next exhibit, My Lord.  28 THE REGISTRAR:  955-19.  29  30 (EXHIBIT NO. 955-19 - "THE INDIANS OF  31 CANADA" - D. JENNESS)  32  33 Q   This simply describes Diamond Jenness's career, and I  34 take it that you would agree with me that Diamond  35 Jenness is one of the most eminent anthropologists in  36 the history of Canadian anthropology?  37 A   Of the people who are considered uniquely Canadian,  38 which I guess characterizes Jenness perhaps so, he  39 certainly is the one to write the Indians of Canada.  40 Boas did a tremendous amount of field work in North  41 America, but he wasn't considered Canadian, and Sapir,  42 though he did work from Canada and lived in Canada for  43 a long period of time, is also not generally regarded  44 as Canadian.  45 Q   Yes.  And on page Roman numeral VIII in this foreword.  46 A   On what page?  47 Q   Page number Roman numeral VIII, and the second 13189  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 paragraph at the end Mr. Taylor indicates that:  2  3 "During this time he completed the present  4 work, his monumental 'Indians of Canada'  5 (1932), the first comprehensive presentation  6 of Canadian aborigines.  Now a classic, it  7 continues to be simply the best of its  8 kind."  9  10 And you don't disagree with that, do you, Dr.  11 Mills?  12 A   There hasn't been another book like this that has been  13 made since then, and it's a comprehensive survey.  14 Whenever anyone uses it today, they point out in what  15 ways it is outmoded, and there are ways in which it is  16 outmoded, and some of his statements in the book are  17 considered very unprofessional, but it is -- it's a  18 good compilation of the material -- good kind of  19 general survey.  But as I stated in my opinion, his  20 areas of interpretation are his weakness.  21 Q   At the bottom of that page Mr. Taylor says:  22  23 "His exceptional stature as an  24 anthropologist and the high personal regard  25 he had earned in his profession are  26 reflected in his being elected president of  27 the Society for American Archaeology in 1937  2 8 ..."  29  30 And several other honors.  31 And you don't disagree with that statement?  32 A   No, I don't.  33 Q   And then over on page IX, Roman numeral IX, and at the  34 end of the second paragraph, the last sentence Mr.  35 Taylor says:  36  37 "These monographs ..."  38  39 Referring to work written by Mr. Jenness:  40  41 "... reflect his durable and compassionate  42 concern for Canadian Indians and Eskimos and  43 in them one can find much of the advice that  44 he, for so many decades, provide the  45 Canadian Government."  46  47 And you don't have any disagreement with that? 13190  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   I didn't find the passage, and I missed a bit of your  2 reading.  3 Q   It's the last passage in the second paragraph, the  4 last sentence in the second paragraph in Roman numeral  5 IV starting "These monographs ..."  6 A  Well, today the consensus of contemporary  7 anthropologists are that he was indeed very interested  8 and knowledgeable about Canadian Indians, but some of  9 the statements that he makes in the volume "Indians of  10 Canada" showed that he had some limitations in his  11 ability to understand their world view, and I was  12 myself personally ignorant of his role in advising the  13 Government of Canada, but I can imagine that he was  14 asked to do so.  15 Q   Now, you then refer to Mr. Drucker.  That's Philip  16 Drucker you were speaking about?  17 A   That's correct.  18 Q   And you have cited his work in your report on page 61.  19 Is that correct?  2 0 A   I did quote him, yes.  21 Q   Yes.  Now, you have a citation there -- I want to ask  22 you, I take it you will agree with me that the  23 Wet'suwet'en myths that we have looked at today  24 contain a great deal of supernatural events?  25 A   Yes.  26 Q   Yes.  For example, monsters appearing and discourses  27 and the confessions and relations with animals,  2 8              between animals and human beings for example.  29 A   Yes.  30 Q   Yes.  And in your report you cite Mr. Drucker, and you  31 don't give a page number, but I presume that this  32 document or this article -- excerpts from this book  33 represent excerpts from the book that you are  34 referring to by Philip Drucker; is that correct?  35 A   I think so.  At the time I wrote my report I had  36 copied down this quote, and I was writing it in  37 Smithers, and I didn't have Druckers' two books  38 available to me, but that's --  39 Q   This is a 1955 book that Philip Drucker wrote.  I'm  40 just -- you say that in your report at page 61.  And  41 page 115, I think is the quotation you were referring  42 to, and let me just -- let me just now refer to page  43 61 in your report, if you keep page 115 opening.  In  44 your report you say:  45  46 "In connection with these traditions, it  47 must be pointed out that while the Indians 13191  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 had no written records, and had to rely on  2 oral transmission of their clan and family  3 histories, the traditions of all the groups  4 from Vancouver Island northward are so  5 specific and consistent - and insofar as  6 they can be checked, so correct - that there  7 is little doubt that for the most part they  8 are historically accurate."  9  10 Then on page 115 Mr. Drucker carries on.  11 THE COURT:  115?  12 MR. MACKENZIE:  115 in the Drucker article, My Lord.  Does Your  13 Lordship have that?  If you look at 115, it's in  14 connection with -- you see that, My Lord?  15 THE COURT:  Yes.  16 MR. MACKENZIE:  17 Q   It's followed along here, but then Mr. Drucker adds to  18 what you have written on page 61 of your report.  19  20 "Except for the occasional supernatural  21 events that they recount which we may regard  22 as a sort of literary trimming."  23  24 So you didn't add that to the citation that you  25 had on page 61 of your report, did you?  26 A   It would have strengthened my report.  27 Q   You didn't add it to the citation?  28 A   No, I didn't.  It's obvious I didn't.  You can see  29 from page 61.  It would only have strengthened it,  30 however, to point out that these supernatural events  31 which are very difficult for western people to  32 interpret, are integral to these kinds of oral  33 traditions, and despite there being there, despite  34 there being extremely hard for a person raised in the  35 west to interpret or to accept or to find a category  36 under which to place, they are indeed part and parcel  37 of the oral tradition of Northwest Coast, the  38 Wet'suwet'en and North American Indians in general.  39 Q   Mr. Drucker, of course, is talking about the Haida and  40 the Tlingit and the coast in this passage in this part  41 of the book.  You recall that?  42 A  And Coast Tsimshian, yes, that's right.  