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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-04-13] British Columbia. Supreme Court Apr 13, 1989

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 15396  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 VANCOUVER, B.C.  2 April 13, 1989  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  You're alone today, Mr. Jackson.  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 Thursday, April 13, 1989.  Calling the matter of  8 Delgamuukw versus Her Majesty the Queen at bar.  I  9 caution the witness, you're still under oath.  10 MR. JACKSON:  Mr. Grant will be here momentarily, my lord.  11 THE COURT:  All right.  It's not his birthday, is it?  12 MR. JACKSON:  Not to my knowledge.  13 THE COURT:  All right, thank you.  14 MR. JACKSON:  15 Q   When we ended the day yesterday, my lord, Mr. Brody  16 had identified some differences he had observed in the  17 approach of the Wet'suwet'en and the Gitksan at the  18 hearings of the McKenna McBride Royal Commission, and  19 we had reviewed a number of the Wet'suwet'en hearings.  20 I want to turn now to the Gitksan hearings.  Mr.  21 Brody, could you turn to tab 19 of volume 3.  This is  22 a meeting of the Royal Commission with the Old  23 Kitsegukla Band.  It says Nash, N-A-S-H, Station on  24 Tuesday, April 20th, 1915:  "Mrs. Malcolm, the  25 Chief" -- I'm going to read, my lord:  26  27 "Mrs. Malcolm, the chief, addresses the Commission  28 as follows:  29 I want to say a few words right before the two  30 Governments, and I am pretty glad because I have  31 seen you here today.  It is because I want to say  32 a few words that I am not going to say anything  33 crooked.  God is in heaven, and he is watching us,  34 and he is a witness to everything I am going to  35 say.  I want to tell you about all the troubles we  36 have been having about this land, here and in Old  37 Kitsegukla.  The one thing that makes it pretty  38 hard for us is because the Government grabbed all  39 our forefathers' land.  Here is our foundation  40 here that God put us on and he stops there - God  41 stops there, and it is our foundation.  God gave  42 us this land and we must stay right on this land  43 all the time.  As I heard it in the Bible that God  44 was telling the people in the world that no man  45 can chase the other tribe into a different place  46 and get the land for nothing.  That is not in the  47 Bible, that is the reason we signed our petition, 15397  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 it is because the land is gone."  2  3 Pausing there for a moment, Mr. Brody, do you know  4 what that reference to the petition is?  5 A   I know only that a petition was got together, I think  6 in 1908, and signed by many chiefs in northwest  7 British Columbia and was presented -- or I think was  8 intended to be presented in Ottawa, and the petition  9 required some fuller recognition of the people's  10 hereditary lands.  11 Q   Okay.  Continuing:  12  13 "That is the reason we signed our petition, it is  14 because the land is gone.  All the people here was  15 telling you today that all the land that belongs  16 to them, and of course I don't blame them, because  17 the land belongs to them all right.  Our  18 forefathers have left nothing behind but a little  19 piece of land.  When a man dies he gives us the  20 land, and we stop on that land all the time.  A  21 few years from now my uncle died here, and before  22 he died he told me what 'all this land is yours  23 and you stay on this land all the time', that is  24 why I am telling you today that you two  25 governments are going to be a witness as to what  26 we are saying, and I wish you people would help us  27 in regard to our land."  28  29 Could you comment on what significance you draw from  30 those statements from your perspective as an  31 anthropologist?  32 A  Well, first of all, this says something about how the  33 chief, I think it's Malochon, M-A-L-O-C-H-O-N, feels  34 about the whole land question, I mean that's  35 self-evident.  From a cultural point of view, that's  36 tremendously important.  Here is a member of Gitksan  37 culture, a member of Gitksan society trying to affirm  38 her individual and presumably her culture's rights to  39 their territories, and I'm almost very struck by the  40 fact that here she's trying to affirm it in front of  41 witnesses, which of course is a very important part of  42 the Gitksan system of authority, the affirming of  43 ownership in front of witnesses, and in so far as my  44 opinion is to do with the way in which  45 Gitksan-Wet'suwet'en and frontier cultures meet and  46 deal with each other, I'm struck by the fact that in  47 asking the Provincial and Federal governments to be 1539?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 witnesses Mrs. Malochon -- or Chief Malochon is  2 seeking a parallel authority to her own with which to  3 negotiate a problem.  4 Q   If you could refer back to tab 14 of volume 3, and  5 could you just review that document and explain to the  6 court what it is in reference to?  7 A   This is a summary of exchanges I think between Indian  8 Agent Loring in Hazelton and A.W. Vowell, who is  9 Superintendent of Indian Affairs at that time in  10 Victoria, and Loring is signalling to Vowell his  11 growing anxiety in 1908 about the degree of tension  12 that's beginning to prevail as Loring --  13 MR. GOLDIE:  Isn't all this self-evident, my lord?  The letter  14 speaks for itself.  15 THE COURT:  Well, it's not a letter, is it — or is it?  16 MR. GOLDIE:  Yes.  My recollection —  17 MR. JACKSON:  It's an exchange.  18 THE COURT:  I haven't seen it.  19 MR. GOLDIE:  It's a duplicate of a letter.  20 THE COURT:  I haven't got past the first page.  I see, it's a  21 letter confirming some exchange of telegrams.  22 MR. GOLDIE:  Yes.  23 THE COURT:  Let me just read it.  Who is -- do we know who the  24 sender is?  25 MR. JACKSON:  Yes, my lord, as I understand, it's the Indian  2 6 Agent Loring.  27 THE COURT:  It's Loring, is it?  28 MR. JACKSON:  As Mr. — it refers to Superintendent of Indian  29 Affairs in Victoria.  I was seeking to expedite  30 matters by not reading it into the records, my lord.  31 THE COURT:  I've read it now.  What do you want to ask the  32 witness about?  33 MR. GOLDIE:  Well, he was asking the witness to say what it was  34 all about.  35 THE COURT:  Surely not.  3 6 MR. JACKSON:  37 Q   Mr. Brody, having looked at that, let me ask you  38 first, is that a reference to the petition which you  39 talked about in the evidence of Mrs. Malcolm?  40 A   I believe it is, yes.  41 MR. JACKSON:  What significance do you draw in that document  42 from your perspective?  43 MR. GOLDIE:  Well, my lord, it doesn't matter what his  44 perspective is.  The -- whether it's an  45 anthropologist, an archaeologist or who, what, the  46 document speaks for itself.  47 MR. JACKSON:  My lord, the document speaks for itself on one 15399  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  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  A  MR.  THE  THE  THE  THE  THE  THE  MR.  level.  I am asking Mr. Brody to comment on that which  is not self-evident, I'm not asking him to comment in  ways which contradict the document, which turn it on  its head, I'm asking him to comment in the context of  which he's approaching his opinion, which is one of  change and continuity.  I think I have to hear the answer before I can rule  on the objection.  It may be, as Mr. Jackson has  suggested, that from the perspective of an  anthropologist this has some significance transcending  its ordinary meaning.  Well, part of the task of an anthropologist is to seek  the context in which things happen, statements are  made and so on, and this helps me understand the  context in which the 1909 Commission took place, which  we talked about yesterday, and it's very important  from that point of view, and it says something about  the extent to which an Indian agent becomes anxious  and the kinds of responses he has available to him  when becoming anxious.  I'm not sure on this point I  have much more to say than that.  JACKSON:  Q   I would like to refer you specifically, Mr. Brody, to  the statements made by Indian Agent Loring as to the  closing of navigation.  Well, of course, this is reminiscent of the events at  Kitsegukla in 1872, my lord.  I forgot to give you  those dates yesterday afternoon, I'm afraid.  1872 was  the burning of Kitsegukla.  1872?  1872.  And shall I give you the other dates now while  we 're here?  Yes, all right.  1884 was the Youmans, Y-O-U-M-A-N-S, episode.  That's Kitwancool Jim?  No.  Kitwancool Jim was 1888, my lord.  The 1884 was  the murder of Youmans, the trader.  Oh, yes, 1884, yes, thank you?  And Kitwancool Jim was 1888, as I think I said.  Yes, all right.  And the burning of Kitsegukla?  1872.  1872, thank you.  This reference here in the 1908 document to the  closing of the river is very reminiscent of course of  the events of 1872.  GOLDIE:  Where is the reference, please, which relates to  the closing of --  A  COURT  A  COURT  A  COURT  A  COURT  A  COURT  A  COURT  A 15400  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  It's the middle of — two-thirds of the way down the  2 first page; "navigation closed".  3 MR. JACKSON:  Yes, my lord.  I would also refer your lordship to  4 the last paragraph, the last two sentences:  5  6 "The surplus of the white population has departed  7 by the lost steamers, and navigation is closed."  