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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-07] British Columbia. Supreme Court Mar 7, 1989

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 1291!  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Vancouver, B.C.  March 7, 1989  (PROCEEDINGS RECONVENED AT 10:00 a.m.)  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Tuesday, March 7, 1989, on  Delgamuukw versus Her Majesty the Queen at bar.  I  caution the witness, you are still under oath.  ANTONIA MILLS:  Previously sworn  THE COURT:  I regret to say that I find myself committed to  something that I had forgotten about at four o'clock  too, on Thursday afternoon, so I will not be able to  sit late on Thursday.  But -- and the other problem is  that Mr. Justice Robertson's funeral is tomorrow  morning at eleven o'clock and I would be guided by  what counsel say as to whether we should start at 9:00  and go for an hour and a half tomorrow morning.  MR. RUSH:  I was going to raise that subject, my lord.  It's --  with your lordship's permission, it is not feasible  for -- it will be difficult for me to sit this evening  after 4:00 and so I was going to promote -- propose --  COURT:  Promote is a good idea.  RUSH:  -- that we start at nine o'clock tomorrow and take  that hour and a half.  COURT:  Yes.  Is that satisfactory to counsel?  MACKENZIE:  Yes, my lord.  COURT:  Yes, all right.  We'll sit from 9:00 until 10:30  tomorrow and then again from 2:00 until 5:00.  RUSH:  Yes.  COURT:  All right.  Thank you, Mr. Rush.  THE  MR.  THE  MR.  THE  MR.  THE  EXAMINATION IN CHIEF BY MR. RUSH CONT'D:  Q   Dr. Mills, yesterday you gave evidence concerning the  portrayal in the kungax of the Wet'suwet'en people of  their original villages, their clans and crests, and  today I would like to ask you how the Wet'suwet'en  today use their oral tradition?  A   They use their oral tradition as a means of understanding their origins and their history antiquity in  their homeland and the origins of some of the villages  and of chiefs such as Goohlaht, Woos, et cetera, and  of crests, and of the House of Ginerhlaiya, for  example.  Q   Now, in your opinion -- I had not taken you through  all aspects of your opinion report, but I ask you to  refer to pages 56 through to page 80, and I would ask 12919  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 if you would adopt the description and the opinions  2 that you voice there about the genesis of the  3 Wet'suwet'en people as it appears from the kungax?  4 A   I do.  5 Q   Now, in your opinion you rely on other evidence in  6 order to determine the genesis of the Wet'suwet'en  7 people, and I take that from your heading at the top  8 of page 81, and I would ask you if you would, please,  9 to turn to page 83 to the last paragraph on 83 where  10 you state, and I quote:  11  12 "What is interesting and outstanding about  13 the Gitksan-Wet'suwet'en contact is that the two  14 people have coexisted next to each other,  15 intermarried and borrowed and learned from each  16 other and yet retained their separate languages  17 and cultures and maintained essentially peaceful  18 relations with each other over what appears to be  19 thousands of years."  20  21 And I would ask you on what do you base that in  22 respect of this opinion?  23 A   I base that on the portrayal in the oral tradition or  24 kungax of the Wet'suwet'en, also on the existence of  25 these two different languages and the analysis of  26 linguistics.  Archaeology provides us with a portrayal  27 of the antiquity of the occupation of this area, and  28 the stone clubs found at Hagwilget bespeaks another  29 kind of communication between these people.  30 Q   And what type of communication was that?  31 A   It's basically a sexual interchange or bespeaking  32 marriages between these people.  33 Q   And do you yourself have recent experience of  34 intermarriage between the Gitksan and Wet'suwet'en  35 people?  36 A   Oh yes.  Marriage between the Gitksan and Wet'suwet'en  37 takes place today as has been brought to the record of  38 this court by Dora Wilson-Kenni, for example, or  39 Alfred Mitchell.  It's something that's happened in  40 the past as recorded by Jenness, seen in the  41 genealogies, it's also depicted in the kungax.  42 Q   All right.  You made reference to the clubs.  Is that  43 reference to a monograph in which the clubs were  44 described, a monograph written by Wilson Duff?  45 A   Yes.  46 Q   All right.  I would ask Madam Registrar to place the  47 volume 3 before Dr. Mills and refer the court, my 12920  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  THE  THE  THE  THE  MR.  A  Q  A  Q  COURT  RUSH:  COURT  RUSH:  Q  A  Q  lord, to tab 26 of this volume  refer to page 114, and I would  the clubs to which you made ref  considerable way into the passa  number 101.  Yes.  These are among the stone  Hagwilget.  And these are the clubs describ  Yes.  And in terms of the description  page 116?  :  Page 116?  Yes, my lord.  :  Of tab 26?  Please, Dr. Mills,  ask you if these are  erence?  It's a  ge and it's on plate  clubs found at  ed by Wilson Duff?  , is that contained at  Yes.  Yes, it is.  And the photoplates are plates  found in the cache site and des  That's right.  And is this the basis for your  importance of the interrelation  of the Gitksan and Wet'suwet'en  In part, yes.  Thank you.  My lord, I would 1  marked as the next exhibit, pie  Yes.  REGISTRAR:  Be Exhibit 912, tab 26  COURT:  912?  REGISTRAR:  Yes, my lord.  A  Q  A  RUSH:  COURT:  of clubs that were  cribed by Mr. Duff?  opinion concerning the  ship and intermarriage  people in part?  ike this extract to be  ase.  RUSH:  Q  A  Q  A  Q  A  (EXHIBIT 912 - Tab 26: Wilson Duff Extract)  Dr. Mills, you also reviewed the historical record?  That's correct.  And beginning at page 84 of your opinion, there  follows a description of references and a description  and an opinion with regard to the historical evidence  that you reviewed; is that so?  Yes, that's so.  I would like you to, if you would please, turn to page  85 of your opinion and there is set out a lengthy  passage from the journals of Daniel Harmon.  Now, can  you tell his lordship who Daniel Harmon was?  Daniel Harmon was an American fur trader, an  independent fur trader who came overland and was the 12921  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 first white person to come and spend some time in  2 eastern Carrier territory.  3 Q   And what -- when you say "eastern Carrier territory",  4 what geographic area is that in relation to,  5 Moricetown?  6 A   Harmon was at Stuart Lake which is a considerable  7 distance to the east of the Wet'suwet'en territory.  8 It's on areas that are part of the Fraser River  9 watershed.  10 Q   And in Mr. Harmon's journals, what is it that is, in  11 general terms, portrayed, vis-a-vis the Stuart Lake  12 people?  13 A   He portrays a great deal of things.  I'm not sure what  14 your question is, entirely.  15 Q   To your knowledge, was Daniel Harmon the first of the  16 non-native people to come -- to come into contact with  17 native people of the eastern Carrier?  18 A   Yes, he was.  And he also was the first person to  19 spend some period of time there.  He was there from  20 1911 for a period of 16 years.  21 Q   Which year?  22 A   19 — sorry, 1811, he arrived in 1811.  23 Q   All right.  I wonder if you would look, please, to  24 volume 3 again.  If you look at tab 27, at tab 27  25 there appears a monograph that's entitled, "Sixteen  26 Years in the Indian Country, the Journal of Daniel  27 Williams Harmon 1800-1816."  And you made reference  28 and relied upon this passage or portions of Daniel  2 9 Harmon's work?  30 A   I did.  I should just correct that, he arrived in the  31 Stuart Lake or eastern Carrier region in 1811 and  32 didn't spend 16 years there, the -- but until 1816, in  33 other words, five years.  34 Q   And the passage that you cite at page 85 of your  35 opinion, that's reproduced -- or at least found at  36 page 253 through 254 of Mr. Harmon's journal; is that  37 so?  38 A   Yes, it is.  39 Q   Now, who is Mr. Harmon describing in this passage?  40 A   He is describing the eastern Carrier, the Stuart Lake  41 Carrier.  42 Q   Okay.  And from your understanding, how were the  43 eastern lake -- or Stuart Lake Carrier related to the  44 Wet'suwet'en?  45 A   The eastern Carrier are quite discreet people from the  46 Wet'suwet'en and Babine people.  There is a major  47 division in their language as has been noted by Morice 12922  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 and Kari, linguists in general.  But they were people  2 who had some interaction with each other and knowledge  3 of each other.  4 Q   Okay.  Did they share aspects of social or cultural  5 institutions?  6 A   In some ways they did, yes.  7 Q   Okay.  Now, can you tell us how the Harmon description  8 is relevant to the Wet'suwet'en, if it is?  9 A   The Harmon -- this Harmon passage is describing feasts  10 among the Stuart Lake Carrier and it's describing  11 feasts to which Babine people came as well.  12 Q   All right.  If you could just pause there.  And the  13 Babine people, how are they related to the  14 Wet'suwet'en?  15 A   The Babine people are very closely related to the  16 Wet'suwet'en.  They speak a common language and are  17 closely interrelated.  18 Q   Okay.  Carry on then?  19 A   This passage from Harmon describes the feast as it was  20 taking place in 1811 among the eastern Carrier and  21 describes a number of the features of the feast.  For  22 example, he -- he states that they are held both  23 for -- at the time of the death of someone and he  24 calls these other ones "entertainments" but in effect  25 what he describes is that the person who has made such  26 an entertainment is always a chief, and he takes up a  27 beaver, announces where it was killed so that all  28 those present may know that it came from his land.  29 That's quote, unquote.  It's a feast in which the  30 chief is validating his ownership to the -- to his  31 land at a public ceremony and feeding the people from  32 that land not only beaver meat but berries as is  33 described in the passage as well.  34 The passage also describes some of the other  35 features of the feast, it includes singing to rattles,  36 painting of faces, blowing of down, and he mentions  37 that there are both the dancing and a great variety of  38 songs.  39 Q   Now, have you in your review of the history or  40 ethnographic literature encountered an account of the  41 feast such as this before?  42 A   No.  This is the first account we have of the feast  43 among the Carrier people, it's the earliest, earliest  44 account.  45 Q   Okay.  And can you say how this account would relate  46 to the Wet'suwet'en, if it does?  47 A  Well, one can presume that if eastern Carrier were 12923  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  Q  6  7  A  8  9  10  11  12  Q  13  14  A  15  16  17  18  19  20  21  22  23  24  Q  25  26  27  A  28  29  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  THE  COURT  43  MR.  RUSH:  44  THE  COURT  45  MR.  RUSH:  46  Q  47  holding feasts of this nature in 1811, that the  Wet'suwet'en, who are closely related to the Babine,  who were some of the people invited to such feasts,  were also holding such feasts in their own territory.  Okay.  And what would be the basis for that  assumption?  Well, as I said, the -- it would be difficult to  presume that the eastern Carrier would be having this  system without their neighbouring people as well,  especially given that Harmon records that the Babine  people were invited to such feasts.  And what's the significance of the invitation of the  Babine people to the Stuart Lake feast?  It means that they are integrating their neighbouring  people into their feast system as well.  The --  perhaps I'm going beyond this particular passage, but  the Stuart Lake people had periodic salmon supplies  and as a result of that, they would go -- and in the  years when they had fewer salmon particularly -- to  trade with the Babine Lake people, and so they were  integrated through these ties and these were not just  trading ties, these were ties that were conducted  through a feasting mechanism or system.  So is it your opinion that the description that's  given of the Stuart Lake Carrier feast would be a  description that would apply to the Wet'suwet'en?  In many ways, yes.  The feature of the way the beaver  being presented is -- it differs from -- a bit from  the Wet'suwet'en accounts, but there is overlap.  All right.  Now, did you examine other historical  accounts of the Wet'suwet'en?  I did.  Okay.  And did you have occasion to look at work  attributed to Peter Skene Ogden?  I did.  Okay.  I just ask you --  :  Mr. Rush, you didn't mark this tab.  Oh yes, I will do that.  I have some more to ask the  witness on the subject.  If your lordship will just  allow me a moment, I'm going to mark two at the same  time.  :  Yes, all right.  I have a few further questions on that.  :  Fine.  In terms of the passage attributed to Peter Skene  Ogden at page 87, did you have an occasion to refer to 12924  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  A  3  THE COURT  4  MR. RUSH:  5  Q  6  7  8  9  10  A  11  Q  12  13  A  14  15  16  17  18  19  Q  20  A  21  Q  22  A  23  Q  24  25  A  26  Q  27  28  29  A  30  31  32  33  34  Q  35  36  37  38  39  40  41  42  43  44  45  46  47  journals that were done by him or by others?  Yes.  :  This is tab?  This is at tab 41, my lord.  If you look at tab 41, Dr. Mills, I would ask you  if under tab 41 you can identify the work that's  contained under the title, "A Tale of Western  Caledonia"?  Yes.  Now, what can you advise the court about the work of  Mr. Ogden, work attributed to Mr. Ogden?  These are accounts of fur traders coming into the  territory, interested in the fur -- establishing a fur  trade with the indigenous people in this area, and we  have the first account by a white man of the  Wet'suwet'en portrayed in this passage that I've  quoted in my report.  At page 87?  At page 87.  And Mr. Ogden was a fur trader?  That's right.  And what period of time was it that he was engaged in  the fur trade?  In the 1820s.  And what is it that he describes?  And I'll just refer  you to the passage at page 87 of your report.  What do  you say that he is describing in this quotation?  He is describing the village that's now called  Moricetown, previously called Kya Wiget, he calls it  Hotset which is a word that means village, but his  description of the topography leaves no doubt that he  is referring to Moricetown.  Okay.  Now, I'm just going to refer you to, if you  will, to the passage at tab 41 that's found at page 43  of the extract on "A Tale of Western Caledonia".  Now  he indicates in the second full paragraph on 43, and  I'm quoting:  "Formed into Indian file, myself leading the  column, we descended into the plain adjoining the  lodges.  Of these there were twenty-eight, of  large size, each of them affording accommodation,  on an average, to six or seven families.  The  village was divided into two, by the course of the  river, which at some distance above and below was  of considerable breadth, but at this particular 12925  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 spot was contracted within very narrow limits by  2 steep rocks on either side, rising perpendicularly  3 to a great height, their upper masses overhanging  4 towards each other, and making a fearful chasm,  5 through which the torrent foamed and boiled, as it  6 dashed madly along.  Over the narrowest part,  7 where it was not more than forty feet across, lay  8 a huge pine-tree stripped of its branches, which  9 had been felled designedly to form a bridge  10 of communication between the opposite sides.  The  11 neighbouring country seemed to consist of a  12 variety of strong wood and prairie, in unequal  13 proportion, the former by far predominating; while  14 in the immediate vicinity of the village were  15 scattered groups of stunted aspens, which  16 contributed to form, on the whole, an engaging  17 prospect."  18  19 Now, you say that it was by his reference to the  20 topography that you can determine that it was Kya  21 Wiget or Moricetown?  22 A   That's correct.  23 Q   And it seems obvious to me but perhaps you can tell  24 his lordship what it is that you draw from that  25 passage that allows you to determine what it is he is  26 talking about, that is, what Mr. Ogden is talking  27 about?  28 A   He is talking about a place where the river has cut a  2 9 remarkable chasm and which can at the same time be  30 bridged by a large tree.  This seems to be describing  31 Moricetown exactly.  There are no other spots that  32 correspond to this description.  33 Q   All right.  And I would just ask you to move ahead two  34 pages to page 45 of this reference where at the bottom  35 of the first full paragraph it is stated, and I quote:  36  37 "Baptiste followed me closely, and we were  38 presently ushered with great formality into the  39 lodge of Sniggletrum --"  40  41 That's S-N-I-G-G-L-E-T-R-U-M.  42  43 "-- the nom de guerre by which I understood the  44 chief to be distinguished."  45  46 Now, in reference to that name, does that name --  47 is that name familiar to you or do you draw any 12926  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 conclusions about the appearance of that name in this  2 passage?  3 A   Yes.  This name seems to be a transliteration of  4 Smogelgem.  5 Q   And that's S-M-O-G-E-L-G-E-M.  6 And Smogelgem, can you identify that name for the  7 court for the record?  8 A   Smogelgem is the head chief of one of the houses in  9 the Laksamshu clan.  It's a name that is recognized by  10 Jenness and is in existence today in that same  11 capacity.  12 Q   Now, I just want to refer you to one other passage,  13 Dr. Mills, which carries on from the last quoted  14 passage, and I quote:  15  16 "Being seated a la Turque, on a bear-skin  17 spread for my accommodation, Baptiste stationed on  18 my right hand, and my two Secanny  --"  19  20 S-E-C-A-N-N-Y,  21  22 "-- guides, who struck to me wherever I went, on  23 my left —"  24  25 I presume he meant "stuck".  26  27 "-- I had leisure to look about me; Baptiste in  28 the mean time preparing tabacco for a general  29 smoking bout, the usual preliminary to the  30 transaction of all ceremonious business here as  31 elsewhere among the Indians.  The lodges, I  32 observed, were built on the same model as the  33 Carrier, though more spacious, and of neater  34 construction; boards split from the cedar-tree  35 forming the sides, instead of the peeled sapling  36 firs used for that purpose by the latter.  Some of  37 these boards were of great breadth; one which I  38 subsequently measured was more than four feet,  39 while others which I casually saw, appeared even  40 to exceed that limit.  Among other ornaments  41 indicative of a commercial intercourse with the  42 natives of the coast, I noticed a couple of paltry  43 mirrors nearly a foot square, set in deal frames  44 gaudily ornamented with gilt and varnish.  On one  45 of the large boards just mentioned also, a brig  46 under full sail was rudely dilineated in charcoal  47 and vermillion - the work, as I understood, of one 12927  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 of the --"  2  3 It looks like Chyniseyan, C-H-Y-N-I-S-E-Y-A-N.  4  5 "-- chiefs who periodically come up the river to  6 trade."  7  8 Now, I just wanted to ask you about Mr. Ogden's  9 observations about the lodges.  What in his  10 description, what do you take, if anything, from that  11 description?  12 A   He is describing the large cedar plank houses, the  13 houses which are -- give the name house to matriline  14 for the Wet'suwet'en in place at Moricetown, and he  15 says they are 20 -- he saw 28 such lodges.  16 Q   Now Sniggletrum appears again in the passage at page  17 47 and I refer you to that.  18 THE COURT:  I suppose you would say that Chyniseyan might be  19 Tsimshian?  20 THE WITNESS:  Yes, I would.  21 THE COURT:  Thank you.  Page 48?  22 MR. RUSH:  Yes, my lord, at page 47.  23 THE COURT:  Forty-seven.  2 4 MR. RUSH:  25 Q   At the end of the first full -- well, at the end of  26 the first paragraph, and I'm quoting:  27  28 "His answer was favourable to my views, and after  29 a protracted conversation, I left the lodge to  30 return to my men.  Before departing, however,  31 presents of furs were made to me by  32 'Sniggletrum' —"  33  34 same spelling,  35  36 "-- and several of his principal men, which I  37 caused to be transferred to the tent."  38  39 And I wondered if you had any comment with regard to  40 the reference contained in that passage on page 47?  41 A  Again, the Sniggletrum seems to be what we would have  42 said as Smogelgem, the name of one of the Laksamshu  43 chiefs of the Wet'suwet'en.  44 Q   And do you take anything from the use of the language  45 "several of his principal men"?  