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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-02-20] British Columbia. Supreme Court Feb 20, 1989

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 11804  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  Vancouver, B. C.  February 20, 1989.  THE REGISTRAR:  In the Supreme Court of British Columbia,  Vancouver, this Monday, February 20, 1989.  Calling  Delgamuukw versus Her Majesty the Queen, my lord.  THE COURT:  I should inform counsel that as presently arranged,  I do not think I will be able to sit next Monday  morning.  It may change, but at the moment it doesn't  look like -- we have to convene a five judge court for  a half day appeal.  I think I will have to sit on it  but we will be able to proceed in the afternoon.  I  will mention it again to counsel later in the week if  there is any change.  All right.  Mr. Grant?  Thank you, my lord.  Before proceeding with the next  witness, I just have a procedural matter to deal with.  I have with me translation affidavits with respect to  certain of the territorial affidavits, which I would  propose, as I think is the practice, would be filed as  exhibit, the exhibit number bracket A, I believe,  following the witness.  And I have delivered these,  although Ms. Sigurdson indicates she hasn't received  copies of them, I had couriered all of these down to  my friends and I could just possibly set them out and  deliver them to the federal Crown as well.  KOENIGSBERG:  Sure.  I will look forward to receiving them.  GRANT:  First of all, George Holland affidavit, with respect  to Antoine Tom, would be exhibit -- I am sorry,  Exhibit 676-A.  COURT:  What are these again?  These are affidavits of  interpreters of what, of territorial affidavits?  GRANT:  Yes.  What happened was, as you may recall, when the  territorial affidavits were sworn, some of them were  translated through the interpreter.  Now, what  happened is that in that case not all of the  translation affidavits were filed at the same time.  Because of the timetabling to get the affidavits to my  friends and so subsequently I arranged for the  swearing of the translation affidavits, merely to  complete the record on this.  So the first is with respect to 676-A, which would  be the George Holland affidavit, re Antoine Tom.  THE REGISTRAR:  That's in the Wet'suwet'en book of affidavits?  THE COURT:  Yes.  MR. GRANT:  Yes.  MS.  MR.  THE  MR. 11805  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  AFFIDAVIT RE TRANSLATION OF ANTOINE  MR. GRANT  THE COURT  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  (EXHIBIT 676-A:  TOM AFFADAVIT)  THE COURT:  I don't think it matters, Mr. Grant, if it's put in  the exhibit, if a problem arises in connection with  it, at any time, I will red flag that but I suspect  this is going to be a matter of formality on your part  to make the record intact but I am not likely to have  to look at them again.  I don't believe so, my lord.  Thank you.  THE REGISTRAR:  This would be 676-A?  MR. GRANT:  Right.  The second is the George Holland affidavit  with respect to the Mary Joseph affidavit of  translation, and that would be 667-A.  THE REGISTRAR:  667-A, which is tab 9 of the —  (EXHIBIT 667-A: AFFIDAVIT RE TRANSLATION OF MARY  JOSEPH AFFIDAVIT)  MR. GRANT:  George Holland affidavit re Thomas K. Morris  affidavit, which would be 671-A.  (EXHIBIT 671-A:  AFFIDAVIT RE TRANSLATION OF THOMAS K.  MORRIS AFFIDAVIT)  MR. GRANT:  George Holland affidavit re translation of Mary  Skin, Exhibit 675-A.  (EXHIBIT 675-A: AFFIDAVIT RE TRANSLATION OF MARY SKIN  AFFIDAVIT)  MR. GRANT:  And George Holland affidavit re Fred Charlie, 633-A.  (EXHIBIT 633-A: AFFIDAVIT RE TRANSLATION OF FRED  CHARLIE AFFIDAVIT)  MR. GRANT:  Alice Sampson affidavit re Art Matthews — I am  sorry, Alice Sampson affidavit  re Stanley Williams,  Exhibit 446-A.  And that would be in Stanley Williams'  commission evidence but it should also be duplicated  there.  THE COURT:  All right.  (EXHIBIT 446-A: AFFIDAVIT RE TRANSLATION OF STANLEY  WILLIAMS AFFIDAVIT) 11806  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  MR. GRANT:  Alice Sampson translation of Art Matthews senior  affidavit, and that would be Exhibit 352-A, that would  be in -- that would be an affidavit tendered at the  time of Art Matthews junior evidence.  (EXHIBIT 352-A: AFFIDAVIT RE TRANSLATION OF ART  MATTHEWS JR. AFFIDAVIT)  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  MR. GRANT  Alice Sampson affidavit translation for Richard  Benson, and that -- I am sorry, my lord, I have it, I  don't have the number, Richard Benson's commission  evidence exhibit number.  I will provide that to the  court after the break.  It was his commission evidence  that was tendered and the affidavit was an affidavit  at the time of his commission evidence.  (EXHIBIT 661-A: AFFIDAVIT RE RICHARD BENSON AFFIDAVIT)  That completes it, except for two, I believe there  are two affidavits of Victor Jim, which I thought I  had with me again.  Those have been delivered or are  in the process of being delivered as well.  I will  deal with them later.  All right.  Thank you.  That will complete, subject to the Victor Jim  affidavits, all the translations.  My lord, I would like to call Dr. Richard Daly to  the stand.  RICHARD DALY, a witness called on  behalf of the plaintiffs, after first  being duly sworn, testified as  follows:  THE REGISTRAR: Please state your full name and spell your last  name.  THE WITNESS:  Richard Haywood Daly, D-A-L-Y.  EXAMINATION IN CHIEF BY MR. GRANT:  THE COURT  MR. GRANT  MR. GRANT  THE COURT  My lord, just so that you appreciate scheduling, we  have anticipated that Dr. Daly's lies evidence would  take two weeks.  And I anticipate his direct evidence  will take the balance of this week.  All right.   And I intend to qualify Dr. Daly in the  following areas:   As an ethnologist or social  anthropologist, who is giving opinions in the field of 11807  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  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  social and cultural anthropology.  THE COURT:  Of Gitksan or Wet'suwet'en or both?  MR. GRANT:  With particular reference to the social and economic  structures of Gitksan and Wet'suwet'en societies,  including -- and I have a list of seven categories --  including the system of management and harvesting of  resources, this should be the systems, I guess,  plural, because it's both Gitksan and Wet'suwet'en,  the systems of ownership of territories and fishing  sites, the systems, that's second; the system of  ownership and fishing sites; third, the systems of  social relations and institutions and their linkage to  the people's ownership and management of land and  resources; fourthly, the nature of Gitksan and  Wet'suwet'en economies, through the seasons, both past  and present; fifthly, the relationship of Gitksan and  Wet'suwet'en production to exchange and trade over  time.  THE COURT:  Sorry, Wet'suwet'en production through --  MR. GRANT:  The relationship of Gitksan and Wet'suwet'en  production, to exchange and trade over time; sixth,  the assessment and relationship of house territories  to the regional ecosystems -- I should say  ecosystem -- and resource base within those  territories; and, finally, a comparative analysis of  the Gitksan and Wet'suwet'en with respect to other  societies.  And that last, of course, would be  incorporated into the first six.  I have a document book, which I would like to refer  to Dr. Daly.  THE COURT:  Do you want to look at them again?  MR. GRANT:  I just wanted to be sure that one hadn't pulled  apart.  THE COURT:  It looks all right.  MR. GRANT:  Yes, if you could provide that to Dr. Daly.  Before commencing on the qualifications, my lord, I  want to advise that my friends have raised an issue  with us with respect to the admissibility of his -- of  Dr. Daly's report, based on certain aspects of his  methodology and because of that I anticipate that -- I  understand that their objection may well be raised  today, and my reading of the law is that this would be  an issue possibly going to weight rather than  qualifications, but because they are raising it to the  admissibility of his report I want to canvass it with  Dr. Daly in some detail in the course of his  qualifications and anticipate that he would deal with 1180?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  it in his report.  Dr. Daly, could you refer to tab 1 of the document  book?  I am sorry, my lord, it appears that --  :  I think we are all right.  Tab 1?  :  Tab 1.  Is that your curriculum vitae?  Yes, it is .  And you were born in Vancouver, British Columbia and  can you tell his lordship where you grew up?  I grew up in Pender Harbour, which is on the Sunshine  Coast.  And what did you -- before you went to university, I  see you have a B.A. in literature, 1964, what work, if  any, did you do?  I worked as a commercial fisherman in the summers  while I -- when I was free from my educational  training.  And where did you work as a commercial fisherman?  All up and down the British Columbia coast.  Mostly on  the west coast of Vancouver Island, the Queen  Charlotte Sound, Prince Rupert and Queen Charlotte  Islands.  There is recent publication, a recent book that has  been published, Fishing With John, do you know that  book?  I do.  Who is that book written byit?  It's written by my stepmother about my father.  And did you, in the course of your work, or in the  course of growing up at Pender Harbour, did you have  any contact with aboriginal peoples of the west coast?  Yes, I did.  Can you just explain that a bit?  Our property was adjoining a -- one of the reserves of  the Sechelt Band and since my earliest days I was in  interaction with the people on that reserve.  One of  the elders from the area used to come over unless  dugout canoe and tell us stories in the summertime.  And when you fished up and down the coast, did you  have contact with native peoples in the fishing?  Yes, I did, and when I worked in the fish plants in  Prince Rupert I interacted with Tsimshian, Haida and  Gitksan people.  After you attended university for your undergraduate  degree in 1964, what did you do then, after you  completed your graduate degree?  I travelled around the Mediterranean and the Middle  1  2  Q  3  4  THE COURT  5  MR. GRANT  6  Q  7  A  8  Q  9  10  A  11  12  Q  13  14  15  A  16  17  18  Q  19  A  20  21  22  23  Q  24  25  26  A  27  Q  28  A  29  Q  30  31  32  A  33  Q  34  A  35  36  37  38  39  Q  40  41  A  42  43  44  Q  45  46  47  A 11809  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 East and became quite interested in the social  2 structure and the cultures of the people who were  3 giving me such rich hospitality, everywhere I went:  I  4 had no money and people would take me in and make me a  5 member of their families, so at the end of that stint  6 I applied for studies in anthropology at various  7 British universities and I was accepted in London, in  8 a joint programme from University College, London,  9 University of London, together with course work at the  10 London School of Economics, the School for Oriental  11 and African Studies and University College itself.  12 Q   And how long was that programme in London?  I see you  13 have a diploma in anthropology in 1968?  14 A   It was a two-year programme.  15 Q   And was it -- did that have to do with the fact that  16 you had an undergraduate degree already?  17 A   Yes, I was in a group who were all studying for what  18 was called a graduate diploma in anthropology.  We had  19 all had degrees in other fields and we came from a  20 number of different countries and it was quite an  21 interesting and exciting group.  22 Q   What other countries were some of the other people  23 from, do you know?  24 A   Oh, there was a Latvian logical positivist and there  25 was a Montana Jesuit priest, a South African farmer,  26 among others.  A French novelist.  27 Q   Now, in the course of your studies there, in those two  28 years, what basically did you study, what areas?  29 A   I studied social anthropology, its history, social  30 theory, and ethnographic work, which British  31 anthropologists had carried out in the previous  32 century, focusing mainly on Africa and to some extent  33 on Melanesia and Polynesia.  34 Q   I note under course work on page one of your  35 curriculum vitae you have ethnography and you refer to  36 West Africa, Central Africa, Northeast Africa and  37 Southern Africa and Melanesia.  Were these all areas  38 you studied in that period of time?  39 A   Yes.  40 Q   Before we go any further, I had introduced your  41 qualifications as an ethnologist or social  42 anthropologist, can you explain to his lordship what a  43 social anthropologist is and an ethnologist, and why  44 those terms can be interchangeable for your expertise?  45 A   There are various definitions but, in general, social  46 anthropology is a term used for our discipline in  47 England and the same concerns and the same discipline 11810  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 in the United States is called social/cultural  2 anthropology.  And in many parts of Continental Europe  3 it's called ethnology.  I like the term ethnology,  4 because it deals with the study of culture and society  5 and social structure against a historical and  6 comparative background, while the British social  7 anthropology tends to emphasize social structure to  8 the exclusion of history and certainly not comparative  9 work, structural comparative work, but at least the  10 historical component has been in the past quite often  11 left out.  However, there has been a lot of criticism  12 in the field over the years and now everyone is pretty  13 well aware of the fact that you have to couch your  14 social structural studies in a historical context.  15 Q   Without going into it now, because I will come to it  16 later, in your subsequent work is that the kind of  17 work that you ever done?  18 A   Yes.  19 Q   Up to the time of preparation of this report?  20 A   Yes, that's correct.  21 Q   Now, you talked about the ethnography you studied, the  22 second category under course work is social theory,  23 can you just refer his lordship to those areas of  24 social theory you dealt with in your anthropological  25 diploma, your first touch with anthropology, I should  26 say, the two-year programme?  27 A   I had a thorough baptism in the system of analysis,  28 that is -- that prevailed at the time in Britain,  29 called structural functionalism, which is also very  30 popular in sociology in the United States at the same  31 time, in the '50s and '60s, particularly the work of  32 Paul Kit Parsons and the Chicago School of  33 Sociologists, as well as the people like Radcliffe,  34 Brown and Malinowski, their tradition I was following  35 in England, which was based on social theory developed  36 by Max Weber in Germany, and Emile Durkheim in France,  37 particularly the Durkheim influence was strong in  38 England.  39 Q   Durkheim, could you spell that?  40 A   D-U-R-K-H-E-I-M, Weber is W-E-B-E-R.  41 Q   Now, what general areas, you have got a category of  42 standard courses, what general areas did you study in  43 your first two years?  I am referring here on your CV  44 to standard courses --  45 A  We took a number of courses but the system was  46 somewhat different in Britain, as you know, a lot of  47 our work was individual programmes with the professor. 11811  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 We had to write papers in each field every week but we  2 did have some course work and general introduction to  3 anthropology, history of social thought, and then  4 specific institutional studies, cross-cultural studies  5 of in the life cycle, in cultural meaning and  6 cosmology, economics, politics, religion, kinship  7 systems, the basic building blocks of the analysis  8 that this form of inquiry uses.  9 Q   Did you study, if I may say it this way, material  10 culture?  11 A   Oh, yes.  12 Q   And what is -- what in anthropological terms do you  13 mean when you say material culture?  14 A  We had lectures from the archeologists in University  15 College on material culture and cultural evolution.  16 Material culture is the things, the tools and weapons  17 of the cultures and the meanings of the -- all the  18 material objects, which are the record of a culture at  19 a particular point in history.  And this included  20 actually trying to use some of these techniques,  21 that's one of the methods that archeologists use a  22 great deal in order to work out the manhours involved  23 in using -- in following a certain process.  They  24 actually use, try to use the stone tools and see how  25 long it takes and so on.  So we had some training in  26 this field.  27 Q   And you did some experiments of that type?  28 A   Yes.  It was always raining.  29 Q   Now, did you -- you have described ethnology, is the  30 utilization of archeology and material culture part of  31 ethnology?  32 A   Oh, yes.  Yes.  33 Q   Now, I note you completed your diploma in anthropology  34 in 1968 and as your CV says you went to the University  35 of Manchester and did an MA (Economics) in social  36 anthropology.  Why did you go to Manchester at that  37 time?  38 A   I had heard some lectures and participated in seminars  39 with some of the professors from Manchester  40 University, from the faculty of social science there,  41 and it seemed to me that the sort of concerns that  42 they were engaged in were intellectually exciting, if  43 you like.  They were trying to deal with problems of  44 social change, where the work I had been doing in  45 London was -- had been described by some people as  46 stable equilibrium societies, building Cuckoo clocks  47 where everything was balanced and fitted into a nice 11812  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 little pattern, and it obviously didn't jibe with the  2 problems of social change and problems in the world.  3 And the people of Manchester had all been working in  4 the field in southern Africa, some of them working in  5 the colonial administration in preparation of the  6 economy for self rule and so on, and they were dealing  7 with various theories of social change, and I talked  8 to them and they invited me to apply there and I moved  9 to Manchester.  10 Q   Before going on to that, who were some of the persons  11 who you did studies in terms of economics before  12 leaving London for Manchester, some of the names of  13 some of the anthropologists?  14 A   One of the most eminent ones was Raymond Firth at the  15 London School of Economics.  16 Q   That's F-I-R-T-H?  17 A   F-I-R-T-H.  I believe he was at UBC for a while after  18 he retired as well.  He did a lot of work on  19 Polynesian economic systems.  And at the same time I  20 was taking a course in politics, what's called  21 primitive politics by Lucy Mair at the London School  22 of Economics and the it gave me a sort of overview of  23 political economy as a general field, and I also had a  24 course from Mary Douglas at University College.  2 5 Q   And who is she?  26 A   She is -- she is quite a famous anthropologist in the  27 field of symbolic studies and structural anthropology.  28 She did her field work in the Central Africa in the  2 9              Congo and has done a certain amount of comparative  30 work on what she calls primitive economics or  31 non-state economic systems.  32 Q   And now, who -- when you went to Manchester was there  33 a institute was that evolved there by some of the  34 people that you did course work with?  35 A   The faculty was a bit unconventional in that they  36 emphasized cross-departmental studies, so we all  37 participated in seminars in each other's departments  38 in economics, economic development, sociology and  39 anthropology.  The head of the department of sociology  4 0 and anthropology was Max Gluckman.  41 Q   Who was he, can you give some background on him?  42 A   He was an anthropologist with a legal background, he  43 had trained as a lawyer and then went into  44 anthropology in South Africa and was involved in  45 studying rural economies and political and legal  46 systems in southern Africa.  South Africa, what today  47 is Zambia and Zimbabwe and Malawi.  And he had always 11813  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 stressed that you look at the whole colonial context,  2 all the actors in the situation, while you are  3 studying a specific people and its culture, it's  4 contextualized by the non-native people in the  5 situation too, and to understand the living nature of  6 that culture you have to see its interactions with  7 members of other cultures that surround it.  8 Q   Did that -- did his position on that affect the  9 methodology you later used when you did your PhD  10 thesis on the Iroquois?  11 A   Yes, it was consistent with that.  12 Q   Now, you refer to -- you did your masters thesis on  13 peasant entrepreneurship in rural China, 1938 to 1958,  14 did you use an economic model to do that masters  15 thesis?  16 A   Yes, I did.  Like most masters projects it is a  17 training lesson in getting ready to do a doctoral  18 dissertation.  It didn't involve field work but  19 working with the ethnographies that had been compiled  20 by other people.  And what I did was I used a model  21 of, a sort of comprehensive model of what an economy  22 is, that you can look at component parts cross-  23 culturally in almost any society.  This is what I have  24 outlined in my report as well, the same procedure.  25 Would you like me to elaborate on that?  26 Q   I would like you to elaborate not only on your report  27 but the model you used.  28 A  Well, the model incorporates what is an economy, an  29 economy involves a system, a set of activities which  30 are called production, generally.  You produce a  31 material way of life, the material well-being of a  32 society.  And then another step in the process is the  33 distribution of the produce, the values which are  34 produced are then distributed.  And then, ultimately,  35 or in the course of production even, they are  36 consumed.  So production, distribution and consumption  37 are the main features and these exist it a context of  38 control and ownership of resources and a directing of  39 labour power.  So the resources and labour go together  40 to produce the material well-being, and there has to  41 be a system of acknowledged control and ways of  42 controlling the control of resources between different  43 owning groups in the society.  44 Q   What was the -- was there another approach in terms of  45 anthropological studies of economics that this  46 approach sort of overtook or --  47 A   Yes, not another approach but many of the studies in 11814  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 the past have centred around one aspect of that  2 economic equation or another.  They focuses usually on  3 trade, you know, and the analysis or the, sorry, the  4 definition of what an economy is in many introductory  5 textbooks, which is the allocation of scarce resources  6 to alternative ends, that is, dealing with the market  7 economy.  And the trade aspect of the market economy  8 and maximumization of values or profit seeking.  