8  9 MR. GOLDIE:  That refers to the steamers, does it not?  10 THE COURT:  Yes.  11 MR. GOLDIE:  Yes.  There were no steamers in 1872.  12 THE COURT:  There weren't?  13 MR. GOLDIE:  No.  14 THE COURT:  Not by then?  15 MR. GOLDIE:  Not to my recollection, my lord.  The steamers  16 flourished there after and were closed down by 1912 or  17 13, when the railroad started.  I can check that  18 point.  19 THE COURT:  Well, I suppose they had boats on the —  20 MR. GOLDIE:  Oh, yes.  There was constant traffic in canoes.  21 THE COURT:  Yes.  22 MR. JACKSON:  Mr. Brody, could you turn to tab 20.  And tab 20  23 is the transcript of the proceedings of the Royal  24 Commission meeting with the Gitanmax Band on April  25 21st, 1915.  And if your lordship could turn to page  26 3 --  27 THE COURT:  Before we forget, Mr. Jackson, do you want to mark  28 those other two documents?  29 MR. JACKSON:  What I was going to do, my lord, for convenience  30 of Madam Registrar, when I got through this series of  31 documents was retrospectively deal with a number of  32 documents.  33 THE COURT:  All right, thank you.  34 MR. JACKSON:  35 Q   If you can turn to page 3 of that document, and a Mr.  36 Holland is addressing the commission, and I will refer  37 to -- read from the document:  38  39 "You heard what the Chief said a while ago - we  40 don't want no reserve at all, we want to get our  41 own land back.  You want to ask us questions which  42 are not in our petition at all.  We did not sign  43 our petition for Reserve at all - we signed it for  44 our own land.  The Reservation is not so good for  45 us at all - it is no use for us.  They fenced all  46 around so we can't do any business outside the  47 reserves.  We are just tied up in the Reservation, 15401  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 and that is the reason we signed our petition that  2 we don't want anymore Reserves for the whole of  3 the Skeena nation."  4  5 And that quote, Mr. Brody, again from your  6 perspective, could you comment on that?  7 A  Well, this indicates very clearly that the anxiety  8 that's been accumulating in the area is to some  9 considerable extent centred on the question of  10 reserves, the problem of confinement.  The chiefs, as  11 we have seen, are, through these years, very unhappy  12 about the loss of their territories to settlement and  13 other claims on them, and the reserve is associated in  14 their mind with an attempt to deprive them of their  15 hereditary territories and this -- the submission is  16 an example of a Gitksan protesting against such  17 confinement.  18 Q   My lord, there are at -- this particular extract and a  19 number of extracts are set out in Mr. Brody's report  20 at page 149 over to page 155.  I will -- however,  21 that's for your lordship's reference, I will in fact  22 refer to a number of other ones in the original  2 3 document.  24 THE COURT:  Yes, um-hum.  25 MR. JACKSON:  Mr. Brody, could you turn to tab 23.  This is  26 proceedings of the Royal Commission meeting with the  27 Glen Vowell band on April 23rd, 1915.  This is tab 22,  28 I said 23, tab 22.  And towards the bottom of the  29 page, as you see, my lord, the chief:  "We are not  30 free men".  31 THE COURT:  Yes.  32 MR. JACKSON:  33 Q  34 "The chief:    We are not free men inside the  35 reservation at all.  I want to ask you a  36 very short question.  I want to find out if  37 some of the Chiefs of the Skeena River sold  38 this place to the government.  39 The chairman:  I don't know that any of the chiefs  40 had anything do with it - this reserve was  41 set apart for this tribe so that the white  42 man could not come in and gobble it like  43 they have in other parts of the country.  We  44 have nothing at all to do with this claim  45 that you set up for all this land outside  46 the reserve.  If we set off additional lands  47 for you, that does not or will not interfere 15402  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  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. GOLDIE:  MR. JACKSON  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  MR. JACKSON  THE COURT:  MR. JACKSON  Q  at all with your claim.  That claim, by  memorials, has been laid before the  Dominion Government and they have passed an  Order In Council that the matter shall go  before the Exchequeur Court.  That is one of  the highest courts in Canada, and the Judges  of that court will decide what the rights of  the Indians are.  They have not only done  that, but they have agreed to employ lawyers  and pay them to look after the rights of the  Indians, and if the Indians are not  satisfied with the judgment of these Judges  of the Exchequeur Court then they can  appeal to the Privy Council in England, so  that there can be no doubt but that justice  will be given to the Indians.  With respect  to this claim we have nothing to do with  that and there is no point wasting time  telling us about it."  Please read on.  :  My friend's --  No, I'm asking my friend --  I'm reading on, Mr. Goldie.  The transcript reference is incomplete.  :  I will complete it, my lord.  All right.  "We have heard this claim made over and over  again by the Indians of B.C. and we have  told them all the same as we are telling  you.  Nearly all the Indians we have met  have asked us for additional lands, and we  have given a good many of them a good deal,  and it is only in this district where the  Indians say they don't want any more  reserves.  In other places they have been  glad to get the lands that we have given  them and are benefitting very much from what  we have done."  I'm happy to oblige Mr. Goldie, my lord.  Mr. Brody.  MR. GOLDIE:  Please continue.  MR. JACKSON:  Q   Could you again from your perspective comment on that  exchange between the chief and the Commission? 15403  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 A  Well, I -- from my point of view and again looking at  2 the interface between Gitksan-Wet'suwet'en people on  3 the one hand and the representatives of authority --  4 of the white authority on the other hand, I see this  5 wish to reassure, this wish to tell people, in so far  6 as it's possible to tell them, that they don't need to  7 worry, their rights are going to be looked after,  8 justice will be done, and they shouldn't understand a  9 particular thing like the establishment of reserves or  10 the provision of extra lands to their reserves as in  11 conflict with their enduring claim to or use of their  12 traditional territories.  It's this positive message  13 within an event or a process that many of the people  14 perceive as negative that strikes me here.  15 Q   Mr. Brody, could you turn to tab 23.  This is the  16 scene of the Royal Commission, a meeting with the  17 Kuldoe, K-U-L-D-O-E, Band on July 13th, 1915.  And if  18 you would turn to the last page of that, page 5, there  19 is an exchange there between William Jackson and the  20 Commissioner, which I will read, my lord:  21  22 "WILLIAM JACKSON:  What is moving this world?  23 MR.  COMMISSIONER MCDOWALL:  You will have to go  24 to a wiser lot of men than the Kuldoes to  25 find that out - but you will have to move  26 with the world.  If you don't you will be  27 wiped out.  2 8 WILLIAM JACKSON:  Who gave us the land - it was  29 God.  We heard it and all we know is that  30 you people are taking away our land.  This  31 is our land - our own.  No one can go into  32 one house and serve as boss in the other  33 house.  34 THE CHAIRMAN:  We are sorry that you have not seen  35 fit to answer our questions, and all that  36 remains to be done is to wish you Good  37 Bye."  38  39 Again, I would ask your comment on that exchange from  40 your perspective as an anthropologist?  41 A  And again what strikes me is the nature of the  42 messages that are imbedded in this exchange.  There's  43 first of all a statement from the Commissioner of a  44 kind of inevitability about the process, that is to  45 say that it is the movement of the world that will  46 have people living in reserves or have people living  47 in the way that the new authorities require, and 15404  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 there's also a threat if they don't go along with the  2 ways of the world, then as Commissioner McDowall says,  3 "You will be wiped out".  This goes to the sorts of  4 things that one also finds in the Loring papers we  5 referred to earlier on, and into much of what Father  6 Morice has documented as having said.  I think you  7 also refer to much of that earlier on in this  8 evidence.  And he goes to these guiding assumptions,  9 the assumption that it is right and proper and  10 inevitable that people who roam around, as Indians as  11 tribal peoples, should become settled peoples with  12 Christianity in one place.  It's an assumption that's  13 so completely taken for granted at the time that it  14 finds an expression of this sort, "You will have to  15 move with the world, this is the way the world moves",  16 and it's accompanied here at least and often in the  17 case of Father Morice, as I think we saw yesterday  18 morning, with threats of one kind or another.  If you  19 don't become Christians you will die of new diseases,  20 if you don't accept this new land arrangement you will  21 be wiped out, and this is consistent.  22 MR. GOLDIE:  Excuse me.  