43 MR. MACKENZIE:   I tender that excerpt as the next exhibit, My  44 Lord.  45 THE COURT:  955-20.  46  47 13192  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  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  (EXHIBIT NO. 955-20 - "INDIANS OF THE  NORTHWEST COAST" - P. DRUCKER)  THE WITNESS:  I think a point to be made from this is that  however difficult it is for westerners to interpret or  accept these improbable events, they are integral to  the accounts as given by the native people, and they  don't invalidate them as both recounting historical  process either.  MR. MACKENZIE:  Q   Now, in your comments you also referred to Mr. Sapir  as supporting your views on the reliability of the  oral tradition.  Do you recall that?  A   Yes.  Q   I have handed up an excerpt from Exhibit 8 81A-4, and I  refer you to page 395 in that exhibit.  And at page  395 Mr. Sapir is talking about native testimony, and  about six lines down in that passage he says:  "When they refer to the distant past, they  must be handled with a good deal of reserve,  for experience shows that the historical and  mythical merge inextricably beyond a certain  point."  And you were aware that that was Mr. Sapir's view?  A   I certainly was.  THE COURT:  Well, he goes on and modifies that, doesn't he?  MR. MACKENZIE:  Q  "Nevertheless, I believe that there has been  in certain quarters decidedly too much of a  tendency to make light of all Indian  accounts of migration and tribal or clan  movements.  The village to village movements  of clans or septs recorded in various West  Coast mythologies, for instance, certainly  all have the ring of history or, better  said, of legends based on historical events,  for the motives and attendant circumstances  of such."  Then he continues on to the next page, and that  does qualify that statement, My Lord.  THE COURT:  Yes.  955-21. 13193  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 (EXHIBIT NO. 955-21 - "TIME PERSPECTIVE" - A  2 STUDY IN METHOD - E. SAPIR)  3  4 THE WITNESS: Sapir was in a position, as I said before, to know  5 about the great time depths that were being considered  6 in talking about -- since he had the skills, excellent  7 skills as a linguist as well as that of an  8 ethnologist.  9 MR. MACKENZIE:  10 Q   As Mr. Drucker says, the myths have to be checked, and  11 if they can be checked, then that's of some assistance  12 in determining their accuracy?  13 A  And Sapir would certainly say the same thing, if you  14 look at the table of contents on this last document  15 that you show me -- showed me, you will see that he  16 talks about documentary evidence.  I have gone over  17 that in my report.  He talks about native testimony.  18 I have gone over that in my report.  He talks about  19 stratified archaeological testimony.  I have gone over  20 that in my report.  And then I don't see inferential,  21 physical anthropology, ethnology, geographical  22 distribution.  This doesn't give the full -- there is  23 probably another table of contents, but he was also  24 extremely aware of the importance of linguistic  25 evidence.  So you use all of these techniques to  2 6 arrive at a time depth.  27 And what I am saying is the combination of all  28 these perspectives vis-a-vis the Wet'suwet'en would  29 place them as having been in situ with matrilineages  30 long before white contact in the fur trade.  31 Q   But again they have to be -- you have to have some  32 other evidence to assist in evaluating that?  33 A   I just told you the kinds of evidence that you use,  34 and I used every bit of evidence that exists.  35 Q   That's right.  But you still, as you say, regard the  36 kungax as a primary source?  37 A  A primary source.  I have already stated my position.  38 Q   That's fine.  39 A   I don't say "the", I say "a", and I also consider the  40 archaeological and the linguistic and ethnographic --  41 Q   I am going to suggest to you, Dr. Mills, that there is  42 no archaeological evidence to link the current  43 Wet'suwet'en with the occupants of this area 5,000  44 years ago.  Do you disagree with that?  45 A   I made my position very clear in my report.  46 Q   And your position is that you disagree with that  47 statement? 13194  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 A  My position is that it's very difficult in looking at  2 archaeological remains to say these were made by "X"  3 persons, however, the fact that this area was occupied  4 at a particular time depth that you can ascertain,  5 it's very significant.  There is no evidence that  6 these people were not in situ.  The time that is  7 indicated for occupation of the area and the burden  8 would be to prove that it was someone else or to  9 imagine who else it would have been.  10 Q   I am going to suggest to you also there is no  11 ethnographic -- or I am going to suggest to you the  12 majority -- the majority of ethnographic ethnological  13 literature is contradictory to your position that  14 these myths are accurate, if you say they depict --  15 are accurate in depicting the antiquity of the  16 Wet'suwet'en people and their -- the development of  17 the ranked institutions which today you say  18 characterize their community.  19 A   You just supplied me very nicely with Drucker and with  20 Sapir, who would support my position.  You have  21 Jenness saying that he doesn't --  22 Q   I am simply asking you to agree or disagree.  23 A   I would like to have the opportunity to say what I do  24 think is accurate.  25 Q   Well, I think you have.  26 A   Yes.  I am saying that you have Morice, who suspects  27 that the -- he doesn't say that the Wet'suwet'en have  28 not been there for a very long period of time.  He  29 indicates that they received much of the potlatch  30 qualities from the Tsimshian, but without giving a  31 time depth to it.  He doesn't say that it was the  32 result of the fur trade.  He never says that.  33 Jenness says that the Wet'suwet'en have been in  34 place.  He doesn't -- he says that you can't go back  35 more than a few generations.  He doesn't, as I say,  36 analyze the oral tradition, and we have better  37 archaeological and linguistic evidence on which to go  38 after that.  And neither Julian Steward nor Goldman  39 had the advantage of that material.  Goldman did to a  40 certain extent in discussing the Alkatcho Carrier, but  41 the -- though there have been anthropologists  42 previously who have suggested that there -- it's a  43 relatively recent dig.  Primarily Kobrinsky and  44 Charles Bishop who says the same thing.  45 Q   Well, Professor Ames says the same thing.  46 A  Well, if you look, Professor Ames also doesn't quote  47 Dyen and Aberle.  