And  9 this doesn't always fit the preoccupations of the  10 people in non-state societies.  This, or the small  11 scale societies that anthropologists generally deal  12 with.  They may not feature that aspect of the  13 economy.  They may be much more concerned with the  14 actual day-to-day feeding themselves or the exchange  15 of goods which will show the status of the various  16 people in the society and reinforce the social  17 structure by exchanging of their goods rather than  18 seeking to necessarily maximize their value, so they  19 will have more goods to put back into production for  20 the next round of economic exchanges.  21 Q   And who was the -- who was sort of the person who  22 suggested this alternative approach?  I should say the  23 approach that you took?  24 A   The approach is quite common but I adopted it from a  25 French writer by the name of Maurice Godelier,  26 G-O-D-E-L-I-E-R, who was a philosopher and economist  27 who later became an anthropologist and has done a lot  28 of interesting work in New Guinea.  And he had done a  29 critique of may of the economists who had concentrated  30 on economic affairs and saying that they -- that their  31 troubles were basically ethnocentric, that is to say  32 they would take models from our industrial complex  33 state societies, that seemed to work in our societies  34 very well, and use them as an exemplifying model to  35 describe the economies in other societies, and it  36 didn't fit very well.  It distorted the facts.  37 Q   I would like to -- I see in your education background,  38 in your CV, Dr. Daly, that you have your PhD in social  39 cultural anthropology from the University of Toronto,  40 and you received that in 1985?  41 A   Yes.  42 Q   And that was with respect to the study of the  43 Iroquois?  44 A   Yes.  45 Q   I will come back to that, but what I would like you to  46 go to your -- page 2 of your curriculum vitae, and  47 first of all, you are a member of the Canadian 11815  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Ethnology Society and the American Anthropological  2 Association?  3 A   Yes.  4 Q   And the international working group on indigenous  5 people?  6 A   Yes.  7 Q   And those are, the first two are anthropological  8 associations?  9 A   Yes.  10 Q   I just wanted to ask you about your -- I refer to  11 19 -- the bottom of page 2 of your curriculum vitae,  12 your work, you were a lecturer in introductory  13 anthropology  and a teaching assistant in the 1972 to  14 '74 period.  Can you just describe what you did there  15 that reflects on your expertise in this field?  16 A   I don't know exactly what you're getting at, but I was  17 teaching an introductory course, it scared me because  18 I had never taught a large group before, there was  19 1000 students, and we covered a general introduction  20 to social anthropology, with some emphasis on the  21 native peoples of Canada and North America.  22 Q   And from 1974 to 1980 you worked with the Royal  23 Ontario Museum, which is often referred to as the ROM?  24 A   Yes.  25 Q   By the initials.  And can you describe for me what you  26 did at the Royal Ontario Museum in that period of  2 7 time?  28 A   I was working with the material cultures in the  29 collections of the ethnology department at the ROM and  30 I did many different things:  I started off  31 cataloguing a new collection which had come in from  32 the Solomon Islands, about 500 items, this entails  33 looking into historical documents of the area from the  34 artifacts, getting some background, comparing  35 historical material.  I did conservation work on  36 artifacts as well, partly from that first collection  37 that I catalogued and gradually I did more and more  38 research work on the northwest coast, this area, and  39 the woodlands, the native people of the woodlands,  40 which is the area around the Great Lakes and I  41 prepared gallery guides and gave lectures to the blind  42 and to students who came in, and so on, and organized  43 collections that were going to go out on display to  44 other museums and schools and so forth.  45 Q   I note in your curriculum vitae you say in the course  46 of your duties you associated in Ottawa and Toronto  47 with Dr. George MacDonald.  Who is Dr. George 11816  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 MacDonald?  2 A   Doctor George MacDonald is the director of the  3 National Museum, I believe it's now changed its name  4 to the Canadian Museum of Civilization.  5 Q   And then you referred to the Barbeau-Beynon  6 manuscripts on the Tsimshianic cultures.  7 A  Well, George MacDonald frequently came to Toronto or  8 phoned our department and his requests were usually  9 referred to me for materials on the northwest coast  10 that were in our collections, so I got to know him and  11 he himself offered various services to me.  I was  12 working on a book for the ROM, which has never seen  13 publication, on the collections of totem poles which  14 they have.  These are the poles from the different  15 parts of the northwest.  They had a few sections of  16 poles which had been cut up from the Gitksan  17 territories.  They have the largest pole in -- the  18 largest of the old poles in captivity, it's a 81 foot  19 pole from the Eagle Clan on the Nass River, Nisga'a,  20 and they have two other Nisga'a Frog Clan poles and a  21 beautiful pole from Tanoo Village on the Queen  22 Charlotte Islands which inspired the carver Bill Reid  23 to begin carving as well as house posts and other  24 features.  And so I was compiling this material, and  25 George was very helpful in introducing me to the  26 archives in Ottawa and the facilities available at the  27 National Museum and he also inspired my enthusiasm for  28 the cultures back here on the coast.  29 Q   Did you have any contact with Richard Inglis?  30 A   Yes, he was at that time working as an assistant to  31 George MacDonald.  32 Q   And do you know where he is today?  33 A   He is presently an ethnologist in the Provincial  34 Museum in Victoria and I have occasion to consult him  35 and discuss with him from time to time.  36 Q   Do you know Dr. Peter McNair?  37 A   Oh, yes.  Peter was actually a classmate of mine back  38 at UBC, long ago, and anyway he crossed, we crossed  39 paths at the ROM again and I would get out ardulite  40 materials for him that he was researching in  41 connection with the provincial museum and he very  42 kindly got a lot of information on the totem poles  43 when I was putting that book together, including some  44 facinating shots of villages in the Queen Charlottes  45 over a period of time.  One of them had Emily Carr in  46 the foreground actually painting one of the poles,  4 7 which is now in the ROM. 11817  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  :  Do you like Emily Carr paintings?  I do.  I don't think she understood the clan system  very well though.  You worked on your PhD, did you do a residency  requirement in 1971 to '73 at the University of  Toronto?  Yes.  And then you worked on it and you completed it in  1985?  Yes.  I was doing many things.  The PhD was one of  many things.  My father dispaired of me, he thought I  would finish it after I had reached the Old Age  Pension.  You did in that -- in the time of your working on your  PhD you also were involved in freelance research with  Heritage Ontario, can you describe what -- can you  describe what you did there and the kind of work you  did there?  Well, I wasn't employed by them I was a contract  researcher for various historical projects on Ontario.  In fact, I had been complaining about some of the  things they were doing because there was no component  about the native tradition in the province and they  suggested I do something to remedy the situation and I  worked, using historical ethnohistorical documents,  archeological reports from Heritage Ontario,  archeologists who were all very helpful to me, and I  checked the archive records in band council offices in  different parts of the province, depending on what the  specific history project was, and lived for short  periods of time, generally a weekend or a week, on  some of these reserves, asking people questions about,  oral questions about their oral history.  And did you do that on different projects in that four  year period, '81 to '85?  '81 to -- actually, it went on to '86.  The last one  was in '86.  Now, in 1985-'86 you were teaching assistant in social  anthropology of early state formations at the  university of Toronto?  Yes.  Who did you work with on that?  I worked with my supervisor for my thesis, Dr. Richard  Lee.  Who is Dr. Lee?  He is an anthropologist studying what are called high  1  THE COURT  2  A  3  4  MR. GRANT  5  Q  6  7  8  A  9  Q  10  11  A  12  13  14  15  Q  16  17  18  19  20  A  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  Q  36  37  A  38  39  Q  40  41  42  A  43  Q  44  A  45  46  Q  47  A 11818  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 profile people, that is the bushmen of southern  2 Africa, Botswana and southern Africa and Namibia.  He  3 has been working for 25 years with these people, with  4 various research teams.  They are quite famous in  5 anthropology because these are one of "simplest"  6 societies.  They don't have leaders, they don't have  7 independent institutions, they are quite loosely  8 organized hunting bands.  So his work with this  9 society, which was so radically different from the  10 society he had grown up in in New York and Toronto,  11 inspired him to start looking at historical  12 developments and evolutionary themes in institutions.  13 So he is working now on the formation of -- the  14 turning of tribes into states, if you like.  It's  15 not a very elegant way of saying it.  16 Q   You worked with him in those two year periods in that  17 area?  18 A   Yes, I was his teaching assistant and prepared some of  19 the lecture material and counselled the students.  20 Q   Did you co-author anything with him?  21 A   Yes, we wrote an article -- there was a conference at  22 Yok University, I forget which year, on the question  23 of the -- oh, dear it was the relations between men  24 and women in modern societies and in stateless  25 societies.  It was basically a group of men who were  2 6 sympathetic with the feminist movement who wanted to  27 bring their areas of expertise to the study of gender  28 relations today, and Richard Lee had been asked to do  29 a study of the role of men versus the role of women in  30 egalitarian or stateless societies, very simple  31 societies within the area of his expertise.  He  32 started to sketch it out, he got too busy, he asked if  33 I would write the thing out, we had some discussion, I  34 wrote a version of it, gave it to him, he made some  35 suggestions.  Anyway, we worked back and forth on it  36 and it came out in the book as listed here.  37 Q   That's at page one of the very bottom, that paper, is  38 that the reference to it?  39 A   Yes, Beyond Patriarchy, that was the book.  40 Q   Now, just before -- I am going to refer to your PhD  41 work, from 1966 to 1988 you worked on the -- you  42 researched the nature of Gitksan and Wet'suwet'en  43 economic and social life, and is that the work that  44 evolved into your expert opinion report?  45 A   Yes.  46 Q   And in 1988 you were the recipient of a two-year  47 Social Science and Humanities Research Grant to study 11819  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 local descent groups of Canadian native peoples in  2 relation to economic development?  3 A   Yes.  4 Q   And that's your present -- you presently are under  5 that grant?  6 A   Yes, yes.  7 Q   Now, can you -- who is the Social Science and  8 Humanities, who is that?  9 A   It's commonly called SSRC, Social Science and Research  10 Council.  It replaces the granting body of the Canada  11 Council in the area of social science in Ottawa.  12 Q   And what is your intent to or who are you studying  13 with respect to local descent groups of native people,  14 who you are specifying?  15 A   The Gitksan and Wet'suwet'en.  It's related to in a  16 sense the work I have done before and also it's grown  17 out of my interest from my doctorate on the nature of  18 house groupings, because the doctorate was on the  19 formation of the Iroquois League as a house grouping.  20 The whole thing about kinship societies using a house  21 and a family as a metaphor for their social relations  22 and for their dealings with the white man world of the  23 modern state society.  24 Q   Well, it's timely that you allude to that because I  25 would like to use, or to refer to your thesis, your  26 PhD thesis, and have you explain certain categories or  27 characteristics of the research methodology that you  28 did there and I would like to start with ethnohistory.  29 Did you use ethnohistory in terms of your PhD thesis  30 work?  31 A   Yes, I did.  32 Q   What is ethnohistory?  33 A   Ethnohistory is a technique that is employed more and  34 more by anthropologists as the old exotic traditional  35 cultures change and evolve in the modern day  36 conditions.  It involves a training in social  37 structure, comparatively, cross-culturally by various  38 societies and then you bring this knowledge to bear on  39 the written records of the earliest contact periods  40 between European, generally European, anyway literate  41 members of literate societies who have gone to other  42 areas of the world and written down their impressions  43 about the life there.  It may not be directly about  44 the native people in the area, but they write about,  45 inadvertently sometimes, and directly sometimes, about  46 the nature of the social life.  47 Q   Before proceeding into the history and what you did, 11820  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 what was your thesis about, can you maybe amplify on  2 that?  I know it's about the Iroquois byt --  3 A  My thesis was, what intrigued me about the Iroquois --  4 THE COURT: Mr. Grant, I am sorry, but I can't help but think  5 that I am not going to be helped by knowing all about  6 the doctor's work on the Iroquois.  I wonder if, in  7 view of the course of this trial, I really should get  8 to what your friends' objection is?  9 MR. GRANT:  My friends wish to frame their objection — the  10 research, the methodology it which the doctor used  11 with respect to the Iroquois, I will submit, has a  12 direct bearing on the very issue that my friends say  13 is why you cannot accept his report.  And I was,  14 rather than going into detail during qualifications,  15 his methodology in his preparation of this report, I  16 felt that it would be useful for him to explain  17 certain characteristics of anthropological  18 methodology, which includes ethnohistory, participant  19 observation and the use of oral history.  And those I  20 will be submitting after Dr. Daly explains them and  21 Mr. Rush will deal with my friends' objections in  22 argument, but that you will then have the foundation,  23 the factual foundation as to the validity of the --  24 the type of methodology that the doctor used.  25 THE COURT:   How long do you plan to be in qualifying the  26 doctor?  27 MR. GRANT:  I am always optimistic and I would hope that we  28 would complete the qualifications this morning and  29 deal with this objection late this morning or this  30 afternoon.  31 THE COURT:  The witness is obviously qualified in anthropology,  32 and having said so often in the course of this trial  33 that if I am going to err, I am going to err on the  34 side of admissibility, why don't we hear what the  35 objection is and get on with the case?  It may be that  36 there is a specific area where your friend can be of  37 some assistance to me and it seems to me that we ought  38 to do that.  We can wander through the whole of the  39 civilized and uncivilized world and deal with all  40 kinds of bush people and Iroquois and others, and it  41 may have some relevance when it comes to comparative  42 studies, but the question of qualifications, I am  43 satisfied that the witness has got the qualifications  44 in anthropology.  45 MR. GRANT:  Well, my lord, with respect, my friends are  46 objecting to the admissibility of his report and they  47 are objecting to that on the basis of his methodology 11821  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  in the preparation of that report and on the basis of  certain -- the approach that he used.  And before that  is ruled on, I would like an opportunity to have the  witness explain, (a) the methodology and, (b), the  acceptability of that methodology within his field of  expertise.  We are in a situation here, of course,  whereas some of the other references have said, we are  not dealing with the chemist we are dealing with the  social anthropologist or ethnologist, and it's a  grayer area.  But my friends are objecting to the,  basically objecting to the entirety of his report  going in and I -- before --  I must confess --  Before that's argued I would like to have a factual  foundation for why his report should go in. That is,  their objecting goes to his methodology.  Well, I must confess to some impatience to find out  what that was.  Well I have no problem, if my friends wish to frame  their objection now, I have no difficulty with that  and advise if I could then proceed, and what I am  dealing with now is, I basically covered the general  background of the qualifications and I wanted to go  into the specifics of methodology which related to the  objection.  And ethnohistory as one of those areas and  oral history and participant observation.  I think I would like to know what the objections to  the report are before having the pleasure of hearing  what the doctor has to say about the Iroquois.  Mr. Willms?  WILLMS:  My lord, now I did have a couple of questions on  qualifications but I probably don't need to ask them,  because I think it is evident from the document  production, and so the basis for the objections that I  am going to outline, my lord, are simply these:  Dr.  Daly did the bulk of his field work here based on  something called participant observations, which is  participating in the life of the plaintiffs, as I take  it, although it hasn't been defined yet, and then  based on those observations, in addition to some  reading, rendering an opinion.  And that participant  observation took two forms:  One form was interviewing  people, and we have 35 interviews from 21 people.  So,  that's all of the interviews for his participant  observation.  The second part of participant  observation, as described by Dr. Daly in his report,  is watching what people actually do, and that's an  THE COURT:  MR. 11822  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 important aspect of it.  There is two parts.  There  2 are no notes.  There are no notes except for two  3 feasts of watching what people do.  It's all, as far  4 as I am aware, still carried around with Dr. Daly from  5 day-to-day wherever he goes, and the -- all of this  6 work is done after the lawsuit commenced.  So if I can  7 summarize what the questions would have been, that  8 would be the evidence that Dr. Daly would give, my  9 lord, after those questions were answered.  And that's  10 clear from his report.  Now, the objections to his  11 report, my lord, and I recognize that in the  12 circumstances of this case, that the objections will  13 likely require your lordship to listen to the  14 evidence.  But I think that the objection should be  15 made now, and I will be very brief and then we can  16 carry on and reserve perhaps the issue of  17 admissibility to the end of the trial, to the argument  18 stage, as we did with Ms. Albright.  But I think it  19 would be unfair of me to my friends before they led  20 the evidence of Dr. Daly, if they didn't know what I  21 was going to object to, and secondly, I think that the  22 objection should be stated for the record.  23 Now, the first objection, my lord, is that by  24 virtue of section 11 of the Evidence Act, my friends  25 are under an obligation to disclose the facts upon  26 which the opinion is based.  And as I said earlier,  27 there are -- we have got 35 interviews with 21 people,  28 that is half of the participant observation, then two  29 years of observations with not a note.  Two feasts, no  30 notes.  And it will be our submission at the end of  31 the day, and it is now, that we have not received the  32 facts upon which the opinion is based.  It's not good  33 enough to say that Dr. Daly observed all of this, he  34 is carrying it around in his mind, and he will let you  35 know when you get to court what it was that he saw  36 that caused him to reach the opinion.  37 THE COURT:  Isn't what he saw in the report?  38 MR. WILLMS:  It isn't.  His opinions are in the report.  The  39 facts -- the thing that I saw so and so do this.  The  40 interviews are in there, I interviewed so and so and  41 he or she told me this and it's -- there is a  42 reference.  It's brief, it's meagre, patchwork  43 throughout the report.  But those are there.  But the  44 other observations reach a level of generality that is  45 hard to describe, my lord, unless you read the report.  46 And I can't do better than that right now because your  47 lordship hasn't had the advantage of reading the 11823  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 report.  But it's not -- the facts are not self-  2 evident in the report.  The opinions are but the facts  3 are are not.  4 That's the first objection, my lord.  The second  5 objection and this goes -- your lordship has not seen  6 the report but I am assuming that the evidence that is  7 proposed to be given here follows the report.  Now,  8 this court, your lordship in another case and other  9 members of this court, have held that argument  10 disguised as opinion is inadmissible evidence.  Well,  11 this report is undisguised arguement.  It's not even  12 disguised as opinion, it's undisguised, it's a  13 judgment in this case.  14 The third objection, my lord, relates to oral  15 histories, and I made the same objection with Ms.  16 Albright and that was one of the reasons why your  17 lordship decided that we should hear the evidence and  18 reserve it and I am suggesting that that's probably  19 the way to go here.  But once again the witness has  20 interwoven oral histories with other information, the  21 foundation of which is highly questionable.  22 The fourth point, my lord, and once again your  23 lordship hasn't seen the report, we have, there is  24 incredible duplication of materials that your lordship  25 has already heard from other witnesses.  And -- but  26 that's -- that's there.  And we don't need Dr. Daly to  27 tell us what a witness has already said again and  28 again and again and again.  29 Finally, my lord, whatever merit participant  30 observation anthropology may have generally, it will  31 be our submission that where all of the participant  32 observation anthropology takes place after the  33 commencement of the a lawsuit, it is inadmissible for  34 this simple reason:  The participant observation  35 anthropology is impossible to replicate by any other  36 party.  