That isn't what the commissioner said,  23 my lord.  He said "If you don't move with the world".  2 4 THE COURT:  Yes.  25 A  And this is consistent with what many  26 Gitksan-Wet'suwet'en people say today about their  27 experience of various officials and authorities who  28 came from the south into their territories.  They say  29 they were told that if they didn't do as they were  30 asked then it will be so much the worse for them.  31 MR. JACKSON:  32 Q   Mr. Brody, in terms of the -- you mentioned the Loring  33 papers, and at an earlier point in this chapter, my  34 lord, a number of the documents are set out upon which  35 Mr. Brody relies in terms of this cultural and  36 historical development of the -- of reserves.  Mr.  37 Brody, I would like to refer you just to several of  38 those documents.  If you could turn to tab 11, and my  39 lord, inadvertently -- tab 11 is a two-page document.  40 Your lordship's copy and my friend's copy, and indeed  41 my copy --  42 THE COURT:  Which one, please?  43 MR. JACKSON: — didn't have the second page.  Tab 11 of volume  44 3.  45 THE COURT:  Thank you.  All right, thank you.  46 MR. JACKSON:  In fact, my lord, this is quoted in the report and  47 it's quoted in some fullness in the report.  I just 15405  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 wanted to -- and it may be helpful actually to refer  2 your lordship to page 141 of the report, where the  3 document is set out, and I just wanted to read it to  4 Mr. Brody and have him comment on it.  Page 141 of the  5 report, December 31st.  6 THE COURT:  Who's the author of this?  7 MR. JACKSON:  This is a letter, my lord, from — it's a report  8 of Agent Loring.  9 THE COURT:  Thank you.  10 MR. JACKSON:  11 Q   Dated December 31st, 1913.  And on page 141 of your  12 opinion, Mr. Brody, you say -- quote from this  13 document the words of Agent Loring:  14  15 "Hunting and trapping are fast becoming less of an  16 occupation with the Kitsons (i.e. Gitksan), and  17 exclusive of those north of Kispiax and they aim  18 in a larger degree to the up-building of homes and  19 bettering their lot by suiting opportunities to  20 that intent.  Likewise are the Hagwilgets  21 getting into preferring that trend with when  22 occasions offer.  Many of them are freighting and  23 working at a general remunerative rate, and they  24 will continue to make it all round progress at the  25 ratio the Bulkley Valley gets inhabited with the  26 desirable class of farmers."  27  28 Now, perhaps I could also refer you to tab 12.  Tab  2 9 12, my lord.  3 0 THE COURT:  Thank you.  31 MR. JACKSON:  This is Agent Loring's report for December 31st,  32 1915, and the middle paragraph Agent Loring says:  33  34 "During the long and dreary winters the Indians are  35 still keeping up, by way of diversion, the old  36 custom from visiting from village to village,in a  37 cycle, and this is about all that remains yet from  38 bygone days.  But it is plainly noticeable that  39 those of more intelligence, with family and homes  40 to look after and with other interests at stake,  41 are fast dropping out of that line."  42  43 Taking those two statements as illustrative, what  44 comments do you have to make in the context of what  45 you were saying before?  46 A  Well, these are just two examples of how deeply  47 imbedded in Loring's view of the Indian issue in his 15406  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 area is the notion that only benefit can come from  2 abandoning the old customs and settling into the new  3 ways of what I suppose can summarily be called reserve  4 life.  His equation between intelligence and giving up  5 the old days is very striking.  There's another  6 document that comes to my mind, I think a 1908 letter  7 of Loring's that makes an equation between progress  8 and fencing in land and becoming a farming and so on.  9 It's -- it's an obvious point, but it's an important  10 one, I think.  11 MR. GOLDIE:  My Lord, my friend appears to have omitted the  12 second page.  13 MR. JACKSON:  14 Q   Yes.  I noticed that.  I will find that for my friends  15 and for your lordship.  Perhaps, my lord, perhaps it  16 would be appropriate to deal with the matter of the  17 exhibits.  Perhaps I could just ask you this question  18 first, Mr. Brody.  Could you review tabs 5 to 15 just  19 very briefly and I would like you to identify them as  2 0 documents in the Loring papers upon which you have  21 relied for the purposes of your opinions expressed in  22 this chapter of your report?  23 A   Through 15, do you say?  24 Q   Yes.  25 A   I don't think in my copy number 15 is from the Loring  26 papers.  27 Q   No, you're right.  It's through 14, it's through 14, 5  28 through 14?  29 A  All those are, going through quickly, all Loring  30 documents, yes.  31 Q   My lord —  32 A   They're only a small proportion of the immense -- it's  33 this immense archive.  34 MR. JACKSON:  My lord, I had marked tab 1 of Exhibit 993, which  35 was a minutes of the conference of July 1909, tabs 2  36 and 3 are commission evidence, they are of course  37 already in evidence, but maybe it may be convenient  38 for your Lordship to have them marked as tab 2 and 3.  39 THE COURT:  Yes, all right.  40 MR. JACKSON:  And tab 4.  Documents 5 to 14 are and can perhaps  41 compendiously be referred to as the Loring documents.  42 THE COURT:  Sorry, Loring starts at 5?  43 MR. JACKSON:  5 to 14.  4 4 THE COURT:  Just a moment.  45 MR. JACKSON:  And tabs 15 to 23 are the proceedings of the Royal  46 Commission of Indian Affairs, McKenna McBride  47 Commission with the Wet'suwet'en and Gitksan. 15407  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  All right.  15 to 23, yes, all right.  Are the  2 Loring documents archival?  3 MR. JACKSON:  Yes, my lord.  4 THE COURT:  Thank you.  5  6 (EXHIBIT 993-2 to 993-4 - Commission evidence)  7  8 (EXHIBIT 993-5 to 993-14 - Loring archival  9 documents)  10  11 (EXHIBIT 993-15 to 993-23 - Royal Commission  12 Proceedings)  13  14 MR. GOLDIE:  I was going to ask my friend on what basis he's  15 tendering these, my lord.  I'm referring to all of the  16 documents in this.  17 THE COURT:  Yes.  18 MR. JACKSON:  For the present purposes, my lord, they are  19 tendered as the basis upon which Mr. Brody is filing  20 his opinions.  Your lordship will in due course be  21 addressed by counsel on the general question of the  22 admissibility of documents for a purpose beyond that.  23 MR. GOLDIE:  Well, I think my friend has to state for what  24 purpose he's tendering these.  I mean the argument  25 that your lordship will hear is one thing, but the  26 question is for what purpose is the document being  27 tendered today, for what purpose are we to take these  2 8 documents when we come to consider the  29 cross-examination of Mr. Brody.  30 THE COURT:  Well, my understanding is they are being tendered as  31 documents that Mr. Brody has relied upon in  32 preparation of his report.  33 MR. GOLDIE:  Does he take them -- is he taking them to be true  34 in respect of the matters that are stated therein?  35 MR. JACKSON:  My lord, the question of whether these documents  36 go in for the truth of the contents thereof is a  37 question which is at large, has arisen in the course  38 of every witness to date, and it is one which, as I  39 understand, is the subject of -- will be the subject  4 0 of argument.  41 MR. GOLDIE:  My friend doesn't understand the point that I'm  42 making.  43 THE COURT:  Well, I'm not sure he doesn't, Mr. Goldie.  I think  44 I do, and I think your friend does, but I can only  45 speak for myself.  I think you're opposing a term, Mr.  46 Goldie, that hasn't been opposed on all the other  47 documents to be dealt with on this basis. 1540?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 MR. GOLDIE:  I'm not sure it hasn't, my lord.  From time to time  2 questions have arisen and counsel have stated for what  3 purpose --  4 THE COURT:  Oh, yes.  5 MR. GOLDIE:  — they're being tendered.  6 THE COURT:  And we have the purpose.  7 MR. GOLDIE:  The purpose doesn't really carry us very far at  8 all.  The purpose is that they were referred to by Mr.  9 Brody in his report.  10 THE COURT:  Yes.  11 MR. GOLDIE:  But is the purpose to supply the facts upon which  12 his opinion is founded, that's the question.  13 THE COURT:  Well, that, with respect, is a different question,  14 is it not, from the one you posed a moment ago.  I  15 think the answer to that question is yes, they do  16 provide the facts or some of the facts, they're  17 including facts upon which his opinion is based.  I do  18 not think they are -- they could be received at this  19 time except under some archival category as proof of  20 the truth of the facts stated in this.  He's accepted  21 them as true for the purposes of his opinion, but I  22 wouldn't think that would be -- your friends would be  23 precluded from arguing that some of the facts stated  24 in them are not necessarily true.  25 MR. GOLDIE:  Well —  26 THE COURT:  I don't think it's a question of saying that the  27 document is in for all purposes.  It's in for the  28 purpose of showing what he relied upon and to the  29 extent he relied upon it.  I would think he would be  30 saying it seems to be -- to be ad item, he thought  31 they would be true, that doesn't mean he agrees.  