Professor Ames is an archaeologist, 13195  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 and he was intrigued with this problem, how can we  2 know who is responsible for these archaeological  3 finds, and he reviewed what he could think of, but he  4 doesn't in his work cite Dyen and Aberle as being the  5 linguistic sources that he relies upon.  6 Q   And Mr. Hudson says the same thing, doesn't he?  7 A   Says what same thing?  8 Q   Says that these are relatively recent developments as  9 a result of the stimulus of the fur trade.  10 A   To a certain extent, yes.  It's one of these phenomena  11 where you get the same thing repeated quite a few  12 times, and you have to be very careful to notice who  13 is -- the only person who says the fur trade is  14 Kobrinsky.  You have Bishop sort of echoing that.  15 Hudson, I would like you to cite where he says that  16 it's all the result of the fur trade.  I think that he  17 indicates that the matrilines were in place earlier,  18 but I would have to look at that again to be sure of  19 that.  20 Q   So you are not sure of that?  21 A   I am not -- my memory of Hudson's analysis is a bit  22 vague.  23 Q   Now, you know that the Wet'suwet'en people in this  24 case claim that they are the -- they are the  25 inhabitants, and of traditional territories that range  26 as far south as Ootsa Lake and over to Tahtsa Lake,  27 and that area in southwest of Francois Lake, correct?  28 A   That's right, and Morice supported that, that he  29 agreed with that.  30 Q   All right.  And you know that they claim that -- that  31 they've occupied that area from time immemorial?  32 THE COURT:  I'm sorry, you are asking the witness does she know  33 that they claim they occupied it from time immemorial?  34 THE WITNESS:  I do know that.  35 MR. MACKENZIE:  36 Q   And you support that, your research supports that  37 position?  38 A   Yes, it does.  39 Q   Well, the fact is, isn't it, that the Cheslatta people  40 occupied that area right up until 1838?  41 A  Which area?  42 Q   The area south of Francois Lake, including Ootsa Lake  43 and Tahtsa Lake, that whole -- the whole lakes area in  44 the southwest part of the claims area.  45 A   The Cheslatta people are themselves an amalgamation of  46 Wet'suwet'en and Nuu'tsenii.  47 Q   Okay.  Mr. Jenness on page 475 refers to the Cheslatta 13196  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 people.  This is tab 24.  2 THE COURT:  Could you give me the spelling of Nuu'tsenii?  3 THE WITNESS:   N-u-t-s-e-n-i, My Lord.  4 MR. MACKENZIE:  Tab 24, page 475, My Lord.  The last about five  5 lines up from the title "Earlier History" at the  6 bottom of the page the passage starts:  7  8 "Two or three families even roam  9 occasionally as far south as the Eutsuk Lake  10 area, which the Bulkley people incorporated  11 into their territory after the earlier  12 inhabitants, who seem to have formed a  13 distinct subtribe, were destroyed by an  14 epidemic of smallpox about 1838."  15  16 You were aware of that passage in Jenness's work?  17 A   Eutsuk is not to be confused with Ootsa Lake.  18 Q   I understand that.  19 A   Yes.  20 Q   And that did not change your opinion as to the fact  21 that the Wet'suwet'en claimed and occupied this claim  22 area from time immemorial?  23 A   That's right.  24 THE COURT:  Could you remind me where Ootsa Lake is.  25 MR. MACKENZIE:  It is outside the claims area down south of  26 Whitesail Lake or south -- in the southerly  27 direction --  2 8 THE COURT:  Oh, yes.  29 MR. MACKENZIE:  Does Your Lordship have that?  30 THE COURT:  Yes, thank you.  31 MR. MACKENZIE:  32 Q   I have passed around a copy of Wilson Duff's article  33 "Notes on Carrier Social Organization".  And that's a  34 reference which you cite in your report?  35 A   I do.  36 MR. MACKENZIE:   I submit that as the next exhibit, My Lord.  37 THE COURT:  955-22.  38 THE REGISTRAR:  955-22.  39  40 (EXHIBIT NO. 955-22 - "NOTES ON CARRIER  41 SOCIAL ORGANIZATION BY WILSON DUFF")  42  43 Q   At that first sentence -- well, I refer to page 29.  I  44 just put in two pages from this citation.  45 THE COURT:  When was this written please?  46 MR. MACKENZIE:  1951.  It's contained in the Provincial  47 Government Museum report "Anthropology in B.C." No. 2, 13197  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 1951, pages 28 to 34.  2 THE COURT:  All right.  3 MR. MACKENZIE:  4 Q   At page 29, first full paragraph Mr. Duff says:  5  6 "The Cheslatta subtribe today is a sadly  7 decimated and widely scattered group of some  8 90 individuals.  In former days -- and to  9 some extent today -- they roamed over a  10 vast area which included the upper Nechako  11 drainage and reached almost to the coastal  12 inlets.  Their villages, however, were in  13 the eastern part of of their range, on  14 Cheslatta Lake."  15  16 And then it speaks about going over to coastal  17 streams, hunting mountain goats and then it says:  18  19 "They frequently travelled over two routes to  20 the coast:  through Tahtsa Lake to trade  21 with the Kemano Kitimats and through Eutsuk  22 to Kimsquit."  23  24 K-i-m-s-q-u-i-t.  25  26 Now, you were aware that the Cheslatta people  27 lived or hunted and roamed around the areas in the  28 Ootsa Lake and Tahtsa Lake and Whitesail Lake area?  29 A   Yes.  30 Q   Yes.  The first page -- the first page of that excerpt  31 Mr. Duff says in the first paragraph:  32  33 "Until very recent times the Carrier  34 Indians have been rapidly borrowing features  35 from their social culture from their coastal  36 neighbours."  37  38 And I take it you disagree with that statement?  39 That really reflects Duff's view -- sorry, I will  40 rephrase my question.  That reflects Duff's view that  41 Carrier had borrowed features of their social culture  42 from the Tsimshian and coastal neighbours, correct?  43 A   Right.  44 Q   And you disagree with that?  45 A  Well, you notice what a kind of telephone effect you  46 get in all of this.  Duff is taking Jenness as his  47 source.  He is stating it as more recent and more 1319?  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 rapid than even Jenness states it is.  It just --  2 people take one perspective and then it gets sort of  3 shifted over so it's sounding like it's more and more  4 recent and more and more rapid than Jenness himself  5 said, and it's the commonest perception.  6 Q   But it all comes down to Dyen and Aberle, doesn't it,  7 in your view?  8 A   I don't think it only comes down to Dyen and Aberle.  9 I think that the archaeology suggests that there have  10 been people in place here for a very long period of  11 time.  You have two peoples in the upper Skeena River  12 drainage area speaking entirely different languages.  13 My interpretation of the Gitksan adaawk that I do  14 know, and I don't pretend to be an expert on that, is  15 that they don't basically claim to have been ancestral  16 to the area that the Wet'suwet'en occupy.  The  17 Wet'suwet'en do.  