46 A   This concept of "principal men", he seems to be  47 referring to his recognition of these -- of the 12928  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  Q  4  5  6  7  8  9  10  11  A  12  Q  13  A  14  15  16  Q  17  A  18  19  20  21  22  23  Q  24  25  26  A  27  28  Q  29  A  30  31  32  33  34  35  36  Q  37  38  39  40  A  41  42  43  MR. RUSH:  44  45  THE COURT  46  MR. RUSH:  47  THE REGIS1  chiefly system among the Carrier people or the  Wet'suwet'en.  Now, Dr. Mills, in terms of the passage that I have  directed your attention to which is found at tab 27,  that is to say the Harmon journals and as well the  journals of -- or the accounts, rather, of the  passages referred to Peter Ogden, do you accept these  accounts and the passages that I've directed you to in  the accounts, as reliable accounts of what was going  on at the time and what was observed?  I do.  And can you tell his lordship why?  These are eye-witness reports of the observations of  these people.  There seems to be no reason to presume  that they would be in any way inaccurate.  Okay.  They differ from the accounts that would be made,  obviously, by an anthropologist.  These people were  fur traders and their interest was in establishing fur  trade and so they obviously don't go into a great  study of the social structure of these people, but  they do reflect it in their observations.  Okay.  Are there other features, apart from those that  you've just mentioned, that reflect on the reliability  of the accounts?  They are dated -- they are apparently recorded at the  time of the observations were made.  Okay.  Do you note any weaknesses in the account?  In the passage that I quoted from Harmon, it doesn't  show through.  A bit more of the passages, in reading  the larger works, these people had certain  misconceptions or prejudices against the people that  they were establishing fur trade with, but the  particular specifics of these details I think stand as  reported.  Okay.  And in terms of the account by Peter Ogden or  works attributed to Peter Ogden, do you have anything  that you can assist the court on in terms of the  authorship of the account?  This account was written down, it's in some cases it  seems that it was -- there was -- he was reporting on  other people who accompanied him as well.  My lord, I would like to mark first at tab 27, the  Harmon reference.  :   913.  Thank you.  PRAR:  Exhibit 913. 12929  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 (EXHIBIT 913 - Tab 27: "Sixteen Years in The Indian  2 Country, The Journal of Daniel Williams Harmon  3 1800-1816")  4  5 MR. RUSH:  And at tab 41, the extracts from the Ogden account.  6 THE COURT:  Yes.  914.  7 MR. RUSH:  Thank you.  8 THE REGISTRAR:  Exhibit 914.  9  10 (EXHIBIT 914 - Tab 41:  "A Tale of Western Caledonia")  11  12 MR. RUSH:  13 Q   Have you made other references to historic -- the  14 historical record which specifically eyes in those  15 references, Wet'suwet'en people and activities of the  16 Wet'suwet'en people?  17 A   The next record we have is in 1866 when the Collins  18 Overland Telegraph line was being made.  They are  19 attempting to make a telegraph line from San Francisco  20 to Siberia and they came through Wet'suwet'en  21 territory in that process, and we have the testimony  22 of one Mr. Elwyn who was among that party, describing  23 "several lodges", quote unquote:  24  25 "Several lodges but the owners were salmon fishing  26 at and in the vicinity of Rocher de Bouille  27 (Hagwilget).  They are now returning to their  2 8 homes."  29  30 Q   Okay.  Now, if I may just ask you to pause for a  31 moment.  Please look to tab 37 and at tab 37 there is  32 apparently a handwritten letter dated September the  33 4th, 1866.  Is this the Elwyn reference that you've  34 drawn our attention to?  35 A   That's correct.  36 Q   All right.  And look, please, to the second page from  37 the beginning.  Now beginning at the top of the page,  38 and I quote:  39  4 0 "We met with no Indians between --"  41  42 It looks to be Stella.  Is that —  43 A   Um-hmm, that's correct.  44 Q   And are you able to identify the reference to Stella?  45 A   It's a place in the eastern Carrier territory.  4 6 Q   Okay.  And:  47 12930  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 "-- the first crossing of the Wastonquah --"  2  3 Spelled, W-A-S-T-O-N-Q-U-A-H, it sounds like  4 Wastonquah.  5  6 "-- main tributary of the Skeena."  7  8 And what is the reference there?  9 A   That's the Wadzun Kwah or Bulkley River.  10 Q   Okay.  And when you say it is the Wadzun Kwah, what --  11 that is -- is that a Wet'suwet'en description for the  12 Bulkley?  13 A   That's the Wet'suwet'en name for the Bulkley River,  14 um-hmm.  15 Q   Thank you.  And continuing in the quote:  16  17 "-- a distance of about one hundred and thirty  18 miles we passed several lodges but the owners were  19 salmon fishing at --"  20  21 A   "At and in."  22 Q   Oh, I see.  23  24 "-- at and in the vicinity of Rocher de Bouille.  25 They are now returning to their homes."  26  27 And then he goes on to talk about the place of the  28 large -- another large village on the Wadzun Kwah.  29 Now, how do you as an anthropologist interpret this  30 reference to the village and the salmon fishing in the  31 vicinity of Rocher de Bouille, that's spelled  32 R-O-C-H-E-R, new word D-E, new word, B-O-U-I-L-L-E?  33 A   It's an account by this man of the salmon fishing of  34 the Wet'suwet'en at -- on the Bulkley River taking  35 place in 1866, saying that these people both go to  36 this place for salmon fishing and then have other  37 homes that they return to at other times of the year.  38 Bespeaks something of their seasonal cycle as well.  39 Q   All right.  Now, this letter is penned by Mr. Elwyn?  40 A   That's correct.  41 Q   And can you say why, if you do, why do you accept the  42 reliability of the account that's contained herein?  43 A   It seems that he was just keeping an account of his  44 experiences and it's made at about the time -- written  45 about the time that he was experiencing these things,  46 so it seems to be an accurate eye-witness account that  47 he saw. 12931  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Q   Okay.  2 THE COURT:  What would you say is that word that gives the  3 location, looks like Agglegate, A-G-G-L-E-G-A-T-E?  4 THE WITNESS:  That's right.  By which I would infer he was  5 meaning Hagwilget.  6 THE COURT:  Yes.  Ever seen it spelt that way before?  7 THE WITNESS:  Oh, I've seen it spelt lots of ways, including  8 this.  9 THE COURT:  All right, thank you.  You think that is an A-G-G,  10 do you?  11 THE WITNESS:  I do.  12 MR. RUSH:  My lord, which page are you referring to?  13 THE COURT:  The first page.  14 THE WITNESS:  The first page.  15 MR. RUSH:  16 Q   Oh, I see, at the top.  He says that it's Agglegate,  17 "Junction of Skeena and Wastonquah".  Is that what you  18 see?  19 A   Yes, yes.  The way it's spelt one would perhaps think  20 it was spelt Applegate, but given that it's said to be  21 at the junction of the Skeena and the Wastonquah I  22 think it's more appropriate to think it's Agglegate  23 which is Hagwilget.  24 Q   My lord, I would like to mark that letter as the next  25 exhibit, please.  2 6 THE COURT:  Yes.  27 MR. MACKENZIE:  Excuse me, my lord, what's the basis of marking  28 that letter?  29 THE COURT:  I suppose on the fact that the witness says she has  30 relied upon it for her historical review.  31 MR. RUSH:  Yes.  And also it's an archival document, my lord,  32 and on that basis alone, although it's not indicated  33 on the document.  If there had been some concern about  34 it I would have made that known, but that's the basis,  35 it's admissible on that basis alone, but the witness'  36 consideration of this makes it admissible at least for  37 the points that she has referred to for the truth of  38 the content.  39 THE COURT:  What about the material attached to this tab?  40 MR. RUSH:  I don't know what you have attached to it, my lord.  41 THE COURT:  Well, there is a map of Francois Lake.  42 MR. RUSH:  That's not in tab 38?  43 THE COURT:  It's in tab 37 where I have Mr. Elwyn's letter.  44 MR. RUSH:  Right.  My lord, tab 38 should contain the map.  And  45 I don't know --  46 THE COURT:  Well, it's in tab 38 as well.  Then after the map  47 there is a -- it's a monograph, "Explorations and 12932  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. Mills (for Plaintiffs)  In chief by Mr. Rush  Field-Work of the Smithsonian Institution in 1940".  Should that be there?  MR. RUSH:  No.  THE COURT:  Shall I return it to you?  MR. RUSH:  Yes.  I think these were just misplaced and somehow  THE  MR.  THE  MR.  THE  MR.  COURT  RUSH:  COURT  This is a monograph  MR. RUSH  the copying got out of order.  that you should have but I'll refer this to you in  just a moment.  Yes, all right.  It's in the wrong spot.  Well, I'm not admitting Mr. Elwyn's letter at the  moment as proof of the truth of the facts stated.  MACKENZIE:  My lord, I understand that your ruling with  respect to that is on the basis that it's an archival  document.  That, to my understanding, is correct.  COURT:  I didn't get it that far, but I suppose I can mark  it on that basis as well.  MACKENZIE:  My submission is that these things don't go in  as the truth simply because Dr. Mills looked at them,  but I, of course, have no objection if my friend is  putting it in as an archival document.  My lord, it's precisely because Dr. Mills does review  it that it goes in for the truth of the statement, and  that's our argument, that it's admissible in any event  because it's archival, but it's admissible for the  truth of its content because Dr. Mills has reviewed it  and has given evidence of it.  COURT:  I'm not sure I've heard that argument yet, Mr. Rush.  RUSH:  This is the argument I advance about why it's  admissible for its content.  Yes.  But I don't think we've -- I don't think I've  ruled on that, have I?  No, no, that's true.  The whole issue of  admissibility for the content is an open issue.  COURT:  This will be Exhibit 914.  REGISTRAR:  915, my lord.  COURT:  For purposes yet to be determined.  How are you  spelling Elwyn?  WITNESS:  E-L-W-Y-N, my lord.  COURT:  Thank you.  REGISTRAR:  Exhibit 915, my lord.  914 is tab 41.  COURT:  Yes, thank you.  (EXHIBIT 915 - Tab 37:  Mr. Elwyn's Letter)  MACKENZIE:  My lord, if I can get that clear now, your  lordship's comment to Mr. Rush now is that you have  THE  MR.  THE COURT  MR. RUSH  THE  THE  THE  THE  THE  THE  THE  MR. 12933  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  THE  THE  THE  THE  THE  THE  THE  MR.  yet to rule on the truth of the contents of documents  which are archival documents?  COURT:  Yes.  MACKENZIE:  And your lordship has yet to rule on the truth  of documents put in as a result of the experts having  reviewed them.  So there are two categories?  COURT:  Yes, that's correct.  MACKENZIE:  All right.  I agree with that, my lord  RUSH:  Q   My lord, please direct your attention to tab 38, and  Dr. Mills, if you'll look at 38.  Now, this is where  the map is located.  Can you identify the map that's  at that tab, Dr. Mills?  A   Yes, I can.  Q   And what is it, please?  A   It's a map that was drawn by Mr. Manson who travelled  overland from the West Coast in Gardner's Channel in  1867 through to a lake that he calls Lac des Francois  which we know as Francis Lake or Francois Lake.  Q   And what is it that is contained on this map that is  of significance to you in terms of your historical  review about the Wet'suwet'en?  A   He notices a village which he marks by four inverted  Vs at the northwestern border of Lac des Francois.  COURT:  Whereabouts?  WITNESS:  It's on the northwestern shore.  COURT:  Of Francois Lake?  WITNESS:  Um-hmm.  COURT:  Oh yes.  Is that four inverted Vs or is that a  village with three inverted Vs?  WITNESS:  Well, there are four inverted Vs and there is also  the word "village".  Yes, all right.  Doesn't matter.  COURT  RUSH:  Q  A  Q  A  Q  A  Q  The writing in the lower right-hand corner of this  map, is that yours?  No.  All right.  Do you understand the map to come from the  National Archives RG 12 series as indicated at the  bottom right-hand corner?  Yes.  And did you rely upon this map in terms of your  historical review?  Yes.  And again, in terms of its reliability, can you advise  his lordship why you would accept what is depicted on  the map as the village with the four inverted Vs or 12934  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  MR.  MR.  THE  THE  MR.  THE  three inverted Vs as the case may be?  A   This is a map that Mr. Manson made to record what he  had found on his expedition, and it seems that it was  as accurate a portrayal as he could make of his voyage  and what he saw there.  If he had noted a village  there one could reasonably presume there was a  village, though in 1867 at this place, though, what is  meant by four inverted Vs one can only presume.  COURT:  Is there a village there now?  WITNESS:  No.  There is a house there now.  COURT:  Thank you.  RUSH:  Q  Do you know the person who inscribed the words that  are in the lower right-hand corner of this map?  No.  Thank you.  That will become clear in subsequent  testimony, my lord.  Tab 38 I'm going to ask to be  marked as the next exhibit, it's an archival document  taken from the National Archives Series as indicated.  All right, 916.  REGISTRAR:  Exhibit 916, tab 38.  MACKENZIE:  Is that subject to the same reservations that we  made with respect to the previous Exhibit, 915, my  lord?  COURT:  Yes.  A  RUSH:  COURT:  (EXHIBIT 916  Exploration)  Tab 31  Sketch of Mr. Manson's  MR.  RUSH:  Q  A  Q  A  Q  A  Q  A  Now you also drew upon the work of the Oblate  missionaries in order to canvass the historical  accounts regarding the Wet'suwet'en people; is that  correct?  That's correct.  And you had an occasion to refer to Father Le Jacq's  observations?  I did.  And at page 90 of your opinion, there are two passages  taken from Father Le Jacq's correspondence; is that  correct?  That's correct.  How did you come by this material?  This -- these were among the unpublished letters of  Father Le Jacq which are in the archives of the  Oblates des Chatelets in Ottawa.  And the translation for that is contained in your 12935  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 parenthetic reference to the archives in the report  2 under the quotation?  3 A   That's correct.  4 Q   And could you advise the court about who Father Le  5 Jacq was?  6 A   Father Le Jacq was an Oblate Missionary, he was French  7 in origin, and he was sent to this area in 1875.  8 Q   And where was he located?  9 A   Stuart Lake.  He was primarily based in Stuart Lake  10 but he did travel to Wet'suwet'en territory as well,  11 and --  12 Q   Sorry?  13 A   In fact, he saw that a church was built at Rocher de  14 Bouille or Hagwilget.  15 Q   Did he reside at Moricetown or Hagwilget?  16 A   No, he didn't.  17 Q   He resided at?  18 A   Stuart Lake.  He travelled also to Fraser Lake.  19 Q   And the passage that's at the top of page 90, can you  20 explain the context of the passage?  21 A   Father Le Jacq is describing the way the people around  22 Stuart Lake live.  He says, and I quote,  23  24 "...they pass the majority of the year in the  25 woods: each one in his respective hunting  26 territory or fishing territory:  Each family has  27 its lake and its mountain."  28  29 And he goes on to talk about how they disperse as  30 well.  31 Q   All right.  And in terms of the Wet'suwet'en people,  32 how is this passage significant?  33 A   This is talking about the eastern Carrier people but  34 it's -- what he is describing is that the -- on some  35 kind of family basis these people have discreet  36 hunting and fishing territories.  And it's talking  37 about the people to the east of the Wet'suwet'en.  38 Q   All right.  And would that relate to the Wet'suwet'en?  39 A   Indirectly in describing the social -- something about  40 the social structure of the eastern Carrier, you can  41 infer something about the social structure of the  42 western Carrier at this time and that presumably they  43 would also be having territories that were considered  44 the property of particular families.  Families is  45 Father Le Jacq's unanthropological term.  Some kind of  46 kin grouping.  I'll describe what kind of kin grouping  47 later on. 12936  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Q   All right.  The passage that is quoted in English at  2 page 90 at the top of the page, is that also contained  3 in French at the tabulation 28 of volume 3?  4 A   Yes, it is.  5 Q   All right.  And are you able to assist us in terms of  6 just isolating what portion of the letter that's  7 contained here, that contains the translated portion?  8 A   I've -- this tab includes a considerable amount of the  9 correspondence.  It's not -- the particular passage  10 isn't leaping to my finger tips but I'll find it.  11 Q   Well, I'll just ask you to pass on and we could  12 perhaps identify that at a later time.  The passage  13 that's at the second passage which is found on page  14 90, can you assist us in determining the people that's  15 being talked about in this passage?  16 A   This is again talking about the Stuart Lake Carrier.  17 Q   Yes.  And what is there of significance in this  18 passage?  19 A   Father Le Jacq is talking about the feasts of the  20 Stuart Lake Carrier, he is saying that they have never  21 been abolished, "that it will be easier to  22 Christianize them than to abolish them: they are  23 deeply rooted in the heart of our savages," and he is  24 asking for advice about what he should do in this  25 regard.  26 Q   And in terms of this significance for the  27 Wet'suwet'en, what can you say?  28 A  Well first of all, the significance for the Stuart  29 Lake Carrier, it indicates that the feasts were, as he  30 says, "deeply rooted" in their heart despite the fact  31 that the missionary was doing whatever he could to see  32 that they were abolished and not practised.  And we  33 can presume that if this is the case for the eastern  34 Carrier, it's equally true for the Wet'suwet'en, and  35 we later have accounts which testify to that, the  36 validity of that presumption.  37 Q   All right.  I take it there were subsequent Fathers  38 who in fact visited the Wet'suwet'en people at  39 Moricetown and Hagwilget?  40 A   That's correct.  41 Q   All right.  Do you have a reference with respect to  42 this unpublished letter dated November of 1875?  43 A   I couldn't find it among these letters.  I thought  44 perhaps it had gotten misclassified with the Father  45 Morice letters, but to date I haven't been able to  46 find the source of this second one on page 90.  47 THE COURT:  All right, thank you.  Is the first one in tab 28? 12937  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  THE  WITNE  2  THE  COURT  3  THE  WITNE  4  THE  COURT  5  MR.  RUSH:  6  7  THE  COURT  8  MR.  RUSH:  9  Q  10  11  12  13  A  14  15  16  Q  17  18  A  19  Q  20  21  A  22  23  24  25  26  Q  27  28  A  29  30  31  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  44  A  45  46  Q  47  :  Yes, it is.  Can you show me where?  :  I can but it will take a while.  That is right.  That's all right.  I was going to ask Dr.  than to --  Yes, all right.  Mills at the the break rather  it  Now, can you refer the court, Dr. Mills, to why  would be that you would accept the accounts of  doctor -- of Father Le Jacq in the circumstances that  are described in these two unpublished letters?  He is making an account to his superior, the Bishop,  and again there is no reason, no motive to think that  that information that he conveyed would be inaccurate.  Thank you.  Now, did you also refer to the works of  Father Morice in your historical review?  I did.  And can you tell his lordship something about Father  Morice?  Father Morice was another Oblate Missionary also from  France who came to the Stuart Lake Carrier in 1885 and  was in charge of the area that included Hagwilget  until about 1906.  He was primarily based in Stuart  Lake but he did travel to Hagwilget as well.  Did he record observations made about the eastern  Carrier or the Stuart Lake Carrier?  He did indeed.  He was a voluminous writer, he fancied  himself something of an ethnographer and he has  written many, many copious volumes -- well at least  four.  All right.  And he travelled to Hagwilget and  Moricetown, did he?  Yes, he did.  And did he write about the Wet'suwet'en people at  Hagwilget and Moricetown?  He did.  And did Father Morice learn the Wet'suwet'en language?  He learned the eastern Carrier Language rather well.  And that's different or the same as the Wet'suwet'en?  It's different.  Okay.  Did -- to your knowledge, did he learn  Wet'suwet'en?  He was able to converse more or less by using his  eastern Carrier with the Wet'suwet'en.  And in terms of his recordings, can you comment on  their reliability? 1293?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  A   Father Morice was a very controversial figure.  He has  several different kinds of writing that he does.  