In other words, another party can't send in,  37 once the lawsuit has started, their own  38 anthropologists to do participant observation  39 anthropology.  There is no way to test it, no way to  40 check it, no way to meet it in the adversarial  41 situation.  Now if it's done ahead of time so that it  42 relates back to a period prior to the commencement of  43 litigation, then it's got some natural science to it.  44 But once the litigation is commenced, my lord, it's my  45 submission that because it's impossible to replicate,  46 it's completely inadmissible.  47 Now -- and so those are the objections, the five 11824  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 objections to the admissibility of the evidence and  2 the admissibility of Dr. Daly's report.  There may be  3 some others that arise, my lord, throughout the course  4 of Dr. Daly's evidence.  He has relied on a lot of  5 information that won't ever be filed in court and  6 which will be -- which is hearsay, and there will be  7 no foundation, but I suppose that is something that we  8 leave to the end of the day.  9 Those are the objections, my lord, and as I said at  10 the beginning, at the outset, your lordship may wish  11 to reserve on the objections and hear all of the  12 arguments at the end of the trial and hear the  13 evidence of Dr. Daly, but I thought that it would be  14 prudent to let my friends know what the objections are  15 at the outset.  16 THE COURT:  Miss Koenigsberg?  17 MS. KOENIGSBERG:  I certainly agree with my friend, Mr. Willms,  18 with regard to the admissibility of this kind of  19 evidence in this unique situation and I would only  20 add -- I agree with all, of the arguments and I would  21 only add, and perhaps highlight the two issues which I  22 think are particularly apposite, because it's a bit  23 difficult, it doesn't relate directly to the  24 qualifications of this witness.  This witness is  25 obviously well-qualified as an anthropologist.  And  26 there is no question that this witness has done  27 research with these people, but my friend, Mr. Willms,  28 has put his finger on the very problem.  The research  29 which this witness has done is not only after  30 commencement of the lawsuit but involves, in  31 significant proportions, the evidence given at this  32 trial and the very putting together of the evidence  33 for this trial by the witnesses and by the or by all  34 of the plaintiffs.  As participant observation it  35 poses a particular problem to translate that into  36 admissible evidence in a courtroom, for the very  37 reason that it was, was set up, the exceptions to the  38 hearsay rule for expert evidence.  It will be our  39 submission at the end of the day, as I am sure it will  40 be Mr. Willms', that in the end it will be our  41 submission that this kind of evidence should never  42 have been admitted and it is unfortunate, in our view,  43 but obviously necessary in this case, to hear it  44 first.  45 The second problem is the duplication, and again we  46 are into this, but it is significant in this  47 circumstance.  What we are dealing with, with Mr. 11825  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Daly, when one goes through the areas that he has  2 covered, every witness but one in his list of  3 witnesses, for whom we have interviews, has been a  4 witness at this trial, either on commission or in this  5 courtroom.  Every topic that he covers has been  6 covered by a witness in this courtroom, and in  7 considerable detail.  In addition to that, Mr. Daly,  8 quite properly as an anthropologist, relies on the  9 other experts for the areas which he did himself not  10 observe, and your lordship has heard that evidence,  11 and is being called upon to judge its admissibility as  12 well.  So -- and we have, of course, a repetition of  13 that evidence, both the archeological evidence, the  14 bioclimactic zone evidence and the evidence of the, I  15 will call them general plaintiff witnesses, who told  16 us not what they did only but what it meant.  And we  17 have that again.  And we have it not only in the  18 interviews, and Mr. Daly's conclusions on those  19 interviews but we have it by his telling us what  20 witnesses meant when they gave evidence in this  21 courtroom.  And it is exactly couched in those terms,  22 I believe that Alfred Joseph meant this when he said  23 da-da, da-da, in this courtroom.  It simply highlights  24 the difficulty of the translation of the discipline of  25 anthropology, which has its own merit and its own  26 place into expert evidence to be considered to  27 determine legal issues in this courtroom.  And I, in  28 my submission, in the end we will be saying that it is  29 inadmissible.  30 THE COURT:  Mr. Grant, I think your friends have persuaded me  31 that I was wrong in stopping you.  I think you better  32 go ahead and do whatever you want to do in regard to  33 the qualification of the witness.  It seems to me that  34 there is a problem about admissibility here, that I am  35 going to have to deal with, and I think that you  36 should do whatever you think you have to do in order  37 to meet those objections.  38 MR. GRANT:  Yes, my lord.  As I indicated, my lord, I am going  39 to utilize the reference to the Iroquois and the work  40 that this witness did with them to do his thesis,  41 there is some relevance, of course, in the comparative  42 analysis of the Iroquois, but I am going to these  43 issues.  44 Q   I would like to refer you, Dr. Daly, to tab 3 of the  45 document book, which is an excerpt from Natives and  46 Newcomers, the Trigger book, which I believe my  47 friends have already referred to in part.  And I would 11826  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  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  like to refer you to page 166, and I was asking you  about ethnohistory.  Now, I would just like to read to  you that middle paragraph there starting  "Ethnohistorians seek to understand the changes that  have occurred in native societies from earliest  recorded European contact until the present.  As the  study of native American history, ethnohistory takes  up where pre-historic archeology leaves off.  Ethnohistory thus covers essentially  the same time  span as historical studies of white activities in the  New World.  It adds a new historical dimension to  American anthropology that rectifies the omission of  such an approach in the nineteenth century."  Do you agree with that statement of what  ethnohistory is?  A   Yes.  Q   Who is Bruce Trigger?  A   He is an anthropologist, head of the -- dean of  anthropology at McGill University, written quite an  illustrious book that many of us have relied on for  many things: The two volume history based on what he  calls here ethnohistorical work on the Huron Indians,  called The Children of Aataentsic.  Q   Could you spell that?  A  A-A -- oh, dear.  It is -- I am sorry.  I have become  part of the oral culture, it's hard to recall it.  Q   A-A-T-A-E-N-T-S-I-C?  THE COURT:  I am sorry, again?  MR. GRANT:  A-A-T-A-E-N-T-S-I-C  A   That's the history of the Huron people to 1660, I  believe.  He has relied on much of the same material  that I used in my PhD dissertation, that's 73 volumes  of the Jesuit relations, the relacion that the Jesuits  sent back to their father superior in Paris and the  Vatican telling them about the development of their  mission work among the Huron Indians and the  surrounding hunting band peoples in the early part of  the 17th century.  Q   Would it be fair to say that Mr. Trigger is an  ethnohistorian, at least with respect to that work he  did?  A   He is an ethnohistorian with respect to that, he is  also trained in social anthropology and archeology and  he has availed himself of those diciplines as well.  Q   I would just like to refer you to the bottom line on  that page:  "It is generally agreed that ethnohistory  uses documentary evidence and oral traditions to study 11827  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 changes in nonliterate societies."  2 Do you agree with that statement?  3 A   Yes.  4 Q   And I will return to oral traditions later.  5 Now, with respect to what you did for your work  6 with the Iroquois, you refer to the Jesuits relations,  7 did you study -- did you do any other studies of  8 historical documents which would be ethnohistorical  9 material?  10 A   I did whatever I could find, whatever was referred to  11 me by ethnohistorians and archeologists working in the  12 field.  The work of Father Sagard, S-A-G-A-R-D, was  13 particularly interesting.  He was a Dominican Frier  14 who preceded the Jesuits, living in the Huron country  15 shortly after Champlain visited, Champlain was there  16 in 1615 and Sagard was there between 1618 and 1620.  17 He was facinated by the culture and he wrote quite a  18 full account of it.  There were other documents.  And  19 the procedure that you follow is you search for as  2 0 many documents as you can.  Some of them don't have  21 much value at all.  22 Q   How do you determine that?  23 A  Well, partly it's your -- as from my perspective, it's  24 from your training and your comparative work and your  25 knowledge of the type of society that you are looking  26 at in general.  And there is one man, he was a French  27 aristocrat who made a sojourn into New France and  28 ended up writing a book, I believe it was in 1685 or  29 somewhere around there, called The History of the  30 Savage People of New France, and the accounts that he  31 gives of the nature of societies are very lurid in  32 their detail and they don't bear much resemblance to  33 the accounts given by anybody else.  And Trigger and  34 others have paid no attention to that man's work.  We  35 look at the avidly because he was a first-hand  36 observer, but the things he said were things that he  37 brought to New France from his head in France.  His  38 training and his imagination, if you like, from the  39 French culture, his view of what savage society or  40 wild men would look like and what they would act like.  41 And he simply used his visit there to stamp his  42 preconceived notions.  And there were also Jesuits who  43 were appalled at the customs of the Huron Indians and  44 by being appalled they actually recorded them in some  45 detail.  But if we take their analysis of it, it's  46 certainly quite different from an informed  47 anthropological opinion.  For example, they had no 11828  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 understanding of Huron or matrilineal society, so they  2 got all confused about kinship terms, and who was  3 really the uncle and what side it referred to and this  4 sort of thing.  5 Q   Now, how do you analyze these in terms of your field  6 of anthropology, how do you analyze society through  7 historical material, I mean, how do you assess it?  8 A   The best way of assessing it is having the descendents  9 of the period that you are studying, if they still  10 exist, available for questioning, so that you can  11 conduct interviews and live in the community.  You  12 don't always have that but you do have the comparative  13 work on similar types of society.  We tend to look on  14 the society as being, in terms of the history of  15 social structure or history of human groupings on a  16 long continuum, and there are societies that have been  17 studied fal into broad categories, so you tend to  18 assess the work and the writings of other people  19 against your knowledge of these broad categories, as  20 well as your general knowledge of the region, the  21 cultural region that you are studying.  22 Q   Do you use archeological or ecological data in your  23 analysis?  24 A   Yes, you do.  Archeological is very important.  And  25 also, as I was saying before, the archeologists are  26 trying to work out the way people did things from the  27 descriptions and from the tools that they find, in  28 league with the overall, their overall concepts of how  29 that technology worked and what its effect was on the  30 environment and the actual face of the land.  31 Q   Did you do ethnohistorical --  32 A   If I could just add something?  When I was working on  33 the Heritage Ontario projects, and working in the ROM,  34 I used to go out with Jock McAndrew, who was a  35 professor in the botany department at the University  36 of Toronto.  His work was intimately tied into the  37 ethnohistorical work and the archeological work of  38 Ontario, and he was studying the varves of sediment at  39 the bottom of bogs and ponds and Maramactic Lake,  40 where the water doesn't turn over in the Niagara  41 Escarpment, a place called Crawfrod Lake, and he had  42 facinating findings there about the nature of the land  43 use in the surrounding area.  He had 30,000 years of  44 climatic changes that he could work out from the  45 analysis of the spores of the pollen in the area and  46 they found that this land had been cleared extensively  47 for farming as far back as 1100 A. D. by the nature 11829  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 spore count that clearly -- anyway, there is a whole  2 procedure for that.  So all these different types of  3 studies feed in to verify and cross-reference the  4 ethnohistorical.  5 Q   Did you do similar, and without getting into it at  6 this stage, did you do ethnohistorical analysis  7 before, when did you your research with the Gitksan  8 and Wet'suwet'en?  9 A   You mean with regard to this region?  10 Q   Yes.  11 A   To some extent, yes, yes.  I read whatever was  12 available and what others had already compiled.  13 THE COURT:  Can we take the morning adjournment now, Mr. Grant?  14 MR. GRANT:  Certainly, my lord.  15  16 I hereby certify the foregoing to be  17 a true and accurate transcript of the  18 proceedings herein to the best of my  19 skill and ability.  20  21  22  23  24 Wilf Roy  25 Official Reporter  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 11830  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  :  Mr. Grant.  :  Thank you, my lord.  Now, I asked you just at the time of the break if you  did similar ethnohistorical work with the -- in  researching the situation with respect to the Gitksan  in the areas referred to in your qualifications.  Did  you do ethnohistorical work there as well?  Yes.  I read the Hudson Bay Journals of the period.  I  read the work, the diary of Daniel Harmon.  Is that from 1811?  Yes.  I believe so.  And he was a trader, wasn't he?  He was a trader.  When you say the Hudson Bay Journals from the period,  what period are you referring to?  The setting up of Fort Kilmaurs, 1822 to 1826.  :  I am sorry, the name of the --  Fort Kilmaurs, K-i-1-m-a-u-r-s.  Old fort on the  Babine Lake.  :  Thank you.  And —  I consulted other documents, but I can't recall.  There are a number of articles, travellers' reports  and surveyors' accounts and so on.  Okay.  Did you assess those documents as you said you  assessed the Jesuit relations with respect to the  Iroquois, that is assess them from your area of  expertise?  Yes, I did.  Now, going back to the Iroquois work you did.  Did you  engage in what is known as participant observation  with respect to your Iroquois research?  I did.  Can you tell the court what is meant by participant  observation in the field of anthropology?  It's a field technique that the social -- social  anthropologists and ethnologists use to obtain  information about the structure of the society and the  system of meanings of the society that their study  involves of the putting yourself into a position of a,  say, a five or six year old child.  You want to grow  up in the society but you are an outsider.  You come  from a different culture, a different background, a  different set of assumptions about life.  So in the  1  2  3  THE  COURT  4  MR.  GRANT  5  Q  6  7  8  9  10  A  11  12  Q  13  A  14  Q  15  A  16  Q  17  18  A  19  THE  COURT  20  A  21  22  THE  COURT  23  MR.  GRANT  24  Q  25  A  26  27  28  Q  29  30  31  32  A  33  Q  34  35  36  A  37  Q  38  39  A  40  41  42  43  44  45  46  47 11831  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 course of going into a community and living there  2 first and participating as far as you can as a member  3 of that community, you are trying to find the entry,  4 you are trying to find the structures and the ways of  5 entering into the accepted life of the people in that  6 area.  7 Q   And what -- where did you go with respect to the  8 Iroquois, what community or communities did you go to?  9 A   I went to the Six Nations Reserve and I went to the  10 Cornwall Island, Akwasasne.  They were the two main  11 areas and I conducted interviews on a couple of other  12 reserves as well.  And I met urban Iroquois who were  13 living in Toronto.  14 Q   Had you been -- as part of your course had you been  15 taught about participant observation before your PhD  16 thesis work?  17 A   I did, yes.  18 Q   Since your --  19 A   Right from the beginning.  It's like the Holy Grail in  20 the sense of anthropology.  Everybody is trying to  21 find a way to engage in some participant observation.  22 It's the getting in touch with another culture  23 firsthand.  It's part of your existential period.  24 Part of your training.  25 Q   Did you do that full-time when you were with the  26 Iroquois?  2 7 A   No, I didn't.  2 8 Q   And why was that?  29 A  Well, I was not funded for the project I was working  30 on.  I had to make a living.  I was working in the  31 Royal Ontario Museum a lot of the time and doing other  32 historical, ethnohistorical research.  So I --  33 whenever I could get a block of a week or two or  34 extended weekend, I would go off to these areas.  35 Enjoyed the hospitality of the people there.  36 Q   Okay.  Now, in doing this participant observation, did  37 you take -- I am talking about the Iroquois now, did  38 you take field notes or record interviews with people?  39 A   No.  That was one of the strictures right from the  40 beginning.  All the people that I approached about  41 doing work in those two communities refused to allow  42 me to take any -- make any records of what I was  43 studying.  It was rather -- rather -- rather difficult  44 for me at first.  I couldn't record, tape record  45 anything.  I couldn't photograph anything and I  46 couldn't take notes.  I said, "Well, how am I going to  47 learn about your society then?"  And this one matron 11832  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 lady, her name was Ann Jock up at Akwasasne, she said,  2 "By living our society, our life, that's how you will  3 learn.  We will show you things.  It's not our way to  4 tell people things.  We show you."  And this brought  5 back to mind what -- one of the classics of  6 ethnographic procedure in sociology is a book by  7 William Whyte, spelled with a Y, called Street Corner  8 Society.  It's a study he did in the war years of the  9 slums of Boston.  He said that when he went in and  10 started asking questions, everybody clammed up and the  11 leaders of the street gangs said, "Well, you have to  12 become a member of our gang before you know what  13 questions to ask.  You don't understand our system."  14 He said that was the best lesson he learned.  So I was  15 bursting to write things the whole time I was with the  16 Iroquois.  But I learned to write it right into my  17 growing PhD dissertation when I got home.  And I would  18 say, "Well, how am I going to remember these things?"  19 They said, "Well, you remember the sequence of events.  20 When we go to, say, a winter ceremony which is  21 involved a two or three day procedure, you remember  22 the sequence of what happens.  Or we take you  23 somewhere, remember where we go.  Or if we are going  24 collecting medicine plants, which we did sometimes,  25 remember the sequence in which we -- where we went and  26 when we had lunch and so on."  So there are various  27 memory devices for --  28 Q   So you would remember where you went, for example, to  29 collect plants, and how did that help you when you  30 couldn't take notes?  31 A  Well, I started developing a memory system.  I --  32 roughly equivalent to the system that they use when  33 they have to remember their very intricate ceremonial  34 oral histories in their winter ceremonies.  And then  35 when you are -- another thing is when you are near the  36 people that you are studying, you have the luxury of  37 writing it up near the source.  You can get on the  38 telephone or you can go and visit somebody and check  39 things out.  And that's a constant process.  40 Q   And did you do that with the Iroquois?  41 A   I did that with the Iroquois and I did that with the  42 Gitksan-Wet'suwet'en.  43 Q   Okay.  Now, is that -- did you discuss with any of  44 your I guess it would be your committee, your PhD  45 committee about the problem about not being able to  46 take notes?  47 A   Yes. 11833  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Q   And who was that and what was the --  2 A  Well, it was discussed by all the members of the  3 committee.  One of them who has done work in Africa on  4 religious movements and symoblic systems, Michael  5 Lambek, L-a-m-b-e-k, he said it is a recurring problem  6 in many situations.  But the anthropologists who have  7 been baptized in the field, done the fieldwork, they  8 begin to get a feel for the quality of the  9 information.  As long as what you record eventually is  10 as honest and as verbatim as you can make it by your  11 recall, they can then compare it to similar  12 experiences in similar societies within that culture  13 area or similar societies in another culture area.  So  14 he said that as far as he was concerned it would go  15 through.  And the others didn't have any serious  16 objections to it.  17 Q   Okay.  So you would go out in the field with the  18 Iroquois and then you would come back and what would  19 you do with the information that you had in your head?  20 A   I would add it to the ongoing opus of my doctoral  21 dissertation.  22 Q   Now, is this what you did with respect to your  23 research with the Gitksan and Wet'suwet'en?  24 A   In many ways it is similar, because there is a lot of  25 concern among the chiefs, the Gitksan and Wet'suwet'en  26 chiefs about the amount of what they consider to be  27 family and house information which they believe is  28 part of their -- the things that they own and possess,  29 being aired and used in outside context, in context  30 outside their own culture.  However, they realized  31 that some of this had to be put forward for the  32 purposes of their court case, but a number of the  33 chiefs told me to take as few notes as possible.  They  34 didn't want things any more recorded than was  35 necessary.  And much preferred that I didn't take  36 notes.  37 Q   Okay.  You did take notes with respect to some of your  38 interviews?  39 A   I did.  40 Q   And I just —  41 A   In fact, I suggested at the beginning when I was  42 starting that I liked to do tape recordings and that  43 was not well received at all.  I did get someone to  44 agree to let me record something.  The tape recorder  45 failed and there was nothing on the tape at the end of  46 the day.  So I just gave up.  There was so much  47 opposition to having any more record.  