When you have salmon streams, you  18 figure that they are going to be -- there are going to  19 be people there as long as there can be.  Their  20 geology indicates that people could have occupied this  21 area for a very long period of time.  We have the  22 archaeology saying that people have been there, and  23 you have, you know, even Kobrinsky, Morice, all these  24 people thinking that the Wet'suwet'en and other  25 Carriers were basically in place in these areas at the  26 time of first white contact.  They aren't saying that  27 they moved in there as a result of white contact or  28 the fur trade.  This is where they were in situ and in  29 place then.  30 Q   They all say, though, that the ranked society, the  31 institutions, clans and the totem poles and all the  32 features of Wet'suwet'en society were borrowed from  33 the Tsimshian, and that was either initiated or  34 stimulated by the fur trade; is that a fair summary of  35 what those people say?  36 A   Not necessarily, no.  There is no place where Morice  37 says it's all fur trade.  He indeed says some of the  38 words for chiefs are integrated into the Tsimshian and  39 Gitksan language, but he points out that the first  40 "historical" eastern Carrier individual held a name  41 145 years -- was born 145 years before the first white  42 man arrived in the area.  He doesn't say -- give a  43 time depth on when it happened.  And Kobrinsky says  44 it's all post -- it's all the result of the fur trade.  45 He is the first person to say that it's all entirely  46 the fur trade, but the -- it just doesn't seem to make  47 much sense, when you have to figure that there were 13199  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 people there, they were -- they were in contact, we  2 know that they were trading with neighbouring peoples.  3 They were interacting with neighbouring peoples long  4 before there was any fur trade to prompt or promote or  5 perhaps accelerate.  The indication is that there was  6 a greater proliferation of totem poles after the fur  7 trade, but not that it caused -- not that they did not  8 exist before contact.  The fact that -- at the  9 earliest point of contact, indicated that they  10 obviously existed.  11 Q   I would like to move to a new subject.  I will just  12 open it up.  13 THE COURT:  All right.  14 MR. MACKENZIE:  15 Q   On page 56 of your report you say that the  16 Wet'suwet'en are a distinct people with a distinct  17 language and culture, who have been living in this  18 territory for a very long time and contact with other  19 people, and you go on to speak about some of the other  20 people.  But that is a correct statement of your  21 opinion today?  Is that fair to say?  22 A   Yes.  23 THE COURT:  I'm sorry, Mr. Mackenzie, I can't find that.  What  24 page?  25 MR. MACKENZIE:  Page 56, My Lord, of the report.  2 6 THE COURT:  Where was it?  27 MR. MACKENZIE:  It's the second full paragraph, My Lord.  28 Q   Now, I have already suggested to you, Dr. Mills, that  29 when you started your research project, you assumed  30 that the Wet'suwet'en were a distinct people, and you  31 have disagreed with me that that was your assumption?  32 Is that fair to say?  33 A  Well, you have handed me -- we are a distinct people.  34 They were a named people.  The name appears in one of  35 these handouts in Morice that you gave me, I think,  36 perhaps before lunch.  37 Q   I didn't want to interrupt you, and I'll let you  38 continue on if you wish, but I'm just asking you  39 whether I have stated your position fairly.  You  40 disagree that that was a basic assumption which was  41 framework for your research?  42 A   It's not as if it was an assumption that was based on  43 just an unquestioning adoption of that proposition.  44 The Wet'suwet'en people are recorded as having this  45 kind of name since Morice.  It's a title that has a  46 meaning in the language, and it refers to an area, and  47 the people -- 13200  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   I'm sorry.  I guess I tend to use the word assumption,  2 meaning something that you have to accept on the basis  3 of no evidence.  Perhaps that's the way I think  4 assumption means.  At any rate, you say they have a  5 distinct language, correct?  6 A   I'm not denying that their language is basically the  7 same as the language that's spoken by the Babine  8 people.  9 Q   It's really the same, isn't it?  10 A Yes.  11 Q Yes.  12 A Two dialects, but they are the same language.  13 Q And Dr. Kari says they are basically the same, doesn't  14 he?  15 A   Yes, he does.  16 Q   And you say that the Babine and Wet'suwet'en have an  17 overlapping sense of names, don't you?  18 A   Slightly.  19 Q   Yes.  In fact in every respect except for territories  20 the Babine and Wet'suwet'en cultures are pretty well  21 the same, aren't they?  22 A   They are basically similar.  There are obvious  23 differences living in different territory.  The  24 peoples have adapted to their specific territories as  25 well.  2 6    THE COURT:  Take the afternoon adjournment.  Thank you.  27    THE REGISTRAR: Order in court.  Court will recess  28  2 9 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  30  31 I HEREBY CERTIFY THE FOREGOING TO BE  32 A TRUE AND ACCURATE TRANSCRIPT OF THE  33 PROCEEDINGS HEREIN TO THE BEST OF MY  34 SKILL AND ABILITY.  35  3 6    37 LORI OXLEY  38 OFFICIAL REPORTER  39 UNITED REPORTING SERVICE LTD.  40  41  42  43  44  45  46  47 13201  A. Mills (for plaintiffs)  Cross-exam by Mr. Mackenzie  8 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  9  10 THE REGISTRAR:  Order in court.  11 THE COURT:  Mr. Mackenzie.  12 MR. MACKENZIE:  Thank you, my lord.  We were just speaking about  13 the Wet'suwet'en people as a distinct society.  14 THE COURT:  Sounds like a constitutional debate.  Maybe we can  15 solve that problem as well.  16 MR. MACKENZIE:  17 Q   And you will recall that at the All Clans' Feast Frank  18 Patrick did the seating?  19 A   I do.  2 0 Q   Yes.  And he's the Babine Wah Tah Kwets?  21 A   He's often called that, yes.  22 Q   In the sense that he holds the chief's name Wah Tah  23 Kwets, but he really is part of the Babine -- it's a  24 Babine name; is that correct?  25 A  Well, it's also a Wet'suwet'en name, yes.  Um hum.  26 Q   Yes, but he doesn't claim territory in the  27 Wet'suwet'en claim area, does he?  28 A   No, he doesn't.  29 Q   And he lives in Smithers; are you aware of that?  30 A   Yes.  31 Q   So the only difference between the Wet'suwet'en and  32 the Babine is the territories; is that fair to say?  33 A   The Babine, to my knowledge, would have had different  34 names for houses that they had also.  I mean, they  35 wouldn't have used the same titles, the same names for  36 houses because they would have had separate houses on  37 Babine Lake, where they would gather for fishing.  