He  does some work which seems to be a very accurate  portrayal of the customs and material culture, for  example, of the eastern Carrier, and then he has other  passages which he is describing them in most  deprecatory terms which are obviously coloured by his  views of his desire to turn them into good Catholics.  Q   And in terms of what you determine were useful to you  in assessing the Wet'suwet'en people, can you comment  in general terms what there was of value in Father  Morice's work?  A  Well, Father Morice describes the eastern Carrier, to  a lesser extent the Wet'suwet'en, as matrilineal  people.  He describes the feast system among them, he  describes it as relating to territories, and he  describes something of its antiquity or he notes that  some of these chiefly names held, for example, in the  eastern Carrier were held by the first "historic"  eastern Carrier gentleman who was born a hundred and  forty-five years before the white man came into the  territory.  Q   And you make reference to a passage from Father  Morice's work of 1930 at page 91.  What page?  COURT  RUSH:  Q  Ninety-one of the opinion.  And Dr. Mills, can you tell us the significance of  the passage that's contained on this page?  A   Father Morice is describing in this passage that he  found the Wet'suwet'en and the Babine people very  difficult to deal with.  He found -- he thought that  they were highly influenced by the Tsimshian people  who he -- who he felt had lent them many of their  customs, "their" being the Tsimshian customs.  Father Morice wrote this in 1930, did he, or was it  published?  WITNESS:  It was published in 1930, I don't think it was —  COURT:  We don't know when it was written?  WITNESS:  I can't say at the moment, no  RUSH:  Q   In terms of the comment third from the -- third line  from the bottom and quoting in part:  "...were passionately fond of the potlatch and  concomitant evils... Hence incessant battling and  fighting and thundering on the part of our  THE COURT  THE  THE  THE  MR. 12939  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 missionary (himself, Morice)."  2  3 Is that your parenthetical statement?  4 A   Yes.  5 Q   Okay.  How do you -- what do you take from that  6 particular passage, if anything?  7 A  Morice observed the potlatch among the Wet'suwet'en  8 and Babine and he also sought to eradicate it from the  9 Wet'suwet'en and Babine as well as from the eastern  10 Carrier.  11 Q   All right.  And on page 92 there are two further  12 passages that you attribute to Father Morice in terms  13 of their significance.  Can you comment on those,  14 please?  15 THE COURT:  Before you leave that.  16 THE WITNESS:  Pardon?  17 THE COURT:  How do you read that, that there was "incessant  18 battling and fighting and thundering" by the  19 Wet'suwet'en, or "incessant battling and fighting and  2 0 thundering" by him?  21 THE WITNESS:  By Father Morice.  22 THE COURT:  By Father Morice?  23 THE WITNESS:  Yes.  If you read some more of his works, you will  24 learn that this man was -- had a remarkable  25 temperment.  There is -- since this report has been  26 written, there is a book called, "Will to Power",  27 which describes him in -- finds him to be the same  28 irascible kind of person that his superiors found as  29 well.  He came very close to being excommunicated  30 because he could take no orders from anyone.  But he  31 thundered very, very hard and vociferously to the  32 Wet'suwet'en as well as the eastern Carrier.  33 THE COURT:  All right.  Thank you.  34 MR. RUSH:  35 Q   The "Will to Power", the book you've just mentioned,  36 when was that published, do you know?  37 A  Was it '87?  I've forgotten.  Something like that.  38 Q   Okay.  And the passage on page 92, can you comment on  39 its significance?  In fact, the two passages  40 attributed to Father Morice in 1930, the 1930  41 publication and the 1928 publication following it?  42 A   Father Morice recognized that the feast was one of the  43 elements of Wet'suwet'en-Babine as well as eastern  44 Carrier life, that the people were very unwilling to  45 give that up, and though -- he is describing what  46 the -- something about the feast in these passages.  47 Perhaps I should take a bit more time to read them. 12940  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  Q  A  Q  THE COURT  A  MR.  RUSH:  Q  A  In fact, he gives quite a good description of the  feast system in the first paragraph, describing it as  parcelling that -- parcelling out of hunting grounds,  noting that there are hereditary noblemen who hold the  hunting grounds in -- and that this is part of the  potlatches he calls it, or feast system, and it's  related to their divisions into clans and what he  calls gentes or what we would be calling houses.  And  he notes that at the death of one of these notables or  chiefs, and he gives the native term for this.  What is that term, tene-za?  It means --  How do you interpret that?  It's -- tene-za is Dinnizii in Wet'suwet'en.  All right.  May I just ask you to stop.  It's spelled  T-E-N-E dash Z-A in the text, and Dinnizii, is that  D-I-N-N-I-Z-I-I?  That's one way you could spell it.  Thank you.  : It means "only men", does it?  It means -- the "tene" means men and "za" means the  real or special or correct or real men. And it's used  to mean chiefs, somebody who holds a hereditary title,  that's the usage among the Wet'suwet'en and also among  the eastern Carrier. It has a different sense of what  it means among the Indians.  Now Dr. Mills, you've commented on Morice in terms of  his mission as a Catholic priest.  Can you say  anything about the nature of the recordings which  Father Morice made about the Wet'suwet'en people in  terms of their strengths or weaknesses?  Father Morice did a rather thorough job of recording  the nature of the eastern Carrier people in  particular, and most of his works pertain particularly  to them.  There are passages that refer to the  Wet'suwet'en but again, he is largely concerning  himself with the eastern Carrier and he did a lot of  very thorough recording of the existence of the clans  and houses as we would call them, he calls them  gentes.  At the same time, his position as missionary  presented a kind of conflict of interest for him.  Though he had an absolute fascination for the culture  of these people, there were parts of it that he did  not record at all because he saw it as being  contradictory to his goal of converting these people  into Catholics. 12941  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Q   And what was that, what was the failure to record?  2 A   For example, he particularly didn't -- failed to  3 record the oral tradition of the Carrier.  He has one  4 among his voluminous publications.  There is one text  5 that is about three Carrier myths and he alludes to a  6 few more, but he never -- he never compiled a corpus  7 of Wet'suwet'en oral tradition or eastern Carrier oral  8 tradition the way Jenness did later.  9 Q   Okay.  Why, in your mind, is that a significant  10 omission?  11 A   It would be very valuable to have such a corpus of the  12 oral tradition recorded significantly earlier so that  13 we could compare it with Jenness' recording of the  14 oral tradition.  The oral tradition, particularly,  15 founds people, it gives, usually, their sense of  16 cosmology and their origins and their place and also  17 things that are important to them.  But these were all  18 either couched in terms that Morice did not want to  19 accept or bespeaking a way of life that -- or  20 conceptions that he did not want to endorse, so  21 therefore he avoided that issue.  He was in an  22 excellent position to have recorded such since he had  23 indeed learned the language.  24 Q   We are talking about the Stuart Lake language?  25 A   That's right.  He could have made a very good  26 collection.  27 MR. MACKENZIE:  Excuse me, my lord, this line of questioning  28 that -- and answers that Mr. Rush and Dr. Mills have  29 just completed, is not based on any specific document  30 or writing as far as I can understand.  This is simply  31 Dr. Mills' interpretation of why Father Morice didn't  32 record these things, am I correct?  33 MR. RUSH:  Well, I think if my friend wants to ask -- examine  34 this in cross-examination he can pursue it.  This is  35 Dr. Mills' opinion on the reading of all of his work.  36 THE COURT:  Well she is expressing an anthropological opinion  37 that there doesn't seem to be any recording by Father  38 Morice of these oral traditions, and as an  39 anthropologist isn't she saying that this is an  40 unfortunate omission?  41 MR. RUSH:  Yes.  42 THE COURT:  It would have been extremely valuable.  4 3 MR. RUSH:  Yes.  44 THE COURT:  Do you have any objection to that, Mr. Mackenzie?  45 MR. MACKENZIE:  My lord, she is saying why he would not.  46 THE COURT:  Because they were not Catholic or because they  47 didn't conform with Catholic beliefs, is that what you 12942  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE COURT  THE  THE  THE  THE  THE  THE  MR.  are referring to?  MACKENZIE:  Yes, my lord.  He didn't record them because  they contradict -- they were contradictory to what he  considered appropriate as Catholic beliefs.  Well, it's pretty obvious that what she is saying in  that regard to only be an opinion.  I don't think  you've ever talked to Father Morice, have you?  WITNESS:  Pardon?  You've never spoken with him personally?  No.  He is long since deceased.  When did he die?  Was it around 1930?  I think so.  He did, however,  put into writing some of his conflicts about the role  between being an anthropologist and being a  missionary, in fact, in rebuttal to statements that  were made to him about this conflict of interest, and  just adding more fuel to the fire in this discussion.  So there are writings of his that deal with this  question of conflict?  WITNESS:  Of the conflict, yes.  But it doesn't — he  doesn't himself give -- no one, in fact, asked him why  didn't you collect --  All right, Mr. Mackenzie can ask you about that.  COURT:  WITNESS  COURT:  WITNESS  THE COURT  THE  COURT  RUSH:  Q  A  Now in terms of other weaknesses or strengths about  Father Morice in reference to the Wet'suwet'en, can  you offer a further comment with regard to those?  I  direct your mind to his views on feasting, for  example?  Oh, well, yes.  Father Morice was aware of the  feasting, he recorded many features of the feasting  of -- both for the eastern Carrier and for the  Wet'suwet'en.  But at the same time, his expressed  goal was to stamp it out, he makes this very clear,  and he in fact asked the Wet'suwet'en people to burn  all their potlatch regalia when -- on the occasion of  the visit of the Bishop in 1901 in Hagwilget, and  he -- which they did -- or at least much of their  potlatch regalia they did consume to the fire.  He has  also written about how it hurt his heart to see all of  these ethnologically interesting objects go up in  flames, but this was something that he felt very -- it  was very important to do.  He makes it very explicit  in his writings that he -- that he told the people  that they would be punished by God through damnation  and disease and all kinds of unpleasantness if they  didn't conform to what he told them. 12943  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Q   In terms of the origin of the feast, does Father  2 Morice comment upon that in his work?  3 A   Father Morice seems to think that much of the system  4 of the feasting, the whole relationship of titles and  5 related to territory, was of Tsimshian origin.  6 Q   And is that a weakness or a strength in your  7 perspective in terms of your own work?  8 A   I think that Father Morice was making a fairly common  9 error in thinking that what was -- the proto-typical  10 type of Athapaskan pattern was the subarctic  11 Athapaskan pattern.  Father Morice had read all of the  12 work of Father Petitot, another Oblate Father who was  13 one of the very earliest Oblate Fathers.  He had been  14 in the subarctic region and Father Morice had begun to  15 think that the Athapaskan peoples in that area were  16 the typical kind of Athapaskan peoples and that  17 therefore the people like the Stuart Lake Carrier and  18 the Babine-Wet'suwet'en were people who had the kind  19 of social structure that they had simply because they  20 were nextdoor to the Tsimshian and West Coast peoples.  21 Q   And why do you identify that as erroneous?  22 A  Well, on the basis of further work, it seems that the  23 basic -- the earliest Athapaskan kind of culture, the  24 proto-Athapaskan culture and language was centered on  25 the -- not on the interior and McKenzie drainage  26 system but on the Western Pacific river systems at --  27 which were streams that -- where there was salmon and  28 that this was the homeland or the place where the  29 proto-Athapaskans had developed in the distant past,  30 and that the eastern Athapaskans or the people to the  31 east of the Rockies, the McKenzie River drainage  32 Athapaskans were in fact a later adaptation after the  33 ice age, the last ice age had receded to such a point  34 that that area was habitable and had been -- was no  35 longer just covered by glaciers.  36 MR. RUSH:  All right.  I'm going to ask you about the eastern  37 Athapaskans but perhaps I'll do that after the break.  3 8    THE COURT:  Yes.  39    THE REGISTRAR:  Order in court.  Court will recess.  40  41  42  43  44  45  46  47 12944  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2 (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein transcribed to the  8 best of my skill and ability.  9  10  11  12  13    14 Toni Kerekes,  15 O.R., R.P.R.  16 United Reporting Service Ltd.  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 12945  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  Thank you.  6 MR. MACKENZIE:  Excuse me, my lord, before Mr. Rush continues,  7 just before the break Dr. Mills was commenting that  8 certain beliefs held by Father Morice were erroneous,  9 and Dr. Mills said that on the basis of further work  10 it's been concluded that the earliest Athapaskan  11 cultures are centred not on the Mackenzie, but -- et  12 cetera, et cetera.  I wonder if I could ask what Dr.  13 Mills' sources are for that, specifically, what the  14 further work is to which she refers.  15 MR. RUSH:  If my friend is concerned about that question, I  16 think he can raise it in cross-examination.  I intend  17 to touch on some of that and perhaps in my subsequent  18 questions it will become more clear.  19 THE COURT: Well, that creates a problem doesn't it.  I suppose I  20 have to rule, do I?  21 MS. KOENIGSBERG: If it's any assistance, I would ask for your  22 ruling, my lord.  I think we had proceeded, at least  23 with the previous witness, that as opinions are  24 elicited that the basis for those opinions should be  25 brought forward, especially if they're not in the  26 report.  27 THE COURT:  Especially if they're not?  28 MS. KOENIGSBERG:  Not in the report.  I mean, if it was there,  29 it would be, of course, silly to ask.  30 THE COURT:  I don't have any way of knowing whether they're in  31 the report or not.  32 MR. RUSH:  They're in the report, my lord.  My friends know  33 they're in the report.  34 THE COURT:  They're indicating they don't know that, Mr. Rush.  35 MS. KOENIGSBERG: If that's the case, then my friend — he  36 doesn't have to do it now -- can indicate on what page  37 that opinion and the sources are.  I'm happy with  38 that.  I'm sorry, I missed it.  39 MR. MACKENZIE: I would be happy with that also, my lord.  40 MR. RUSH:  My lord, it's clear there's a debate that's going on  41 in this court case between the perspectives of the  42 Wet'suwet'en, proto-Athapaskan, and the eastern  43 Athapaskan people, and this debate has emerged in  44 cross-examination in direct evidence of Miss Albright,  45 Dr. Daly, and Dr. Kari.  The report that Dr. Mills has  46 presented to the court, and which I have tendered, is  47 a report that contains opinions which opinions set her 12946  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 position her with respect to the cross-examination and  2 the opinions that have been placed before the  3 witnesses in cross-examination on previous occasions.  4 And it is to those opinions that I'm directing the  5 witness' attention, and I don't think there's any  6 magic in the fact that Ms. -- I'm directing Dr. Mills  7 attention to the fact that the previous  8 cross-examination has occurred and I'm going to  9 solicit, in relation to her opinions as voiced in the  10 report, what her opinions are with regard to this  11 cross-examination.  I think she has -- her opinions  12 are clearly ones which appear on the face to be  13 opinions that are inconsistent with the  14 cross-examination, and I will put those to her.  And I  15 don't think there's any particular -- this is not news  16 to anybody in this case.  17 THE COURT:  Well, I have to say that it is convenient to have  18 references at the time the evidence is given simply  19 for note-keeping purposes, but I'm not sure that's a  20 valid ground upon which to rule.  I had occasion last  21 week to comment that there was what seemed to me to be  22 an unusual level of interruption during  23 cross-examination, and perhaps the same thing applies  24 with regard to evidence in chief.  And if counsel  25 aren't able to accommodate each other in this way,  2 6 then it may be that I will have to rule much more  27 severely on all interjections which I think have been  28 helpful going in both directions.  Mr. Grant seemed to  29 always be on his feet during the cross-examination of  30 his witnesses, and it was for that reason that I  31 commented to him that I had noticed both during the  32 course of the trial and more particularly during  33 examination for discovery, about the remarkable and  34 the formerly unacceptable levels of interruption.  If  35 counsel aren't able to assist each other by having  36 witnesses give references or authorities to which they  37 have just referred, then I think we would be in a more  38 awkward position perhaps than even we are.  39 So for that reason I think that I'm going to say,  40 Mr. Rush, that when a witness refers to a reference  41 that it will help everyone if the reference is given.  42 Now, if that proves to be troublesome, I would have to  43 change that, but if it happens infrequently and seems  44 to be a reasonable place to keep the record, the  45 note-taking record, conveniently consistent, then I'll  4 6 have to change my mind. But for the moment I think on  47 this particular request I'm going to ask that the 12947  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  witness give the reference to which she referred.  Can you do that for us please, Dr. Mills?  THE WITNESS:   I hope so.  I think so.  THE COURT:  Thank you.  MR.  RUSH:  Q  A  THE COURT  MR. RUSH:  Q  A  Q  that prior  think you  Do you understand the request, Dr. Mills,  to the break there was a reference that I  made to further work that had been done with regard to  the proto -- the consideration of the  proto-Athapaskans, and I wonder if you can direct his  lordship's attention to that?  Yes.  This is the work of Dyen and Aberle who I have  cited in my opinion.  They have written a book called  "Lexical Reconstruction" which deals with this  question.  :  Thank you.  And with regard to what you've just -- what you had  said prior to the break, Dr. Mills, were your comments  directed to the opinion which you have written on page  99 of your -- the document in front of you, and in  quote it says:  "In sum total the archaeological, linguistic,  historical and ethnographic record confirms  the depiction of the genesis of the  Wet'suwet'en contained in their kungax.  There is evidence of occupation of the area  for over five thousand years, and linguistic  evidence of deep association of the  Wet'suwet'en with their Gitksan neighbours.  The earliest historical and ethnographic  accounts record the feast system with  attendant titles and control of associated  territory, not only for the Wet'suwet'en but  for the Stuart Lake Carrier who were tied  into the feast and trade system of the  Babine Lake people."  Now, were your comments directed to that opinion?  Yes.  Thank you.  And, Dr. Mills, before I ask you to  proceed, his lordship asked if you could identify in  the Father Le Jacq reference the portion of the French  version which is the version that was translated by  you, and I wonder if you had an opportunity to do  that, at tab 28? 1294?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 A   I have.  It's —  2 Q   And could you assist us there, please?  3 A   Yes.  On the left-hand side of the page which is  4 marked "4363" after semi-colon it begins "Mais..." --  5 THE COURT: Just a moment.  I'm sorry, I don't think that we can  6 accommodate more than English on the record.  7 THE WITNESS:  Oh, okay.  8 THE COURT:   But it's the fifth line on the page marked —  9 THE WITNESS:   That's right.  10 THE COURT:  — 4363, and tab 28.  11 THE WITNESS:  That's right.  12 THE COURT:  Starting with the word "M-a-i-s" and it goes down  13 how far, to the end of the paragraph?  