32 MR. GOLDIE:  He may not agree with everything that's in them.  33 THE COURT:  Yes.  34 MR. GOLDIE:  But if these documents are tendered for the purpose  35 of demonstrating the facts upon which he founds his  36 opinion, then he is accepting the truth of them.  He's  37 saying "Those are the facts upon which I express my  38 opinion".  39 THE COURT:  Well, perhaps.  40 MR. GOLDIE:  And if my -- it would be open to us, if we cared to  41 make it, that the document isn't even admissible  42 unless it is proven, unless the fact is proven or at  43 least it is tendered, subject to argument that it will  44 be proven.  An expert is not at liberty to express an  45 opinion on something which is not a fact.  Now, the  46 documents are admissible if we don't take an objection  47 to them under the general rubric that they are 15409  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 archival, but the next question that arises, and it  2 arises only with respect to an expert, is does -- are  3 they tendered for the purpose of the -- of providing  4 the court and the counsel with the fact upon which the  5 opinion is based.  That's the basis of my concern.  6 Why should I waste my time cross-examining the  7 witness.  8 THE COURT:  Yes.  9 THE COURT:  If he doesn't rely on it.  10 MR. GOLDIE:  If he doesn't accept these as facts.  11 THE COURT:  Yes.  Well, the late Walter Williston invented a  12 word called interfluent, which he thought was a very  13 useful word.  I think there are many dimensions to  14 this problem.  I think there may be a difference  15 between these documents, which in the one sense are  16 action documents, they're things that happened,  17 compared with an article published in a learned  18 journal, and it seems to me that there may be  19 something in a document that a witness accepts and  20 relies upon as part of the basis for his opinion, but  21 which also contains other material that he doesn't  22 either rely upon or he doesn't accept.  I suppose the  23 latter is mutually inclusive; if you don't accept it,  24 you don't rely upon it.  I don't think we're in a  25 situation where because a document is in evidence that  26 it's conclusive, I don't think we ever have that  27 situation anymore, although one should never speak in  28 such confident terms.  I think -- I think this  29 document is -- these documents are in evidence -- I  30 guess I have to be called away to take a call, which  31 I'm sorry, I think we'll keep them waiting.  I think  32 that if it is useful to have it marked for any other  33 purpose I mentioned, and perhaps I think it should be  34 so marked.  I think that in cross-examination counsel  35 can find out if they wish what parts of each document  36 the witness has relied upon, and I think it follows  37 that he must be taken to have accepted the truth of  38 those -- the parts that he replied upon, but I do not  39 think that that precludes the parties tendering the  40 document, and this has arisen on both sides of the  41 equation, are precluded from saying "Well, I accept  42 that, the witness accepted that and replied upon it  43 and I don't agree with something else", and I think  44 that is how we should proceed.  I'll be glad to hear  45 counsel further as soon as I can return.  46 THE REGISTRAR:  Order in court.  47 15410  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 (SHORT RECESS TAKEN AT 11:50 AND RESUMED AT 11:55)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Well, my apologies.  5 MR. GOLDIE:  Well, I had a -- realizing your lordship was about  6 to leave I felt it best to defer.  7 THE COURT:  I'm grateful, Mr. Goldie.  Do not feel restricted in  8 any responses you wish to make.  9 MR. GOLDIE:  The only comment I wished to make, my lord, is to  10 leave it to cross-examination to determine which of  11 these -- which each one of these three books of  12 documents is now to be determined to be relied upon by  13 the witness and which he rejects is not only onerous,  14 but it promises a far greater time requirement than  15 we're presently allotted.  16 THE COURT:  But is it not -- is the scope of the inquiry not  17 limited by the fact that its reliance is with respect  18 to the report, if there's anything in the document  19 that doesn't relate to the report then obviously it  20 isn't being used for that purpose.  21 MR. GOLDIE:  Well, I'll give your lordship two examples.  22 THE COURT:  Yes.  23 MR. GOLDIE:  Two documents of exactly the same character, one is  24 a transcript of evidence given by Gitksan, the other  25 is a transcript of evidence given by Wet'suwet'en.  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  The one, as I understand the report, is to be  28 accepted as a true statement of what the witness not  29 only said but what the witness intended, the other is  30 to be read entirely differently.  It does not seem to  31 me to be appropriate to have left to argument the  32 proposition at some later date that this document is  33 to be marked one way and this document is to be marked  34 another way.  The -- there's another example that the  35 Loring papers, letter under tab 12, and there's only  36 one page of it, the Loring says:  37  38 "The Indians' general health still continued to be  39 very good, and they are more animated with a  40 cheerfulness than formerly upon the point in the  41 question of land."  42  43 Are we to be told that that's not evidence?  I don't  44 want to be bothered asking the witness if he accepts  45 the fact that Loring's observation was a correct one.  46 Then he goes on, Loring goes on to say:  47 15411  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 "In a recent instance thereof a certain Reverend  2 gentleman of the so called Indians' rights  3 association had heralded his coming."  4  5 Well, are we to be told that that's not evidence, that  6 can't be used as evidence, that there was a missionary  7 who was talking to the people on land rights?  Does he  8 reject that statement while accepting the earlier one,  9 that Mr. Loring correctly reported the -- that his  10 observation and his observation can be taken as a  11 correct statement and from which deductions can be  12 drawn?  13 THE COURT:  Well, let me put the shoe on the other foot.  I'm  14 not going to point my finger at you, Mr. Goldie,  15 because I don't remember, but certainly Mr. Mackenzie  16 and Mr. Willms have been putting a great many  17 documents in cross-examination.  18 MR. GOLDIE:  Yes.  19 THE COURT:  Of this general description, they may all have been  20 learned papers, but I don't think so, I just don't  21 remember.  Let's assume they are the same description,  22 is the same.  Do your friends not have the same  23 problem in -- that you've just described; is this not  24 a part of the matrix of problems with which we're  25 faced in this case?  26 MR. GOLDIE:  I don't think so, my lord.  We are talking about a  27 specific class of document which carries with it the  28 right to be admitted by agreement as archival.  Now,  29 beyond that it is said to be a question of argument,  30 and I -- when somebody tenders an archival document  31 under the circumstances that we have here, I don't  32 think it is appropriate to leave it to argument or to  33 cross-examination.  Now, a learned paper, if the  34 witness says "I accept" -- and is an expert, and the  35 witness says "I accept that", that's one thing.  If he  36 says "I reject it", that's another thing.  37 THE COURT:  Well, if he rejects it, it doesn't go in.  38 MR. GOLDIE:  It doesn't go in.  39 THE COURT:  But if he accepts it then —  40 MR. GOLDIE:  It becomes his opinion.  41 THE COURT:  It becomes a basis for his opinion, but only to the  42 extent that if it is related to the opinion he has  43 expressed.  44 MR. GOLDIE:  That's correct.  45 THE COURT:  What you're saying, and it seems to me that you are  46 raising the problem of a slightly different colour,  47 you're saying if it's an archival document that if it 15412  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 goes in it goes in for all purposes.  2 MR. GOLDIE:  It's at large, unless it is tendered on a  3 restricted basis.  If I tender an archival document  4 and I say this is tendered for the purpose of  5 demonstrating the state of mind of the writer, then we  6 know where we stand.  The question that your lordship  7 raised with respect to the documents that Mr. Willms  8 and Mr. Mackenzie were talking about, at least this is  9 as far as my recollection goes, went to the threshold  10 question of admissibility.  But we're beyond that, and  11 the idea that at some later date when this witness is  12 gone my friends can stand up and say well, this  13 document was not tendered for the purpose of anything  14 more than the second paragraph.  As to that, it's true  15 and is available for all purposes.  16 THE COURT:  Well, I don't see how your friend can be heard to  17 say that, even if he says it, unless he's made that  18 qualification at the time.  19 MR. GOLDIE:  Well, that was what I was, in a long-winded sort of  20 way, my lord, this is what I was getting at.  21 THE COURT:  Yes.  Well, subject to being persuaded otherwise, it  22 would be my view that if it's an archival document and  23 if it's admissible for that reason it's admissible for  24 all purposes, unless it's -- unless it is qualified in  25 some way at the time it's tendered.  Do you disagree  26 with that, Mr. Jackson?  27 MR. JACKSON:  My lord, this matter, as your lordship's correctly  28 pointed out, has come up in the context and the course  29 of other witnesses.  