So  38 in that way they would be different.  They were  39 intergrated into a clan system like the Wet'suwet'en,  40 and the two groups are definitely interrelated.  41 Q   Well, they have the same name insofar as Wah Tah Kwets  42 is concerned, don't they, the same house name?  43 A   No, no.  Well, yes and no.  Wah Tah Kwets -- the  44 Babine Wah Tah Kwets, I don't know if he really  45 considers himself a part of the -- the same house as  4 6 the -- as the Wet'suwet'en Wah Tah Kwets.  I've never  47 asked him. 13202  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   I guess what I mean is he has the same chief's name as  2 the chief of the Wet'suwet'en Wah Tah Kwets house?  3 A   Just the way there's a Wet'suwet'en Gyologyet, Chief  4 Gyologyet, and there's also a Gitksan Chief Gyologyet.  5 But they aren't members of the same house at all.  6 Q   No.  And the Babine people have the same laws as the  7 Wet'suwet'en people?  8 A  Well, I haven't done any field work with the Babine  9 people, so I can't base a statement on any personal  10 experience.  11 Q   Well, if a hereditary chief was to advise you that  12 they are the same in every respect except for  13 territories, I take it you would accept that  14 statement?  15 A   It doesn't misrepresent things to -- no, I think it's  16 quite accurate.  The main difference between them is  17 they are two -- they have different territories,  18 different areas.  That's right.  19 Q   Now, one of your principal informants was Roy Morris,  2 0 wasn't it?  21 A   He was one of my informants.  I wouldn't say  22 principal, but he was an informant, certainly.  23 Q   He holds a very high name, Woos, W-o-o-s?  24 A   He does.  25 Q   Yes.  And I've handed up a passage from the cross-  26 examination of Mr. Morris on December 5, 6 and 7,  27 1988, and Mr. Morris is asked these questions and  28 gives these answers:  29  30 "'351 Q   You speak Wet'suwet'en, obviously?  31 A   Yes.  32 352 Q   Do you understand the Babine people?  33 A   Yes, yes, very well.  34 353 Q   Do you speak -- would you consider that  35 you speak the same language that they  36 do?  37 A   Yes.  38 354 Q   And do the Uu an we'teen people have  39 the same laws as the Wet'suwet'en --  40 A   Yes.  41 355 Q   — people?  42 A  (WITNESS NODS HEAD)  43 356 Q   And different territories?  44 A   Different territories.  45 357 Q   Can you think of any other way that the  46 Uu an we'teen people are different from  47 the Wet'suwet'en people apart from 13203  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 territories?  2 A   I don't really think so.'"  3  4 So you have no reason to disagree with the Roy Morris  5 statement there?  6 A   I should probably note that the only title that I'm  7 aware of that's repeated among the Babine and the  8 Wet'suwet'en is that Wah Tah Kwets, otherwise there  9 are other chiefly titles that are held at -- by the  10 Babine people.  11 MR. MACKENZIE:  I submit that excerpt from the transcript as the  12 next exhibit, my lord.  13 THE COURT:  Yes.  955-23.  14  15 (EXHIBIT 955-23 - TAB 23 - TRANSCRIPT EXTRACT, ROY  16 MORRIS, DEC. 5, 6, 7, 198 8)  17  18 THE COURT:  I don't think I've heard that name before, Uu an  19 we'teen.  20 THE WITNESS:  It's —  21 MR. MACKENZIE:  Well —  22 THE COURT:  If I've heard it before, it's gone.  I either  23 haven't noticed it or I've forgotten it.  24 MR. MACKENZIE:  25 Q   Perhaps Dr. Mills might know that word.  26 A   It's a title that is sometimes used or a name that's  27 sometimes used for the Babine people in the  28 Wet'suwet'en language.  29 THE COURT:  So it would also be the name for the Babine in the  30 Babine language?  31 THE WITNESS:  Right.  32 THE COURT:  They speak the same language.  33 THE WITNESS:  Well, they don't call themselves that — by that  34 title, I don't think.  35 THE COURT:  They don't?  36 THE WITNESS:  I don't think so because it means people over  37 there.  38 THE COURT:  I see.  39 THE WITNESS:  And they think we are the people here so —  4 0 THE COURT:  All right.  41 MR. MACKENZIE:  42 Q   And you've said in your report, I think, that the term  43 Wet'suwet'en means people of the lower drainage?  44 A   Right.  45 Q   And it is a name that's used by the Babine and other  46 people to refer to the Wet'suwet'en, similar to the  47 Wet'suwet'en saying those people over there? 13204  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  A  2  Q  3  4  A  5  Q  6  A  7  THE COURT  8  9  10  MR. macke:  11  Q  12  13  14  15  16  17  18  A  19  20  21  22  23  24  Q  25  26  27  28  A  29  Q  30  31  32  33  A  34  35  Q  36  37  38  A  39  40  41  42  43  44  Q  45  46  47  Right.  Yes.  But it's your view that the Wet'suwet'en also  use that word to refer to themselves?  Wet'suwet'en?  Yes.  Oh, yes.  : Do you know what happened to my copy of Duff? I  don't seem to have it. There it is. That's fine.  Thank you.  Sorry, Mr. Mackenzie.  JZIE:  Sorry, my lord.  We've spoken about the relationship between or the  similarities between the Wet'suwet'en and the Babine  people, and you will agree with me that there are  similarities or linguistic similarities with many of  the other Carrier people to the east of the  Wet'suwet'en's territory?  The Babine and the Wet'suwet'en people have basically  the same language, different dialects of it, and as  we've said before, the eastern Carrier people speak a  quite distinct language that is so distinct that it  should be linguistically considered as a separate  language.  Yes, I agree that you've said that.  You also said  that Father Morice, who spoke eastern Carrier, was  able to make himself understood in Moricetown and  Hagwilget?  Well, he certainly tried.  Yes.  And you also said that the fact of certain  feasts in the Stuart Lake and eastern Carrier area led  you to presume that the same things were happening in  the Wet'suwet'en area?  Yes, the fact -- and the fact that the Babine people  were invited to some Stuart Lake feasts.  There was a close relationship, according to the  historical sources, between the Babines and the people  at Stuart Lake?  Well, they -- they were in contact with each other.  And I had explained that I think that this contact  was -- had a deep antiquity, that one of the reasons  that it was useful for the Stuart Lake people to have  contact with the Babine Lake people is because of the  periodicity of the salmon for the Stuart Lake people.  I would suggest to you that the people in the Bulkley  River Valley have a sense of themselves as being part  of a greater Carrier-speaking group of people.  Has  that been your observation? 13205  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   The people -- the Wet'suwet'en -- is that --  2 Q   Yes.  3 A   -- have a sense of close linguistic affinity with the  4 Babine people and less so with the -- the eastern  5 people, who they referred to as the Nutseni.  