14 THE WITNESS:   Yes.  15 THE COURT:  All right.  Thank you.  16 MR. RUSH:  17 Q   And that, Dr. Mills, is the French version of what you  18 translated at the top of the page on page 90 of your  19 opinion?  20 A   That's right.  21 Q   Thank you.  Now, prior to the break -- yes?  22 A   Yes, it begins a little bit before that.  I noticed  23 that the semi-colon is just a bit before that.  24 MR. RUSH:   Thank you.  25 THE COURT:  That wasn't marked as an exhibit, Mr. Rush.  26 MR. RUSH:  Thank you.  May that be marked then, please?  27 THE REGISTRAR: Tab 28 will be Exhibit 917.  2 8 THE COURT:  Thank you.  29 THE REGISTRAR: And is that Father —  30 MR. RUSH:  Father Le Jacq, L-e J-a-c-q.  31 THE COURT:  Is that right, Mr. Rush?  I thought it was L-e  32 J-a-c-q.  33 MR. RUSH:  Is that not what I said?  34 THE COURT:  I thought you said q-u-e.  35 MR. RUSH:  No, it's L-e, new word, J-a-c-q.  36 THE COURT:  Yes.  All right.  37 MR. RUSH:  Now, before the break, Dr. Mills, I had asked you  38 about strengths or weaknesses in Father Morice's work,  39 and I directed your specific attention to the mention  40 of feasting in his work, and my question now is  41 directed to, in part, your answer to that question.  42 And you had indicated that Father Morice evaluated the  43 eastern Athapaskans, and it was there that -- I think  44 that you continued with your answer and then the break  45 interrupted, and I want to bring you back to that and  46 ask you about who the eastern Athapaskans are.  47 THE COURT:  Mr. Rush, I'm sorry, before we do that.  Do I have 12949  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 my note correct that it was the Wet'suwet'en at  2 Hagwilget that he persuaded to burn valuable  3 artefacts?  4 THE WITNESS:   Yes, that's correct.  5 THE COURT:  All right.  Go ahead, Mr. Rush.  6 THE WITNESS:   The subarctic Athapaskans are the people who are  7 on the Mackenzie River drainage, such as the Dogrib,  8 the Hare.  9 MR. RUSH:  10 Q   Please slow down.  Dogrib, the Hare?  11 A   The Kutchin, the Beaver, the Slave, the Chipewyan, the  12 Kaska.  13 Q   The Kutchin, are they spelled K-u-t-c-h-i-n?  14 A   That's correct.  15 Q   All right.  16 A   These peoples had been taken to be the proto-typical  17 Athapaskans, in part because the -- previously to  18 Morice the knowledge about Athapaskans had come from  19 previous missionaries, such as Father Petitot, who  20 arrived from the east and did a lot of missionary work  21 and a lot of linguistic work as well among the  22 Athapaskans to the east of the Rocky Mountains, and  23 Father Morice was very familiar with this work.  And  24 the peoples to the -- in this area in the subarctic  25 region typically have a band level society and Father  26 Morice had rather come to assume that this was the  27 proto-typical kind of Athapaskan organization.  And  28 then when he arrived among the Carrier, he assumed  29 that their differing social organization, which was  30 marked by matrilines, matrilineage, matrilineages, and  31 with clans, was an aberration from that basic pattern  32 that was the result of their contact with north-west  33 coast and particularly Tsimshian people.  34 Q   Now, you indicated that the further information that  35 has come to bear on this subject was as a result of  36 work by Dyen and Aberle?  37 A   That's correct.  38 Q   And you mentioned the work "Lexical Reconstruction" I  39 think it's called?  40 A   That's correct.  41 Q   And can you comment, what was the work that they did  42 and the information that they brought to their own  43 subject?  44 A   Dyen and Aberle gathered information on the kinship  45 systems of a large number of Athapaskan peoples and  46 analysed this from a linguistic point of view and from  47 this constructed a proto-Athapaskan kinship structure. 12950  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 This is a procedure which linguists use going from  2 current usages and being able to extrapolate back in  3 time to the -- what can be presumed to be the earlier  4 form.  5 Q   And what do you understand their conclusions about  6 proto-Athapaskans to be?  7 A   Their conclusions were that the proto-Athapaskans  8 were -- had a tendency to be matrilineal, and they  9 concluded that this was consistent with their living  10 in salmon streams of rivers that drain into the  11 Pacific Ocean, that in this context you could have  12 matrilineages and that this was the basic  13 proto-typical -- proto-Athapaskan form.  14 THE COURT:  Were the subarctic Athapaskans described by the  15 earlier Oblates patrilineal?  16 THE WITNESS:   Patrilineal?  17 THE COURT:  Yes.  18 THE WITNESS:   There is some confusion there.  Morice attributed  19 patrilineality to the Sekani Indians, but he was  20 mistaken in so doing.  21 THE COURT:  But what about the subarctic ones that the earlier  22 Oblates studied?  23 THE WITNESS:   Most of them seemed to — I think they recognized  24 that they had a band level society rather than a  25 lineal society, a bilateral -- that's a bilateral  26 kinship structure.  2 7 MR. RUSH:  28 Q   And what you've just said, what is the significance of  29 the placement of the proto-Athapaskans on the -- in  30 Dyen and Aberle's analysis, in respect of the salmon  31 streams?  32 A   It means that for a very long period of time there  33 have been Athapaskan-speaking peoples living on salmon  34 streams in the British Columbia-Alaska area with  35 matrilines, with matrilineages, and which implies a  36 more complex kind of social organization.  37 Q   And the eastern Athapaskan people that you have  38 identified and named, are those people ones who live  39 on salmon rivers?  40 A   No, they don't.  There is an absence of salmon in the  41 Pacific -- in the Mackenzie River drainage.  42 Q   Okay.  And in terms of arriving at your own opinion,  43 you've indicated that you've referred to the Dyen and  44 Aberle work "Lexical Reconstruction".  I would ask you  45 if that a portion or extract of that work is found at  46 tab 3 of Volume 1?  47 A   Yes, it is. 12951  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A  MR. RUSH:  THE COURT  Did you take this into account in arriving at your  opinions?  Yes.  I direct your attention in particular to page 410 of  this extract and where it begins "Commentators on the  Carrier", and it identifies Morice initially.  Did you  take this into account?  Yes.  And on page 411, Dyen and Aberle itemize the reasoning  that's involved in Morice's work, and after that  they -- after the listing they say in the first full  paragraph, and I'm quoting:  "If, however, the more  easterly Athapaskans..."  Now, are those the Athapaskans that you have  identified for his lordship --  Yes.  -- a few moments ago?  I'm sorry, the identification of the subarctic or  the —  right.  The subarctic are the eastern  Yes.  THE WITNESS:   That's  Athapaskans  MR. RUSH:  "If, however, the more easterly Athapaskans  of the north are not regarded as  archetypical, the institutions in question  are either innovations among the westerly  Athapaskans, who borrowed them from the  coast, or retentions.  And if they are  retentions, then the lack of these  institutions among the easterly tribes can  be regarded as instances of simplification:  that is, the easterly tribes lost the  institutions in question.  Morice himself  supplies a plausible reason for such a  simplification.  He notes that the  circumstances of life of the Sekani did not  permit them to adopt the potlatch, although  they tried to do so.  Thus if the  institutions that Morice lists, including  matrilineality, had been features of the  culture of the PA speech community, they  could have been retained by the westerly  Athapaskans, who led a semi-sedentary  existence based on salmon streams, but could  not have been retained by the easterly  Athapaskans." 12952  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2 Now, did you take that into account in arriving at  3 your opinions?  4 A   Yes.  5 Q   They go on to say, and I'm quoting again:  6  7 "The fact remains that the westerly  8 Athapaskans share these institutions with  9 the coastal tribes.  The hypothesis that at  10 least some of these institutions form part  11 of a common cultural substratum shared by  12 the several speech communities ancestral to  13 the Athapaskans and the coastal tribes,  14 would account for some of the similarities  15 between Athapaskans and coastal tribes at  16 least as satisfactorily as the hypothesis of  17 borrowing by each separate Athapaskan tribe  18 adjacent to the coast."  19  20 Did you take that into account?  21 A   I did.  22 Q   And you agree with the observations and analysis of  23 Dyen and Aberle in respect of the four Morice points  24 set out on page 411?  2 5 A   I do.  26 Q   Now, with regard to the Sekani, mention is made here  27 of the observations or circumstances of life of the  28 Sekani, that is to say, Dyen and Aberle comment on  29 Morice's observations about the Sekani.  Do you have  30 anything to add to that or to comment on in relation  31 to your knowledge of the Sekani people?  32 A   Indeed the Sekani people are people who had a  33 subarctic kind of adaptation.  They are people who  34 came -- they are the sort of -- were the most westerly  35 band of the Beaver Indian people and moved into the  36 territory fairly recently and attempted in some ways  37 to integrate themselves into a potlatch framework in  38 the context of being in contact with the eastern  39 Carrier and the Gitksan around Bear Lake.  However,  40 they're not people who are -- whose territory involves  41 salmon streams.  They are people of the eastern -- of  42 the eastern Athapaskans of arctic type, and they were  43 not able to fully adopt the potlatch or maintain it.  44 Q   In terms of their kinship system, I think you  45 commented on that or touched on that before the break?  46 A  Morice was mistaken in thinking he identified them as  47 being patrilineal, and Jenness did subsequent field 12953  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 work with the Sekani in 1941 and discerned that they  2 were not patrilineal.  In their attempt to adopt the  3 potlatch system, they had attempted an adoption of  4 matrilineality and they had somewhere between a  5 matrilineal principle and a bilateral principle.  6 Q   In terms of your review of Morice's -- the literature,  7 the publications of Father Morice, does Morice venture  8 a view about the antiquity of the origins of the clan  9 system or the system of matrilineality among the  10 Wet'suwet'en?  11 A   Father Morice doesn't really talk a great deal about  12 that, the time depth.  He presumes that it's a  13 borrowing from the west coast type people, and he, as  14 I noted earlier, says that it was in place, the  15 potlatch system, the matrilineal system, was in place  16 at the time of contact, but he doesn't say anything  17 further to that.  18 Q   Now, I want to refer you to one final passage of the  19 Dyen and Aberle book I guess, and it's the extract  2 0 that I've put before you in tab 3, Volume 1, and it  21 appears at the bottom of page 411 and runs over to the  22 top of page 412.  And there the authors say, and I  23 quote:  24  25 "Our discussion of the Alaskan homeland  26 of the PA speech community indicates that  27 there is no reason to regard the easterly  28 Athapaskans of Canada as archetypical, since  29 they live in an environment distinctly  30 inferior to that found in Alaska.  Hence, in  31 spite of the evidence for specific Carrier  32 borrowings from the Tsimshian, Morice's  33 argument does not make diffusion of  34 matrilineality to the Athapaskans in  35 severalty more likely than retention of  36 matrilineality by the westerly Athapaskans  37 and loss of matrilineality by the easterly  38 tribes.  Morice's view that the  39 'patriarchate' occurs in the east is not  40 supported by the ethnological record, if by  41 'patriarchate' he means 'patrilineality' and  42 not merely patripotestality."  43  44 Now, do you agree -- did you take that into  45 account firstly when you wrote your opinion?  46 A   Yes.  47 Q   And did you -- do you agree with the comments by Dyen 12954  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 and Aberle?  2 A   I do.  3 Q   And can you assist us by deciphering these various  4 ethnological words?  Apparently Father Morice uses the  5 word patriarchate?  6 A   Uh-huh.  He does.  7 Q   And patrilineality, could you tell us, means what?  8 A   Patrilineality refers to seeing your relationship  9 through the father's line, the father's side.  10 Q   All right.  And patripotestality?  11 A   Here he's referring to a practise of more -- it's  12 perhaps best described as a man and his sons living  13 together in what might be presumed to be a patrilineal  14 fashion, but without the people in fact having a  15 patrilineal system.  You can live -- organize your  16 social life on those terms while being bilateral, for  17 example, and that tends to characterize the eastern  18 subarctic or, rather, the subarctic area, the totality  19 of the subarctic area which is occupied by  20 Athapaskans.  21 Q   And finally, with regard to this portion of Dyen and  22 Aberle, I direct your attention to what follows on  23 page 412 which is pertinent to the question I asked  24 concerning the antiquity or recentness of the clan or  25 matrilineal system among the Wet'suwet'en, and I would  26 ask you if you took this into account, and I would  27 direct your attention, specifics, to the last three --  28 the last two lines of the section on page 412 where I  2 9 quote:  30  31 "Morice provides testimony only that among  32 the northeastern Carrier there were no  33 traditional explanations for the matrilineal  34 descent units, his 'gentes' (our  35 'phratries').  It might be argued that this  36 lack bears on the question of the recency of  37 the 'gentes', but it can hardly be regarded  38 as strong evidence that they are recent."  39  40 Now, do you agree or disagree or can you comment  41 on that observation by Dyen and Aberle?  42 A   I would agree that Morice has not provided data that  43 shows that they were necessarily recent, and I would  44 also agree with Dyen and Aberle that their  45 construction suggestions that matrilineality was more  46 ancient, and that that's also supported by the oral  47 tradition of the Wet'suwet'en as well as the 12955  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 linguistic analysis.  2 Q   Can you comment on how doctors Dyen and Aberle are  3 viewed in the discipline of anthropology?  4 A   They have an excellent reputation.  Isidore Dyen is a  5 linguist at Yale.  Dr. Aberle is a Professor Emeritus  6 at the University of British Columbia.  He has written  7 very significant works on matrilineality.  He's an  8 Athapaskan specialist as well, having done a great  9 deal of research with the Navajo, however, he has a  10 reputation of excellent scholarship on a wide number  11 of fields in anthropology.  12 Q   And can you comment about Dyen and Aberle's  13 methodology in "Lexical Reconstruction"?  14 A   Their methodology is impeccable.  They have done a  15 very thorough job of reconstructing the proto-typical  16 Athapaskan through this linguistic process.  It took  17 very involved work.  This -- their book represents  18 over 14 years of concerted effort.  19 THE COURT:  We didn't get a definition of patriarchate or  20 "chase" or "chate", rather, patriarchate?  21 THE WITNESS:   Patriarchate.  22 MR. RUSH:  This one.  23 THE COURT:  It's at the top of page 412.  2 4 MR. RUSH:  25 Q   Yes.  26 A   Right.  It just refers to a society that is  27 patrilineal.  2 8 THE COURT: Thank you.  2 9 MR. RUSH:  30 Q   That's a word that was used by Father Morice, was it?  31 A   That's correct.  32 Q   And is that a known ethnological category?  33 A   Yes.  It's an old-fashioned usage.  34 THE COURT:  Thank you.  35 MR. RUSH:  36 Q   I'd now like to turn to the ethnographic review that  37 you did in coming to your opinions regarding the  38 Wet'suwet'en, and your opinion discloses that you  39 reviewed the ethnography of Diamond Jenness in order  40 to arrive at your conclusions regarding the origins  41 and social institutions of the Wet'suwet'en, and  42 you've told us already something about who Diamond  43 Jenness was.  What I want to ask you now is your  44 assessment of Diamond Jenness' work, and you've made  45 reference in your evidence already to his 1934  46 publication and his 1943 monograph on the Wet'suwet'en  47 people.  Now, can you tell his lordship in terms of 12956  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 the strength and weaknesses of Jenness' work what --  2 how you viewed his work?  3 A   Jenness has provided us with a large body of  4 information about the Wet'suwet'en.  We're very  5 fortunate to have this testimony.  He's done a good  6 job of describing the nature of the feasting system,  7 the seating in the feasting system, the clan system of  8 these people, as well as something of their religion.  9 It's a very valuable account that we do have.  The  10 places where we could -- would like to have a fuller  11 account are of the territories.  He doesn't describe  12 them in any great detail.  Nor does he -- and he  13 doesn't give us information about who his informants  14 are, both in the monograph that he's written and, as I  15 mentioned, in his recounting of the oral tradition.  16 The other place where he is less than perfectly  17 professional is in -- sometimes in his  18 interpretations.  He allows himself to make rather  19 pejorative interpretations of the Wet'suwet'en which a  20 modern anthropologist would not make.  For example, he  21 infers that the Wet'suwet'en are all somewhat mentally  22 unbalanced.  That's not a statement that contemporary  23 anthropologists would make.  24 Q   And in terms of the way you assess the reliability of  25 Diamond Jenness' work in terms of your own  26 investigations and field work among the Wet'suwet'en,  27 can you comment on that?  28 A   Could you repeat that, please?  29 Q   How do you assess Diamond Jenness' reliability or  30 utility as -- standing in the shoes of an  31 anthropologist in this decade as you look back on his  32 work in 1934 and 1943?  33 A  Well, he has indeed provided us with a useful  34 compendium of information.  He, again, is making some  35 of the assumptions that Jenness -- excuse me, that  36 Morice made, that the Wet'suwet'en had borrowed a  37 great deal of their social structure from the more  38 westerly people, the Tsimshian, the north-west coast  39 culture, without indeed assessing the information  40 which he himself had assembled in the oral tradition.  41 Q   Okay.  Does he analyse the material that's contained  42 in the oral tradition which you've identified as being  43 in volume -- the 1934 edition?  44 A   No, Jenness never makes use of this in terms of  45 reconstruction of the Wet'suwet'en.  He, I think,  46 is -- without much foundation, presumes that the whole  47 clan system is relatively recent.  He notes its 12957  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 vitality among the Wet'suwet'en, and its structure,  2 but seems -- says that we can't trace it beyond a few  3 generations previously and, in other words, he doesn't  4 seem to be able or willing to look into what it would  5 have looked like or might have looked like or did look  6 like in the past.  7 Q   Was Jenness a linguist?  8 A   No, he was not.  9 Q   Did he learn the Wet'suwet'en tongue?  10 A   No.  And it seems that he was not even particularly  11 aware of the distinction between the eastern Carrier  12 language and the Wet'suwet'en-Babine language.  13 Q   In terms of your assessment of his work, did that  14 impact in any way upon his evaluation of the  15 Wet'suwet'en?  16 A   He confined himself in the monograph to the western  17 Carrier, to the Wet'suwet'en in fact, and so at least  18 he was not trying to combine the two in that report,  19 but he shows the lack of distinction that he made in  2 0 combining them in the volume where he gives the oral  21 traditions of the two peoples.  22 Q   Now, at -- in your opinion at pages 93 through to 97,  23 you do an evaluation of the ethnographic accounts and  24 interpretation of Diamond Jenness?  2 5 A   I do.  26 Q   And does this set out your -- your views with regard  27 to Jenness' work in addition to what you've testified  28 to in this proceeding?  29 A   It does.  30 Q   Now, you considered also the work of Julian Steward?  31 A   I did.  32 Q   And could you explain to his lordship who Julian  33 Steward was?  34 A   Julian Steward was an ethnologist, subsequently chief  35 ethnologist, of the Smithsonian Institution in  36 Washington D.C. who did field work with the Stuart  37 Lake Carrier for four months in 1940, in the summer of  38 1940.  39 Q   Did he do field work among the Wet'suwet'en?  40 A   No, he didn't.  41 Q   And as a result of his work did he publish accounts of  42 his findings or his investigations?  43 A   Yes, he did.  44 Q   And in terms of his work, can you assess his work in  45 terms of its strength and weaknesses as it might  4 6 impact upon the Wet'suwet'en?  47 A   Julian Steward studied the eastern Carrier and noted 1295?