And everyone 11834  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 told me that most of our information as far as we --  2 as chiefs are concerned that is going to be needed is  3 already recorded in the work that's already been done  4 before I started.  5 Q   Okay.  I'd like to refer you just to the index of  6 Volume 1, tab 6 through to 41.  Are those -- are those  7 tabs the interview notes which you took?  8 A   Yes.  9 Q   Okay.  And which you did record as interviews.  Now,  10 going back, you focused on the taking of notes.  Can  11 you just explain the process of participant  12 observation with respect to your Iroquois work.  And I  13 am just using that as a paradigm for anything you did  14 later, any distinctions that you did with that and the  15 Gitksan.  What did you do for participant observation?  16 What does it entail?  17 A   It entails a lot of driving.  You have to drive elders  18 from place to place.  I shouldn't be facetious, but  19 get -- you find a place in the community where you  20 can -- you can interact with people.  And driving  21 people if you have a car is one thing.  You live in  22 the community and you associate with the people as  23 much as you can, but you bring to bear on your  24 impressions the comparative training, training and  25 comparative analysis of different types of society.  26 And it's a constant process of interaction and  27 reflection and asking people questions, going --  28 engaging in their important social and ceremonial  29 activities, in their fishing and hunting activities  30 and other things.  31 Q   Now, did you engage in such activities with the  32 Iroquois?  33 A   To a limited extent.  A lot of the work I did there  34 was of an interview nature.  35 Q   What about --  36 A   But they took -- they did take me out onto their lands  37 and teach me about their traditional ways of growing  38 their maize and beans and squash and use of  39 traditional medicines and things like this.  It wasn't  4 0              my major concern.  41 Q   What about the Gitksan, did you participate in events  42 and functions of the Gitksan?  43 A   Yes, I did.  44 Q   And there has been much evidence of Feasts.  Did you  45 attend any Feasts of the Gitksan or Wet'suwet'en or  46 both?  47 A   Yes.  I attended five or six Feasts and a number of 11835  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 all clan Feasts.  2 Q   Do you recall these Feasts that you attended?  3 A   The first one was a pole raising, the pole raising of  4 Guxsan from Gitsegukla.  5 Q   G-u-x-s-a-n.  6 A  And the next one, I believe, was a Headstone Feast.  7 Q   When was that about, do you recall?  8 A   I think it was in October, end of September or early  9 October of '86.  10 Q   And the next one?  11 A   That would have been the Headstone Feast for Jeffery  12 Morgan, the former Axtii Hiikw, in the House of Axtii  13 Hiikw, Tenimgyet.  14 Q   And the others?  You refer in your notes to --  15 A  Antgulilbix, Mary Johnson.  She had a Feast in January  16 of '87 where a lot of business was conducted, giving  17 of names.  It was a Funeral Feast.  There was a  18 divorce.  Many things were incorporated into that and  19 it was a very long process.  I think we got out about  20 breakfast time.  21 Q   And do you recall another Feast in Kispiox around that  22 time that you were involved in or attended?  23 A   Of course there was the death of Delgamuukw, Albert  24 Tait, and I attended the ceremony at the funeral home,  25 accompanied the process back to the village.  I went  26 to the Smoke Feast and the Funeral Feast.  27 Q   And any other?  28 A   Just before the -- let's see, when was it?  In early  29 May of '87 I attended the Headstone Feast for Buddy  30 Williams, the son of Stanley Williams who had been  31 Chief Haalus in Gitwanga.  32 Q   Okay.  33 A   I attended an all clan Feast in Moricetown in the  34 spring of '87 and I attended the April all clan Feast  35 in Burns Lake.  36 Q   Okay.  Did you attend the ceremony relating to the  37 first cut of a pole?  38 A   Oh, yes.  I went to the first cut of the Hanamuxw pole  39 in which was being carved by Earl Muldoe in Gitanmaax.  40 Q   Okay.  Now, if you can just look at -- I won't take  41 you to the notes right at the moment.  But if you just  42 look at your interview notes, the index I should say,  43 I see tab 35 is notations re the Feast of Burns Lake.  44 This was the all clans Feast?  45 A   Yes.  46 Q   And then tab 41 is notations with respect to the Death  47 and Funeral Feast of Albert Tait, the late Delgamuukw? 11836  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 A   Yes.  I don't believe that it includes very much about  2 the actual Funeral Feast.  3 Q   Okay.  Now, you didn't take notes of the other Feasts?  4 A   No.  5 Q   Can you explain why not?  6 A   Because there had been an -- as far as I understood it  7 quite a lot of notations of feasting have been taken  8 in various ways.  I wanted to find out the actual  9 detailed step by step process of giving a Feast, of  10 inviting the guests and all the transactions that take  11 place in the course of the event.  So I began -- I  12 asked around the community who were some of the more  13 knowledgeable people that I could begin to learn this  14 information from and I was directed to a number of  15 ladies including Mary McKenzie.  And I sat for a  16 considerable period of time in that fall with Mary  17 McKenzie Gylogyet, and her daughter, Gwamoon, Pearl  18 Trombley.  And they were telling me about Feasts and  19 the information was coming very fast and furious and I  20 wasn't following it.  I didn't understand much of the  21 social structure at that time.  22 Q   Right.  23 A   So I said, "Let's slow down a bit.  Maybe you could  24 take me through a Feast step by step and we'll just  25 take it in a leisurely fashion."  And that's what we  26 did.  We went through a pole raising Feast, because  27 it's one of the more important ones.  It's sort of the  28 crowning glory of a cycle of Feasts which a chief  29 tries to give in the course of his life.  If  30 everything goes well, then they can have a pole  31 raising.  And it so happened that this was around the  32 time of that Guxsan pole raising too.  So I attended  33 the Feast and had the good fortune of being seated at  34 the back of the hall, but right behind the Lax Gibuu  35 people, that's the Wolf Clan people from Kispiox.  So  36 I was sitting behind Mary McKenzie and Pearl Trombley.  37 Now, Mary was very busy because she has quite an  38 important role to play in she is one of the people who  39 seats everyone in the Feast and must know everyone's  40 status.  And when the names are changing in the Feast,  41 she has to rethink all of the seating plans in her  42 head, so she pays attention very closely to what's  43 being announced by all the chiefs.  But when Pearl  44 wasn't busy assisting her, she would be turning around  45 explaining step by step what was happening in the  46 Feast and also the hosts, who were the Fireweed Clan,  47 some of them would come and offer a few words of 11837  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 advice or a few words of explanation too, because of  2 course it was in the Gitksan language and I didn't  3 understand the proceedings.  And this sort of  4 procedure continued with all the other Feasts I  5 attended as well.  And I would visit people in their  6 homes and get more -- further information.  And then  7 when I started incorporating it right away into what I  8 knew would be part of my -- I felt would be a part of  9 my final report, then I -- there would be gaps in the  10 information.  So I would visit Mary and Pearl or talk  11 to them on the telephone or other ladies who had been  12 intimately involved in giving many Feasts such as  13 Olive Ryan and Mary Johnson.  14 Q   And chapter eight of your report deals with the Feast?  15 A   Yes.  16 Q   And you relied on this information for that, is that  17 right?  18 A   Uh-huh.  19 Q   And that's the last chapter of your report.  And just  20 if you look at the index there is these -- at tabs 18  21 through to 21 are interviews, a series of interviews  22 with Mary McKenzie and Pearl Trombley in October of  23 '86.  Is this a series of interviews in which you  24 discuss the Feast?  25 A   Yes, it is.  26 Q   Now, let me ask you this, Dr. Daly:  What -- you've  27 dealt with -- and I am just taking as an example.  You  28 don't have to get into the Feast right now in your  29 report, but you just described how you interviewed and  30 you found out about the process of the Feast and you  31 reviewed it and I understand you also reviewed court  32 transcript of some of the witnesses as well in this  33 court case?  34 A   Yes, I did.  35 Q   And you refer to those in your report?  36 A   Yes.  37 Q   And also besides that you referred to earlier  38 interviews that had been done.  Did you review any  39 earlier interviews other than these interviews listed  40 here?  41 A   Yes, I referred to land claim interviews with elders,  42 both Wet'suwet'en and Gitksan elders.  43 Q   And these were interviews that had been done in the  44 early 1980s?  45 A   Yes.  They had been done before I arrived in the area.  46 MR. GRANT:   They have all been disclosed to my friends.  47 MR. WILLMS:  Are they marked? 11838  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 MR. GRANT:  And I just want to say that those have all been  2 disclosed, my lord.  They are listed or referred to in  3 earlier disclosures from last fall.  4 Q   Now, did you -- what I wanted to ask you is this:  5 Aside from recording what Mary McKenzie and Pearl  6 Trombley and others told you about the Feast and  7 recording the events of the Feast, what can you --  8 what have you as an anthropologist done with that  9 information?  10 A  Well, I've compared it with what has been written on  11 the Feast by other people.  12 Q   Yes.  13 A   In the general area.  14 Q   Yes.  15 A  And I have also referred -- I have related that to  16 other features of the society in the economy.  Because  17 when you get an initial impression as an outsider when  18 you go into the Gitksan and Wet'suwet'en of what is  19 important and feasting is on people's minds all the  20 time.  It's a way of expressing the core concepts, if  21 you like, of the culture.  22 Q   Yes.  23 A   So I related the feasting that I had observed as a  24 ceremony, if you like, to the economy, to the  25 day-to-day relationships, to the very nature of the  26 transactions that take place within the society.  27 Q   And did you form any opinions or conclusions about the  28 society based on that, those interviews?  29 A   Yes, I did.  30 Q   And are those opinions and conclusions set out in your  31 report?  32 A   They are.  33 Q   In the -- within your field, I gather we have talked  34 about ethnohistory and we have talked about  35 participant observation.  Is there other -- is there  36 another area of study such as other area such as  37 ethnographic research?  38 A  Well, participant observation is the main technique of  39 developing an ethnography.  An ethnography is a  40 description of a small scale society or corner of a  41 society and it's employed by sociologists and other  42 social sciences as well.  43 Q   Aside from yourself and aside from Mr. Whyte that you  44 referred to earlier, the Street Corner Society, who  45 else -- can you give some other examples of those who  46 have used participant observation for research who are  47 renowned in your field? 11839  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 A   Oh.  It's the cornerstone of the British school.  2 Great tracks have been written by Malinowski,  3 Bronislaw Malinowski, Radcliffe Brown, Evans  4 Pritchard.  These are some of the founding fathers of  5 participant observation fieldwork methods in the  6 British tradition and, well, there are many.  7 Q   Who was the third one after Radcliffe Brown?  8 A   Evans Pritchard.  E. E. Evans Pritchard.  He had the  9 chair of anthropology, Oxford.  10 Q   What methodology did Franz Boas use?  11 A   Franz Boas was a very good ethnographer whose work is  12 still being studied and used on this coast, because he  13 lived in the communities in his summer breaks from  14 the -- from his work in New York and at the  15 Smithsonian.  And he recorded as verbatim as he could  16 the people's ideas and perceptions of their culture  17 and the Kwagiulth theory in the middle of the coast  18 and he did the same thing to a lesser extent in the  19 northern and southern tribes, too.  His work is still  20 of great value because of the detail with which he  21 collected his information.  22 Q   You mentioned Dr. Richard Lee's work with the bushmen  23 of South Africa.  Did he engage in participant  24 observation work?  25 A   Oh, yes.  He's still doing it.  He's been at it for 25  26 years.  27 Q   What about -- if you can give -- are there people now  28 who are noted in the field who engage in participant  29 observation other than these founding fathers and Dr.  30 Richard Lee who you have referred to?  Are there  31 others that are notable in your field for this type of  32 methodology?  33 A  Well, most anthropologists, I would say the majority  34 engage in some form of participant observation.  35 Q   Did Margaret Mead engage in participant observation?  36 A   Certainly did, yes.  37 Q   And Audrey Richard who studied Central Africa?  38 A   Yes.  Yes.  She did a study of a lot of villages in  39 among the Bemba.  She had to travel from one to the  40 other by bicycle.  41 Q   Now, I'd like to go to -- I'd like to go to -- back to  42 tab three of the document book.  And I'd like to move  43 into another area of -- another facet of research and  44 that is the area of oral history.  When you did your  45 work with the Iroquois, did you rely on oral history?  46 A   Yes, I did.  47 Q   Okay.  And has it been -- with respect to the 11840  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Iroquois, has oral history been relied on by other --  2 A   It certainly has.  The foremost Iroquois scholar  3 today, William Fenton, has done most of his work on  4 the analysis and the study of the oral tradition of  5 the ceremonies of the longhouse, people on the  6 different Iroquois -- in the different Iroquois  7 villages around the Great Lakes.  8 Q   Okay.  I am sorry.  I said tab three.  If you could go  9 to tab 2 and there is a Bulletin 180, "Iroquoian  10 Culture History:  A General Evaluation" by William  11 Fenton.  And you are familiar with that?  12 A   Yes.  13 Q   And this would have been one of the materials you had  14 looked at when you were doing your Iroquois research?  15 A   Yes.  16 Q   Now, I'd like to refer you to page 261.  My lord, it's  17 handwritten in the upper right-hand corner of that  18 page.  You have it.  The middle paragraph starting,  19  20 "The three epics —"  21  22 A   Yes.  23 Q  24 " -- have two points in common which I stress for  25 their historical implications: first, they were  26 recited at public gatherings."  27  28 Now, before we get into this, he's talking here about  29 specific epics of the Iroquois --  30 A   Yes.  31 Q   -- who have been passed down?  32 A   He wasn't concerned with all the oral utterances of  33 the Iroquois.  He was concerned with those which are  34 passed down generation after generation in public --  35 in public ways, public gatherings.  36 Q   Okay.  Now, he talks about Handsome Lake, the Code of  37 Handsome Lake and he says -- I will go to that  38 paragraph:  39  40 "The three epics have two points in common which I  41 stress for their historical implications:  first,  42 they were recited at public gatherings of more  43 than a day's duration; second, great heed was paid  44 to verbatim recall and recitation.  This last  45 point is of some relevance.  Despite the tendency  46 of 19th-century Iroquois pilosophers to  47 systematize their culture and read back into myths 11841  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 ceremonies which were extant in their own time and  2 social customs which had only recently passed out  3 of practice, the Code of Handsome Lake affords a  4 reasonable check on the accuracy of native  5 tradition.  The striking resemblance between  6 modern versions and contemporary diary accounts of  7 Handsome Lake's revelation does endorse the value  8 of Iroquois tradition as a vehicle of history.  9 Wallace has indicated some critical cautions that  10 may be employed to detect subsequent distortions  11 of a myth."  12  13 Now, first of all, are you aware of what he is  14 referring to there with the Handsome Lake revelation?  15 A   Yes.  There are three things which are generally  16 recounted in ceremonial events among the Iroquois and  17 the Handsome Lake events are the most recent of the  18 three events which are recounted at great length in  19 great detail.  It takes several hours of speaking.  20 The speaker speaks out of his head for several hours.  21 Q   Okay.   Now, is the use of the Handsome Lake  22 revelation in its passage down, is it relied on by  23 Fenton in his analysis of the validity of that oral  24 history?  25 A   Yes.  He says since it occurred in historic times,  26 there are other documents that back it up.  These  27 revelations of this prophet came into being in 1799 --  28 Q   Yes.  29 A   -- in upper New York state.  And they are -- they have  30 been told the same way and they have been recounted by  31 white men ever since then.  And they have been told in  32 the same way today as they were being told as early as  33 1820, I think is when they first began to do this.  So  34 he goes back to the earlier period, the formation of  35 the League of the Iroquois, which people seem to think  36 was about a hundred years before the coming of  37 Europeans.  And he reaches back through the kinship  38 links of the grandparents of the old people at the  39 earliest point of contact, what they said about it,  40 and finds a consistency there as well.  And then they  41 go back to the more ancient myths of origin of the  42 very people themselves.  43 Q   Well, I would —  44 A   He sequences by the quality of the text as well as  45 their connection to historical, other historical  4 6 documentation.  47 Q   Maybe I can refer you to page 270 of the same 11842  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  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  bulletin.  The bottom of that paragraph starting  Perrot and La Potherie, where it says, the last  sentence -- I am sorry, my lord, that --  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  I have it.  You have it.  If it follows 269 I have it.  Yes, it follows 269.  That's not numbered.  "The Handsome Lake religion"  This is about the fifth line up on that page it says:  "The Handsome Lake religion is recent."  He's there referring to that prophecy starting 1790?  A  Where are you in the text?  Q   Page 270.  THE COURT:  End of that paragraph.  MR. GRANT:  Q   End of that first paragraph.  A   Okay.  Q   About five lines up from the bottom:  "But the League is loaded down with too much  intellectual, literary, and ritualistic baggage to  be a recent production.  It seems not to have been  a 19th-century integration in response to military  defeat."  Now, can you explain what he's referring to there?  A   The events of the formation of the League of the  Iroquois are -- he sequences them by the nature of the  way they have been couched in metaphor and part of the  symbolism of the very culture of the Iroquois, it  places them in a historical trajectory somewhat older  than the events of the Handsome Lake cycle which is  also recited in the same way.  Q   He goes on at page 271, the paragraph starting:  "The League then had arisen out of voluntary  association"  And then he says, the third sentence:  "I have always considered Beachamp's conclusion,  that the true date of confederacy lies between  1570 and 1600, as reasonable in the light of the 11843  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 evidence from archeology (the position and number  2 of prehistoric Mohawk sites); of linguistics (the  3 anomaly of the Laurentian dialect); of history  4 (the evacuation of the Laurentians); and native  5 tradition of the diaspora.  Let us fashionably  6 say, 1600 plus or minus 30 years!  Secondly, by  7 anology with the Handsome Lake religion, which has  8 been remembered verbatim these 160 years, would  9 not the Mohawks of Pyrlaeus' day be entitled to  10 same credit?"  11  12 What is he referring to there in that last sentence?  13 A   Pyrlaeus was a Dutch trader from New York state who  14 had talked to old people in the 1620s and 30s, I  15 believe, about who had knowledge of the formation of  16 the Iroquois League.  They didn't -- none of them had  17 seen it, but they had been told this by their  18 grandparents and the consistency and vividness of the  19 explanation at the present time is consistent with  20 what was reported to the Dutch traders at that time.  21 Q   Now, Fenton here is talking about oral history,  22 although you say that there is contemporary records of  23 the Handsome Lake's prediction and Pyrlaeus of what  24 the Mohawk said in the 1620s, but what he is talking  25 about is referring to as oral history?  26 A   Yes.  27 Q   And did you use your -- you used oral history in your  28 Iroquois thesis work?  29 A   Yes.  30 Q   And did you for your work with the Gitksan and the  31 Wet'suwet'en?  32 A   Yes, I did.  33 Q   Okay.  Now, what do you use oral history for with  34 respect to the Gitksan or when you as an  35 anthropologist use it?  36 A   You use it for various things:  To get some sense of  37 linear history, and to get a picture of the social  38 institutions as reflected in the oral tradition as  39 well as the very way of life the people recounted in  40 this history.  41 Q   When you analyse the oral history with the Gitksan,  42 does that help you in your research in the areas that  43 I am seeking to qualify you in, in other words the  44 areas --  45 A   Yes, it does.  For instance, it gives you an idea of  46 what the preoccupations of the people, of members of  47 the culture have been for a long time, because all 11844  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 history which is not written down is selective, so  2 those things that are selected to remember.  We don't  3 remember everything we do every day and we certainly  4 don't remember it 40 years later, but certain things  5 are passed are considered significant that they are  6 passed down, so the things that are significant to the  7 culture are marked in the oral tradition.  8 Q   Now, I'd like to refer you to tab three again, the  9 Trigger reference at page 167, if the page follows.  10 Now, this I may note is on his section starting at  11 page 164.  It's a section on ethnohistory.  He's  12 talking about ethnohistory in this section of his  13 book, is he?  14 A   Yes, he is.  15 THE COURT:  Do you know the date of this work?  16 A   It's fairly recent.  It came after "The Children of  17 Aataentsic," so it's '86 or '87.  18 MR. GRANT:  I believe it's 198.  