6 Q   Now, I've handed to you a copy of an interview with  7 Mary George and Gloria George conducted by Leonard  8 George and Alfred Joseph on August 26, 1981.  Now,  9 this was one of the land claims interviews that you  10 reviewed in preparing your report; is that correct?  11 A   That's right.  12 MR. MACKENZIE:  I submit that as the next exhibit, my lord.  13 THE REGISTRAR:  Exhibit 955-24.  14 THE COURT:  Thank you.  15  16 (EXHIBIT 955-24 - TAB 24 - INTERVIEW AUG. 26, 1981, OF  17 MARY AND GLORIA GEORGE)  18  19 MR. MACKENZIE:  20 Q   And did you have occasion to meet Gloria George when  21 you were doing your research work in the Moricetown-  22 Hagwilget area?  23 A   Not very much.  She was mostly not resident in the  24 area.  She was going to law school in -- in -- at  25 U.B.C.  But she did come back to attend a funeral  26 feast, so I have met her.  27 THE COURT:  This is Gloria, is it?  28 MR. MACKENZIE:  2 9 Q   Yes, my lord.  30 A   Yes.  31 Q   Mary had a high chief's name, Tsibasaa; correct?  32 A   That's right.  33 MR. MACKENZIE:  Do you need a spelling for that?  34 THE REGISTRAR:  No.  35 THE COURT:  No.  36 MR. MACKENZIE:  37 Q   Thank you, my lord.  I want to refer you to a passage  38 of part of Gloria's comments, Gloria George's comments  39 in this interview.  On page 2 Gloria George is -- this  40 starts about halfway down page 2, and Leonard George  41 comments:  42  43 "The rest of this tape is based on law by  44 Gloria George."  45  46 Do you see that comment?  I think it's fair to say  47 Gloria George is speaking about land claims and the 13206  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Carrier people working together.  She also discusses  2 the natures of the Carrier people and the coastal  3 people.  And then about halfway through that passage  4 on page 2 she says:  5  6 "I again told them that the Carrier People  7 have to work together."  8 And she continues:  9  10 "There was a woman from both Anahim Lake and  11 Alexis Creek.  They are Southern Carriers.  12 How come we don't work with you, they said  13 that you are from way over on the west side,  14 we don't know what you're doing and yet  15 we're the same people.  Then we hear that  16 you're working with the coast people.  I  17 said, 'No, because Indian Affairs have  18 boundaries, our Indian people are always  19 inclined to follow Indian Affairs boundaries  20 and I am against that, I think we should  21 follow our own Indian boundaries and that  22 way all Carrier People would work with all  23 Carrier People.  Your crew should be doing  24 research with all the Burns Lake people, the  25 Stoney Creek people, the people in all that  26 region down there far as Bella Bella and  27 Bella Coola, that is our southern boundary.  28 Our eastern boundaries are right at the  29 Rockies.'"  30  31 Now, did you consider that passage when you prepared  32 your report?  33 A   I did.  34 Q   And would you agree with me that that reflects a sense  35 of a greater Carrier nation or national group?  36 A  Well, Gloria George was -- was talking about working  37 with the other Carrier peoples, yes, and she had  38 doubtless seen the -- the kinds of ethnographic maps  39 in her -- in her studies at U.B.C. that make the  40 Carrier seem like one group.  And she was also noting  41 that -- that there are some divisions and boundaries  42 that the Department of Indian Affairs have  43 established.  If -- if the regional districts of the  44 Department of Indian Affairs had not -- had not been  45 established, the -- there's a good chance that the  46 Babine people would be making a joint claim with the  47 Gitksan and Wet'suwet'en.  But since they have 13207  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 discrete territories, there is no problem in their  2 doing -- doing it independently.  3 Q   There's a reference about the middle of page 3 to a  4 map of the boundaries done in 1956.  Leonard George  5 says:  6  7 "I was looking at a map recently of the  8 boundaries of our area."  9  10 Now, do you recall ever seeing that map that Leonard  11 George and Gloria George are referring to?  12 A   No.  13 Q   Have your informants advised you about the existence  14 of that map?  15 A   No.  16 Q   So you would not be able to say whether that map  17 showed or illustrated this sense of greater Carrier  18 nation?  19 A   No, I couldn't.  20 Q   No.  Page 4 Gloria George says in the first sentence:  21  22 "...eventually you are going to have to work  23 strictly with a Carrier Tribal Council, and  24 we're a big nation, if we're all together,  25 we're the biggest crew in B.C."  26  27 You saw that passage in preparing your report?  28 A   Yes.  29 Q   Now, my question for you is having read those  30 passages, does that change your opinion as to the  31 distinctive nature of the Bulkley River Carrier or  32 Wet'suwet'en people, their culture, and other aspects  33 you've discussed in your report?  34 A   No.  I had read this before I made my report.  35 Q   And you are aware that the Broman Lake Band is part of  36 the Carrier-Sekani Tribal Council?  37 A   I am aware of that.  38 Q   You are aware that the Burns Lake Band is part of the  39 Carrier-Sekani Tribal Council?  40 A   I am aware of that.  41 Q   You are aware that the Francois Lake Band, otherwise  42 known as the Nee Tahi Buhn Band, is part of the  43 Carrier-Sekani Tribal Council?  44 A   Yes, I'm aware of that.  I'm also aware that they  45 consider themselves Wet'suwet'en and in terms of  46 language and kinship are best considered Wet'suwet'en  47 and that they -- they would like that to be 1320?  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 recognized.  2 MR. MACKENZIE:  And you're aware that the plaintiffs in this  3 action are members of those bands?  4 THE COURT:  I'm sorry, I don't understand the question.  5 MR. MACKENZIE:  6 Q   You are aware that plaintiffs in this action are  7 members of those bands?  8 A   I don't know that for a fact, but I could imagine that  9 could be the case because Burns Lake is within  10 Wet'suwet'en territory, and so is Nee Tahi Buhn, and I  11 forgot what the third one was.  12 Q   Broman Lake.  13 A   Broman Lake is also.  So that would stand to reason.  14 Q   You knew -- you know Marie Ogen, for example?  Did you  15 meet her?  16 A   You mean Sophie Ogen.  17 Q   Sophie Ogen or Marie Ogen.  18 A   I didn't know she was called Marie.  I know Sophie  19 Ogen.  I don't know Marie Ogen.  20 Q   Sophie Ogen lives at Broman Lake?  21 A   Yes.  22 Q   And she attended at the All Clans' Feast in April 4,  23 1986?  24 A   It was April 6.  Yes, she did.  25 Q   April 6th, 1986.  2 6 A   Um hum.  27 Q   And she came in to speak for the chiefs invited from  28 the Carrier-Sekani Tribal Council or with the chiefs  29 invited from the Carrier-Sekani Tribal Council?  