Your lordship will recall both in  30 relation to Dr. Daly and Dr. Skip Ray, when they were  31 referring to the journals of Mr. Brown, this issue of  32 whether or not everything Mr. Brown says is admissible  33 for the truth of what he says or whether it is part of  34 the data, the background material which a historian or  35 an ethnographer or a cultural anthropologist looks at  36 and makes assessments.  This is an issue which has  37 come up, and your lordship's comments that an archival  38 document goes in for all purposes, it is our  39 submission it does not go in for all purposes relating  40 to the truth of the contents therein.  Your lordship  41 said unless qualified, and perhaps what Mr. Goldie has  42 done is to raise this question, particularly in the  43 context of the Loring documents, as to how those  44 should be qualified.  I would anticipate asking Mr.  45 Brody some questions relating to the concerns of my  46 friend, and they may go some way to satisfy my friend  47 and to avoid his having to prepare a cross-examination 15413  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 which is unnecessary.  It may satisfy your lordship  2 also in terms of the nature of what the documents are  3 going in for in the case of this particular witness.  4 But I think we are into a situation where we do have  5 to look at classes of documents in the context of how  6 they're being relied upon, and it is a thorny issue,  7 and that was one of the reasons why it was suggested  8 that because this does overarch a number of witnesses,  9 that it was appropriate to address the issues at large  10 in the context of the submissions.  11 THE COURT:  I'm conjuring up all sorts of difficulties, which is  12 a dangerous thing to do, but reverting to the St.  13 John's case, I have never understood that the  14 comparables that the appraiser puts in his report are  15 admitted to prove the truth of those facts, that is  16 that another piece of property, a certain location,  17 certain dollars and this other piece of property at a  18 similar location sold for something else.  They're  19 only in to show the basis upon which the expert  20 reached his conclusion, the value of the subject  21 property, and I have been proceeding blissfully along,  22 as blissfully as one can be in these circumstances,  23 more or less with that in mind, but when there's a  24 document there I look at it to see whether it supports  25 the opinion and makes the opinion credible or  26 incredible as the case may be, but if it's an archival  27 document and it's admissible on its own two feet, if  28 it has two feet, then it may be there's a different  29 consideration that I haven't frankly addressed my mind  30 to.  31 MR. JACKSON:  It is a question, my lord, which counsel for the  32 plaintiffs have under consideration.  The intention is  33 to address your lordship on that and other precise  34 points relating to this whole question.  We have  35 proceeded at this stage on the assumption that matters  36 would proceed without there being a full argument on  37 this point, which of course is critical both from the  38 defendant's point of view in terms of certain  39 documents they wish to tender as part of their  40 defence, it is also of importance of course to the  41 plaintiff's case.  42 THE COURT:  All right.  Well, I am reading the history of  43 Alexander, and he couldn't untie the knot so he cut  44 it, so I think I have to do the same.  I think I have  45 to say that, subject to the argument I will hear in  46 due course, that these documents will go in for the  47 limited purpose I mentioned before, in connection with 15414  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 the St. John's case.  But I'm going to reserve on the  2 question of what effect it has by reason of them being  3 archival, and therefore enjoying a life of their own  4 and a special kind of admissibility, but I don't --  5 I'm not able without the argument with which I've been  6 threatened to rule on that matter now, and I think  7 that I have to leave it to counsel to do what they  8 have to do in these circumstances, either for you, Mr.  9 Jackson, to put qualifications on documents if you  10 think they should be admissible, or the purpose for  11 which they are being tendered is sought to be limited,  12 and I think Mr. Goldie is going to have to deal with  13 the matter, awkward as it may be, in  14 cross-examination.  I can't really do any better than  15 that at this stage.  16 MR. JACKSON:  Thank you, my lord.  17 THE COURT:  Thank you.  18 MR. JACKSON:  Mr. Brody, if you could, before getting to the  19 specifics, and I want to return to the document Mr.  20 Goldie, you know, has alluded to, could you explain to  21 the court how as an anthropologist you treat documents  22 such as the Loring documents, and how do you approach  23 them as the source or a basis for your research and  24 findings?  25 MR. GOLDIE:  Well, I say with respect that that's too broad a  26 question, my lord.  He wants to address it to the  27 question to this letter under tab 12, how he treated  28 that letter.  I think that would be of assistance, but  29 I think we should have the second page of the letter.  30 MR. JACKSON:  My lord, I would like to deal with the general  31 methodological issue, which I think will be of  32 assistance to your lordship, and I will come to the  33 specifics.  34 THE COURT:  Yes, all right.  35 MR. JACKSON:  At a later point.  Mr. Brody?  36 THE COURT:  If you can answer that question.  37 A   I go to the Loring documents with two concerns, and  38 they provide two kinds of information to me.  First of  39 all, there are things which Loring says he has seen  40 himself, and if there's no reason for supposing from  41 the context of the letter that he couldn't have seen  42 them, for example the date of the letter fits in with  43 what he says he's seen, then sometimes his accounts of  44 what he's seen are very helpful as evidence of what  45 was there.  I have in mind here, for example, Loring's  46 comments on the salmon runs.  He very often says the  47 salmon are running well now.  And you look at the date 15415  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 of the letter and see it says May 15, and I think  2 that's interesting salmon are running early that year,  3 some such thought.  So sometimes it's a case of  4 finding in the documents firsthand information of the  5 day that I feel on the basis of looking at the letter  6 and so on I can trust as a true fact.  I also go to  7 Loring's documents to find what Loring thought, what  8 his point of view was, and in this case what interests  9 me is not whether what he says did or didn't happen so  10 much as that he said it or the way in which he said  11 it.  So those are two different kinds of use that I  12 made of the Loring papers.  13 Q   If we could look at tab 12, and perhaps just go  14 through starting from paragraph 2, the one which I  15 read to you and the one which I understand is in your  16 report where it says:  17  18 "During the long and dreary winters, the Indians  19 are still keeping up, by way of diversion, the old  20 custom of visting from village to village, in a  21 cycle, and this is about all that remains yet of  22 bygone days."  23  24 How, as an anthropologist, do you take that; upon what  25 do you rely, upon what do you not rely?  26 A  Well, there's two propositions here that immediately  27 strike me.  One is that the Indians are keeping up the  28 custom of visiting from village to village, and I  29 notice the letter's written December 31st, winter is  30 the time I know from other sources when there is much  31 visiting and often important feasting.  I know also  32 from other sources that at this period, 1915, there  33 was a great deal of feasting going on, though I'm  34 inclined to think that this is further supporting  35 evidence of an opinion that states, among other  36 things, that in 1915 the feast is being practised.  37 The second proposition, namely that this is about all  38 that remains of bygone days, I know to be inconsistent  39 with other evidence from various sources, and I  40 therefore am disposed to view this as useful in  41 understanding Loring's point of view rather than as a  42 corroboration of facts.  But that's -- that brief is  43 all I think I can say now about those two.  44 Q   In terms of sources which you say that statement, that  45 this is about all that remains yet of bygone days,  46 what sources would that be inconsistent with?  47 A  Well, we have Barbeau Beynon archive in 1923, which 15416  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 gives us a picture of life a few years later, and  2 because it's recording an oral history gives us a  3 picture of life in the years running up to the 1920's.  4 McKenna McBride in 1915 may provide some insites into  5 this question, what the people themselves have to say  6 now about what was going on in that period may be  7 helpful, other archival sources here, for example  8 correspondence that pertains to wildlife problems of  9 this period, conflicts of interest, territories and  10 culture and so on can be helpful here.  11 Q   If I can turn to the next sentence:  12  13 "But it is plainly noticeable that those of more  14 intelligence, with family and homes to look after  15 and with other interests at stake, are fast  16 dropping out of that line."  17  18 A   This I'm interested in as an indication of Loring's  19 point of view, his -- I think I said his assumptions  20 interest me, and this is suggestive to me of some of  21 the assumptions that he is making.  