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 something of their land tenure system, and noted that  2 they had a system of hereditary chiefs associated with  3 territories.  In his -- the earliest publication after  4 his field work he suggests that the system was in  5 place some centuries before contact.  Later on in  6 subsequent publications, I think on the basis of  7 having -- well, read another anthropologist who  8 subsequently did field work, Goldman, who did field  9 work among the southern Carrier, he seems to have been  10 somewhat misled by presuming that the southern Carrier  11 were perhaps more similar to the eastern Carrier than  12 indeed they are.  13 Q   All right.  Can I just ask you to pause there?  Who  14 are the southern Carrier and who did Mr. Steward  15 identify as the southern Carrier?  16 A   The southern Carrier are the sometimes called the  17 Alkatcho Carrier.  18 Q   All right.  19 A  And they were the people that were studied by Goldman.  20 Q   And in terms of the eastern Carrier that you've just  21 identified, who are the eastern Carrier?  22 A   They are the Stuart Lake Carrier and the Fraser Lake  23 Carrier.  24 Q   Okay.  Does Mr. Steward make any comment about the  25 matrilineal system among the Stuart Lake Carrier?  26 A   Yes, he does.  27 Q   And what's that?  28 A   He noted that the Stuart Lake Carrier were matrilineal  29 and suggests that this matrilineality was breaking  30 down under the impact of the fur trade and especially  31 the registration of traplines.  32 Q   Now, in terms of your own observations, are the  33 conclusions of Mr. Steward with regard to  34 matrilineality applicable to the Wet'suwet'en?  35 A   The Wet'suwet'en are definitely matrilineal.  I'm not  36 sure --  37 Q   In terms of you observed that the matrilineal system  38 among the Stuart Lake Carrier began to breakdown under  39 the pressure of the fur trade, and I was directing  40 your attention to that --  41 A   Oh, I see.  42 Q   -- observation by you as --  43 A   I see.  44 Q   -- as it might apply or not apply to the Wet'suwet'en.  45 A   I see.  No, the Wet'suwet'en have maintained being  46 matrilineal up to the present.  47 Q   Have you examined Julian Steward's field notes? 12959  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 A   Yes, I did.  I went to the Smithsonian to see if I  2 could find more material on which he based his  3 conclusions.  4 Q   Conclusions about?  5 A  About the eastern Carrier, the Stuart Lake Carrier.  6 Q   Yes?  7 A  And I looked at his material and I was surprised to  8 find that the material seemed to suggest the  9 importance of the feast to them during all -- in the  10 time that he was doing his field work, and that the  11 information that he recorded didn't indicate, by the  12 understanding I had gleaned from work with the  13 Wet'suwet'en, that their system had broken down as  14 completely as I had thought from reading his  15 monographs.  16 Q   Dyen and Aberle in their work on lexical  17 reconstruction evaluated Julian Steward's work?  18 A   Yes, they did.  19 Q   And in your own evaluation of the Wet'suwet'en, did  20 you take their comments into account?  21 A   I did.  22 Q   I direct your attention back to tab 3 of Volume 1, and  23 Dyen and Aberle's evaluation of Julian Steward at page  24 414 and, in particular, I'd ask you to turn your  25 attention to the second paragraph under the heading of  26 "Steward" where the authors say this, and I quote:  27  28 "There is thus little to say about  29 Steward's view that has not already been  30 mentioned.  For reasons related to our  31 lexical reconstruction and previously  32 discussed, we agree with Steward that the  33 early Carrier probably had cross-cousin  34 marriage.  We find no reason to attribute to  35 the earlier Carrier a patrilineal band.  We  36 admit the possibility of bilaterality, but  37 believe that matrilineality was more likely  38 to have been a feature of earlier Carrier  39 social organization.  We agree that there  40 was extensive Northwest Coast impact on the  41 Carrier, and that the Sekani may well have  42 been bilateral prior to the recent increased  43 impact of Northwest Coast culture."  44  45 Now, can you comment on Dyen and Aberle's  46 assessment?  Do you agree or do you disagree or do you  47 have another view with regard to their evaluation of 12960  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Mr. Steward?  A   I agree.  There's one further comment that I might  make in regards to this.  Steward had looked at the  marriage system among the eastern Carrier and reports  that there was a lack of cross-cousin marriage which  he had expected to find, and it's interesting to note  that subsequent work with this same group of people,  which seems to have gathered more complete genealogies  and done a more systematic assessment, records that  cross-cousin marriage does exist, and this is the work  of Douglas Hudson.  THE COURT:  I'm sorry?  THE WITNESS:   Hudson.  THE COURT:  Thank you.  MR.  RUSH:  Q  MR.  THE  THE  MR.  THE  MR.  THE  THE  THE  You make mention of Mr. Hudson's work in your opinion  at page 99, and I just ask you to direct your  attention to that, page 99, last sentence of the first  paragraph.  You observe that:  "Hudson's more recent work gives testimony to  the perseverence of the feast among the  Stuart Lake Carrier."  A   Yes.  Q   Is that the same Hudson to which you've just now made  reference?  A   It is.  Q   Now, again, in pages 97 through to 99 you evaluate the  work of Julian Steward, and I won't ask you to comment  on that, but only to ask you to review those pages and  ask you if you adopt that?  A   I do.  RUSH:   Okay.  My lord, with respect to "Lexical  Reconstruction", the extract that I directed your  lordship's attention to from tab 3 is one that I'd  like you to mark now.  REGISTRAR: Exhibit 918, tab 3 of book one.  COURT:  We already have it somewhere else, but --  RUSH:  Yes.  I'm not sure if you have those passages.  COURT:  Oh, possibly not.  RUSH:  I think you do, but out of an abundance of caution --  COURT:  913?  REGISTRAR: It would be 918, my lord.  COURT:  918.  Thank you.  (EXHIBIT 91?  Excerpt from "Lexical Reconstruction" 12961  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 by Dyen and Aberle, tab 3, of book one)  2  3 MR. RUSH:  My lord, I'm going to embark in a new area and I,  4 with your permission, prefer to do that after the  5 luncheon break.  6 THE COURT:  All right.  Let me just mark this.  This is —  7 lexical means language, I suppose, does it?  8 THE WITNESS:   Yes.  It's a set of words really.  9 THE COURT:  Set of words.  All right.  All right.  The next set  10 of words we'll hear is we'll adjourn for lunch.  11 MR. RUSH:  Thank you.  12 THE REGISTRAR: Order in court. The trial will adjourn until two.  13  14 (PROCEEDINGS ADJOURNED FOR LUNCH)  15  16 I hereby certify the foregoing to  17 be a true and accurate transcript  18 of the proceedings herein to the  19 best of my skill and ability.  20  21  22 Tanita S. French  23 Official Reporter.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 12962  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15 (PROCEEDINGS RECONVENED AT 2:00 p.m.)  16  17 THE REGISTRAR:  Order in court.  18 THE COURT:  Mr. Rush.  19 MR. RUSH:  20 Q   Did you take into account the work of Irving Goldman  21 when you prepared your opinion?  22 A   I did.  23 Q   And who is Irving Goldman?  24 A   Irving Goldman is an anthropologist who studied the  25 Alkatcho Carrier.  26 Q   These are the people that you've referred to as the  27 southern Carrier?  28 A   That's right.  2 9 Q And when did he do his work?  30 A In the 1940s — no, later than that.  31 Q And there is a — could it be 1941?  32 A Yes, that's correct.  33 Q Ask you to refer, if you will, please, to tab 3 in  34 volume 1 of your document book, and in particular, to  35 page 413 of that.  This is the Dyen and Aberle  36 reference, and they site at page 413 a passage from  37 Irving Goldman's work in 1941, and in the middle of  38 the page they set out several difficulties with this  39 work and they say, and I quote:  40  41 "There are several difficulties with this passage,  42 which reflects an archetype approach:  43 (1)  There is no reason to believe that the  44 westerly Canadian Athapaskans moved to  45 their present location from the east, and  46 for the Alaska Athapaskans, there is  47 every reason to believe that they did 12963  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 not; this despite the fact that a  2 westerly movement for the Beaver and  3 Sekani, in recent times, can be  4 established;  5 (2)  The Athapaskan homeland was not like the  6 territory of the tribes listed by  7 Goldman, and there is hence no reason to  8 infer that these groups do represent the  9 archetype for Athapaskan;  10 (3)  If by 'exogamy is based upon  11 consanguinity' --"  12  13 And he has that phrase in quotes,  14  15 "-- he means that closeness of kinship,  16 rather than kind of kinship, is the basis  17 for exogamy, the assertion is incorrect  18 for several easterly groups: at least  19 Slave, Hare, and Chipewyan, all of whom  20 express some preference for bilateral or  21 unilateral cross-cousin marriage."  22  23 And then he goes on in the next paragraph to say -- or  24 they go on to say, and I quote:  25  26 "Thus there is reason to reject Goldman's  27 'bilateral band' as the early organizational form  28 for the Carrier as a whole.  There is no evidence  29 for a westerly movement of the Carrier; the  30 easterly tribes live under conditions that make  31 them a poor model for Proto-Athapaskan  32 organization; and Goldman's 'bilateral band'  33 itself does not fit the organizational forms of a  34 number of the easterly groups."  35  36 Now, you -- have you taken into account these  37 comments of Dyen and Aberle in the preparation of your  38 opinion?  3 9          A   I have.  40 Q   And what can you say about -- if anything, with regard  41 to Dyen and Aberle's observations about Irving  42 Goldman?  43 A  Well, I think their observations are correct, that the  44 Alkatcho Carrier do not represent the proto-typical  45 at -- Proto-Athapaskans or Carrier, that they  46 represent the most southerly group who are living in  47 an area where they -- there is much less salmon than 12964  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 among the Wet'suwet'en and Babine territories and also  2 among the eastern Carrier, so that they did not have  3 the conditions available to them to develop lineal  4 systems as the other Proto-Athapaskans did.  In fact,  5 they may have had a Proto-Athapaskan structure, this  6 is what Dyen and Aberle are suggesting, but under  7 conditions adverse to its maintenance, lost it in the  8 area where they lived.  9 MR. MACKENZIE:  Excuse me, my lord, I would like to just make a  10 comment here.  I didn't rise during Mr. Rush's  11 questions about Jenness and Steward because in her  12 report, Dr. Mills does deal in detail with Diamond  13 Jenness and Julian Steward, and she does comment on  14 them and their strengths and weaknesses, but there is  15 no mention at all in the report in any of the  16 materials about Irving Goldman or an assessment.  So  17 we have -- this is the first we've heard of Dr. Mills  18 assessing Irving Goldman's work.  19 THE COURT:  Well, Goldman figured very prominently in Mr. Willms  20 cross-examination of Dr. Daly.  21 MR. MACKENZIE:  That's correct, my lord.  22 THE COURT:  He referred to him many times.  I don't know if  23 that's the source of the inspiration that led Mr. Rush  24 to pursue it now.  25 MR. RUSH:  Yes it is, my lord.  My friends think there is some  2 6 moment in this man's work and my friends have  27 cross-examined extensively not only with regard to Mr.  28 Goldman's work but also as regards to Mr. Kobrinsky,  29 and they have raised this as an issue for their  30 cross-examination.  And it would seem a very foolish  31 way to conduct the trial to allow my friends to  32 cross-examine Dr. Mills without hearing her on the  33 subject which we know is a subject that the parties  34 have joined issue on now, it -- and then to allow  35 doctor -- Dr. Mills' response either in cross-  36 examination or in redirect, or possibly my friends  37 would have me call Dr. Mills in rebuttal.  But it  38 seems to me the better course of wisdom to ask Dr.  39 Mills about an issue that my friends have made in the  40 trial on this question, and it's an issue that they've  41 raised because of the opinions of Dr. Mills.  Now in  42 my submission, I think it's all the better course of  43 pursuing this, in the course of the trial, to raise it  44 with Dr. Mills first and foremost as part of her  45 direct.  That's what we are doing here.  46 THE COURT:  Thank you.  Miss Koenigsberg?  47 MS. KOENIGSBERG:  I think your lordship has made your views 12965  Submission by Mr. Mackenzie  Submission by Mr. Rush  Submission by Ms. Koenigsberg  1 known but -- abundantly clear to us that notice is not  2 really a matter to raise, and quite frankly that's the  3 only basis that one could raise it and it's probably  4 arguable in this instance in any event, so it can be  5 dealt with in cross-examination.  6 THE COURT:  I'm hurt you put it that way, Miss Koenigsberg.  7 MS. KOENIGSBERG:  Don't take too much from the way I put it, my  8 lord.  I meant that your lordship has certainly  9 indicated strongly, if I may put it that way, that  10 what we might otherwise see as procedural difficulties  11 should not stand in the way of getting through with  12 these matters, and that matters like this can be dealt  13 with either in cross-examination or -- I think the  14 point is we didn't have notice of this particular area  15 of her cross -- of her examination in -- by way of her  16 report.  17 MR. RUSH:  Well, if I may respond to that, my lord, this is not  18 an issue of practicality or pragmatics.  In my  19 respectfull submission, what this amounts to is Dr.  20 Mills' opinion notice given to the other side two  21 years ago, and that opinion being challenged by way of  22 cross-examination of previous witnesses.  And we would  23 be blind to the fact that the -- my friends seem to be  24 wanting to join issue on this -- if we didn't properly  25 assess the cross-examination of Doctors Kari and Dr.  26 Daly.  Now, in my submission, I think it is incumbent  27 upon the plaintiffs once that issue is raised, and  28 where it is joined in the report, to put it to the  29 witness, and that's precisely what I'm doing.  30 THE COURT:  I'm only troubled by Miss Koenigsberg's  31 characterization of the issue.  I do not think this is  32 a question of notice at all.  Well, I suppose it is in  33 a minor respect but what I endeavoured to state  34 yesterday was in relation to the furnishing of  35 underlying material.  The notice in this case was  36 given months ago, I gather, whenever this report was  37 furnished, and now we are dealing with a question of  38 whether specific notice of every subject that might  39 arise in the evidence in chief will arise.  If that is  40 the objection then I could deal with that quite  41 quickly, but I do not want counsel to think that I've  42 tossed notice out the window.  43 MS. KOENIGSBERG:  My objection was meant to be in the minor key,  4 4 my lord.  45 THE COURT:  Well I would hope so.  Well, I am against the  46 objection, Mr. Mackenzie.  I think that when we have a  47 situation like this where the opinion of the witness 12966  Submission by Mr. Rush  Ruling by the Court  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  MR. RUSH:  19  Q  20  21  22  23  24  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  37  THE COURT  38  A  39  40  41  MR. RUSH:  42  Q  43  A  44  Q  45  A  46  47  was given sometime ago, no complaint has been made in  that regard, and when subsequent to the notice being  given your colleague raised a matter directly on this  issue and brought it up and cross-examined on it  vigorously, that is the opinion of Goldman, that the  law would indeed be an ass if the plaintiff was now  not entitled to ask an expert in the same field about  the matter that Mr. Willms made such a point about.  And for that reason, it seems to me that if there  could have been an objection to those -- and I do not  think it really fits that particular classification of  objections -- but if there could have been, well then,  it seems to me that the notice requirement in this  regard must have been waived by the cross-examination  in which Mr. Willms conducted.  For that reason I am  disposed to rule against the objection and to allow  Mr. Rush to continue with his examination.  Now, I wonder if Exhibit 881 can be placed before Dr.  Mills, this is the grey book that was entered as an  exhibit in the evidence on cross-examination of Dr.  Kari.  Dr. Mills, in the course of the preparation of  your opinion, did you take into account the work of  Vernon Kobrinsky?  I did.  And did you familiarize yourself with his work?  I did.  And what did you do in order to do that?  I read his Ph.D. thesis and his article.  All right.  And are you familiar, in general terms,  with the thesis advanced by Mr. Kobrinsky?  I am.  And can you state that in a succinct form?  Vernon Kobrinsky was stating that the Babine and  Wet'suwet'en basically --  :  Sorry, that?  The Babine and Wet'suwet'en people had a structure of  bands which developed in a fur trade context into a  matrilineal system with feasts and chiefly titles.  And what is your view of that proposition?  Oh, I disagree with his analysis.  And why is that?  Well first of all, he mistakenly confuses the  territories of the Wet'suwet'en and considers them to  be territories held by bands rather than territories 12967  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 held by the matrilines.  He is correct in identifying  2 that the -- the Wet'suwet'en and Babine people did  3 have territories, delineated territories, aboriginally  4 there he is correct, and he is correct in stating that  5 these were at the present location of the Babine and  6 Wet'suwet'en people, there again he is correct.  But  7 in characterizing them as being held by people who  8 lived in bands, I think he is incorrect.  There is no  9 evidence that these people did not have matrilines  10 long before contact.  11 Q   And what's the significance of the matrilines in what  12 you've just said?  13 A  Matrilines are the organizational principle of the  14 Wet'suwet'en people, and matrilines fit into the  15 system of clans and houses that are considered as the  16 groups that have rights and own specific territories.  17 And it fits in -- it's a system which is ideally  18 suited to the feast system, and in my opinion, the  19 feast system is something that characterized the  20 Wet'suwet'en long before contact when the fur trade  21 began.  22 Q   Are you aware of -- from your reading of Mr.  23 Kobrinsky's thesis, if I -- upon what information he  24 bases his study with regard, in particular, to the  25 Wet'suwet'en feast?  26 A  Mr. Kobrinsky -- Dr. Kobrinsky was not in a good  27 position to analyse the Wet'suwet'en feast.  He had  28 initially intended to make that the subject of his  29 doctoral dissertation.  He went to Babine Lake, he  30 found that the major centre of pot -- of feast was at  31 Moricetown.  Not knowing those people, he stood  32 outside the door uncomfortably at one feast, but he  33 never attended any feasts.  He noted, however -- I may  34 as well point this out -- he noted the existence and  35 persistence and importance of the feast to the  36 Wet'suwet'en before the land claims was enjoined.  37 Q   The question of his standing outside of the feast  38 hall, is that something that he reports in his thesis?  39 A   Yes, he does.  And therefore, on the basis of not  40 having any information to analyse about the feast, he  41 switched his topic to an analysis of -- of what was  42 the land tenure system, and mistakenly identified it,  43 in my analysis, with a band system.  He had been  44 interested in studying this -- the question of a  45 potlatch in terms of the anthropological literature on  46 the gift.  There is a tradition in anthropology,  47 started by a French anthropologist named Marcel Mauss, 1296?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 and he had been interested in analysing the potlatch  2 and feasting system in these terms.  But since he  3 didn't have any data to analyse, he did a different  4 kind of analysis.  5 Q   All right.  I would like you to look, if you will, at  6 Exhibit 881 which is the grey binder in front of you,  7 tab 12, and there exhibited is a paper apparently  8 written by Vernon H. Kobrinsky under the title of "The  9 Tsimshianization of the Carrier Indians."  Are you  10 familiar with that paper?  11 A   I am.  12 Q   I would like you, if you will, please, to turn to page  13 206 of that paper.  And in the second paragraph, Mr.  14 Kobrinsky identifies what he calls a number of  15 arguments concerning how, when and why the  16 northwestern Carrier acquired these institutions, and  17 he is referring to the system of matrilineal  18 divisions.  