19 THE COURT:  Madam reporter will need the spelling for that title  20 you just gave her.  21 A  A-a-t-a-e-n-t-s-i-c.  22 MR. GRANT:  23 Q   Now, at page 167 I go to the top paragraph there and  24 it says:  25  26 "The use of oral traditions to understand  27 historical events requires a detailed  28 understanding of their derivation and a critical  29 comparison of alternative versions of the same  30 story."  31  32 And he refers to Vansina 1965?  33 A   Uh-huh.  34 Q   And Vansina is a person who has written a text on oral  35 history, is that right?  36 A   Yes.  He's an African historian.  37 Q   And then it says:  38  39 "While oral traditions may provide a valuable  40 record of former beliefs and values, caution is  41 needed in interpreting that sort of information  42 historically."  43  44 Now, do you agree with that statement so far as it  45 goes?  4 6 A   I do.  47 Q   Those two statements? 11845  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  And it's the way that Fenton approached the previous  citation that you are referring to.  So Fenton is an example of that method of --  Yes.  -- cross checking?  Yes.  Now, you are familiar with Trigger and his work?  Yes.  Does Trigger -- did Trigger in his work, either "The  Children of Aataentsic" or "Natives and Newcomers,"  did he rely on oral histories?  Not directly, because for one reason the Huron no  longer existed in the form that they did before they  were scattered in 1649 by the attacks of the English  and the Iroquois and they became part of other peoples  or one section moved to Quebec and lost their roots to  their language and their culture.  By the way, who is with respect to that earlier  reference to Dr. Fenton, who did the reference at tab  2?  He was the -- for some years was the director of  ethnology at the Smithsonian Institution in Washington  and has been a professor in Syracuse, I believe, or  Sunni, New York.  He lives near Syracuse.  :  I am sorry, is it director of anthropology or  ethnology?  He is director of ethnology at Smithsonian.  Now, where he describes in the earlier part -- sorry,  I am referring you back to page 271 of tab 2, Dr.  Daly.  I asked you about that last sentence, but in  that paragraph that I've quoted to you starting with  "the League," he refers to that this is reasonable in  the light of the evidence from archeology,  linguistics; of history and then, of course, native  tradition of the diaspora.  And that native tradition,  he would be talking about the oral history then?  Yes.  Now, within your field is that the utilization of  archeology, linguistics, you have already referred to  ethnohistory, are they aspects that you look at in  terms of --  Oh, yes.  You want to try to find out as many  cross-references as possible to establish the truth as  far as you can to the greatest degree of probability.  Okay.  And did you -- do you utilize archeology and  linguistics in your work in your research regarding  1  A  2  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  11  12  A  13  14  15  16  17  18  Q  19  20  21  A  22  23  24  25  THE COURT  26  27  A.  28  MR. GRANT  29  Q  30  31  32  33  34  35  36  37  38  A  39  Q  40  41  42  43  A  44  45  46  Q  47 11846  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 the Gitksan?  2 A   I certainly relied on the archeology.  I am afraid I  3 didn't pay much attention to the linguistics.  4 Q   Now, did you -- you refer in your report to some of  5 the biophysical work, the work of -- I think it is  6 Sybille Haeussler who has given evidence and filed a  7 report with the court?  8 A   Yes.  9 Q   And Dr. Hatler?  10 A   Yes.  11 Q   And you have also referred to some of the  12 archeological work.  Not only of Dr. Albright, but  13 published work of Ames and Copland and others?  14 A   Yes.  15 Q   And why do you make reference to those in the context  16 of your report?  17 A  Well, it's another way of confirming configurations of  18 social life and of confirming facts which one can  19 glean from the oral record or from living in the  20 community or interviewing people.  You get -- it's  21 another way of backing up information.  Particularly  22 when you are looking at things over time for their  23 historical depth.  24 Q   In your thesis on the Iroquois, were you -- did you  25 deal with methods to determine how to understand the  26 continuity or discontinuity of aboriginal cultures?  27 Maybe I should rephrase it.  Did you work -- did your  28 work on your Iroquois thesis deal with the question of  29 continuity?  30 A   It certainly did, yes.  Yes.  31 Q   And did you develop in terms of all these  32 methodologies we described, did you develop  33 methodologies as to how to understand that?  34 A  Well, I employed a variety of techniques to come to  35 the conclusions I did there.  Including reliance on  36 ethnohistory and archeology and so on, and the oral  37 tradition and my interviews and the feeling I got from  38 the culture from living in as briefly as I did and  39 being invited to attend ceremonial functions.  And  40 also in the terms of the interviewing, you interview  41 people who are not necessarily the specialists.  You  42 interview those who may not have any interest in the  43 subject, just to get a general -- an overall view of  44 the nature of the culture and the significance of.  I  45 was looking at the persistence of certain old features  46 that were carrying on into urban native life today.  47 So of course the people who are most, in quotes, 11847  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 traditional are going to say the most about it.  But  2 to see whether that is significant to other people's  3 lives you have to go to other sources, go to people  4 who are not involved in those things and see how it  5 impinges on their existence.  6 Q   And when you say it's urban, the Iroquois you were  7 studying were close to urban existence?  8 A   They were urban because a lot of them worked in  9 Hamilton or Toronto or parts of New York state or  10 Montreal or Cornwall.  11 Q   Did you do a similar process in your research of  12 Gitksan of not only interviewing those or talking to  13 those who were --  14 A   Oh, yeah.  I am still doing it.  Talk to whoever will  15 listen or whoever will answer my questions.  16 Q   But those who are not as participating as much, for  17 example?  18 A   Oh, some of the best information came from people who  19 in some of the local perception are considered to be  20 peripheral or of no account, because they may not be  21 very active.  They may be very poor people who aren't  22 very active in the feasting, but you get a lot of  23 information from them just the same.  24 Q   Okay.  I am going to refer you to tab 40 of the  25 document book.  These seem to be some brief notations  26 referring to the Kispiox fishing camp.  Now, in August  27 of 1986 -- let me ask you this:  When did you attend  28 or first come up to the Gitksan area with respect  29 to —  30 A   First time was in April of '86 for a brief visit with  31 Dr. Richard Lee.  32 Q   Just a moment.  Now, your work with -- you came up in  33 April of 1986?  34 A   Yes.  35 Q   And your work involved -- when you first came up you  36 did do some field trips?  37 A  We were there for about ten days, I believe it was.  38 We had some experiences being taken out to people's  39 territories and little bit of discussion with a few of  40 the local people.  41 Q   And who's -- who did you go out on the land with in  42 that first period?  43 A  Andy George in the Wet'suwet'en territory down to the  44 territory of Gisday wa.  And we went up the Kispiox  45 valley with David Blackwater, Niist.  46 Q   Now, you came back after this ten day --  47 A   Yes.  I had other things to attend to in Toronto. 11848  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Q   And then you returned?  2 A   Then I returned in early July and I seemed like I have  3 been there ever since, I have been there forever.  4 Q   And in August of 1986 you went to the Kispiox fishing  5 camp?  6 A   Yes.  7 Q   And what was that?  8 A   This was a camp set up at the mouth of the Kispiox  9 River in conjunction with the Ksan, the Skeena River,  10 by the chiefs to counteract attacks on their  11 fishing -- what they perceived of as attacks on their  12 fishing rights by the officials of the Department of  13 Fisheries and Oceans.  14 Q   Right.  15 A   So they were going to fish as a group as sort of a  16 form of protest and protection.  And the elders were  17 there in the camp teaching young people with the old  18 ways and so on.  It was quite a gathering.  19 Q   Was there another fishing camp you attended on that  2 0 s umme r ?  21 A   Yes.  There was another similar camp set up in  22 Gitwangak at the place called An Kaees right below the  23 bridge at Gitwangak.  24 Q   And did you participate in the functions that went on  25 at these camps?  26 A   Sometimes I did.  I go there for a day now and again.  27 Q   Okay.  Did you travel as far up as Kisgagas --  28 A   Yes, I did.  29 Q   -- while you were there?  And did you engage -- were  30 you present when other people --  31 A   I made three trips up to Kisgagas.  The last trip we  32 didn't make.  The vehicle fell through the bridge and  33 we had to spend the rest of the time extricating it.  34 Q   Who did you travel to Kisgagas with?  35 A   The main occasion we -- I spent -- I went in with  36 Vince Jackson.  37 Q   Uh-huh.  38 A  And Fred Wale.  He was there with a number of other  39 people and Josh and Billy McLean who lived there most  4 0 of the time.  And other people came while we were  41 there for that three days.  But I don't recall exactly  42 who it was, who they all were.  43 Q   Fred Wale -- or Fred Wale is the son of Gwoimt?  44 A   Yes.  45 Q   Kathleen Wale?  46 A   Yes.  And they have a cabin just downstream from  47 Kisgagas at Anlaginsemdek, A-n-1-a-g-i-n-s-e-m-d-e-k. 11849  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  R. Daly (for Plaintiffs)  In Chief by Mr. Grant  On Qualifications  Q   Did you visit with elders at their homes other than  the ones that are listed in your interviews?  Yes.  Can you name some of those people that you visited  that you recall?  In Moricetown, for example?  I visited with Victor James' aunt, Madeline Alfred;  with Adam Gagnon's mother.  I forget her name.  Did you visit with Johnny David?  Yes.  Yes.  Emma Michell?  Oh, yes.  But she's on the list of interviews.  Emma I  visited quite a lot.  I note the time, my lord.  It may be appropriate for  the break.  THE COURT:  Yes.  Thank you.  Two o'clock.  A  Q  A  Q  A  Q  A  MR. GRANT:  (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  ADJOURNMENT)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley,  Official Reporter,  United Reporting Service Ltd. 11850  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 MR. WILLMS:  My lord, I have one small matter arising out of Dr.  4 Kari, you will remember there were two documents that  5 Dr. Kari identified in Exhibit 8 81-A, and the way we  6 left it was that whatever extracts I wanted to file  7 and whatever extracts Ms. Mandell wanted to file from  8 either one, would go in.  Ms. Mandell hasn't  9 identified the extracts she wants yet, I have  10 identified the extracts that I want and I have told  11 her that she can file hers any time.  But I do want to  12 file mine with this witness because I want to use it  13 in the cross-examination of this witness.  14 THE COURT:  Yes.  15 MR. WILLMS:  So I am seeking to have the Lexical Reconstruction  16 extract, which is the first one, done by Dyen and  17 Aberle, as 881A-11,  18 THE COURT:  Yes.  881 —  19 MR. WILLMS:  A-ll.  That would be the Lexical Reconstruction  20 D-Y-E-N and A-B-E-R-L-E.  And 881A-12, is Delaguana,  21 the extract from Delaguna, which is an extract out of  22 the proceedings on the Northern Athapaskan Conference,  23 1971.  And as I said earlier, my friend can mark  24 whatever extracts she wants from either one of these  25 and put them in at the same tab at any time.  But I  26 would like them to use them with this witness.  27 THE COURT:  Yes.  That Exhibit 881A-12, is the totality of the  2 8 documents that were handed up just now, except for the  29 balance of all those documents?  30 MR. WILLMS:  The balance of the documents, yes.  31 THE COURT:  Yes, that will be 881A-12.  32 MR. RUSH:  My lord, I have a brief comment to make on that.  Ms.  33 Mandell, who is not in the city today, advised me this  34 morning that this matter might arise and she asked me  35 if before these extracts were filed, to ask my learned  36 friend if this could be put over until she has had an  37 opportunity to get her extracts and filing those.  I  38 am advising the court that she made a judgment on that  39 issue, and I -- I am not informed as to why she wanted  40 to do that, but it seems to me that if she has  41 extracts from these two papers or other extracts, that  42 they ought to be filed as well.  43 THE COURT:  Well, she has leave to do that.  44 MR. WILLMS:  At any time, my lord.  45 THE COURT:  Yes.  I am not sure any time but at least —  46 MR. WILLMS:  As far as I am concerned; your lordship may have a  47 different view. 11851  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  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  MR. RUSH:  One thing I want to know is that if these extracts  constitute the totality of the papers? That's what I  am not sure of.  MR. WILLMS:  The way we left it, and my friends weren't here,  but the way we left it was that I would choose the  extracts that I wanted to file, I would let Ms.  Mandell know, which I have done, then she would pick  whatever extracts she wanted filed in addition, and  that both our extracts would be filed.  And so these  are not the totality of the two papers.  The Delaguna  I have, you will see, for example, my lord, at tab 12,  that the Delaguna piece only goes as far as The  Tsimshian and Their Neighbours, page 59, for I think  obvious reasons, so it's not the whole paper dealing  with the Yukon group, and in Dyen and Aberle, all that  I filed is the recapitulation section in that book,  the summary, and the page that the witness referred  to.  He said in his evidence he thought it was 274 to  276 and so I have filed that.  THE COURT:  How is his memory?  MR. WILLMS:  His memory is pretty good on that, my lord.  It  certainly refers to the general area that he was  talking about.  THE COURT:  All right.  Well, perhaps that assists you, Mr.  Rush.  But there is nothing carved in stone here, if  there is a problem with this you may speak to it at  any reasonable time.  MR. RUSH:  Yes, I think the only concern that I have is that if  the passage of the text is put to the witness and Ms.  Mandell has in her mind that there may be another  relevant passage from the same extract, not having the  full extract before the witness at that particular  time may be a problem.  THE COURT:  You can certainly speak to that at any time.  MR. GRANT:  I didn't have an opportunity to speak to Ms. Mandell  about this matter while preparing this witness.  EXAMINATION IN CHIEF BY MR. GRANT:  (Continued)  MR. GRANT:  Q   Now, you have referred already to Max Gluckman, and  with respect to the question of notetaking, while  involved in participant observation, did Dr. Gluckman,  did he -- what was his approach in teaching and  teaching regarding that aspect?  MR. WILLMS:  My lord, I object to that question.  My friend —  we have dealt with experts and expert evidence again 11852  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 and again and again, and if there is a report that Dr.  2 Gluckman wrote that my friend is leading the witness  3 to, where he sets out methodology, he should say that.  4 He shouldn't just say that in circumstances like that.  5 It's objectionable hearsay.  It may have been a  6 passing comment in the hallway, which does not allow  7 me to challenge it or test it at all.  8 MR. GRANT:  My lord, this is what I would call, would be in —  9 it would be quite within the area of an expert  10 witness.  This witness was one of the students of --  11 Dr. Gluckman was one of his teachers.  I mean, if we  12 start to file every published book in the field or  13 provide it to my friends, we would never get to the  14 stage of calling a witness to the stand.  But Dr.  15 Gluckman is a person who instructed and one of the  16 persons from whom this witness learned his  17 anthropological methodology.  18 THE COURT:  Well, how is -- are you saying that the witness  19 could now say well, Gluckman told me one time that his  20 approach is such and such?  21 MR. GRANT:  Well, I can be more general.  I was referring  22 specifically to Gluckman, but I can talk about --  23 THE COURT:  I don't think you can be more general than you are.  24 Maybe more specific but not more general.  25 MR. GRANT:  I want to be specific to assist my friends.  But Dr.  26 Gluckman is a renowned person in the field, he also  27 taught, and he taught this witness.  28 THE COURT:  But aren't we going way too far afield, Mr. Grant?  29 Surely, I don't know, I don't have to know in order to  30 decide whether this witness can give this kind of  31 evidence what Dr. Gluckman did in a different case.  32 MR. GRANT:  I am not asking what Dr. Gluckman did in a different  33 case.  I am asking what he was taught about  34 methodology.  That's what I am asking the witness  35 about.  And whether he utilized what he was taught  36 about methodology.  37 THE COURT:  I thought his qualifications would depend upon his  38 exposure to learning and his -- and the relevance of  39 it, not -- surely, you're going way beyond where you  40 have to go, aren't you?  41 MR. GRANT:  Well, this is where —  42 THE COURT:  I mean, the very fact that he has been taught by  43 Gluckman would go a long way to qualify him, if  44 Gluckman is who you say he is, that takes you as far  45 as you need to go on this question of qualification.  46 MR. GRANT:  Well —  47 THE COURT:  I mean, you don't have to show that he is -- his 11853  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT:  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  methodology is perfect or that his approach is the  right one, that surely is a matter for cross-  examination, isn't it?  You have got to show that he  is a person by training and education and experience,  and reading and learning, is a person who is able to  express a useful opinion.  You don't have to go any  further than that, do you?  Well, I would say initially not, but in light of my  friend's objections to the report --  I don't think your friend's objections go to this  issue.  It may be that what he was taught, and  assuming he followed it, won't get him past the  admissibility threshold.  That's another problem.  But  I would have thought that that would be a matter for  you to apply in whatever cross-examination your friend  wants to make.  It's true you do have some notice now  of what your friend is going to say, I have had the  feeling and I have had the feeling most of the  morning, that you're going much further than you have  to go.  Well, I will deal with two brief areas in light of  your comments, my lord.  Dr. Daly, one of the areas in which I am seeking to  qualify you is to give opinion evidence with respect  to -- with particular reference to the systems of  ownership of territories and fishing sites.  Now,  within the field of ethnology, are systems of  ownership of territories part of that study?  Yes, they are.  Traditionally?  Yes.  Can you give some examples of learned writers with  respect to the study of ownership of territories and  resources?  Well, the question of land tenure and ownership of  resources is part of most ethnographies to one extent  or another.  But the -- my professor in Manchester,  Max Gluckman, was one of the people who spent a lot of  time dealing with the questions of land tenure and  ownership.  It had a direct bearing on the whole  question of colonial administration in preparing the  regions for self-government.  And his colleague, Clyde  Mitchell, worked along these lines, William Allan was  a geographer who did a series of studies on African  systems of land tenure, which is a classic textbook on  that subject in Africa.  That was the tradition I am  familiar with.  In West Africa there are people like  A  Q  A  Q  A 11854  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Peter Lloyd, studying Uroba customary law, work on the  2 Shanty, many areas.  3 Q   And Clyde Mitchel is now the chair of sociology at  4 Oxford?  5 A   Yes.  6 Q   Did you take a course from Basil Sansom in 1970 in  7 that field?  8 A   Yes.  9 Q   Now, you have described this morning participant  10 observation and the methodology you used with the  11 Iroquois and also referred to the methodology you used  12 with the Gitksan and Wet'suwet'en.  In the field of  13 anthropology, are there other methods that have  14 participant observation to do research?  15 A   Yes.  There is a comparative work which is usually  16 based on other peoples' participant observation but  17 comparative studies is certainly a legitimate  18 approach.  19 Q   Now, you have referred to the material, and I have  20 referred you to the index, tabs 6 to 41, which  21 contained your interview notes for the Gitksan and the  22 Wet'suwet'en, those are your own notes of interviews?  23 A   Yes, they are.  24 Q   I should be more precise, that is actually tab 6 to 32  25 are your -- to 33 are your interview notes, tab 36  26 through 39 -- sorry, through 40 are interview notes.  27 Tab 34, 35 and 41 are other notations?  28 A   That's correct.  29 Q   Now, in forming your opinions that you did, did you  30 rely on those interviews that are reflected in those  31 notes?  32 A   I certainly did.  33 Q   To what extent would you have relied on those  34 interviews?  35 A   I relied on them quite heavily, together with the  36 other existing material available, already in  37 existence.  38 Q   Which was?  39 A   The land claim interview material on file, commission  40 evidence, and the very court transcript which, as the  41 court -- as this case unfolded I was still working on  42 my report.  And the evidence that came up I found  43 reflected very closely what I had already collected  44 and was learning in the community.  45 Q   And would that be the evidence up to -- from the  46 beginning of the trial up to, I believe, Joan Ryan's  47 evidence? 11855  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 A   Yes, that's correct.  And perhaps Solomon Marsden,  2 perhaps, I am not sure if he was before that or what.  3 I reviewed his --  4 Q   His material as well.  5 Those are all my questions on qualifications, my  6 lord.  7 THE COURT:  Thank you.  Mr. Willms?  8  9 CROSS-EXAMINATION ON QUALIFICATIONS BY MR. WILLMS:  10  11 MR. WILLMS:  12 Q   Dr. Daly, the bulk of the data pertaining to your  13 report has been gathered by means of participant  14 observation; is that correct?  15 A   Yes, that includes the interviews.  16 Q   And there are two types of data that are considered  17 important:  First, the data concerning what people say  18 they do, correct?  19 THE COURT:  Mr. Willms, are we going to get into another problem  20 here, and that is separating admissibility from  21 qualifications?  