22 Q   The next sentence, paragraph:  23  24 "The Indians' general health still continued to be  25 very good, and they are more animated with a  26 cheerfulness than formerly upon the question  27 of land."  28  29 A  Well, the two statements there, the first about the  30 Indians' health, I'm disposed to accept as a matter of  31 fact, because I know that Indian agents at the time  32 had as part of their task the continual monitoring of  33 people's health, and I imagine that Loring would have  34 been in close communication with those who would know  35 best about their health, the local doctor and possibly  36 missionaries.  As to the second statement there:  37  38 "They are more animated with a cheerfulness than  39 formerly upon the point in the question of land."  40  41 I'm first of all given some difficulty by the  42 sentence, I'm not really clear what it means.  If it  43 means that people are more satisfied about the land  44 rights issue in December 1915 than they have been in  45 previous months or years, then I feel a need to go to  46 other sources to see whether or not this is part of a  47 general picture of the people's attitudes towards the 15417  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 land rights question in late December 1915.  2 Q   And would one of those sources be the McKenna McBride  3 transcripts we have?  4 A  Well, if I'm not mistaken, the McKenna McBride  5 hearings were in the summer of 1915, and this is late  6 December 1915.  So this might be Loring's assessment  7 of how the McKenna McBride Commission has brought  8 about some greater cheerfulness, but I really am  9 unsure without going to other --  10 MR. JACKSON:  I have one further question and perhaps we can  11 take the break, my lord.  12 THE COURT:  Yes.  13 MR. JACKSON:  14 Q   The last paragraph which Mr. Goldie read in a recent  15 instance:  16  17 "In a recent instance thereof a certain Reverend  18 gentleman of the so called Indian rights  19 association had heralded his coming."  20  21 How do you take that statement and how do you treat it  22 in your perspective as an anthropologist in viewing  23 these documents?  24 A   I'm going to have to make a general observation about  25 the Loring documents here, and that is that Loring's  26 English often makes it very difficult to know exactly  27 what he's saying.  He, in the course of his career,  28 shifted more and more towards elaborate grammatical  29 constructions, this may have something to do with his  30 German background and something to do with his  31 isolation in Hazelton, I don't know, but by 1915 --  32 and it gets, I might say, far far more startling in  33 1918 and 19.  His writing is really opaque, and I  34 don't know what to say quite --  35 Q   Well, Mr. Goldie, as I recall in his commenting on  36 that, raised the question are we to take that as a  37 fact.  My question to you, Mr. Brody, is in reviewing  38 this document do you take that to be a fact or not?  39 A  Well, I'm inclined to take it -- I'm inclined to see a  40 fact inside this sentence, as it were, namely that  41 there was a Reverend gentleman, I presume a man of the  42 church, who has said that he is coming through the  43 Indian Rights Association.  But I would be -- if this  44 was of importance to my opinion, I would be very eager  45 to find out a little more about who this was and what  46 this all is about.  4 7    MR. JACKSON:  Thank you. 1541?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  I can't wait to see the second page to see if it  2 says what I think it says.  3 MR. JACKSON:  Thank you, my lord.  4 THE COURT:  All right, thank you.  5 THE REGISTRAR:  Order in court.  This court will recess.  6  7 (PROCEEDINGS ADJOURNED)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein transcribed to the  12 best of my skill and ability  13  14  15  16  17 Graham D. Parker  18 Official Reporter  19 United Reporting Service Ltd.  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 15419  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  2 THE COURT:  Mr. Jackson?  3 MR. JACKSON:  My lord.  4 Q   Could you turn to tab 6, Mr. Brody, of volume three.  5 And just going to read -- it's a letter from agent  6 Loring, January 19, 1894:  7 "General Remarks.  8 With regard to peace, the maintenance of  9 order, temperance and morality among the Indians  10 of the latter division, the service of the Rev.  11 Father A. I. Morrice, O.M.I, cannot easily be  12 overestimated.  13 As a compliment to his good work, we had last  14 year the visit of the Right Rev. A. Dontenwill,  15 O.M.I., D.D., bishop of New Westminster, B. C.  16 Through the seemingly irresistible magnetism of  17 his charming personality, the latter gentleman  18 caused the destruction by fire of those  19 ceremonial paraphernalia, which still bound the  20 inhabitants of two villages to the customs and  21 ideas of prehistoric days and prevented them from  22 entering into the spirit of full civilization."  23  24 As an anthropologist, how do you approach that  25 document in terms of sources of information upon which  26 you rely or source is of information relative to your  27 report?  28 MR. GOLDIE:  With glee.  29 A   It says something to me about the relationship between  30 the Indian agent and the Catholic missionary, between  31 Loring and Morice, it says something about a visit by  32 Dontenwill in 1893, given that the date at the top is  33 1894 and he says "last year", so the matter of  34 Dontenwill's visit to the area is something that I  35 take as usefully evidenced by Loring's remarks here,  36 and the rest of the remarks tell me all sorts of  37 things about Loring and raise the question did they or  38 did they not destroy lots of paraphernalia by fire?  39 The answer to which I can perhaps be helped with by  40 going to Barbeau-Beynon, and I think there are  41 descriptions of this or a similar occasion and also  42 people's recollection of similar occasions can be  43 helpful here.  4 4    MR. JACKSON:  45 Q   This process you have just described of looking at the  46 document in context, of referring to other  47 corroborative sources, is that part of your standard 15420  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 methodology in approaching documents of this kind?  2 A   It's part of what every social scientist has to devote  3 a lot of time to, is the careful looking at documents,  4 the placing of them in context and so on.  5 Q   Thank you.  6 My lord, I would like to turn to chapter 14, page  7 179 of the report.  Mr. Brody, would you explain to  8 his lordship why you have looked at traplines as part  9 of your inquiry into change and continuity amongst the  10 Gitksan and Wet'suwet'en?  11 A   In Gitksan-Wet'suwet'en territories in northwest  12 British Columbia, many disputes have arisen in this  13 century over the use of wildlife resources, over what  14 was hunted, how it should be hunted, when it should be  15 hunted, by what methods it should be hunted, and there  16 is an important meeting place here therefore between  17 Gitksan and Wet'suwet'en culture on the one hand with  18 its way of thinking about and using wildlife resources  19 and the territories those resources depend upon, and  20 the ways in which newcomers to the area think about  21 and make use of resources, wildlife resources, and the  22 areas they depend upon.  And the advantage of looking  23 at the trapline issue and the trapline registration  24 story lies in the way in which it provides a cultural  25 geography of this series of conflicts, disputes,  26 clashes of interest, over wildlife and the territories  27 where the wildlife is to be found.  28 Q   At page 179 you say at the beginning of your chapter,  29  30 "In 1925-26, the provincial government began to  31 administer the trapline registration system.  The  32 background to this legal and administrative  33 measure goes back to disputes over wildlife,  34 beaver trapping, hunting and frontier land use in  35 the early part of the century.  White settlers  36 and trappers along with various officials of  37 provincial and federal agencies, repeatedly  38 complained that the Indians did not observe  39 existing game laws or generally hunted and fished  40 without regard to the long term well-being of  41 their prey.  Indians or their representatives and  42 agents protested against the inappropriatness or  43 injustice of game laws made by newcomers'  44 governments."  45  46  47 Could you turn to tabs 25, 26, 27, and 28 and -- 15421  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 MS. KOENIGSBERG:  Volume?  2 MR. JACKSON:  Volume three —  3 Q Are they the sources upon which you rely for that  4 statement?  5 A   I think so, yes.  6 Q   Tab 25, my lord, is a circular letter from Duncan  7 Campbell Scott, deputy superintendent general,  8 department of Indian affairs, circular letter to all  9 Indian agents in Manitoba, Saskatchewan, Alberta,  10 British Columbia and the Yukon, dated July 14, 1919;  11 document tab 26 is a letter from Mr. Vowell,  12 superintendent of Indian Affairs of British Columbia,  13 May the 8th, 1908; and document 27 is a special report  14 on trapping authored by George Pragnell, inspector of  15 Indian agencies for British Columbia dated September  16 12, 1923; and tab 28 is a letter from the same  17 inspector Pragnell, to the chairman and members of the  18 provincial game board of the Province of British  19 Columbia, dated August 21st, 1924.  