And the first that he offers is what he  19 says, and I quote:  20  21 "...the near-universal view of authorities,  22 starting with Morice, that the northwest Carrier  23 have borrowed these institutions from their  24 coastward neighbours."  25  2 6 Now, can you comment on that; do you agree or  27 disagree with that comment?  28 A  Morice did indeed say that the Wet'suwet'en and Babine  29 and eastern Carrier peoples had largely borrowed the  30 system from their western neighbours, yes, we've just  31 reviewed that.  And again, he -- Morice himself was  32 under the misapprehension that the -- these Carrier  33 peoples were coming in perhaps sometime lately from a  34 subarctic kind of environment rather than being the  35 Proto-Athapaskan type of people who had been in situ  36 for a long period of time.  37 Q   Mr. Kobrinsky goes on to say:  38  39 "Morice, and after him Jenness and Duff noted the  40 remarkable number of terms in the Carrier  41 ceremonial lexicon -- titles, group and personal  42 crests, and the phratry names themselves, but not  43 the clan names, which are of Tsimshian origin.  44 The reverse is not the case."  45  46 Now, can you comment on that observation by Mr.  47 Kobrinsky? 12969  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  A  2  3  4  5  6  7  8  9  Q  10  A  11  Q  12  A  13  14  15  16  17  Q  18  A  19  20  21  22  THE  COURT  23  THE  WITNE  24  25  26  MR.  RUSH:  27  Q  28  A  29  30  THE  COURT  31  A  32  MR.  RUSH:  33  Q  34  35  36  A  37  38  39  Q  40  41  42  43  44  45  46  47  Indeed Jenness and Morice also thought that the -- a  large number of the terms relating to the clans, clans  and houses were -- and crests and titles of the  Carrier were northwest coast origin, specifically,  Tsimshian or Gitksan origin.  However, we have better  data now -- well in fact, even in their time it was  obvious that all of the house names were Athapaskan  names and were not borrowed.  That is the Wet'suwet'en house names?  That's right.  Yes.  And that a number of the names, the feast names, the  hereditary titles were borrowed, that's indeed the  case.  But in fact, we perceive now that a number of  them -- that were thought to be borrowed even by the  Wet'suwet'en in fact are such old terms --  Excuse me, just a moment.  Go ahead.  -- that their meaning has become lost to the  Wet'suwet'en, who themselves tend to think that since  they don't understand the derivation of the names,  perhaps they are of Gitksan origin.  :  But you say they are not?  3S:  There are names, feast names that are borrowed  from the Gitksan.  It's the question of how many, or  the totality.  And what's your view of that?  And my view of that is that not all of the names are  borrowed.  :  Some are but not all?  That's right.  Some definitely are.  To your knowledge, are there names that are borrowed  from the Wet'suwet'en by the Gitksan or their  Tsimshian neighbours?  There are certainly crests and things that have been  borrowed by the Gitksan.  I am not familiar enough  with the -- that field to say anything more.  All right.  In the -- it appears the fourth paragraph  under the heading "The Origin of Phratries and Clans",  Mr. Kobrinsky says, and I'm quoting:  "There is a hint of recency in the fact,  reported by Jenness, that many titles and crests  of Tsimshian derivation were in use by the Bulkley  Carrier without the least knowledge of their  'origin or real significance'.  Similarly, there 12970  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 are no traditions giving account of the origin of  2 the Carrier clans such as those which describe the  3 wanderings, adventures and eventual settling of  4 the ancestors of their Coast Tsimshian and Gitksan  5 counterparts."  6  7 And in each case there are certain references given.  8 Do you have an opinion about that objection by Mr.  9 Kobrinsky?  10 A   Yes, I do.  First of all, the kungax do give some  11 origins of Wet'suwet'en clans, houses, chiefly names,  12 et cetera, et cetera.  It is not as if they are  13 totally separate, though indeed they are treated by  14 the Wet'suwet'en in a totally different way from their  15 Gitksan neighbours.  Further, the Gitksan names or  16 titles which are in use by the Wet'suwet'en, the fact  17 that their origin is not known doesn't necessarily  18 bespeak their recency but their antiquity.  When there  19 is often some kind of an account of the transmittal of  20 a crest, when that is taken place in relatively recent  21 times, the absence of a story or an account that  22 explains it doesn't necessarily mean that it's recent.  23 In fact, quite the reverse can be true.  24 Q   All right.  And on page 207, I want to direct you to  25 the paragraph which is the first full paragraph on  26 that page, first to the opening sentence, and I quote:  27  28 "I am convinced by further evidence that these, a  29 complex of territory-owning matrilineal crest  30 divisions led by a class of potlatching divisional  31 chiefs, are manifestations of the fur trade  32 period".  33  34 Do you have an opinion with regard to that point  35 by Mr. Kobrinsky?  36 A   Yes, I do.  I disagree with what he is saying there.  37 It seems to me that the evidence suggests a great  38 antiquity for "territory-owning matrilineal crest  39 divisions led by a class of potlatching divisional  40 chiefs," quote unquote.  41 Q   He cites two reasons there.  He says, and I quote:  42  43 "Among the Gitksan and Coast Tsimshian primary  44 rights over resource areas and resources rest with  45 lower and intermediate crest-division levels,  46 whereas among the Bulkley and Babine septs they  47 rest at the widest crest level and not with the 12971  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 lower divisions."  2  3 A   The territories do you think?  4 Q   Yes.  That's the first reason that he posits.  Can  5 you -- do you have an opinion with regard to that?  6 A   Yes, I do.  It seems to me that the territories are  7 divided up very clearly by the houses rather than the  8 clans, so that I don't understand why he makes that  9 statement.  10 Q   When he refers to "septs" there, "Bulkley and Babine  11 septs," S-E-P-T-S, what's he talking about?  12 A   Kobrinsky uses this term which he got from Morice, to  13 refer to divisions of the territory among the  14 Wet'suwet'en, and he thought that these were referring  15 to band level divisions.  He, Kobrinsky, not Morice.  16 Morice didn't make that mistake.  But Kobrinsky felt  17 that the septs or these territories were referring to  18 band level organization.  19 Q   And what is your view on that?  20 A   Oh, my view on that is that these territories are the  21 property of the houses.  The Wet'suwet'en make that  22 very clear, there is no reason to presume that any  23 other way, that it worked any other way.  Kobrinsky, I  24 think, arrives at this confusion because the title for  25 the people in a particular area has this Wet'suwet'en  26 word "wuten", people of this area.  That does not mean  27 it's not a matriline, it doesn't mean it's not a house  2 8 group.  29 Q   And a house group being part of the matrilineal  30 system?  31 A   That's right, that's right.  32 Q   The second reason that he offers, and I'm quoting on  33 the same page, same paragraph:  34  35 "And of immediate relevance, the Gitksan hunting  36 grounds were apparently exclusively with respect  37 to all resources within them, while the Carrier  38 areas are specific to fine-fur animals."  39  40 And he parenthetically states:  41  42 "(my own solid information on this point confirms  43 suggestive evidence from Morice)."  44  45 Now, he refers here to the Carrier and can you  46 comment about his assertion in terms of your own  47 opinion, and can you say if you are able to determine 12972  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 from the assertion whether he is referring to the  2 Wet'suwet'en or other Carrier or any Carrier?  3 A  Well, the term Carrier is almost a misnomer because  4 under it can be lumped so many different peoples.  One  5 would presume that he was talking in particular about  6 the Babine peoples since that's where he did his field  7 work, though it's not apparent that that's necessarily  8 the case.  If one is referring to the southern  9 Alkatcho Carrier, then perhaps his statements would  10 have more relevance.  But again, there needs to be a  11 division made between the southern Carrier, the  12 eastern Carrier and the Babine-Wet'suwet'en.  In terms  13 of Wet'suwet'en, who are the people that I am most  14 familiar with, this statement does not apply.  The  15 territories are not specific only to fine-fur bearing  16 animals, the territories relate to all of the  17 animal -- all the game, all the resources on the  18 territories.  19 Q   Perhaps in the next sentence that follows, the one  20 I've just quoted, it becomes clear as to which Carrier  21 he is referring to, and I quote:  22  23 "The Carrier remain faithful to this day to the  24 sept and regional band tradition to open meat-  25 hunting hinterlands -- and its corollary of  26 community-wide, meat-sharing (not fish!), to which  27 my table will appreciatively attest.  This fact  28 tells us why, as well as when, partitioning of  29 Carrier territory commenced."  30  31 And does that -- does that reveal to you what it  32 appears that Vernon Kobrinsky was referring to when he  33 referred to the Carrier in that context?  34 A   It would suggest he was talking about the Babine.  35 Q   Now, I'll ask you just to consider, would the  36 Babine -- are the Babine fish-consumers?  37 A   Yes, they are.  38 Q   And yet he says that they are meat-sharing but not  39 fish-sharing.  Is that significant at all?  40 A  What he really seems to be saying is that the fish --  41 where the fish are taken from may be more controlled  42 than from where in the territories in which the game  43 is taken from, I think that's his meaning; wouldn't  44 you agree?  45 Q   Well, I will leave it to you to make the opinions and  46 hopefully you are better at it than I am.  47 A   That's what he is saying. 12973  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  THE  THE  THE  MR.  COURT:  Well, I don't understand that.  Why does that  follow?  The Babines eat fish as part of their regular  diet.  Why does that refer to Babine instead of  Wet'suwet'en?  WITNESS:  Oh, the reference as his -- "as my table will  appreciatively attest," means he is talking about  where he lived, and where he lived was at Babine Lake  where he did his field work.  So he is saying that at  Babine Lake the people shared with him meat which they  had gotten on territory irrespective of who owned it.  I think that's his meaning.  COURT:  Is he saying there that fish wasn't shared at  Babine?  WITNESS:  The way he states it, it's not entirely clear, but  he indicates that, yes.  COURT: I suppose it could also mean that there was so much  fish that it was so commonplace that meat sharing was  something different?  WITNESS:  Well, it's -- ethnographically this is not a very  useful statement.  A person can get meat at any place  and share it with people, there is no restriction on  sharing of meat, that's a common practice.  It  doesn't -- the question is whether the people think  that it's important to ask for the permission of the  chief whose territory on whom you are hunting, and as  far as the Wet'suwet'en are concerned, that's  essential.  All right.  COURT  RUSH:  Q  The -- this is cited, presumably, to support his  second reason, Dr. Mills, of the theory that he is  advancing that the territory-owning matrilineal crests  are manifestations of the fur trade period.  Does  that -- does his comment that your lordship and you  have just been discussing, does that assist at all  with reference to that proposition?  A  What he is saying is that the fine furs, the  regulation of taking fine furs produced a system of  ownership that was not in existence previously.  I  think that's what he is saying or trying to say.  Q   And does that follow, to you?  A   No.  Q   Now, I want to ask you about the next paragraph on  page 207, and I quote:  "The system of phratry territories --" 12974  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 And what do you understand his use of the word  2 "phratry" to mean in your terminology?  3 A   Kobrinsky is using the term "phratry" as we would use  4 clan.  5 Q   Okay.  6  7 "The system of phratry (or clan) territories  8 (then) is essentially a system of fur trading --"  9  10 A   Trapping.  11 Q   Excuse me.  12  13 "-- of fur trapping areas adopted to regulate  14 access to fur resources, probably with a view to  15 checking hostility in the heat of the competition  16 for claims and possibly, too, with a view to  17 administering problems of conservation."  18  19 Do you have an opinion with regard to that view  20 of Mr. Kobrinsky?  21 A   Yes, I do.  I think that it's important for people to  22 recognize that it didn't take the fur trade for  23 peoples to need to conserve their resources, and that  24 there is -- that in any group of people there is a  25 system in place of regulating who -- what peoples have  26 ownership of what territory.  When you have a larger  27 population as you do when you have the salmon  28 resource, then in those conditions you tend to have  29 the people organized on a lineal principle, and among  30 the Athapaskans that tends to be a matrilineal  31 principle and then those matrilines are the divisions  32 that control the use of the territory.  But they  33 certainly practised conservation before fur trading as  34 well because the -- it's not as if furs were only  35 important to the Wet'suwet'en and to native peoples  36 after the fur trade began, then they became a medium  37 of exchange for other goods.  But prior to contact  38 these were the furs that kept people warm during long,  39 cold winters, this was part of their lifestyle of  40 taking of furs long before the fur trade was  41 introduced.  Everyone needed to have a sleeping roll  42 made of furs, people had to have clothing made of  43 furs.  The fur trade was not built upon an absence of  44 fur technology previously.  45 Q   All right.  4 6 A  And these furs would sometimes be traded from one  47 group to another as well for other goods, among other 12975  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 things that were traded as well.  2 Q   Now, I would like to ask you about the next sentence  3 that follows, and I'm quoting:  4  5 "Similarly, there are no traditions giving account  6 of the origin of the Carrier clans --"  7  8 I'm sorry.  Excuse me, I just found myself back one  9 page.  10  11 "'In fact, the 'territories' —"  12  13 And I'm quoting:  14  15 "'In fact, the 'territories' are, properly  16 speaking, not hunting grounds, but areas  17 surrounding traplines'."  18  19 A   For the Wet'suwet'en, the Wet'suwet'en make it very  20 clear that their territories are not based on a  21 trapline system, that these territories were the  22 territories that are owned by the matriline, by the  23 house which is, in effect, a house group, and all the  24 resources within that territory are under their  25 cultivation, or their harvesting is under the  26 direction of the head chiefs of that matriline.  27 THE COURT:  Well then, what you are telling me now is just what  28 they've told you, isn't it?  29 THE WITNESS:  Yes.  3 0    MR. RUSH:  31 Q   Apart from what the Wet'suwet'en people have told you,  32 were there -- did Jenness, for example, talk about the  33 question of the hunting or trapping territories?  34 A   Yes, he did.  35 Q   What can you --  36 A   He described --  37 Q   Synopsize that for his lordship?  38 A   Yes.  Jenness described the territories of the Bulkley  39 River Carrier and Wet'suwet'en as the property of the  40 chiefs of that -- of the houses of the matriline, and  41 he did not ever suggest that they were a product of  42 the fur trade.  43 Q   In the next paragraph, Mr. Kobrinsky indicates in the  44 second sentence, and I'm quoting:  45  46 "Personal ownership of beaver lodges in the early  47 contact-traditional period has been widely 12976  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 reported."  2  3 Do you have a comment about that?  4 A   He cites a number of instances where that has been  5 noted.  You will note that the Wet'suwet'en do not --  6 are not among those.  7 Q   Is that a proposition that you have seen in the  8 ethnographic literature expressed by the Wet'suwet'en  9 people before?  10 A   I'm sorry?  11 Q   Is that a factor, a proposition that you have seen in  12 the ethnographic literature about the Wet'suwet'en or  13 expressed by the Wet'suwet'en previously?  14 A   I am missing your -- "that" is what?  15 Q   Is the statement that's in the -- here, the statement  16 that:  17  18 "Personal ownership of beaver lodges in the early  19 contact-traditional period has been widely  20 reported."  21  22 Have you had that reported to you is my question?  23 A   For the Wet'suwet'en?  24 Q   Yes?  25 A   No.  26 Q   Has that been reported in any of the ethnographic  27 literature about the Wet'suwet'en that you have  2 8 reviewed?  29 A   No, it has not.  30 Q   Now finally I would like you to look, please, at page  31 208, and Mr. Kobrinsky cites Mr. Duff at 1951, and he  32 says, and I quote:  33  34 "The foregoing analysis is consonant with the  35 revealing fact that the phratries were first  36 concatenated one-on-one upon an entire septs or  37 sept village-segments."  38  39 And then he cites Duff, and he says -- and this is an  40 internal quote:  41  42 "'The steps by which these subtribes adopted  43 their present phratry system seems fairly  44 clear.  A first step was for a local band to  45 take the Tsimshian-derived name of a phratry  46 to the west and equate itself with that  47 phratry.  Thus the Burns Lake people became 12977  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Laksilyu, Fraser Lake Jilserhyu, Fort Fraser  2 Lsamasyu, Tachick Lake Laksilyu, Nulki Lake  3 Jilserhyu.  No two adjacent groups took the  4 same phratry name."  5  6 Can you -- do you have an opinion with regard to  7 Wilson Duff's comment here?  8 A   Yes, I do.  Though in general I have the highest  9 regard for Wilson Duff's work, this statement was  10 based on some small amount of field work he did among  11 these eastern Carrier and some of the Carrier.  And in  12 fact, what you have here is indeed an equation of a  13 particular area with a particular clan.  Again, he is  14 using phratry as perhaps we would use clan, and the  15 reason that it is associated with a particular clan is  16 because this is the hunting territory of this clan and  17 he has identified some of these places, for example,  18 Burns Lake is -- falls within the Wet'suwet'en  19 territories, and this is part of the territory  20 that's -- that is held by particular houses and clans  21 of the Wet'suwet'en.  And so he has just, then, simply  22 mistaken the fact that it's one clan that has the  23 rights to a particular territory, to thinking that  24 it's some kind of a simple or recent adoption from the  25 western peoples, without recognizing that these --  26 these are the same territories of the people that go  27 back to the villages, the salmon-fishing villages at  28 Moricetown or Hagwilget.  29 Q   All right, thank you.  30 A   The rest of the places are eastern Carrier, most of  31 the places, the other places are -- fall within the  32 eastern Carrier domains.  33 Q   Except for Burns Lake --  34 A   Except —  35 Q   -- the other places are eastern Carrier?  36 A   That's right.  37 Q   And are they eastern Carrier of people that you can  38 identify, some Stuart Lake Carrier, for example?  39 A   Yes.  40 Q   Are they all Stuart Lake Carrier or are there other  41 phratries?  42 A   No, separate from Stuart Lake.  There are different  43 lakes within this area and this is what Father Le Jacq  44 was noting, that the different peoples had different  45 territories.  Different family groups had different  46 territories each, their lake or their mountain as he  47 said, and this is the system that was indeed in place. 1297?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  THE  THE  THE  THE  THE  THE  MR.  The error is thinking of these bilateral bands or  septs.  They should be -- they properly are thought of  as matrilines.  All the evidence is that these are  matrilines.  COURT:  What does concatenated mean?  WITNESS:  That's a good question.  Can you point me to the  sentence where he uses it.  RUSH:  It's just above the quote.  COURT:  Just above the quotation of Duff.  WITNESS:  It's a very complicated way of saying formed or  made.  COURT:  Formed?  WITNESS:  Yes.  COURT:  Thank you.  And what does "one-on-one" mean in that  context, one at a time?  WITNESS:  No.  What he is saying is that you had septs and  the septs are bands' territories -- territories that  belong to bands, and he is thinking of them as in  terms of bilateral bands.  