22 MR. WILLMS:  My lord, on the question of admissibility versus  23 qualifications, where a witness has given evidence  24 that he used a particular methodology in doing his  25 work, as this witness did, and where to meet the test,  26 this isn't a test of an anthropological meeting, this  27 is the test of admissibility, where the methodology  28 employed renders, number one, the report to be in  29 violation of section 11 of the Evidence Act, in other  30 words, it doesn't meet it, that it hasn't been  31 complied with and, secondly, where it's impossible to  32 duplicate and does not constitute opinion evidence in  33 the expert sense, it is my submission that there is no  34 other time to deal with it.  And deal with the  35 questions arising out of it except at this point.  36 Now, certainly, I could ask these questions at the  37 beginning of the cross-examination of Dr. Daly, I  38 could ask them at any time, but the request will be  39 the same, my lord, the request will be that -- and the  40 submission will be, that the evidence is inadmissible.  41 But by that time we have taken up a lot of time,  42 especially if your lordship should find that section  43 11, which with this particular witness was the  44 specific point of the ruling in the fall on production  45 of the facts upon which the opinion is based, then  46 there is five days of evidence that we have heard  47 before we get into a point where the framework is 11856  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 there for the argument.  It's not a long argument, my  2 lord, and I don't have a lot of questions.  3 THE COURT:  I am not worried about how long the argument is,  4 it's always a matter of some passing interest to us,  5 but surely either he is qualified to give opinions on  6 the matters that have be mentioned by counsel or he  7 isn't.  And then, if he isn't, I suspect, without  8 pre-judging the matter, he is eminently qualified to  9 give evidence on those matters.  And then when he  10 starts to express them, I should think you would  11 object.  It may be that you are making your argument  12 now that I am going to have to hear eventually, but I  13 think, with respect, I have already indicated to Mr.  14 Grant, I think I heard a great deal of information  15 that doesn't go to the question of qualifications, it  16 goes to the admissibility of the evidence that he is  17 going to be asked to give.  18 MR. WILLMS:  And, my lord, yes, and it certainly can be dealt  19 with on an item by item basis, except for this method  20 of compartmentalizing it, that on section 11, on the  21 section 11 argument and on the participant observation  22 argument, the category to have that clearly -- and  23 maybe it is clearly focused now, and I don't need to  24 go any further and the framework will be there, when  25 the witness is asked to explain his opinion and there  26 are no facts that have been disclosed and we can deal  27 with it item by item, what I am just trying to do, my  28 lord, is get on the record what I suggested earlier  29 was clear from the report, and that is that there is  30 no notes of what he did and saw.  There is only 23  31 informants and 35 interviews.  32 THE COURT:  You, yourself, have said you think it's probably a  33 case where I am going to have to hear the evidence.  34 MR. WILLMS:  Yes, my lord.  35 THE COURT:  Well, let me ask you:  Do you question the  36 qualifications of this witness to give anthropological  37 evidence of the kind Mr. Grant described in his  38 opening?  39 MR. WILLMS:  I acknowledge that the witness is qualified to give  40 anthropological evidence, my lord.  In terms of the  41 items that Mr. Grant set out in his opening, the  42 curriculum vitae, I mean, it's always a question of --  43 I mean, certainly this is the first economic  44 anthropology that this witness has done and published,  45 at least from his list of publications.  Your lordship  46 has already commented on the first time argument  47 earlier in this trial and, of course, I will -- I am 11857  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  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  MR. GRANT:  THE COURT:  MR. WILLMS  THE COURT:  cognizant of that.  So I don't want to be taken as  saying that at the end of the day there won't be a  submission of no weight, which is perhaps equivalent  to no qualifications, but he has got -- I mean, he has  got a degree in anthropology and I acknowledge that.  Three degrees.  Three?  At least two.  Two, yes.  I think subject to what Ms. Koenigsberg says, I am  going to rule that the witness is qualified to give  evidence and then we can get down to fighting about  what he can say.  Ms. Koenigsberg, do you have any  submission to make?  MS. KOENIGSBERG:  I agree.  I think I said it before as well.  I  think he is qualified to give opinion evidence on the  topics that were outlined.  THE COURT:  All right.  All right.  Why don't you start your  examination of the witness, Mr. Grant, and continue  it, I should say.  And Mr. -- when we get to the point  where Mr. Willms or Ms. Koenigsberg think you are  asking for evidence that's not admissible, I am sure I  will hear from them.  EXAMINATION IN CHIEF BY MR. GRANT:  MR. GRANT:  As you implied, my lord, I will not go over what the  court has found already, which in a normal  circumstance, I agree I have dealt with already in  the -- after the qualification.  I would like to  tender to the court Dr. Daly's report.  Just so I  don't forget, my lord, the Richard Benson, the  translation of Richard Benson discussing with Madam  Registrar, would be Exhibit 661-AA, not 661-A.  THE REGISTRAR:  That is one we did not have a number before.  THE COURT:  I am sorry?  MR. GRANT:  It would be 661-AA, instead of 661-A.  THE COURT:  661-AA?  MR. GRANT:  Yes.  THE COURT:  And that's Richard Benson.  Who was the translator?  MR. GRANT:  Alice Sampson.  THE COURT:  Thank you.  MR. GRANT:  My friends have already received the report, of  course.  THE REGISTRAR:  Did you wish to mark this or do you want to go  through it first?  MR. GRANT:  The report should be, the next exhibit number should  be reserved for the report. 1185?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 THE COURT:  Yes.  All right.  2 MR. GRANT:  As has been the practice, I presume, I will go  3 through the report and then deal or possibly that  4 number should be reserved.  5 THE COURT:  All right.  The next exhibit number?  6 THE REGISTRAR:  884.  7 THE COURT:  All right.  And I guess they can be 884-1 and 884-2,  8 can they?  9 MR. GRANT:  Yes.  And I have tabbed it or tabbed your copy with  10 reference to -- the tab numbers are just the beginning  11 of each chapter, my lord, and the letter tabs at the  12 end are tabs of the appendices.  Just for ease of  13 location.  Possibly before proceeding, the curriculum  14 vitae of Dr. Daly could be marked as Exhibit 885.  15  16 (EXHIBIT 885:  CURRICULUM VITAE OF DR. DALY)  17  18 MR. GRANT:  And the Fenton article as Exhibit 886.  19  20 (EXHIBIT 886:  FENTON ARTICLE)  21  22 THE COURT:  That's 885-2, is it?  2 3 MR. GRANT:  Yes.  At tab 2.  24 THE COURT:  Tab 2 of 885.  All right.  25 MS. KOENIGSBERG:  I just missed something.  Sorry?  26 THE REGISTRAR:  Do you wish this before the witness?  27 MR. GRANT:  Yes, I would like to have volume one of Exhibit 884  28 before the witness.  29 Q   I would like to refer you to page 17 of your report,  30 and I am really referring to pages 17 and 18.  It  31 says -- you state in the fourth line down, you first  32 of all state:  "This report is based upon data  33 obtained from manuscripts and published monographs  34 which I have studied in relation to me participant  35 observation and research among the Gitksan and  36 Wet'suwet'en in northwest British Columbia."  37 Now when you referred to manuscripts and published  38 monographs, what are you referring to there?  39 A   I am referring to ethnographic writings from the  40 general region of the Skeena and Nass in the northern  41 part of the British Columbia coast.  42 Q   And can you give some examples of what you would have  43 relied on or referred to in your initial research with  44 the Gitksan and the Wet'suwet'en?  45 A  Well, the work of Morice and Jenness with regard to  46 the Wet'suwet'en,  47 Q   That's Father Morice? 11859  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  A  2  Q  3  A  4  5  6  7  8  9  10  11  12  13  Q  14  15  A  16  Q  17  18  19  A  20    ]  MR. GRANT  21  22  23  Q  24  25  A  26  27  28  29  30  Q  31  32  A  33  Q  34  A  35  36  37  Q  38  39  40  41  42  43  44  A  45  Q  46  47  Yes, Father Morice.  Yes?  The body of material known as the Barbeau-Beynon  papers, lodged in Ottawa, the archival materials, the  Tsimshian Myths by Boas, John Adams book on the  potlatch of the Gitksan, and a number of other  publications that were of general relevance to the  region, plus some general introductory sort of  overview work, such as the two books on the general  nature of the northwest coast by Phillip Drucker, who  was also a director of the of the Smithsonian in  ethnology.  And is that Totem of the Gitksan, was that his book,  Drucker?  No, that was Barbeau.  I am sorry.  Sorry, my lord, it's the time of day.  The two books of Drucker, which are those, do you  recall?  Are they referred to in your bibliography?  Yes, they are.  :  My lord, just for ease of reference, the  bibliography is at the end of the exhibit, also I have  duplicated it at tab 5 of the blue book.  That's Indians of the Northwest Coast and Cultures of  the North Pacific Coast?  Yes.  And I believe it's the second one, Cultures of  the North Pacific Coast, all the illustrations in  there are from the collections I was working with at  the ROM, so they are all old friends, all those  photographs.  Was that the first stage of your work, to study those  ethnographic publications?  Yes , it was.  Now --  To get a general overview of what I was going, the  area I was going into.  But I had been familiar with  some of this material before.  The second sentence there, you say "I believe it would  be difficult for a researcher who is not experienced  in the Gitksan and Wet'suwet'en way of life as it is  lived today to formulate an accurate impression of the  economy of these peoples."  That is your opinion with respect to methodology;  is that right?  Yes.  Now would that apply equally to any other culture  group that one is studying to formulate an accurate  impression of the economy of those peoples? 11860  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 A   Yes, it's -- it is certainly a serious limitation to  2 the work people do if there is not a basis of actual  3 field work which has formed their opinion.  Not  4 necessarily their own, but someone else who had worked  5 in the area that they had studied that they rely on  6 very closely.  Most ethnohistorians, for example, they  7 rely quite heavily on the experiences in doing field  8 work that others have undertaken.  9 Q   Now, you refer then to what you just described about  10 the study ethnographic publications, did you refer to  11 Fladmark, the archeologist, in this stage of your  12 study?  13 A   Yes, I did.  14 Q   Did you look at any census material, that is early  15 historical material relating to census?  16 A   I looked at Duff's material on the populations of the  17 Indians of British Columbia and the early census  18 material on the Gitksan-Wet'suwet'en areas.  19 Q   Was that the 1881 census?  20 A   That was the 1881 census.  21 Q   You referred earlier today that you looked at the  22 Hudson's Bay records relating to Fort Kilmaurs, did  23 you go look at the Hudson's Bay records with respect  24 to any other of their establishments in the region if  25 not within the Gitksan-Wet'suwet'en area?  26 A   Yes, Fort Fraser and the Stewart Lake and I looked at  27 the documentation that had come from there that was  28 lodged in the library in the Smithsonian in Washington  29 as well.  It was fascinating material but it wasn't  30 directly relevant to the Wet'suwet'en.  31 Q   And did you refer to Boas?  32 A   Yes.  33 Q   Now, the beginning of the next paragraph, page 167 you  34 say you "began to gather information based on the  35 peoples' own explanation of their economic life."  36 Now, here I would like you just to expand here on  37 what you did next after you had done this ethnographic  38 review.  And you can discuss it in the context of your  39 interviews.  Possibly the blue book can be put before  40 the witness as well.  I am not saying to go through  41 each of the interviews but just for timing of what you  42 did.  43 A  Well, by this time I was in the community and I began  44 by talking quite extensively with the two chiefs who  45 had taken me out to the land back in April of '86.  4 6 Q   Who were they?  47 A   That was Andrew George and David Blackwater. 11861  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  Q  2  THE COURT  3  A  4  5  6  7  8  9  10  11  12  13  14  15  16  17  MR. GRANT  18  Q  19  A  20  Q  21  22  A  23  Q  24  25  26  27  28  29  A  30  31  32  33  34  35  36  Q  37  38  39  40  41  42  A  43  Q  44  45  46  47  A  Yes?  :  Andrew George?  Yes.  On the nature of their experience and use and  enjoyment of their land through the seasons, both  today and in the past.  And then on the basis of what  I learned from those two gentlemen, I was at the same  time reading the transcripts of evidence that had been  taken by commission, and the land claims transcripts,  and finding the common themes of the things that had  been pointed out to me when I was out on the land or  talking with these people, were being reiterated again  and again in the course of those interviews.  So I  began to frame up a general outline of the nature of  the main features of the economy, the production  activities, if you like, initially that preoccupied  people.  And this, you were using your --  Peoples' minds, that is.  And you were using the model, the economic model that  you describe later in your report in terms of --  Yes, that was always in the back of my mind.  In setting up your -- okay.  And did you -- you referred to the fish camp at  Gwin Oop, some notes referred to as tab 40, tab 40 of  your document book.  Did you go out there in this  phase of your research, is that when you attended the  fish camp?  Yes, yes.  But I had already been in the other fish  camp that opened somewhat earlier, opened early in  July down at Kitwanga.  And I worked there helping out  setting up the camp and later on I worked in the Gwin  Oop camp in Kispiox, they were teaching me how to cut  the fish and hang it and go through the various  processes in the smoking and drying.  Now, your earliest interview notes were in July of  '86, when one looks at your index, you have number six  is with Alfred Joseph, and number 28 with Marie  Wilson, and 26 with David Blackwater, and referring to  the tab numbers, and 32 with Richard Benson.  Richard  Benson is now deceased, isn't he?  That's correct.  Now, did you -- when did you -- does that fairly  reflect when you started getting into more detailed  interviews and did you do something before that in  terms of your participant observation?  At the same time I was going out on the river, it was 11862  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  THE COURT  A  THE COURT  A  MR.  GRANT:  Q  A  the fishing season and the whole society focuses on  the river at that time.  So I was spending a certain  amount of time with people fishing and in their houses  and so on. I was reading the Adaawks of the Gitksan at  the same time.  So the reading was going on while I  was participating as far as I could in the day-to-day  life of the people.  The interview with Alfred Joseph  in July was quite important.  Alfred very kindly sat  with me for hours, explaining the main outlines of the  Wet'suwet'en seasonal round.  Maybe you could just refer to that tab there, tab 6,  and it's -- it actually says, it's entitled Seasonal  Round and Ownership.  Is this how you approached when  you wanted to get an in-depth interview with the  persons, you would approach it by trying to focus in  one area?  What do you mean by one area?  Well, such as here you are dealing with seasonal  round, earlier you were talking about the feasts with  Mary McKenzie.  Yes.  :  What is that word, seasonal round?  Yes.  : R-O-U-N-D?  Yes. It's a shorthand way of referring to the  activities that hunting peoples follow through the  cycles of the seasons in order to make their material  needs, satisfy their material needs.  And did you do further work or aside from this  interview with Alfred Joseph with respect to the  Wet'suwet'en seasonal round, what other information  would you have relied on to formulate your opinions  about the seasonal round and ownership?  Well, of course, this, the information I was getting  from Alfred and talking to actual fishermen in the  Moricetown Canyon, drove me back to Jenness to see  what he had to say about the seasonal round.  So he  was -- it was a constant interplay between what you're  learning on the ground and what has already been  written.  At the same time I was doing the same sort  of thing with certain Gitksan chiefs, David  Blackwater, I went back to him again, because he is  the one who initially had introduced me to the land.  And I refer you there to tab 26 of that document, and  is that your interview in July of '86 with David  Blackwater you were referring to? 11863  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 A   Yes, it is.  And I think I carried it on later, the  2 next one.  3 Q   Tab 27, in November of '86 you met, and you have  4 talked there, the heading or the note you have got  5 there is "The Life History After David's Grandparents  6 Passed On", tab 27, my lord, "did abandon the land and  7 the seasonal round or not?"  Was that your notation of  8 your --  9 A   That's my notation at the beginning.  That's what was  10 on my mind.  I had a fairly good picture of the  11 activities that many of the Gitksan, members of  12 Gitksan houses were engaged in when David was young.  13 And I wanted to see, by following his life story into  14 the present, whether this attachment to the land  15 prevailed or not or whether he had become busy with  16 other things and turned his back on the fishing and  17 hunting and so forth.  18 Q   And, within the body of your report, you formulated  19 your opinions of that based on these interviews?  20 A   In this case I wasn't sure, I didn't know whether he  21 was a good example or not.  It's just that I had  22 started with him and I took him as a representative  23 example of how people would probably react to the  24 changing economic conditions.  25 Q   Did you later come to the conclusion or form opinions  26 as to whether or not he was representative based on  27 your other work?  28 A   Yes, I talked to a number of his neighbours in Kispiox  29 and more or less got the same story.  30 Q   From them about their lives?  31 A  About their life stories, yes.  32 Q   Now -- and then you turned -- you refer at the bottom  33 of page 17 that you returned to the documented source  34 materials and ethnographies and this is where you said  35 you went back and forth to the documented sources and  36 you also did further interviews later on, right up to  37 1988, I think it's reflected in your notes?  38 A   Yes.  39 Q   Now, aside from the -- what I will say are the formal  40 interview notes reflected in your notes, did you have  41 what I will call informal discussions with people that  42 assisted you in forming your opinions?  That is, that  43 are not recorded?  44 A   It was a constant and still is a constant, ongoing  45 procedure.  46 Q   How did those come about?  47 A  Well, throughout, again, all these things were going 11864  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 on simultaneously.  I was already starting to write  2 this report and I would, whenever there was an area  3 that was gray or confusing or I wasn't clear on, I  4 would go back to people I had interviewed or talked to  5 others or their neighbours, I would be on the  6 telephone or I would bump into them in the general  7 store or talk to them coming out of a feast or in a  8 parking lot at a dance.  Whatever the opportunity was.  9 And I would be cross-checking information I was  10 getting from several people.  And some things I am  11 still not clear on and I didn't write anything about  12 them.  13 Q   And you said you were starting to write your report,  14 about what stage would that have been, what time frame  15 would that have been?  16 A   In the early fall of '86.  17 Q   And did you --  18 A   September of '86.  19 Q   And how did you do your report, did you write it out  20 in longhand?  21 A   No, I inputted it into a computer.  22 Q   What happened to that, that inputting from 1986?  23 A   It just kept permuting and changing and growing.  24 Unfortunately, growing.  25 Q   And so what we have before us is the culmination of  26 that report, which does this -- does this, in these  27 two volumes do you reflect information that you  28 obtained in these -- in this analysis, ongoing  29 analysis from 1986 onward?  30 A   Yes.  31 Q   And where -- and you have referred to which interviews  32 or who you talked to about certain aspects with  33 respect to the different areas of the report?  34 A   Yes, I do.  35 Q   Now, let's take that tab 40, with regards to the  36 fishing camp, and I would just like you to explain to  37 his lordship what kind of information -- you may or  38 may not want to refer to the Kispiox fishing camp  39 note, tab 40, but what type of information did you  40 obtain at the fishing camp that assisted you when  41 you -- what happened when you were at these fishing  42 camps?  43 A   You have to learn to listen, sit and listen and pass  44 the time of day with people and various topics will be  45 discussed.  At the same time you are observing the  46 quality of life that's going on in the camp.  One  47 example on that, in that aspect, is that there are 11865  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 certain people who have a rather -- are treated with  2 rather lowest esteem in the community, normally, and  3 yet they were very active members of the fish camp in  4 the fishing and helping run things, keeping things  5 together and also recounting their experiences on the  6 land to the young it children who are in the area and  7 in other circumstances they have no standing in the  8 community whatsoever.  So it was very nice to see  9 these people in the fishing, which is one of their  10 areas of extreme expertise, really in their element,  11 and they were quite different as social beings than  12 they were in the streets of the town.  In the course  13 of just sitting there, my wife and myself, we got all  14 sorts of information:  People were telling us about  15 fish, comparative fish processing techniques on the  16 Nass and at the coast, for example.  Or they would be  17 talking about how they would like to have their own  18 fishery in the future and what their ideas were for  19 the future.  A great number of topics were brought to  20 bear because of the nature of the situation.  21 Q   And you have some -- if you can just look at tab 40,  22 you have some references there to some comments from  23 Audrey Morrison and Mary Johnson, and at the bottom  24 from Vince at Kisgegas.  