30 A   Right.  31 Q   And now, being aware that those plaintiffs and those  32 people are members of the Carrier-Sekani Tribal  33 Council does not change your view as to the  34 distinctiveness of the Wet'suwet'en people?  35 A   No, the -- this boundary as between the Tribal  36 Councils doesn't reflect the -- the boundary between  37 the -- the people as they perceive it.  38 Q   Now, my lord, I've handed up a photocopy of a brochure  39 entitled "Carrier-Sekani Tribal Council," and I have  40 an original of that brochure, which I'm showing to my  41 friend.  42 Dr. Mills, have you seen this brochure before?  43 A   I believe you -- you sent it over to counsel some time  44 ago, and I reviewed it before I went on cross-  45 examination.  46 Q   But other than in that context you haven't --  47 A   No. 13209  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   -- had a chance to see it?  2 A   That's right.  3 MR. MACKENZIE:  My lord, I tender this as an exhibit for  4 identification.  It's a recent production, I'm  5 instructed, just produced for public consumption last  6 week or the week before.  Those are my instructions.  7 I'm not aware that -- I haven't gone any further than  8 that, my lord, but I do say that it should be in as an  9 exhibit for identification because I'm going to  10 discuss certain subjects in this brochure following  11 the line of questioning I've led up to so far.  12 THE COURT:  Why don't you conduct your examination and see how  13 we get along.  14 MR. MACKENZIE:  15 Q   Yes, my lord.  16 Okay.  Well, this brochure is produced by the  17 Carrier -- apparently produced by the Carrier-Sekani  18 Tribal Council, and it is said at the bottom of the  19 Carrier-Sekani Tribal Council brochure, page 2:  20  21 "From the Rocky Mountains in the east, to the  22 Babine River in the west, north to Thutade,"  23  24  25 and this is at the bottom of page 2 under "Who we are  26 and where we live," just saying that for the reporter  27 so the reporter can follow, my lord,  28  29 "and Tatlatui lakes and the Findlay River and  30 south to the Blackwater, Ootsa and Tahtsa  31 lakes, this is our homeland."  32  33 Now, Dr. Mills, Ootsa and Tahtsa Lake are within the  34 area claimed by the Wet'suwet'en people in this  35 lawsuit; is that correct?  36 A   Yes, it is.  37 Q   And are you able to say whether Thutade Lake is within  38 the area claimed by the Gitksan people in this  39 lawsuit?  40 A   Not entirely, no.  41 MR. MACKENZIE:  Now, assuming that this statement is true, this  42 is a statement made by the Carrier-Sekani Tribal  43 Council, does that change --  44 MR. RUSH:  Well, we don't know that.  45 MR. MACKENZIE:  Yes, that's true, my lord.  4 6 THE COURT:  Yes.  47 MR. MACKENZIE: 13210  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Assuming that statement is true, this is a statement  2 by the Carrier-Sekani Tribal Council in a brochure  3 produced by them, does that -- would that change your  4 opinion as to the distinctiveness of the Wet'suwet'en  5 people who are the plaintiffs in this litigation?  6 A   No.  If you turn to the next page in this, you'll  7 notice that there it's saying that, "Our homeland is  8 divided between the different tribes who make up the  9 Carrier and Sekani," or Sekani, and there is one, two,  10 three, four, five.  It says Wetsut'en -- that is the  11 same as Wet'suwet'en -- (Carrier), and it says Burns,  12 Broman, and Francois Lake.  So, in other words,  13 they're identifying Burns Lake, Broman Lake, and  14 Francois Lake as Wet'suwet'en.  They're aware there's  15 this problem that you have these people who have  16 their -- their homelands and now there's this problem  17 that there's a Department of Indian Affairs boundary  18 that doesn't correspond to the native categories.  For  19 example, the -- the Sekani are quite a distinct group  20 from the eastern Carrier, and yet they're -- they're  21 included in one sort of administrative region or --  22 region I think is the correct word -- in the  23 Department of Indian Affairs arrangement, and  24 similarly, Burns Lake and Broman Lake tend to be  25 administered through that same regional Department of  26 Indian Affairs office, but it doesn't correspond to  27 the native perception of things, and that's why you  28 have the Wet'suwet'en.  "wet'en" and "t'en" are almost  29 synonyms.  They both are referring to people.  So it's  30 just one of these -- that's exactly what was said at  31 the All Clans' Feast, that we all know where we  32 belong, the Wet'suwet'en know their boundaries.  The  33 problem is not that we don't know where we belong, the  34 problem is that it gets confused when you have these  35 two different systems that don't interface very well  36 with each other, the Department of Indian Affairs  37 category of what people are what people and the native  38 perception of what people are what people.  But the  39 people at Burns Lake and Broman Lake and Francois Lake  40 know -- recognize that they are Wet'suwet'en, though  41 they may have in some instances interrelated or  42 intermarried with -- with Babine people.  43 Q   And included in that list of tribes in the Carrier  44 group are the Babine people, correct, the Nadot'en?  45 A   Right.  46 Q   Yes.  And I point out that down at the bottom of the  47 list there's another group called Tsu yaz to t'en, 13211  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 which claims Ootsa, Tatsa, and Cheslatta Lakes.  2 You're familiar with that tribe or sub-tribe?  3 A   Not terribly.  As Duff said, there's just a few  4 remnants of the Cheslatta Reserve of different --  5 different peoples, and I would have to check my  6 sources again to speak more authoritatively to that  7 title.  8 Q   But that's referring to the Cheslatta group?  9 A   Yes.  I've forgotten, frankly, if that -- how that  10 term Tsu yaz to t'en is generally used.  11 MR. MACKENZIE:  I don't think it's necessary to mark that, my  12 lord.  13 THE COURT:  Oh, all right.  Thank you.  14 MR. MACKENZIE:  I've handed up a document entitled "Git-Shan  15 Carrier Tribal Council Meeting," and it's Canada  16 document 12401, and I understand that this is a  17 document that was taken from the files of the  18 Department of Indian Affairs.  I don't know.  Can my  19 friends -- do my friends know whether that was or not?  20 MR. RUSH:  Well, I should say, my lord, I've seen the document  21 before.  I don't contest its source.  22 THE COURT:  All right.  Thank you.  23 MR. MACKENZIE:  24 Q   This is a -- notes of a meeting held on March 6th,  25 1971, and it appears that the group here is discussing  26 the constitution of the Tribal Council.  Now, to start  27 off with, you know that the Tribal Council's name used  28 to be Git-Shan Carrier Tribal Council?  29 A   Yes.  30 Q   Yes.  