These are bands of people  who are related on a bilateral principle rather than  on a lineal principle, and he is saying that what  happened was you just went quite quickly with the fur  trade from having these bilateral bands that own  territories to having those territories held by a clan  that -- which was adopted from the Tsimshian or  Gitksan influence.  That's basically what Kobrinsky's  thesis is.  And in my opinion, his mistake is thinking  that these territories are -- were owned by bilateral  bands.  It seems to me that all the evidence is that  these people were matrilineal long before contact.  They had all the earmarks of being matrilineal, they  have matrilineal clans in place, they have the salmon  resource which is a concomitant of having matrilineal  clans.  It's -- there is no reason to suppose that  they were -- they had the bilateral band structure  that characterized the Athapaskans to the east of the  Rockies.  Thank you.  COURT:  RUSH:  Q  A  Now, Dr. Mills, could you perhaps just summarize again  for us the differences between the bilateral bands  which you've mentioned and the matrilineal -- the  matrilines and the matrilineal clans and houses?  Bilateral band, band level society typically organizes  itself by recognizing its kinship on both the mother's  and the father's side without any lineal principles.  The principle of organization for a bilateral band 12979  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 becomes cross or parallel relatives.  This is a bit  2 complicated.  I am not sure if this is really what you  3 wanted me to --  4 Q   I would like to know the difference between the two,  5 if you please?  6 A   In a bilateral band, the people that you can marry are  7 differentiated by whether they are cross-related to  8 you by a cross or parallel relative, and an example of  9 this, you can -- you obviously cannot marry your own  10 sisters or your mother or your mother's sister, but  11 you can marry your mother's brother's daughter because  12 that's called a cross-relative because the mother and  13 the brother are of the opposite sex.  So in -- in  14 bilateral band societies, the distinctions are between  15 cross and parallel relatives and that gives you your  16 categories of who you can marry and who you cannot  17 marry.  18 Q   All right.  And now comparing that to the matrilineal  19 clan or house system?  20 A  Matrilineal system, or a lineal system, people  21 reckon -- well, in the matrilineal system, they reckon  22 how -- your relation through the mother's line.  So  23 that a woman and her children are members of one clan  24 or line, and that person's -- this woman's children  25 then, her sons, will be in her same clan but they will  26 marry woman from an opposite clan and therefore their  27 children will belong to an opposite clan.  It's a  28 different principle for organization, and what you  29 tend to find is that when you have a population that's  30 larger, you have matrilineality -- either  31 patrilineality or matrilineality occurring, and when  32 you have smaller populations people organize  33 themselves as bilateral bands, and you tend to have  34 small populations when people are nomadic hunter-  35 gatherers without a stable resource such as the  36 salmon.  And when you have the salmon, then the  37 population can be larger and you tend to proximate the  38 kind of social organization that usually typifies an  39 agricultural society.  It seems that the principles of  40 organization become easier in a lineal society and  41 that you need more structure if you have a larger  42 population.  43 Q   All right, thank you.  44 I would like to turn your attention to another  45 segment of your report, and in particular, to chapter  46 4 which is at page 100.  And if you have the opinion,  47 I wonder if you can direct your attention to that, 12980  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  Q  3  4  5  6  7  8  9  10  11  12  13  14  A  15  Q  16  17  A  18  Q  19  20  21  22  23  24  A  25  26  27  28  29  30  Q  31  32  A  33  34  35  Q  36  37  THE  COURT  38  MR.  RUSH:  39  40  41  THE  COURT  42  MR.  RUSH:  43  Q  44  45  A  46  THE  COURT  47  MR.  RUSH:  please, now.  And you state at the end of the introductory quote,  and I'm quoting:  "The institutions of the Wet'suwet'en;  namely clans, Houses and chiefly titles, are  integrally related to the feast system and the  laws of the Wet'suwet'en.  They determine how the  Wet'suwet'en territory is owned and used and  provide the structure of Wet'suwet'en government."  And you can -- that is your opinion on this chapter,  is it?  Yes, it is.  All right.  The clans of the Wet'suwet'en you have set  out in Table 1 at page 103?  Yes.  And I think you've assisted us with the meaning of the  term "clan" among the Wet'suwet'en.  The clans that are identified in Table 1, the  translations of those clans, how did you come by the  knowledge or the meaning of the words in English to  the names of the Wet'suwet'en clans?  These aren't simple translations of the names of the  clans.  In fact, they are -- these are what are used  as the markers as the words for the clans in English.  For example, Gilserhyu doesn't necessarily just simply  mean frog, but these -- there is some basis for this.  These are the crests of these clans.  And how did you come by the knowledge of this clan  distinction that's set out here?  I learned it both from the Wet'suwet'en and from  Jenness.  It's described in Jenness as well and is  also the system that's in existence today.  And if you have tab 24 which is volume number two at  page 484 of Jenness' work.  :  Where are we again?  This is volume 2, tab 24 of Diamond Jenness',  monograph on the Bulkley-Carrier Indians or the  Wet'suwet'en?  :  Yes.  And in 1924, was -- is this the recording that Diamond  Jenness made of the clans of the Wet'suwet'en?  Yes, it is .  :  Sorry, Mr. Rush, the page? 12981  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Q   That's 484.  2 And Dr. Mills, did you also take into account the  3 interview by Leonard George and Alfred Joseph of Mary  4 George on August the 26th, 1981 -- this is found at  5 tab 16 of the same volume -- in determining the clan  6 system among the Wet'suwet'en?  And just ask you if  7 you will please turn to page 9 and following.  Just  8 ask you to review that please, Dr. Mills.  9 A   Yes, I did review this and it's again a portrayal of  10 the Wet'suwet'en understanding of the clans.  It's --  11 this is from Mary George who is no longer alive, but  12 this is the kind of observations that Wet'suwet'en in  13 general made.  14 Q   All right.  And I want you as well, if you would,  15 please, to turn to volume number one.  Madam  16 Registrar, could you place that before Dr. Mills, and  17 I would ask you to look at tab number six.  I wonder  18 if you could just quickly flip through tab number six,  19 Dr. Mills.  20 THE COURT:  Sorry, Mr. Rush?  21 MR. RUSH:  Volume 1, my lord.  22 THE COURT:  Yes.  My tab 6 is a blank.  23 MR. RUSH:  I see.  24 THE COURT:  So is five.  25 MR. RUSH:  The defendants have a copy?  26 MS. KOENIGSBERG:  We were asking for your assistance as well.  27 THE WITNESS:  Well, I've reviewed this and you could pass it on  28 to —  29 MR. RUSH:  Wait a minute.  30 THE COURT:  Why don't we take the afternoon adjournment, Mr.  31 Rush, and have a chance to sort this out.  Thank you.  32 THE REGISTRAR:  Order in court.  Court is in recess.  33  34 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  35  36 I hereby certify the foregoing to be  37 a true and accurate transcript of the  38 proceedings herein transcribed to the  39 best of my skill and ability.  40  41  42  43  44 Toni Kerekes,  45 O.R., R.P.R.  46 United Reporting Service Ltd.  47 12982  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 (PROCEEDINGS RECONVENED PURSUANT TO AFTERNOON RECESS)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  6 Q   I think I provided you, my lord, with the new tabs  7 already, first tabs 5 and 6 of Volume 1, and I had  8 directed the witness to tab 6 in Volume 1 to ask her  9 to identify the contents of that tab.  Can you do  10 that, Dr. Mills?  11 A   Yes.  12 Q   Can you just identify for his lordship what's  13 contained at tab 6?  If you will just flip through  14 these very quickly.  15 A   There's a variety of things, but most of it what it is  16 is lists that I compiled with the help of other people  17 that list the chiefs' names and who's the present  18 holder, and who people recall having held the name  19 previously and, when it's known, the date that they  20 took that name.  That's what the majority of these  21 pages are.  There are a few other things that are  22 included, for example, some notes about Chief Klo Um  23 Khum that are handwritten.  24 Q   Are those -- the handwritten notes about Klo Um Khum,  25 are they in your writing?  26 A   No, they're not.  27 Q   Were these provided to you by someone?  28 A   Yes.  29 Q   Can you identify who?  30 A   The niece of Klo Um Khum.  31 Q   The niece of Klo Um Khum?  32 A   Yes.  33 Q   Klo Um Khum is a Wet'suwet'en chief?  34 A   Yes.  This is -- in fact it's -- Johnny Mack is the  35 late Klo Um Khun.  36 Q   All right.  The other typescript, was this typing done  37 by you?  38 A   Yes.  39 Q   And is this based on information that you gathered?  40 A   Yes.  41 Q   And was this information provided to you by  42 Wet'suwet'en people and Wet'suwet'en chiefs?  43 A   Yes.  44 Q   And some of the material here refers to clan  45 identification.  Were the clans identified by your  46 informants?  47 A   Yes. 12983  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  THE  THE  MR.  MR.  THE  MR.  A  Q  A  Q  A  Q  A  THE COURT  MR. RUSH:  COURT  RUSH:  Q  And were these notes typed by you in the period from  during the course of your field work among the  Wet'suwet'en, except insofar as you've identified --  and perhaps I should just ask you to look at one other  that doesn't appear to be in your --  No, there's some notes --  Yes?  -- in the hand of Victor Jim.  All right.  And were these provided to you by Victor  Jim?  Yes.  All right.  And there's also just before the  handwritten notes of Victor Jim, my lord, these start  in the upper left-hand corner with the word "Felix  George", there's what appears to be a text of an  interview with Sylvester George?  That's right.  This is from the research that was done  previously by the Wet'suwet'en, and I had just jotted  down a little bit of a question, a genealogical  question.  :  I don't know if I'm ever going to find it.  How far  into the document is it?  It's about half-way, and it's just after the Gitumdem  Woos clan.  I think it's the second of the two  handwritten notes in the parcel.  :  Yes, I have it.  The notes are dated -- are the dates on the notes  depicting the time of the interview that you had?  A   Yes.  RUSH:   All right.  Thank you.  I'd like that bundle of  notes to be entered as the next exhibit, my lord.  REGISTRAR:  Exhibit 919, tab 6.  COURT:  Well, Mr. Rush, I've got your friends terrorized I  guess, but I don't know how this can go in as an  exhibit.  It's not indexed, the pages aren't numbered,  and I don't know what half the documents are.  MACKENZIE:  This is one of the bundles that we got yesterday  morning, my lord.  RUSH:  Well, I'm happy to number the pages, my lord, if that  will satisfy --  COURT:  Oh, no.  RUSH:  I mean the witness has identified these as all having  been prepared by her upon information that's been  taken from informants during the course of her field  work.  And where that's not been so, she's indicated  the places in the bundle where she has obtained the 12984  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  information from another source and indicated the  source.  THE COURT:  Well, I'm looking at a genealogical diagram of  Caspit, and without some more information I don't know  the source of that at all, except that it's a field  worker or a number of field workers, or who or when or  for what purpose.  I have no doubt that there may be  some basis upon which this material is admissible.  I'm just troubled about what I will inelegantly  described as a scoop-shovel theory of admissibility.  I don't say that unkindly.  MR. RUSH:  I didn't take it that way, my lord, but we can  provide an index.  If it's to facilitate your  lordship's understanding, I will do that.  If it's a  matter of identification, I'll take the witness  through each one of the notes.  THE COURT:  I don't think it's a question of identification;  it's a question of understanding just what it is.  And  do I understand the witness to be saying that these  are notes that she made from information given to her  by field workers or informants?  MR. RUSH:  Informants.  THE COURT:  Or documents that were made by informants and given  to her?  MR. RUSH:  Yes, that's what I understand.  THE COURT:  Well, I would think that it may be that they could  be admissible on the basis that that's what they are,  but I have serious misgivings about what use can be  made of them.  Certainly they don't prove the truth of  the facts stated in them, and I don't know what -- I  don't believe she said what reliance or use she has  placed upon them or made of them.  MR. RUSH:  Yes, the people that were her informants identified  clans that many of these notes, if not all of the  notes, refer to, and that's the particular subject  matter of the part of her opinion that we are now  referring to.  That is to say, the witness said that  she obtained from contemporary speakers, and in some  cases now speakers who have passed on who were her  informants, information with respect to the existence  of Wet'suwet'en clans.  And she garnered this  information, not only from Jenness, but she took the  information from these other informants.  And I think  that they are admissible in the sense that she, as an  anthropologist, was entitled to undertake  investigations, record the notes -- record the  information provided to her in notes, and this is what 12985  Submission by Mr. Rush  Submission by Ms. Koenigsberg  1 she's done, and this is the rendering.  If -- it's  2 true enough that the notes don't say that the name  3 titled Kweese is Florence Hall, but the evidence is  4 that that's so.  That's -- Florence Hall's given  5 testimony in the case.  6 THE COURT:  Well, I'm -- subject to your friends, who are  7 remarkably silent at the moment, I'm prepared to have  8 it marked Exhibit 919, subject to the infirmities I  9 have just been mentioned.  And it may all become clear  10 as time progresses, but at the moment I have some  11 serious reservations about what use I would make of  12 these six months or a year from now, unless there is  13 some more evidence which --  14 MR. RUSH:  Oh, there —  15 THE COURT:  -- provides more definition to them.  16 MR. RUSH:  Yes, there will be more evidence that will touch on  17 these.  I simply asked the witness about clans.  These  18 also refer to titles of chiefs, present holders of  19 chiefs' names, as well as house identification.  There  20 is some genealogical information contained in here as  21 well, and I'll be directing the witness' attention to  22 that.  But, as I say, my lord, if it's necessary, and  23 I'm quite happy to do this, is to go through these for  24 the assistance of the court to identify each one.  It  25 may be a steam-shovel approach, but I thought it was a  26 convenient one, and I could be wrong on that.  27 THE COURT:  Scoop shovel, Mr. Rush.  28 MR. RUSH:  Oh, scoop shovel.  I'm of another generation.  2 9 THE COURT:  Yes.  30 MS. KOENIGSBERG: If I can break my remarkable silence, if my  31 friend is putting these in at this point for the  32 purposes that they are the witness' notes that she  33 made and upon which she relied in coming to the  34 opinion that she did with regard to how she obtained  35 the clan's names, then I think -- and we've identified  36 the parts that are not in her handwriting then, at  37 least for my purposes, my lord, I could -- can deal  38 with them as marked for that purpose.  And if that --  39 if I understand my friend now, I think that I've put  40 it as I think he's saying, but I would appreciate  41 clarification if I'm wrong.  42 THE COURT:  Mr. Mackenzie?  43 MR. MACKENZIE:  Well, my lord, in my submission it's still  44 unclear what these are, but if -- no matter what they  45 are, assuming that this is a body of information that  46 Dr. Mills relied on, it can be put in for that  47 purpose, but that's the only purpose as far as I can 12986  Submission by Mr. Mackenzie  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 see.  It's not -- there are notes written by someone  2 else at another time, and there's no evidence of what  3 happened or what the circumstances were or how the  4 material was collected.  But if Dr. Mills had these in  5 her file and she relied on them, then what can you  6 say?  7 THE COURT:  Well, I can say that tab 6 will be Exhibit 919.  8 MR. MACKENZIE:  Not admissible.  9 THE REGISTRAR:  Exhibit 919.  10  11 (EXHIBIT 919: Tab 6 of Volume 1, notes and lists  12 compiled by A. Mills)  13  14 MR. RUSH:  15 Q   In this case admissible.  16 I did want to, however, draw your attention, Dr.  17 Mills, to the genealogy that his lordship drew our  18 attention to which I did not see.  Is this a genealogy  19 that's in your hand or --  20 A   No, this is in the hand of Heather Harris.  21 Q   I see.  All right.  And this was provided to you with  22 regard to the genealogy of Caspit was it?  23 A   That's right.  24 Q   All right.  25 A   Succession of Caspit's.  26 Q   Apart from the notes, the handwritten ones, and the  27 one typescript note that you have drawn our attention  28 to, the other notes I take it were prepared and typed  29 by you were they?  30 A   Yes.  31 Q   And relied on you -- relied by you in respect of the  32 coming to your opinion that you're expressing in  33 court?  34 A   That's correct.  35 Q   Thank you.  Just coming back to page 103, perhaps I  36 should have asked you, Dr. Mills, what your definition  37 is of clans, and that may be of some assistance to the  38 court?  39 A   The Wet'suwet'en call their matrilineal descent groups  40 made up of several houses a clan.  41 Q   And is that the definition of clan that you accept?  42 A   Yes, I do.  Sometimes they speak of clan in terms of  43 asking where you belong and the reference is both to  44 where do you belong in the feast hall, where you  45 should be seated, and where you belong on the  46 territory.  It has this double meaning.  47 Q   I want to ask you about the Laksamshu and Tsayu clan 12987  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 and the relationship of the two.  2 A   The Laksamshu and the Tsayu are considered separate  3 clans which amalgamated after their numbers were  4 decreased through illness and epidemics of measles and  5 other illnesses.  6 THE COURT:  Which ones, I'm sorry?  7 THE WITNESS:   The Tsayu.  8 THE COURT:  Yes.  9 THE WITNESS:   And the Laksamshu.  10 THE COURT:  And they amalgamated?  11 THE WITNESS:   They amalgamated in a partial way.  They never  12 totally amalgamated their territories or their titles,  13 but in order to be a functioning group able to hold  14 feasts, they -- for those purposes, they amalgamated  15 and sit together on one side of the feast hall.  16 MR. RUSH:  And Laksamshu in the text is spelled  17 L-a-k-s-a-m-s-h-u, and Tsayu, T-s-a-y-u.  18 THE COURT:  And this is something that isn't recorded as to date  19 or anything, is it?  20 THE WITNESS: Jenness does give some estimate of when it  21 happened.  It's around -- as I recall, I think that  22 it's correct to say that he said it was in around  23 1860, but I might check that.  24 THE COURT:  1860?  25 THE WITNESS: Uh-huh.  It was after a number of epidemics of  26 illnesses that the Wet'suwet'en had no immunity to had  27 swept through and reduced the numbers of the people by  28 about -- to about a third of what it had been  29 previously.  3 0 THE COURT:  Thank you.  31 MR. RUSH:  32 Q   And on page 104, Dr. Mills, you indicate at the top of  33 the page:  34  35 "The Tsayu is the only clan that has a  36 Wet'suwet'en name, which means 'People of  37 the Beaver'.  The names of the other clans  38 are from the Tsimshian or Gitksan language,  39 but as the table above shows, they are not  40 simple borrowings of the Gitksan  41 equivalents.  The Wet'suwet'en adoption of  42 clans has undergone an immensely long  43 evolution since the founding of Dizkle."  44  45 Now, I just ask you if that is your -- it's  46 clearly your opinion expressed on page 104.  Is that  47 your opinion which you hold today? 129?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  MR.  A  RUSH:  THE COURT  MR. RUSH:  THE COURT  No.  Having seen the linguistic analysis of James  Kari, I now appreciate that Gilseyu is also of  Wet'suwet'en origin, it's referring to sinew in his  analysis, and that the others, Laksilyu and the  others, are a complex blend of Gitksan and  Wet'suwet'en terms so that these are terms that all  seem to have a rather ancient origin.  They're not  recent adoptions.  