Now, do these -- why did you  25 take these little notes of these extracts?  26 A   I don't really recall why I took them now.  I found  27 them in my files when you and I were going through  28 preparing for this process.  But they were things that  29 struck me as culturally interesting and that I would  30 like to think about and reflect on in terms of my  31 overall view of the nature of the economy and the  32 social relations in forming that economy.  33 Q   Would it be fair to say that you learned much more at  34 the fish camps than is reflected in this page?  35 A   Yes.  36 Q   Were you involved in assisting of the processing of  37 the fish at the fish camp?  38 A   Yes, some, to some extent, and this was at the Kispiox  39 fish camp, the professor of the operation was Mary  40 Johnson and some of the younger ladies who are  41 associated with her house were helping out.  And I was  42 just doing as I was told.  But it was because there  43 are a number of young people who didn't have a family  44 that had trained them, we were all being given lessons  45 in how to cut the fish properly.  So it was a very  46 great learning process.  47 MR. WILLMS:  My lord, I rise right now, if my friend is going to 11866  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  THE  COURT  17  18  19  MR.  GRANT  20  THE  COURT  21  22  MR.  GRANT  23  24  25  Q  26  27  A  28  29  THE  COURT  30  A  31  32  THE  COURT  33  34  A  35  36  MR.  GRANT  37  Q  38  39  40  A  41  THE  COURT  42  A  43  44  45  46  THE  COURT  47  MR.  GRANT  go through further documents like this, in my  submission he should identify them the normal way that  documents are identified:  "Did you make these notes?"  "When did you make these notes?"  I mean, we have got  a note here with three different dates on it with only  the barest of information.  I am sure none of us knows  now, except perhaps the witness, whether the notes  were made on the same page over a period of 12 days,  whether they were made at separate times, whether they  were reproductions.  I think that when a document is  put to a witness, the witness should be asked to  identify how the document was created, unless my  friend isn't going to rely on the document.  And if he  isn't going to rely on it, he shouldn't put it to the  witness.  :  I must say I assume, looking at this, that this was  the first of many, many pages but I see it's a one-  page exhibit.  :  It's a one-page exhibit, yes.  :  Well, I think, with respect, your friend's  observations are well taken.  :  Well, the witness did identify all of these.  I mean  in terms of being his notes he identified all of this  group as his notes. But I can go into more detail.  When would you have made these notes that are referred  to in tab 41 — or tab 40?  Sorry.  This would have been in the -- probably in early  September when I was starting to write.  :  I am sorry, but these notes are dated August.  Those are the dates of the actual event, when I was in  the fish camps and when I was fishing up in Kisgegas.  :  These are recollections of information you earlier  collected then, are they?  That's right.  Hm-hmm.  So these had occurred about  three or four weeks before I actually noted them down.  And, did you -- these notes you located in your files  when you were doing a further search to determine  whether you had any further notes?  Yes.  :  Are these transpositions from other documents?  No, I believe I just wrote them down the one time.  I  was trying to get some -- recall some of the features  that impressed me most on my first impressions at  these fishing places.  :  All right. 11867  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  Q  2  3  4  5  A  6  THE COURT  7  8  MR. GRANT  9  THE COURT  10  MR. GRANT  11  Q  12  13  14  A  15  Q  16  17  A  18  Q  19  A  20  21  22  23  Q  24  A  25  26  Q  27  28  29  30  31  A  32  Q  33  A  34  35  36  37  Q  38  39  A  40  41  42  43  Q  44  45  46  47  Now, I would just like to go back, because I -- go to  tab 26 and 27, if you could, the David Blackwater  interviews.  Were those notes made at the time that  you met with David?  Yes, they were.  On his kitchen table.  Wasn't it David Blackwater that accompanied us on  the view?  Yes, he went up to Blackwater Lake.  All right.  Thank you.  And those would have been -- the David Blackwater  notes would have been taken on the dates that are  referred to on the top of them?  That's correct.  And tje same with the Alfred Joseph interview at  tab —  Yes.  Although --  Virtually all the interviews that are dated were  actually recorded on the dates there.  It's just that  there were one or two scraps like that page from the  fish camps which --  All right.  I wrote out the dates to orient myself because I  followed a certain chronology of activities.  Okay.  There is just one un-dated notes of interview  at tab 39, maybe you could just -- because you have  answered the question relating to the dated material,  that seems to be some notation of discussion with  Alfred Joseph?  Yes.  Do you recall approximately when that would have been?  Well, I have discussed this, the content of this  quote, with Alfred on more than one occasion.  I think  the first time was in July of '86, but certainly at  later dates as well.  Would that have been a note taken later or at the time  you talked to Alfred?  It was probably in a -- within a day or so of the  interview, because Alfred was a very, readily  accessible, he was doing some work on the court case  so I would see him every once in a while.  Okay.  At tab 30, the interview with James Morrison,  one of actually a series of three interviews with  James Morrison.  There is one in March of '87, there  is this one and there is one on February 25th, '88,  that's at tab 29 through 31.  Do you recall when you 1186?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  A  3  4  Q  5  6  A  7  Q  8  9  10  11  A  12  13  14  15  16  17  18  19  20  21  22  23  24  Q  25  26  A  27  28  29  30  31  32  33  34  35  36  Q  37  38  A  39  Q  40  A  41  THE  COURT:  42  43  MR.  GRANT:  44  THE  COURT:  45  MR.  GRANT:  46  THE  COURT:  47  MR.  GRANT:  would have had this discussion with James?  It was in the spring of '87, but there was still snow  on the ground but I don't remember exactly.  That's fine.  And were those notes taken at the time  you talked with James?  Yes.  Now, did you observe the distribution of goods or food  or resources within the community -- maybe you can  tell his lordship where you lived while you were there  from April of '86 to 1987?  I lived in the old Indian Agent's house, which was  doubling as the centre for the community awareness  programme, which is the drug and alcohol programme.  So there was a lot of coming and going of people from  the community.  It was right in the old town of  Hazelton and out my window I could see various  transactions in the community.  I knew the neighbours,  they were fairly closely related to one another.  So  when someone arrived with fish or with parts of a  moose, it was right outside my window so that provided  the basis of a lot of information and food for thought  about the nature of the social relations in the  community.  Can you give examples of persons you saw distributing  game food?  Well, it was the family of Robert Jackson, Robert  Jackson and his sons who would provide moose meat and  steelhead and in the summers, of course, everybody has  their food, their fish transactions.  But it was  notable in the winter, when there isn't so much fresh  fish that he was supplying fish to people that he was  related to or married to or the old people.  I would  go to see someone like Jessie Sterritt and she would  have a piece of fresh fish and she would say, "Oh,  yes, Robert brought that in this morning."  And Robert Jackson is Xsimgitgiinix from the House of  Miluulak?  Yes.  And he is the father the Vince Jackson?  Yes.  I am sure Mr. Reporter would like the spelling of  that.  X-S-I-M-G-I-T-G-I-I-N-I-X.  And Miluulak?  M-I-L-U-U-L-A-K.  Should we take the afternoon adjournment?  Certainly, my lord. 11869  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 (PROCEEDINGS ADJOURNED FOR SHORT BREAK)  2  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein to the best of my  7 skill and ability.  8  9  10  11  12 Wilf Roy  13 Official Reporter  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 11870  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  THE COURT  4  MR. GRANT  5  Q  6  7  8  9  10  A  11  Q  12  A  13  14  15  16  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  25  26  27  A  28  29  30  31  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  40  41  42  A  43  Q  44  45  46  A  47  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  :  Mr. Grant.  :  Thank you, my lord.  You described earlier about using -- I don't know if  the proper terminology was pneumonic or memory devices  with the Iroquois.  Did you use similar devices in  terms of recalling events that occurred in the fish  camps or other processes --  Oh, yes.  -- with the Gitksan?  The narrative of where one goes in the course of  collecting information comes back as you are writing.  I was writing about fishing, I had vivid memories of  what I had experienced in the camps and up in  Kisgagas.  And this brought back what occurred and what  transpired at those times?  Yes.  And do you reflect those facts of what occurred in  your report?  I think I do, yes.  I mean in other words, do you set out when you -- when  an event occurred that happened to you personally, do  you set that out in your report if it's something  that's relevant for your opinion?  In some instances, yes.  The report was getting so  unwieldy that I have some of these instances which I  thought made nice examples, but I took them out  because it was just getting bigger and bigger and  bigger.  And that was reflected in your draft report of March  1988?  It's slightly longer than that.  Which was slightly longer?  Than the final draft.  That's been disclosed, my lord.  Did you observe what  occurred in the Feast hall?  You have described the  Guxsan pole raising Feast, and did you make similar  observations with respect to the other Feasts that  occurred?  Yes, I did.  And did you reflect those and describe those  observations in your report in the section on the  Feast?  Certainly.  When I was -- when I was going over the  material that I had collected through interviews with 11871  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Mary McKenzie —  2 Q   Right.  3 A   -- my growing familiarity with the main processes that  4 go on the Feast would come to mind every time I would  5 review this material and it was certainly cumulative  6 in the course of preparing that what -- later what  7 eventually I put in as the final chapter.  Because I  8 started writing the feasting chapters one of the early  9 things, because it is such a noteworthy feature of the  10 Gitksan and Wet'suwet'en cultures.  11 Q   Now, I'd like to refer you again to the blue book  12 which you have there.  You may want to just take that  13 out of the way, the report for the moment.  And at  14 tab -- just a minute.  I am sorry.  Tab 35 reflects  15 some notations regarding the Burns Lake Feast.  Were  16 these notes that you took at that time regarding the  17 Burns Lake Feast and what you had observed in your  18 interpretation?  19 A   I believe they were taken -- I wrote them down the day  20 following the Feast.  21 Q   Okay.  And I see you have on the first page point  22 form.  Is this your -- were these your points as to  23 what you had --  24 A   Yes.  25 Q   -- understood was going on?  26 A   Yes.  27 Q   And then at the bottom there is a note, "James held an  28 in -- ".  You say:  29  30 "Young people also were excited about this old  31 knowledge and how it can be used to liberate  32 Native peoples from reliance on government  33 boundaries and gov't arbitration.  34 (James held an informal seminar in the  35 parking lot on this.  I was there."  36  37 Who are you referring to there?  38 A   James Morrison.  39 Q   And did he also speak about that inside the Feast  40 hall?  41 A   Yes, he did.  And a number of the younger chiefs from  42 the Kisgagas area were talking with him afterwards.  43 They were quite excited by what he had presented and  44 how he had explained the situation inside the Feast  45 hall.  46 Q   Okay.  47 A   So he was explaining the relationship between the 11872  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 crest on the chief's blanket and what it signifies to  2 the other chiefs in relation to who they are and what  3 their ties are to their specific hunting territories.  4 Q   On the next page you have a question:  5  6 "What did the Gitksan chiefs try to show the Burns  7 Lake gathering?"  8  9 And then you have a series of lettered areas:  10  11 "- hunting grounds are associated with a crest.  12 - the crest is inherited through the mother.  13 - the crest, or crests are very ancient.  14 - the crests have a history, an origin.  This  15 origin took place on the land, in a specific  16 area."  17  18 Now, just stop there.  Now, are these observations you  19 made as to what occurred at the event, or a synopsis  20 of what you understood or what occurred?  21 A   This is what I understood to have been presented in --  22 at least through the translation that was given in  23 English.  24 Q   Okay.  25 A  And a lot of the proceedings at that Feast were in  26 English because they were Native peoples there  27 speaking different languages.  Some of them spoke two  28 or three Native languages, but most of the proceedings  29 were in English or were translated.  30 Q   Okay.  And you refer to this Feast and the events that  31 occurred here in your report with respect to crests  32 and the significance of crests?  33 A   Yes.  34 Q   I'll come back to that.  Now, I'd like to just refer  35 you -- you talked about reading the Barbeau Beynon  36 adaawks and in what form were the adaawks that you  37 read in this fall -- summer/fall of '86 period?  38 A   They were the typescript versions that had been made  39 by I believe the secretary of Marius Barbeau in Ottawa  40 at the National Museum, in the volumes that he had  41 been preparing for publication about the crest origins  42 through the oral history or oral tradition of each of  43 the four main crests of the Northwest Coast, the  44 Skeena/Nass area.  45 Q   And I'd like to refer to you tab 45.  Who's notes are  46 those?  47 A   Those are my notes. 11873  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  Q  2  A  3  4  5  6  Q  7  8  9  A  10  Q  11  A  12  13  Q  14  THE COURT  15  A  16  17  THE COURT  18  MR. GRANT  19  Q  20  21  22  A  23  Q  24  A  25  Q  26  27  28  A  29  Q  30  A  31  32  Q  33  A  34  Q  35  36  37  38  A  39  THE COURT  40  A  41  MR. GRANT  42  Q  43  44  45  46  47  A  And what do those notes -- can you explain them?  They are tabulation of references to material  possessions, economic activities, use of materials  from territories in the general region that I gleaned  in the course of reading these adaawk.  And then it refers to, for example, adaawk number one  20, 21, 44.  I am looking at the top one, "Eagle down  scattered for visiting chief."  This would be for the Frog/Raven Clan.  Oh, okay.  The volume of adaawks.  And the numbers, there are the  numbers that are in the index of those volumes.  Okay.  :  Index of volumes of -- ?  Of the four sets of clan adaawks that were put  together by Marius Barbeau.  :  Oh.  By Barbeau, all right.  And you go through -- did you go through just the  Frog/Raven Clan adaawks or did you go through the  other groupings that he did as well?  I went through all of them.  Okay.  The four sets.  I'd like you to turn to page four of your note.  It  says Raven Clan, Volume 2.  That's part of the Raven  Clan adaawks?  Yes.  Frog/Raven Clan adaawks?  There was so many of them, I believe it was broken  into two binders.  They were in this sort of format.  You are referring to like a three ring binder?  Yes.  Now, I'd like to go on and further on in the same tab,  my lord, after some unnumbered pages it's Wolf Clan  Adaawks Economy.  Are these your notes as well  relating to the Wolf Clan adaawks?  Yes.  :  These are also from Barbeau?  The same series, yes.  And these are where you've listed the resources, the  activity and the use, the technology, the location,  the number of the adaawk and then you also have  comments.  Those are all your comments, I gather, at  the end?  That's correct. 11874  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Q   And then going on, that series is seven pages long and  2 then you come to Gwenhoot of Alaska, Lax Xskiik.  What  3 is that?  4 A   That's the Eagle Clan.  They are very significant in  5 the Nass and other areas and their history is involved  6 in the Gitksan only in the Gitwanga area.  7 Q   Now, why would you have referred to --.  Oh, I see.  8 On page three of that you see a reference halfway down  9 to salmon and berries and the location is along the  10 Skeena and it's adaawk No. 95.  Do you recall does  11 this refer to the area within the Gitksan area or  12 would it be downstream from there?  13 A   I would have to examine it to know.  14 Q   Okay.  15 A   The entries are made as I read through the documents  16 through these big books and they haven't been properly  17 systematized here and a lot of things are repetitive  18 and they haven't been properly grouped.  This is just  19 as they came up.  20 Q   Okay.  When did you do this work?  21 A   In the summer of '86.  22 Q   Finally, the three -- four pages from the end of this  23 tab is Temlax'am, the Land of Plenty, Part II, the  24 Adaawk Volume 2 and 3 Gisgaast.  Is this again the  25 same idea, that Barbeau adaawk series?  26 A   Yes.  Yes.  27 Q   And this was with respect to the Fireweed Clan?  28 A   That's correct.  29 Q   Okay.  And can you tell his lordship why you went  30 through this process of this kind of coding of the  31 resources and the technologies and the activities and  32 uses referred to in the adaawk?  33 A  Well, it's a common procedure that's -- well, I had  34 already relied on the adaawk when I worked on totem  35 poles with the ROM and I knew George MacDonald had  36 alerted me to the riches that were in the archives  37 from Barbeau and his assistant Beynon who collected a  38 lot of the material and translated it and prepared it  39 for Mr. Barbeau, but anthropologists use the oral  40 record to try to get some sense of the preoccupations  41 for various questions.  But when you are dealing with  42 economic concerns, they want to see how people used  43 their land and carried out their activities to make a  44 living in earlier times, and you have a lot of social  45 structure and actual on-the-ground social activities  46 reflected in the oral tradition of any people.  47 Q   Well, the adaawk, sort of adaawk that has been 11875  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 presented to his lordship from certain chiefs.  For  2 example, the adaawks of the women taken by the grizzly  3 bear in Tenimgyet's -- in Tenimgyet's adaawk and it's  4 a fairly dramatic events that have occurred.  The  5 grizzly bear adaawk, I believe, across the Skeena.  6 When you say that you can use these for resource use,  7 can you use, for example, one of those two as to how  8 you would determine resource use from the descriptions  9 of those adaawks?  10 A  Well, the things that are filtered down as memorable  11 and important to remember in the history of the  12 individual house groups are events which occur against  13 the day do day lives of the people.  Quite often  14 someone will be murdered or kidnapped or something  15 while engaged in some economic activity.  And the bear  16 adaawk that you mention from Teminmgyet, Axtii Hiikw  17 is one example.  The young lady had been picking  18 berries on the mountainside when the events that  19 ensued took place.  And when Nekt's mother was away,  20 she was involved in certain activities when she was  21 abducted and taken to the Queen Charlottes in the  22 oolachan fishing in the Nass River and they were an  23 inland Gitksan people who had gone out seasonally for  24 the oolachan when she was taken off to the Queen  25 Charlottes.  This sort of thing occurs on many, many  26 occasions.  27 Q   Nekt is —  28 A   In other cases --  29 Q   Just a minute.  Nekt is N-e-k-t, just for Madam  30 Reporter.  Yes.  31 A   Some ladies were taking the bark off the south side of  32 Hemlock trees in the springtime.  These inner bark,  33 the Cambrian noodles of the Hemlock, and they also do  34 the same thing.  Up to fairly recent times, Polly  35 Sergeant collected this same sort of information from  36 Moses Morrison and others in Kispiox about 20 years  37 ago, so that was going in in what seems to be a very  38 old adaawk when people were kidnapped.  There is many  39 examples like this and I don't -- I can't quote you  40 the actual one now without reviewing it.  But that's  41 the sort of thing I was being alerted to.  42 Q   I want you to explain how you used those.  I'd like to  43 mark these notes at tab 45 as the next exhibit, my  44 lord.  45 THE REGISTRAR:  45.  That will be 887.  4 6    THE COURT:  What's the number?  47    THE REGISTRAR:  887. 11876  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  THE  COURT  4  MR.  WILLM  5  6  7  8  9  THE  COURT  10  11  12  13  MR.  GRANT  14  15  16  17  18  19  20  THE  COURT  21  MR.  GRANT  22  Q  23  24  A  25  Q  26  27  28  A  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  40  41  THE  COURT  42  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  Q  47  A  (EXHIBIT  37:  Tab 45 of Blue Book)  :  That will be —  3:  My lord, I am just concerned whether my friend is  marking these just to show what the witness did as  part of the facts upon which it has been based or for  the truth what's stated in them.  I don't know why he  is marking them.  :  It can only be, surely, to show what the research of  the witness has produced in this kind of a  classification.  It can't prove the underlying facts  in my view.  :  No.  My lord, I intend not to file all of them  imminently.  Ultimately I intend to file the selected  portion of the adaawks which are referred to here from  one of them and I will be filing them as well and of  course my friends can cross-examine on it.  But it  shows the methodology of the witness in terms of  gathering this data.  :  Yes.  It goes that far.  Did you -- you drafted a summary report in January of  1987?  Yes.  And at that time did you have a large number of the  interview notes that you have now that are referred to  now?  Yes, I did.  But you did subsequent research and reviewed further  interview notes after that?  Yes.  But as of January of '87, had you referred to the land  claims interview transcripts?  Yes, I had referred to them.  Had you referred to the commission evidence that had  been taken up to that time?  Yes, I was -- I started turning to the commission  evidence as I was reading these adaawk.  I started the  adaawk reading quite early on when I got back to  Hazelton in July of '86.  :  Mr. Grant, we have had several references to -- what  do you mean by the land claim documents?  