20 Could you turn to tab 28, Mr. Brody, this is the  21 letter from Mr. Pragnell in his capacity as inspector  22 of Indian agencies to the provincial game board, and  23 in it he says:  24  25 "Gentlemen:  At the request of your chairman, I  2 6 am writing the following memorandum upon the  27 subject of trapping in connection with Indian  28 affairs in hopes that some solution of the matter  29 acceptable to all may be arrived at.  This  30 memorandum is not in any way an attempt to  31 dictate any policy to you, but is merely the  32 result of 12 months' investigation into the  33 matter arrived at by travelling and questioning  34 of Indians and whites all over the interior of B.  35 C, more particularly with reference to the  36 hinterland north of the Grand Trunk from west of  37 the cariboo road."  38  39 If I could just go down to the next paragraph:  40  41 "As a result of these investigations, as far as I  42 am aware, the unanimous opinion is that the  43 present method is not fair and right and in this  44 I am bound to concur if only for the fact that  45 feeling runs very high in the matter and I am  46 afraid that unless the regulations are altered,  47 serious trouble may ensue, even to bloodshed.  It 15422  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 must be understood that the principle issue is  2 over the trapping of beaver and that the  3 necessity for a settlement is more urgent amongst  4 those Indians who subsist principally or entirely  5 on trapping and hunting, such as those north of  6 the Grand Trunk and west of the Fraser River.  7 There is no criticism of the present regulations,  8 except insofar as they are not, rightly or  9 wrongly, understood or agreed to by the Indians  10 in general and are entirely contrary to their  11 centuries-old customs and laws, being at the same  12 time largely taken advantage of by dishonest and  13 trouble-making whites."  14  15 If you on could turn to page 3, a third of the way  16 down the page -- I apologize my lord again for the  17 staples --  18 THE COURT:  That's all right.  I will catch up to you.  19 MR. JACKSON:  20  21 "After having talked the matter over more than  22 once with your chairman, Mr. Black, and other  23 interested authorities, there seems to be three  24 possible methods of adjustment, though of course  25 other solutions may occur to you gentlemen.  26 One, firstly, the block system or Indian  27 trapping reserves.  28 Two, registration of each individual line.  29 Three, issue of permits through the Indian  30 agents for each individual line.  One.  Number  31 one which I call the block system is that which  32 the Indians themselves are on the whole most  33 favourably disposed towards and it would probably  34 be the easiest to gather data on and subsequently  35 control by game wardens or other authorities.  It  36 consists of setting apart blocks of land for  37 Indian use alone.  I should suggest that this be  38 done by registration through the Indian agents of  39 each band's trapping grounds.  It is probably  40 that there could be fairly easily ascertained and  41 geographical boundaries fixed, as each band has  42 from ancient customs, used a certain area, the  43 individual family or territory having its set  44 line within that area.  All internal disputes, if  45 any, could then be adjusted by the chiefs and  46 Indian agents in council.  This system is  47 somewhat after the style as followed in setting a 15423  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 apart grazing area or timber berths, game or  2 forest reserves.  I myself am of the opinion too  3 that this would lead to the avowed object of the  4 game board for the preservation of the fur trade  5 in B. C, and I am sure that were the Indians  6 sure of his hunting grounds, he would be careful  7 to maintain its productiveness for his own  8 benefit, much more so than the white trapper who  9 is not absolutely dependent on this mode of  10 living.  It would also be much easier to check in  11 the matter of trapping out of season or unprime  12 fur so that the band could be held responsible  13 instead of scattered individuals.  It would also  14 mean that not more were trapping that area than  15 it could well stand having in view its  16 preservation.  This would also save yearly  17 adjustments anyway as far as the Indians are  18 concerned."  19  20 If you could just turn to page four, very bottom  21 paragraph:  22  23 "I can only emphasize the fact that I am speaking  24 on behalf of the what were, after all, the  25 original inhabitants of B. C, who as a whole,  26 perhaps to their own is disadvantage, received  27 the white man's invasion in a friendly manner and  28 who cannot well argue his own case  when exposed  29 to the more intelligent claims of the white man."  30  31  32 If you could then go to the next page and page  33 five, the paragraph beginning finally:  34  35 "Finally, my claim, whilst it may seem so, is not  36 in the interests of the Indians alone.  I do not,  37 nor does the Indian, wish to exclude the white  38 trapper.  He merely wishes to preserve what he  39 considers his own and that which has been and is  40 his means of livlihood but he wishes to exclude,  41 as all fair-minded men will agree with him, that  42 mean person not worthy of the name of a man who  43 will, under the shelter of a technical point of  44 law, rob him of his very existence."  45  46 Now, having regard to those passages, are they the  47 source of your statements in paragraph one?  Do you 15424  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 have any further comments on that document in the  2 context of the inquiry you undertook into the inter-  3 relationship between --  4 A   Pragnell's document here, his report, is a very  5 important one for me, partly because it is based, as  6 he says in here somewhere I think in a passage you  7 haven't read out, that he did visit the area in which  8 I am interested in this opinion.  It's important  9 because it's the first attempt, as far as I know, to  10 establish what might be the outlines of a trapping or  11 trapline registration system, and it's very striking  12 that in this first attempt what is advanced as perhaps  13 the best possible solution, is an acceptance of Indian  14 established presence on the land and a trapline  15 registration system, which is consistent with that  16 presence, and administered insofar as is possible,  17 according to ancient custom.  18 So, at the beginning of the trapline registration  19 conflict, here on the Department of Indian Affairs  20 side, is a man with real experience advancing a scheme  21 which recognizes the Indian system of authority and  22 land use.  23 Q   You -- was a trapline registration system implemented?  24 A   Yes, in 1925-1926, a trapline registration system is  2 5 implemented.  26 Q   Could I ask you for the purposes of your inquiry, what  27 were the significant components of that system?  28 A  Well, it established individual traplines, in other  29 words, traplines would be owned by individuals as a  30 sort of limited right to use the land for trapping.  31 It sought also to establish an annual recording and  32 monitoring procedure -- this was very important, in  33 all ideas of traplines at this point -- it also  34 established an inheritance system that would be from  35 father to son, a patrilineal inheritance of traplines,  36 and other detailed provisions, which I shan't go into  37 for the moment.  38 THE COURT:  Excuse me, was there no registration prior to that  3 9 time?  40 A   No, my lord, not in -- not to my knowledge.  41 MR. JACKSON:  42 Q   At page 179 of your opinion, Mr. Brody, the last  43 paragraph, you say:  44  45 "The provincial government system, as set up in  46 1925-6, would seem to be sharply at odds with  47 Gitksan and Wet'suwet'en ideas and institutions 15425  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 of land use and ownership."  2  3 Could you explain that statement?  4 A   Yes, you can see here the beginning of what was going  5 to be a very long, complicated and at times  6 impassioned collision.  The idea that a trapline would  7 be held by an individual goes against Gitksan-  8 Wet'suwet'en law, which establishes quite clearly that  9 territory and hunting rights belong to groups.  10 Secondly, the fact that implicit in trapline  11 registration as it was designed in '25, '26 was the  12 possibility of an individual alienating his right to a  13 trapline, goes against Gitksan-Wet'suwet'en ideas  14 also.  According to trapline registration provisions,  15 the holder of a trapline could sell his trapline to  16 another trapper, as a matter of individual decision.  17 This is at odds with Gitksan-Wet'suwet'en laws about  18 transfer of territory.  And the patrilineality of  19 trapline registration of course goes against the laws  20 of inheritance in the Gitksan-Wet'suwet'en systems.  21 Q   At page 180 of your opinion, second paragraph, you  22 say:  23  24 "In practice, this hypothetical collision was  25 minimized during the early years of the  26 registration system.  The reasons for this were  27 several fold."  28  29 Could you identify those reasons?  