Can you look at tab 4, please, which is an extract  from the trial transcript, and I'd just ask you if  you -- if this extract of February the 7th, 1989 from  the proceedings at trial, the direct examination of  Dr. James Kari, at page 11528, is that the passage  that you referred to just a moment ago as having --  your having been referred to in the evidence, the  information of Dr. Kari?  That's correct.  I don't know if it's necessary to mark that, my  lord.  :  No.  I'm sure it isn't.  Thank you.  :  Well, Mr. Rush, I'm sorry, but it seems to me that  clearly it isn't necessary to mark it, but it is  useful as a road map to find things if it is given a  number and then we can go from the number and notes in  the order in which the evidence was given and it may  serve to assist in that regard, and for the  convenience of my notes, I'd like it to be given a  number so that it will assist in finding it.  Perhaps that should be 920.  :  920.  Yes.  (EXHIBIT 920: Page 11528 of trial transcript February  7, 1989)  THE WITNESS:   And just to assist in the interpretation of  what's given there, I'd just like to point out that  when he says on page 11529, line 14, that "Lax Gibuu  for the wolf phratry is a straight loan.  That's a  borrowing from Gitksan."  I'd like to point out that  that's just the Gitksan name for the wolf clan.  That's not the Wet'suwet'en name for the Gitksan.  He  just threw that in extraneously.  So that if you were  making a tabulation of how many were of Wet'suwet'en  origin and how many were of Gitksan origin, you'd have  to disregard that because he's just talking about the  Gitksan origin of a Gitksan term.  MR. RUSH:  THE COURT 12989  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  Would you please look to page 105, Dr. Mills, and  here is a table 2 which is entitled "Correspondences  Between Wet'suwet'en Clans and the Clans of Their  Neighbours".  I'm sorry, you're ahead of me, Mr. Rush.  Page 105, my lord.  Of the report?  Yes.  Thank you.  THE  MR.  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  Q  MR.  THE  THE  THE  THE  This is table 2.  On this page, Dr. Mills, can you  express the significance of this correspondence  illustrated by the table?  A   I prepared this table to show how the Wet'suwet'en  clans fit into the clan systems of their neighbours,  in part because this is one of the very important  functions that clans provide.  They do make a kind of  a link with people whom you may not -- whose language  you may not even speak, and this is one of the  qualities of this network of clans among the  Wet'suwet'en linking them to the other northwest coast  peoples and to the other Carrier peoples.  And indeed,  the Sekani at the last entry, the bottom of this  table, we recognize as being a people who had adopted  the clan system to a certain extent very recently, but  otherwise it tends to reflect the associations and  ceremonial associations of these people over a long  period of time.  Another thing that it points out is that you see  the greatest elaboration of clans in this central  group of Wet'suwet'en, Nishga, Gitksan, maybe the  Cheslatta.  One of the hallmarks of antiquity in  ethnography is that when you have a system that's  highly elaborated it tends to be older than when it's  less elaborated, and there's a lot of different  speculation about ages of clans, but -- and origins of  clans, but this elaboration is significant among these  very people.  Q   All right.  And the references that you cite there are  the references for the correspondence which you drew?  A   These are the sources of the information.  RUSH:   Yes.  Thank you.  COURT:  When you say "elaboration" you mean elaborateness --  WITNESS: Or when you have —  COURT:  -- sophistication or complication or what?  WITNESS: In part.  But when you have a large number of clans  it indicates that this is something that's been in 12990  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  THE COURT  THE  THE  MR.  THE  MR.  THE  MR.  place longer than when you have a smaller --  COURT:  Highly organized?  WITNESS:   Yes.  Right.  And multiplied, divided into other  forms, so this is -- it's a common proposition of --  in terms of talking about the diffusion of different  aspects of a culture --  COURT:  Yes.  All right.  Thank you.  WITNESS: -- that where you have the -- a complex ceremonial  organization, most elaborated is going to be the  centre for where it originated, and that on its  peripheries it will become more diffuse and smaller in  every aspect.  On this basis then the Gitksan would have -- the  Gitksan social structure would have greater antiquity  than the Haida?  WITNESS:   In a certain sense.  Yes.  Uh-huh.  So there are  difficulties in jumping to this because, you know, the  Haida have been around for a long time too and so have  the Tlingit.  These are all people -- in fact the  Tlingit are distantly related in -- linguistically to  the Wet'suwet'en, so you're talking about an immense  time depth in this area, but --  All right.  Thank you.  My lord, the report at page 107 makes reference to an  extract from Barbeau on page 79 and an extract from  Jenness, his 1943 monograph, at page 479.  I don't  intend to refer the witness to them, but I'll simply  give you the references.  The Barbeau reference is at  tab 34, pages 79 and 80, and the Jenness reference is  of course at page -- excuse me, tab 24, at page 479.  What was the page number for Barbeau again?  Pages 79 and 80.  All right.  Thank you.  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  Q  Dr. Mills, I'd ask you please to turn to page 110, and  here is set out table 3. It runs on to page 111. Can  you identify the table as containing the houses of the  Wet'suwet'en?  A   I can.  Q   Can you just explain to his lordship how the table is  organized?  A   The table is organized first by clan.  There's the  name of the clan and then underneath is the name in --  the Wet'suwet'en name, and then the translation of the  meaning of that name underneath.  So it goes through  the five clans.  All of the house names of the  Wet'suwet'en are from the Wet'suwet'en language.  None 12991  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 of them are borrowings from Gitksan or any other  2 language.  3 Q   You expressed that the clan names also had crest  4 identifications.  Is there any similar identification  5 with regard to house names?  6 A   Yes.  Houses are also identified by crests, and  7 sometimes the title itself is -- bespeaks the crest as  8 in the case of Ginehklaiyax and the "House of Many  9 Eyes".  Many eyes were depicted on the house.  10 Q   All right.  And in that example Ginehklaiyax, which is  11 G-i-n-e-h-k-1-a-i-y-a-x, is the suffix of the word the  12 word for house in Wet'suwet'en?  13 A   Yes, that's the Wet'suwet'en word for house.  14 Q   That's the word or the letters y-a-x or yax?  15 A   Yax.  Uh-huh.  16 Q   Thank you.  Now, what's the relationship of the house  17 to the clan?  18 A   The -- the houses are members of clans.  The house --  19 the people in a house are people in a matriline so  20 closely related that they know how they are related  21 one to another.  And the people in the separate houses  22 presume that they are related to each other, but they  23 don't know the genealogical link.  That's the rule of  2 4 thumb.  25 Q   Okay.  Now, the -- how do Wet'suwet'en people refer to  26 their house, by what name is the house called?  27 A   By the name in Wet'suwet'en.  28 Q   Okay.  29 A   Is that what you meant?  30 Q   Yes.  31 A   Oh, I see.  32 Q   In some cases is the name of the house ever referred  33 to by the name of its leading chief?  34 A   Yes.  The head chief of each of the houses has a  35 hereditary title, a feast name or a ceremonial name,  36 that is also -- can be used to identify the house.  37 But the Wet'suwet'en have these names for the houses  38 as well, whereas the Gitksan tend to use the name of  39 the head chief as the name of the house.  40 Q   Now, in this table you make reference to Tsayu,  41 T-s-a-y-u, houses.  One is Djankan yax, that's  42 D-j-a-n-k-a-n, yax, y-a-x, and Wilat yax, W-i-1-a-t  43 y-a-x.  Now, can you explain the presence of the two  44 houses under the Tsayu clan?  45 A   Uh-huh.  The Tsayu clan, after this original  46 amalgamation of the Tsayu clan with the Laksamshu, the  47 Tsayu clan is now being repopulated and recognizes two 12992  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 houses within itself.  The second one is an exception  2 to the rule I just stated, that it's not the name of a  3 chief.  Wilat is a chief's name, and it refers to the  4 fact that both -- there were two separate houses on  5 either side of the Bulkley River at Moricetown  6 occupied by these different members of the Tsayu clan,  7 and also the fact that the members of these two houses  8 don't know exactly how they are related.  They can't  9 trace their exact connection.  10 Q   Okay.  11 A   So in both senses they are two houses now.  12 Q   Okay.  Wilat yax, can you identify Wilat with another  13 chief or other chiefs of the same house?  14 A  Wilat is the -- in the same -- is closely related to  15 Namox, so sometimes it's called Namox, the house of  16 Namox as well, but the particular house at Moricetown  17 was usually referred to as Wilat's house because Wilat  18 was the head chief in that house.  19 Q   Okay.  And the relationship of the house to the  20 territory?  21 A   The territories of the Wet'suwet'en are held by the  22 house, so the head chief of the house is responsible  23 for the territory.  And the people who go out to that  24 territory are by and large the house members and the  25 male house members and their spouses and children and  26 sometimes some in-laws.  27 Q   Okay.  Now, in -- what is the basis for the opinion  28 that you've just expressed in terms of the information  29 that you have either ethnographically or that you have  30 obtained from Wet'suwet'en people?  31 A   Oh, the land claims tapes that were made, the research  32 that was done before I arrived, Jenness, which was  33 done much earlier, and the interviews that I have  34 conducted myself, all confirm the same thing.  35 MR. RUSH:   I'd just ask you if you would to look at tab 19 of  36 Volume 2 of the document books, and I would ask if  37 this interview of Moses David was one of the  38 interviews you reviewed in terms of coming to your  39 opinion about the relationship between the house and  40 the territory?  41 MR. MACKENZIE:  Excuse me, my lord, is my friend going to ask  42 Dr. Mills which land claims tapes she relied on?  4 3    MR. RUSH:  44 Q   Go ahead, Dr. Mills.  I'll ask the questions.  Did you  45 refer to this document?  46 A   Yes, I did.  47 Q   Is this a document that in the course of coming to 12993  A. Mills (for Plaintiffs)  In chief by Mr. Rush  Submission by Mr. Rush  your opinion that you made reference and is -- just  flip through this.  Yes, I did.  Uh-huh.  Okay.  All right.  Did you make reference to any other  information provided to you by hereditary chiefs?  I interviewed hereditary chiefs.  Yes.  And were you -- was there any commission  evidence, for example, that you made reference to that  was given by hereditary chiefs in reference to this?  Indeed.  The commission evidence of Johnny David and  Bazil Michell, and Emma Michell, all describe the use  of the territories by house groups.  And I'm sure  there is testimony that's given by the Wet'suwet'en  chiefs also to this effect.  All right.  :  Mr. Rush, I'm in the same position I was before.  I've got a note now that she's relying on land claims  tapes and I don't know what those are.  They're not  in, are they?  The land claims tapes is a body of tapes in  Gitksan-Wet'suwet'en, the vast majority of which have  been translated first and then transcribed.  :  Yes.  And those have been disclosed and many of them in  various forms or another, in their transcribed  translated form, have been placed in evidence, and  many of the witnesses have referred to them variously  as land claims interviews, land claims transcripts,  land claims tapes, but they are transcriptions of  tapes by -- during the course of interviews of  hereditary chiefs, and in this case you'll see the  interview was conducted by Leonard George, and Moses  David was the informant and the date was July 26th,  1982.  :  We don't know whether she's relied upon the ones  that are in evidence and, if so, which ones, or  whether she's relying on tapes that aren't in  evidence.  Yes, I think that the evidence was that she reviewed  them all, and in some cases she relied specifically on  some and in other cases presumably she didn't rely on  others, and in some cases she may have found it her  general knowledge about the circumstances from the  interview.  :  I may have missed it. I don't remember her saying  she's reviewed all of the land claims tapes.  1  2  3  A  4  Q  5  6  A  7  Q  8  9  10  A  11  12  13  14  15  MR.  RUSH:  16  THE  COURT  17  18  19  20  MR.  RUSH:  21  22  23  THE  COURT  24  MR.  RUSH:  25  26  27  28  29  30  31  32  33  34  35  THE  COURT  36  37  38  39  MR.  RUSH:  40  41  42  43  44  45  THE  COURT  46  47  MR.  RUSH: 12994  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  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  THE COURT:  A. Mills (for Plaintiffs)  In chief by Mr. Rush  Submission by Mr. Rush  Q   I think that's what she said when she discussed the  methodology right at the very beginning of her  evidence.  Now, if I'm incorrect on that -- I thought  the witness had referred to that fact.  Maybe I'm  wrong even in saying it was all -- perhaps it's all  the Wet'suwet'en.  Yes, I should clarify that.  I reviewed all the  Wet'suwet'en land claims tapes which had been  transcribed, translated and transcribed.  I haven't  referred to and/or listened to or made reference to  any that have not been transcribed.  And some haven't been transcribed I gather?  Yes.  And you haven't looked at those?  No, they're in Wet'suwet'en, and I haven't.  Have your friends been given all of those that have  been transcribed?  MR. RUSH:  Yes.  THE COURT:  All right.  MR. MACKENZIE:  Well, that's not true, my lord.  We have them  now because they're in these binders, I presume, if  that's what my friend means.  RUSH:  I'm sorry, what do you mean?  MACKENZIE:  I'm meaning, I'm sorry, my lord, that at least  two of the interviews in these binders we received  Monday have not been disclosed before we received  these black binders, and I haven't checked the others.  Well, then I think my friends should say which ones  if they're not disclosed because I don't know that.  Well, you see, both of you are groping in the dark  because neither of you know what the other is saying.  This is like a debate between deaf people.  Sometimes I feel that way, my lord.  But what I say  is that the land claims transcripts were all  disclosed, and if I'm -- if there's something that my  friend has in mind, then I want to hear what it is  that he's concerned about about the lack of  disclosure.  I've tried to sort this out with him and  I thought that I had done so.  Mr. Mackenzie, is there something here that you've  seen for the first time that hasn't been disclosed  previously?  MACKENZIE:  Yes, my lord, the interview at tab 17.  We have  a couple of interviews by Alfred Joseph on April 23,  1981, but we've never seen the material contained in  this tab before.  THE COURT:  All right.  And another one?  MR  MR  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT:  MR. 12995  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Mackenzie  Submission by Mr. Rush  A Mills (Plaintiffs)  MR. MACKENZIE:  And this interview at tab 19, as I'm advised  now, we haven't seen that.  I have a list of all the  interview notes that my friends sent to me upon which  Dr. Mills relied, and this one of Moses David on July  26, 1982, does not appear to be on that list.  I'm  sorry that I can't assist your lordship any further  because those are the only two that I -- I assumed  that my friend had given these before and I haven't  looked through every one of them.  THE COURT:  All right.  Well, what I suspect happened, and  putting as neutral a perspective as I can on this, I'm  assuming that there has been an inadvertent failure to  provide two portions of transcripts out of many.  I  don't know if that's what's happened, but that's what  it rather sounds like, and I don't think we can do  anything about it now.  But I'll have to ask you, Mr.  Mackenzie, to let your friend know if there's any  others that you haven't seen.  I don't know what he's  going to do about it.  He's given them to you now and  it may be a futile gesture to now tell them that you  didn't give me this before, but you've given it to me  now, but that's the situation we're in.  MR. RUSH:  Well, I -- at this point I don't accept either of my  friend's propositions.  These were all given to them,  and it's not the case that he's seeing any of these  for the first time today.  And, you know, I want to be  shown that I'm wrong on that, and I've gone through  these very carefully because I know that my friends  were concerned about getting them all.  As far as I'm  concerned they have them all.  THE COURT:  Well, we've joined issue on that important matter.  Is it worth pursuing something further this afternoon,  Mr. Rush, or can we adjourn until tomorrow morning at  nine o'clock?  MR.  RUSH:  Q  A  Q  A  If I can, Dr. Mills, what is your understanding about  the occupation of the Wet'suwet'en houses -- well,  perhaps I can put it slightly different.  The term  house has more than one meaning as I understand it?  That's correct.  And could you differentiate between the two meanings  that the term house carries?  Right.  A house refers also to physical house that  existed in the past, but not in the present, either at  Tse Kya, either at Hagwilget, at Dizkle, or at  Moricetown, and in this physical house lived the  matriline identified with the house.  There's that 12996  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  Q  5  A  6  7  8  9  10  11  12  13  14  15  Q  16  17  18  19  20  21  A  22  23  24  25  26  27  28  29  30  31  32  33  Q  34  35  36  A  37  Q  38  A  39  40  41  42  43  MR. RUSH:  44  THE COURT  45  46  47  MR. RUSH:  sense of the house.  So there -- it's a physical  structure of a house, and when these houses were in  existence, which was up until the 1950's --  That is the physical house?  The physical house, at Moricetown, the pot -- the  feast would take place outside of the house that was  hosting the fees.  House -- despite the fact that  these houses no longer exist, the concept of house is  very alive among the Wet'suwet'en because the house  also refers to the matriline, and the matriline of  course still exists, and the matriline is the group  that has -- is the body in the form of the head chief  and its members that have access and control and  ownership over the territory of the house.  All right.  Now, in terms of the territory, the  relationship, is there any relationship to the  physical house and the territory?  You've indicated  the relationship between the lineal or the kinship  house and the territory.  Is there a relationship to  the physical house?  The physical houses were at salmon fishing sites.  These were the houses that were occupied in the  summertime when the salmon were running, and in only a  few cases then would these correspond to the house  territory because the territories were outlying the  areas the people would go to.  So, for example, at  Dizkle you have the area around Dizkle or Mosquito  Flats identified with the Chief Goohlaht and that  house as having rights to that territory and the house  no longer exists there.  There's no village there  anymore, but there is a portion of territory there  which is still related to Goohlaht -- to the Gilseyu.  In the territories were the houses that took a  physical form in the villages, did they also take a  physical form --  When the people --  -- in times past and in the present?  Right.  When the people left the houses that are named  on table 3, they -- and went out into the territories,  they occupied other shelters or houses which did not  carry these same names and were named -- called or  referred to after the location name.  All right.  That's all, my lord.  Thank you.  :  All right.  And we'll start at nine in the morning  and we'll adjourn at 10:30 and resume at two.  And is  it —  Two o'clock. 12997  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  — 2:00 tomorrow afternoon.  I don't recall what the  arrangement was for tomorrow late in the day.  Are we  going to sit late tomorrow afternoon or did somebody  say they --  MR. RUSH:  I don't think there was any discussion about the --  THE COURT:  Well, unless there's some reason to the contrary, we  should probably go at least until 5:00 tomorrow  afternoon.  All right.  Thank you.  THE REGISTRAR: Order in court. This trial will adjourn until  tomorrow at 9:00 A.M..  (PROCEEDINGS ADJOURNED TO 9:00 A.M. MARCH  1989)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter 1299?  A. Mills (for Plaintiffs)  In chief by Mr. Rush  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

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