And I take it you haven't reviewed the minutes  31 of this meeting in preparing your report?  32 A   No, I haven't seen this previously.  33 Q   No.  Well, at Roman numeral, large Roman numeral II on  34 that page the following discussion ensues or takes  35 place:  36  37 "II  The name of the society was accepted as  38 Git-Shan Carrier Tribal Council.  39  4 0 Mr. Howard Wale brought up that Tommy Tait  41 questioned 'Carrier' being on the name of  42 the society, Git-Shan Carrier Tribal  43 Council."  44  45 Now, do you know Howard Wale?  4 6 A   No.  47 Q   Was he alive when you were -- 13212  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   I don't know him.  He's -  2 Q   Sorry,  3 A   He's Wet'suwet'en.  4 Q   Yes.  And Tommy Tait?  5 A   I know Tommy Tait.  6 Q   You interviewed Tommy Tait?  7 A   Um hum.  8 Q   Next paragraph:  9  10 "Mr. Johnny Mack states that some of the  11 people of the Moricetown Band wanted their  12 own District Council."  13  14 And, of course, you knew the late Johnny Mack?  15 A   Yes, I did.  16 Q   He was chief Kloum Khun?  17 A   That's correct.  18 Q  19 "The District Council compromise of the eight  20 (8) bands of the Babine Indian Agency.  21  22 Chairman, Ray Jones, states that 'Carrier'  23 put in in respect of the Hagwilget and  24 Moricetown Band.  Mr. Ray Jones says that  25 District Council was named Git-Shan Carrier  26 Tribal Council because of the Git-Shan  27 people and the Carrier people of the Babine  2 8 Indian Agency."  29  30 And then skipping over two paragraphs:  31  32 "Mr. Howard Wale asked how Moricetown can  33 join Prince George Council when they deal  34 with Babine Indian Agency.  Mr. Ray Jones  35 asked Mr. Johnny Mack if he understood this.  36 Mr. Johnny Mack says he understood the  37 question.  38  39 Walter Joseph favours dealing with District  40 Council of the Babine Indian Agency."  41  42 And you, of course, knew Walter Joseph?  That would be  43 a hereditary chief?  44 A   Yes.  45 Q   And carrying over on page 2:  46  47 "Mr. Walter Harris thinks the Council 13213  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 shouldn't concern themselves about the name  2 of the society as this might cause  3 misunderstanding.  4  5 Mr. Mack says that the Carrier people belong  6 to four different agencies.  7  8 Mr. Howard Wale brought up that he couldn't  9 see how Prince George Agency would deal with  10 Moricetown if the Moricetown Band was also  11 dealing with Babine Indian Agency.  12  13 The three Moricetown delegates talked it  14 over and they have accepted the name of the  15 District Council."  16  17 Now, those passages really reflect the concerns that  18 you have already expressed in your evidence, that  19 Indian agency boundaries play a part in the fact that  20 Bulkley River Carrier-Wet'suwet'en people are making  21 this land claim as a distinct group; is that fair to  22 say?  23 A   I'm not sure if I quite follow it.  I'm sorry.  24 Q   Yes.  In your evidence you mentioned the question of  25 Indian agency boundaries?  26 A   In reference to the All Clans' Feast you mean?  27 Q   No, when we were just speaking about the Carrier.  28 A   Oh, just now.  Yes.  29 Q   You said that if not for the Indian agency boundaries,  30 it's possible the Babine people might have joined with  31 the Wet'suwet'en in this land claim?  32 A   Right.  I think probably the Gitksan, Babine and  33 Wet'suwet'en, all three, would have made a single --  34 it's conceivable, but if they -- if the Department of  35 Indian Affairs boundaries corresponded to that, that  36 boundary, but it doesn't.  37 Q   Did you review the history of the Indian agency  38 boundaries in determining -- in conducting your  39 research about the distinctive culture of the  40 Wet'suwet'en people?  41 A   I saw a bit of material about the -- regarding the  42 fact that they had divided the territory up in the way  43 they did.  44 Q   Does the fact that there are Indian agency boundaries  45 dividing the Wet'suwet'en people from the Babine  46 people change your opinion as to the distinctive  47 character of the Wet'suwet'en people in relationship 13214  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 to the Babine people?  2 A   No.  They still have the same relationship wherever --  3 however the Department of Indian Affairs boundaries  4 are drawn.  5 Q   Does the fact of Indian agency boundaries change your  6 opinion as to the distinction between the Wet'suwet'en  7 or Bulkley River Carrier people and the other Carrier  8 people to the east of the Bulkley River area?  9 A   No.  10 MR. MACKENZIE:  No.  11 THE COURT:  When you said in your report that the Wet'suwet'en  12 were a distinctive society, were you referring to them  13 in contradistinction to the Gitksan or were you  14 attempting to indicate that in your opinion they were  15 a society distinctive from the Babine and other  16 Carrier people?  17 THE WITNESS:  They are distinct.  They have their own set of  18 clans, names, and territories.  I don't mean to imply  19 that they did not have close linguistic and kin  20 relationships with the Babine people, but they -- they  21 are also discrete from them, but they do share a  22 common language.  23 THE COURT:  All right.  Thank you.  Should we adjourn, Mr.  24 Mackenzie?  25 MR. MACKENZIE:  My lord, may I submit this document as an  26 exhibit for identification?  27 THE COURT:  All right.  I took it your friend was admitting it.  28 MR. MACKENZIE:  Oh.  Well, I would prefer to have it put in in  29 that respect, my lord.  30 THE COURT:  955-25.  31 MR. RUSH:  I think there was some evident frailties on the  32 document face, but I don't have any difficulty with  33 putting it in as an exhibit.  34 THE COURT:  All right.  Thank you.  35  36 (EXHIBIT 955-25 - TAB 25 - TRIBAL COUNCIL MEETING, MARCH  37 6, 1971)  38  39 THE COURT:  All right.  And how long do you think you'll be  40 tomorrow, Mr. Mackenzie?  41 MR. MACKENZIE:  My lord, I will be to 11:15.  42 THE COURT:  All right.  Well, we'll plan on a full day plus for  43 tomorrow then, I suppose.  As I mentioned, I'm  44 required in the Court of Appeal on Monday, so we'll  45 have to finish tomorrow, and we'll stay as late as  46 necessary to do that.  Thank you.  47 THE REGISTRAR:  Order in court.  Court will adjourn until 13215  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 tomorrow morning at 9:30, my lord.  2 THE COURT:  Is 9:30 convenient?  3 MR. RUSH: I think it's convenient, my lord.  4 THE COURT:  All right.  Thank you.  5  6 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  7  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein to the best of my  12 skill and ability.  13  14  15  16    17 Leanna Smith  18 Official Reporter  19 United Reporting Service Ltd.  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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