Okay.  Land claims interview.  Land claims interview?  Yes.  Can you explain what those are?  It's a series of interviews done by a number of 11877  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  different people in the Gitksan-Wet'suwet'en  community, interviewing elders on the nature of the  life they had lived and their experiences on the land  and the fishing sites among other things.  And this  was in existence in the Tribal Council when I arrived  in the area.  Are they in evidence, Mr. Grant, or --?  These -- they have all been disclosed, but I don't  believe any of them have been tendered in evidence to  date.  Thank you.  There are certain ones with persons who are now  deceased, and which we intend to tender ultimately.  All right.  Thank you.  If you could go to the second volume of your opinion  evidence, page 348, I only want to refer to one  paragraph which seems to synopsize your data, although  it refers to the data -- this is with respect to  chapter five, the seasonal round.  At page 348 on the  bottom.  Yes.  It states there:  "Sources of substantive data in this chapter are  (a) court evidence by the plaintiffs in Delgam  Uukw v. H.M.The Queen (Transcripts) and Commission  Evidence given by older members of the community  who were raised on the land in the early part of  the twentieth century - and who, through the life  experiences of their parents and grandparents have  knowledge of conditions on the land back to the  early nineteenth century; (b) younger people, some  of whom were raised on the land, and some who were  not; (c) historical records, anthropological  accounts, geological survey reports and fur trader  journals; (d) the continuity described by these  sources is reflected as well in the similar  seasonal preoccupations mentioned in the oral  history of the two cultures; (e) information  gathered by participant observation in the course  of researching this Opinion Evidence."  And that is your summary of what you relied on for  chapter five on the seasonal round?  A   Yes.  Q   Would that apply equally to the balance of the report 11878  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  A  3  Q  4  5  6  7  8  9  10  11  12  13  14  15  16  17  A  18  19  20  21  22  23  THE COURT  24  A  25  26  27  28  MR. GRANT  29  Q  30  31  32  A  33  Q  34  35  36  A  37  38  39  40  41  42  43  Q  44  45  46  47  A  that you relied on those sources?  Yes.  Okay.  Now, when you look at -- and I'll go to page 21  of Volume 1.  I am sorry, I am not going to generally  refer back to each volume back and forth, my lord.  It  states there, the second last paragraph or the middle  of that second last paragraph:  "First of all, the documents closest to  participant observation are the Proceedings at  Trial (witness transcripts) and Commission  Evidence of witnesses in the current legal action  of the Gitksan and Wet'suwet'en chiefs."  Why do you say that, that those are the documents  closest to participant observation?  Because they reflect my experience in the community  and when I conducted interviews myself, the same -- I  was getting the same quality of information and quite  often the same information that came up in the course  of the commission evidence and then later in the  course of this trial in the transcripts.  :  What do you mean closest?  I mean the same things were being explained to me in  the course of my interviews and they came up again in  the course of the evidence that was presented here by  the chiefs.  Now, my friends have alluded to and in the course of  your report there are quotes from the transcripts of  the trial.  Is that right?  Yes.  In the course of this report.  Why did you put in  quotes from the report into your opinion, into your  opinion report I should say?  In the many instances they were -- it was information  which I had already obtained in the course of my  interviews and discussion with these chiefs.  And  since these were the plaintiffs and they were giving  their evidence before the court, I thought this was  the best statements, better than my interviews that  they had.  Okay.  Now, as an anthropologist when you reviewed  those transcripts, how did you -- what was the  difference between you reviewing those transcripts and  myself or his lordship reviewing those transcripts?  Well, I would be looking for something probably 11879  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  different.  I don't know the law at all.  So you would  be looking at them from that perspective and I would  be looking at them from the perspective of what they  say about the social life and the social structure and  the values of the people and how this has been  presented over a period of time and change.  And this  sort of thing is used a lot in the anthropological  reproduction of the past and I am sure these documents  will be of interest to scholars in the future.  Q   What did you mean when you say this is used a lot, you  mean transcripts?  A   This type of material, yes.  Q   Now, then you refer at the bottom -- I just want to  correct this.  You have gathered interview information  from members of the Gitksan and Wet'suwet'en  communities which in the form of your field notes have  been submitted to the court.  That's what's referred  to in your -- the blue volume that I tendered this  morning, is that right?  A   Yes.  Q   I'd like to refer you now to chapter two of your  report.  Now, my lord, I just want to advise you that  I'm not going to refer the witness in direct, but of  course I will be tendering this part of his report as  part of his report.  The witness goes on the balance  of chapter one to describe participant observation and  professional objectivity and he also deals with oral  history.  But I canvassed all of those areas with him  this morning and I see no reason to refer him to that  part of that chapter.  THE COURT:  Thank you.  MR. GRANT:  But of course, I would be tendering it.  Q   Now, chapter two at page 90 refers to -- the first  part of it refers to an economic system.  And you  state the second sentence -- or I will just read that  first paragraph:  "Members of any society possess some form of  economy:  they combine their labour skills and  energy with the fruits of nature so as to satisfy  their daily material needs.  For the purposes of  this report I consider an economy to consist of a  whole social and material process, the parts of  which comprise the ways the people make their  living.  These parts include -- "  And I will add numbers,  One: 11880  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2 "-- production activities as well as  3  4 Two,  5  6 " -- circulation and -- "  7  8 Three,  9  10 " -- exchange of goods and services, and -- "  11  12 Four,  13  14 " -- their consumption.  An economy is also  15 inextricably intertwined with planning and  16 decision-making; nor can it function without the  17 existence of a system of ownership and control of  18 labour, resources, land, technology and knowhow."  19  20 Now, does that form your opinion as to the nature of  21 the economy?  22 A   Yes, it does.  23 Q   Now, I just want to clear one thing up.  Before you  24 did this report, have you done any economic analysis  25 of other societies or microcosms of society?  26 A   No.  My masters thesis followed this model in terms of  27 the subject matter of that document was to use this  28 model to assess a number of theories of economic  29 development in small scale societies.  And it stood up  30 to the examiners.  They quite liked it.  31 Q   And this is the model that you referred to as I think  32 was Maurice Godelier, G-o-d-e-l-i-e-r --  33 A   Yes.  34 Q   -- developed.  And --  35 A  Well, he didn't really develop it.  It's been in the  36 intellectual climate of anthropology for some time.  37 But he was -- his portrayal of it I found very vivid  38 and of use.  And some of my fellow students who were  39 from Latin America were also working along the same  40 lines at that time.  41 Q   And do you actually discuss this model with Godelier?  42 A   Yes.  I made a trip over -- when I was in England to  43 Paris to talk to him about it.  44 Q   Now, you explain in here the economic system, and I'd  45 like to go to the type -- types of society that you as  46 an anthropologist are familiar with.  And particularly  47 in relevance to your work with the Gitksan and 11881  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Wet'suwet'en, are there different groupings of  2 societies that you would refer to?  3 A   Yeah.  Well, it's akin to the whole question of what  4 you read when you are preparing to go and study --  5 study an area in the field.  6 Q   Uh-huh.  7 A   You read what you can that has been written about the  8 history and social structure and values of that  9 general region.  In this area it's a culture area  10 called the Northwest Coast.  Part of your training is  11 to also take your knowledge of different types of  12 society, because the information you are going to be  13 eliciting from informants and observing reflects a  14 certain type of social organization and arrangement  15 and complexity, and these are quite often termed  16 broadly as bands and tribes and chiefdoms and  17 insipient state systems.  18 Q   And you've -- in your research you have studied all of  19 these in your training, these different types of  20 systems?  21 A   One way or another, yes.  22 Q   And what is -- can you just describe to his lordship  23 when you -- I will focus specifically on tribal  24 societies rather than having you go through all these  25 different types.  What is -- are there distinctive  26 features of a tribal society?  27 A   Yes, there are.  28 Q   Can you describe what some of those are?  29 A  A tribal -- tribal society came into being in what is  30 called by the archeologists as the neolithic period.  31 And that's marked by ground and polished stone tools  32 as opposed to chipped and flaked stone tools.  33 Q   Uh-huh.  34 A  And in varying times in different parts of the world,  35 but generally from between, somewhere between ten  36 thousand and five thousand years ago.  37 Q   Uh-huh.  38 A  And it is also associated with the domestication of  39 plants and animals to rather than simply hunting and  40 gathering activities.  So it's considered by many  41 anthropologists to be of more complexity than most  42 hunting societies.  43 Q   And what are hunting societies?  Would they be --  44 A   Hunting societies are generally -- in terms of social  45 structure, they are termed, most of them are bands  46 which are loose kinship organized societies with the  47 very low population. 11?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  Q  2  A  3  4  5  6  THE COURT  7  A  8  THE COURT  9  A  10  THE COURT  11  A  12  13  MR. GRANT  14  Q  15  A  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  Q  34  A  35  Q  36  37  A  38  39  40  41  Q  42  43  A  44  45  46  47  What does the word tribe come from?  It comes from Latin or a Latin word from the Roman  times meaning -- it's of tribua.  It means the people  who are identifying a political group with the land it  occupies.  :   What's it again?  Tribua.  :  t-r-i-b —  u-a.  :  Yes.  And --  And the Roman tribune was the representative of the  tribua in the ancient world.  Now, what about the hierarchical structure of a tribe?  Well, compared to a band there is a hierarchy, a  social ranking system in tribal society.  And at the  one, at the high end, if you like, of the continuum  there is considerable social stratification in the  development of chiefs and/or paramount chief and  sub-chiefs and so on.  An epical time of social  structure.  But many tribes are more like the bands at  the other side of the continuum where they have a --  they have leaders and to some extent they have sets of  some degree of hierarchy.  And they have some social  evaluation of people that differs.  But it's not  highly distinctive the way it is in a state society,  say, because everyone is linked through their kinship  ties.  So you may have chiefs and commoners, but they  are all part of the same family.  And it's not as  though you have a whole class of have nots and a whole  class of haves, because that kinship link creates a  possibility of moving up or moving down.  And that's typical of tribal groups?  Yes.  Now, who would hold the power if we are looking at a  society that has some way of controlling its members?  Well, tribal societies are kinship societies, so power  and authority are vested in kinship groupings and  quite often in the person of whoever their leader or  their named leader or leaders are.  And what about the political and economic aspects of a  tribe, where are they rooted?  Well, quite often a tribe is -- the area that a tribe  occupies is contiguous with a certain ecological zone,  a sea coast or a plain or ultiplano, or a mountain  area such as is the case in the people under study  here, the Gitksan and Wet'suwet'en.  And they occupy 11883  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 quite a distinction, mountainous zone between two  2 other ecological regions.  The economy is marked  3 generally by small scale production where the kinship  4 grouping is the economic unit more or less.  And that  5 the ties, the social links between these economic  6 units is of a reciprocal nature.  Goods and services  7 are given rather than bought and sold.  So you have  8 relationships of what we call reciprocity.  The peace  9 keeping is reflected in this too, because there is no  10 over-arching system of authority.  There is no police  11 force.  There is no standing army.  There is no  12 hierarchy of authority figures to keep the peace who  13 are above the sectional interest of the groupings at a  14 lower level.  So peace keeping is constantly a process  15 of negotiation and a fear of war breaking out in  16 effect and this is sometimes described in relation to  17 Thomas Hobbs' War Against War being the preoccupation  18 of the peoples without states.  And it's very much a  19 concern that people are always giving in a tribal  20 society to a lay suspicion of being stingy or creating  21 animosity which can lead to physical violence because  22 there is no over-arching police force.  23 Q   And what about the social stratification or in  24 contrast with bands?  25 A  Well, in both -- both bands and tribes there is a --  26 stratification is a problem to the members of the  27 society, because people have a high evaluation of  28 egalitarianism where no one should get out of step or  29 being bigger than anyone else.  But the general  30 balance of social forces should, if it doesn't stay,  31 be maintained, at least it should be redressed.  If  32 the power imbalance becomes quite extreme, then there  33 is usually some mechanism in the society.  Quite often  34 people turn to spiritual means and ceremonial life to  35 create a sense of congregation or a sanctity which  36 will less intentions and re-establish the equilibrium  37 again.  And the same time the people who are leaders  38 rely quite heavily on the support of their followers.  39 So they can't get too big for their breeches without  40 getting cut back to size.  So there is always a very  41 tenuous negotiated situation of how authority is used  42 and guard against being abused.  It's the mediated  43 negotiated thing between the kinship units.  44 Q   Is the Iroquois, are they considered a band or a  45 tribal group?  46 A   They are considered a tribal group.  47 Q   Is there an example there of where among the Iroquois 11884  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 from your research there that of a leader that rose  2 too high?  3 A  Well, there are many examples.  But the one I am most  4 familiar with is the prophet Handsome Lake who fell  5 into a trance and appeared dead for three days in 1799  6 during the strawberry moon, which is the time the wild  7 strawberries are ripe.  And he gained quite lot of  8 renown because he -- in his vision he portrayed a  9 model that the people could follow where they could  10 make peace with all the new demands on them with the  11 white settlers who were moving into their areas, at  12 the same time not give up their religion and their  13 spiritual value and their basic reciprocal  14 relationships.  So it became a social and religious  15 movement that developed behind his teachings.  And he  16 became quite famous and made trips to Washington to  17 talk to Washington and Thomas Jefferson and others.  18 And people got cold feet.  They got tired of him.  19 Pretty well overthrew him.  He was demoted by his own  2 0 community.  21 Q   By the Iroquois?  22 A   Yeah.  And a social psychologist who has done a  23 certain amount of work with Iroquois people, I know  24 quite a lot of ethnohistory, Anthony Wallace, he wrote  25 a book about this whole question of how the Iroquois  26 have dealt with severe pressure and duress being put  27 on their culture and how their culture has rebounded  28 to take into account the more modern conditions.  And  29 his finding both from his reading and his  30 psychological analysis was there was a propensity of  31 the people to throw up leadership when it was needed.  32 Times of war or negotiation with another government or  33 something.  But the social structure was such that it  34 couldn't be maintained.  People wouldn't stand for  35 this leader to be the leader and the spokesman on all  36 occasions.  It was very episodic.  So when that issue  37 was over, the leader was expected to be socially  38 demoted and just be another member of the society.  39 However, he would keep his standing if he were -- if  40 he were a chief of a kinship group.  He would still  41 have to behave like a chief, but not as the spokesman  42 of more than his own kinship unit.  43 Q   Are there any parallels with that example you have  44 given with the Gitksan and/or with the Wet'suwet'en in  45 terms of that type of -- I am not saying of specifics,  46 but of specific persons, but where you -- have you got  47 any comment as to whether or not they have -- 11885  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 A  My understanding is that at certain points in history  2 both the Gitksan and Wet'suwet'en will appoint a chief  3 or a group of chiefs to represent several kinship  4 groups or all their people.  Especially in their  5 dealings with Ottawa and in the -- I think the way  6 that the --  7 MR. WILLMS:  My lord, I object to this.  I mean the witness'  8 understanding is based on whatever it's based on and  9 it's certainly not clear from what Mr. Grant has led  10 from the witness about what happened in the past is  11 beyond the witness' capacity.  There is no facts that  12 have been laid and it's irrelevant anyway.  I object.  13 THE COURT:  Where are we going, Mr. Grant?  14 MR. GRANT:  Well, in dealing -- I was asking the witness, of  15 course, explain the concepts of the tribal society  16 versus other types of societies, specifically the band  17 society, and exemplify the one aspect of a tribal  18 society.  I am asking -- he has exemplified from his  19 experience one example and he is now -- I am asking  20 him to explain one of the foundations of his opinion  21 whether or not he sees that aspect of a tribal --  22 THE COURT:  Are you asking him if there is a Gitksan equivalent  23 for Handsome Lake?  24 MR. GRANT:  No.  I am asking him if the Gitksan — if from his  25 research the Gitksan deal with single leaders in the  26 same -- that is, they have a propensity to limit  27 single leaders like happened with the Iroquois  2 8              example.  29 THE COURT:  Well, I'm some -- I am in some state of uncertainty  30 about this, but it's almost at the end of the day and  31 maybe it won't hurt if we slip a little bit, even go  32 home or not once in awhile.  Maybe we can find out  33 what the answer to the question is.  34 MR. GRANT:  Thank you, my lord.  35 Q   From your research and observations of the Gitksan and  36 the Wet'suwet'en, how did they deal with the question  37 of single chiefs as opposed to -- when I say single  38 chiefs I am saying a person taking a leadership role?  39 A   I think —  40 MR. WILLMS:  I object, my lord, for the very same reason.  If  41 the witness -- if my friend wants to say have you  42 heard of Legaix, how does Legaix compare to Handsome  43 Lake —  44 THE COURT:  He would be leading then, wouldn't he?  4 5 MR. GRANT:  Yes.  46 MR. WILLMS:  Well, I don't know.  47 A   I was just going to refer to that. 11886  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  MR.  WILLM  2  3  4  5  6  7  THE  COURT  8  9  MR.  GRANT  10  Q  11  A  12  13  THE  COURT  14  A  15  MR.  GRANT  16  Q  17  A  18  19  20  21  22  23  24  25  26  27  28  29  30  31  Q  32  A  33  34  THE  COURT  35  MR.  GRANT  36  37  38  39  40  THE  COURT  41  42  43  44  45  MR.  GRANT  46  THE  COURT  47  3:  Or have you heard of any of the -- any prophets,  any Gitksan or Wet'suwet'en prophets in your readings.  Would you like to compare that prophet with Handsome  Lake.  But this -- which is based on who knows what,  underlying the opinion is inadmissible in my  submission.  :  I think without leading you could narrow the scope  of your question, Mr. Grant.  :  Yes.  I will endeavor to do so.  Can you refer to an example --  No.  There is the example of the chief called Legaix,  L-e-g-a-i-x.  :  A-i-s or x?  X.  Yes.  Who was actually a series -- the Legaix was -- many  people in succession have held this name and the  personality who developed as quite a famous person all  along the coast as a trader and war chief, many people  held that position over the course of the 19th  century.  And he pushed his prerogatives as a house  chief to the ultimate limit and went beyond them and  became somewhat of a tyrant over a wide area.  But he  lost local support in his community.  By the time he  had become Christianized, he had lost the support  because he had over-stepped the boundary in terms of  the reciprocal relations in the communities.  And this  is -- I think can be argued from the adaawk as well as  from the historic accounts of the Metlakatla region.  He was a Tsimshian?  He was a Tsimshian Eagle Chief.  Gispalo'ots was the  name of his tribe.  :  You don't think we need to sit late, Mr. Grant?  :  This evening.  Well, I don't want to be bound for  the balance of the week, but I had not anticipated  that this evening, and I think that I understand you  are available until five tomorrow, but Wednesday a  different time or --  :  No.  I can sit to five both tomorrow and Wednesday,  but not after that, but I can sit later on Thursday.  I can't sit late on Friday, but I can certainly sit on  Saturday and we will do so if it's necessary to  complete the evidence in chief.  :  Well, we will endeavor to avoid that.  :  All right.  10 o'clock ten.  Thank you. 11887  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 (PROCEEDINGS ADJOURNED UNTIL FEBRUARY 21, 1989 AT  2 10:00 A.M.)  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein to the best of my  8 skill and ability.  9  10  11 Laara Yardley,  12 Official Reporter,  13 United Reporting Service Ltd.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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