30 A  Well, first of all, there could only be a collision  31 where there was pressure on the Indian users of the  32 land to register their traplines and in areas beyond  33 the settlement or trapping frontiers, there would not  34 be the likelihood of any such collision.  And that  35 would be true for much of the northern territories of  36 the Gitksan-Wet'suwet'en area.  It would not be true  37 for the southern territories to anything like the same  38 extent.  39 Q   Page 180, the bottom of the page you say:  40  41 "Second..."  This is the second reason why  42 collision was minimized...  "Indians who did  43 register were given to understand that in  44 registering they were increasing..."  You have  45 underlined increasing "...their rights to their  4 6 lands."  47 15426  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 Could you explain that statement?  2 A   Yes, it seems from documents of the day, and from what  3 people say about trapline registration now, that when  4 Gitksan and Wet'suwet'en were approached by local  5 officials, and encouraged to register their lines,  6 they were told not to worry about possible loss of  7 rights that this might seem to imply, but were  8 assured, on the other hand, that registration would  9 increase their rights in the land.  They were assured,  10 it would seem, that trapline registration would  11 enhance their defences against the incursions into  12 their lands of the day.  13 Q   Could I refer you to tab 29 of volume three.  I  14 apologize for the quality of these documents, my lord.  15 This is a letter from Mr. Ditchburn, the chief  16 inspector of Indian agencies, to all Indian agents of  17 the Province of British Columbia, 27th of January,  18 1923.  And in the letter inspector Ditchburn says:  19  20 "As the Indians of British Columbia are making  21 requests for large areas of land to be set aside  22 for what them is trapping grounds, it is apparent  23 they are understand that they are liable to lose  24 their hunting rights unless these areas are  25 specially allocated to them, and I am of the  26 opinion that you should endeavour to set to rest  27 their fears and point out to them that so long as  28 they trap and hunt consistently, they need have  29 no anxieties in this regard."  30  31 Could you also turn to tab 30 of volume three, which  32 is a letter dated February 16th, 1926, from Mr.  33 Collison, Indian agent, and in this letter Agent  34 Collison says -- this is somewhat of an ordeal, my  35 lord, to read this:  36  37  38 "Shortly before Christmas a deputation from  39 Gitlaxiamix, Greenville and Kincolith, made a  40 special trip to interview me with regard to  41 trapline regulations recently enacted by the  42 provincial game conservation board.  A strong  43 protest was made against issuing trap licences to  44 white trappers covering grounds in the Nass  45 District until the land question was settled.  46 They had been informed that these regulations had  47 been brought about by the Indian department to 15427  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 offset the land question.  It was explained to  2 them that the regulations were issued by the  3 provincial government and were not intended to  4 interfere with their hunting rights but rather to  5 protect their hunting grounds outside the limits  6 of their present reserves from encroachment by  7 white trappers and others.  The Indians insisted  8 that they could not accept them until the land  9 question was finally settled.  It is to be hoped  10 that this attitude will not result in conflict  11 with white trappers who are already taking  12 advantage of the regulations by filing  13 applications for traplines on lands claimed by  14 the Indians on the Upper Nass."  15  16 Are those two of the documents upon which your  17 opinion stated at page 180 is based?  18 A   Yes, they are.  The first one is dated 1923 and shows  19 that even in anticipation of a registration system,  20 there was the view that Indians had to be reassured  21 that registration wouldn't interfere with their  22 rights.  And the second one indicates that Indian  23 agents are already, in 1926, having to reassure people  24 that this is indeed the case.  25 Q   At page 181, of your --  26 I should point out, my lord, that both the  27 Ditchburn and the Collison documents are cited in Mr.  28 Brody's report at pages 180 and 181.  29 The bottom of page 181 you say, again dealing with  30 the views that you have stated that collision was  31 minimized in the early years:  32  33 "Third, Indians were told in many cases by those  34 whom they thought they could most trust amongst  35 the white officials in their area, if they did  36 not register they would lose all their lands."  37  38 Upon what is that opinion based?  39 A   This is based upon my conversations with elders in the  40 Gitksan-Wet'suwet'en area, and came as a result of my  41 asking them why they registered or why their  42 predecessors had registered traplines, and again and  43 again I was told that they had done so because they  44 had been, as it were, threatened, they had been told  45 by Indian agents and by other white officials in the  46 area, that if they didn't register, then all their  47 lands would be lost, and that registration was a 1542?  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 necessary defence against the intrusions we have been  2 talking about.  3 MR. GOLDIE:  Are there any notes of these interviews?  4 MR. JACKSON:  5 Q   Are those interviews reduced to any notes?  6 A   No, this is something that I heard over and over  7 again.  8 Q   The fourth point you identify --  9 MR. GOLDIE:  Your lordship will understand the nature of an  10 objection I make to that then?  11 THE COURT:  Yes.  12 MR. JACKSON:  13 Q   The fourth point at page 182, and you say in your  14 opinion, "Fourth, Gitksan and Wet'suwet'en inheritance  15 of lands was often continued despite the registration  16 systems emphasis on patrilineality."  17 THE COURT:  Where did you find that?  18 MR. JACKSON:  Page 182, my lord, of the opinion, the first full  19 paragraph.  2 0 THE COURT:  Thank you.  21 MR. JACKSON:  22 Q   Could you explain that statement, Mr. Brody?  23 A   Early on in trapline registration, it became evident  24 to the agents and wildlife officers in the field, that  25 the system as designed just didn't fit in with  26 Gitksan-Wet'suwet'en arrangements and that within the  27 design of the system was a formula for considerable  28 conflict.  They very quickly sought to minimize this  29 conflict, especially in relation to the patrilineality  30 problem, by registering not individuals but whole  31 groups, and one sees in the trapline documents of the  32 day and on maps that were kept in Indian agents'  33 offices, the expression, "and company", it will say,  34 "Thomas Wright and Company."  And this is a way of  35 avoiding the trapline registrations' emphasis on  36 individual ownership or individual trapping rights and  37 patrilineal inheritance.  If the whole company is  38 registered, then who it's handed on to can be followed  39 according to the people's own rules.  40 Q   If I could just stop you at that point, could you  41 refer to documents 32, tab 32 and tab 33, perhaps tab  42 33 is the one you should direct your attention to.  43 This is a letter from Inspector VanDyk, who as I  44 understand is the inspector of the game department of  45 the Province of British Columbia, addressed to Dr.  4 6 Brown.  47 MR. GOLDIE:  I think he was an official of the provincial police 15429  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 when they were charged with the responsibility to  2 enforce game laws.  3 MR. JACKSON:  Thank you, Mr. Goldie.  I am obliged.  4 Q   Addressed to Dr. Brown, Indian agent.  And inspector  5 VanDyk states -- this letter is dated April 21st,  6 1937:  7  8 "In reply to your favour of the 25th of April,  9 1937, I beg to inform you that band registration  10 of traplines was introduced by the game  11 department as a means of covering unclaimed and  12 unregistered territory until the Indians, through  13 their Indian agents, made application for their  14 respective areas within such blanketed areas."  15  16 Mr. Brody, have you reviewed trapline maps which  17 refer to company registration?  18 A   Yes, I have.  19 MR. JACKSON:  My lord, Exhibit 718, 719 and 720 are maps which  20 were released to the plaintiffs yesterday and which  21 are --  22 THE COURT:  I remember them.  23 MR. JACKSON:  -- and which are being used at the moment and we  24 will endeavour to have them back in court shortly  25 after the lunch break.  I would at that point be  26 referring the witness to those maps.  27 THE COURT:  All right.  28 MR. GOLDIE:  My lord, I say only that the next paragraph of that  29 letter is a necessary part of the opinion that is  30 stated.  But I won't press that point.  31 THE COURT:  All right.  Thank you.  32 MR. JACKSON:  33 Q   Mr. Brody, page 183, you state, middle paragraph:  34  35 "In fact government letters, memoranda and reports  36 from the 1920s and '30s, and the recollections of  37 today's Gitksan and Wet'suwet'en elders, reveal  38 immense confusion over the meaning and purpose of  39 trapline registration."  40  41  42 Now, could you explain that statement, the sources  43 of confusion, perhaps?  44 A  We have already identified the sources of some of the  45 confusions.  A trapline registration system is put in  46 place, Indian individuals or groups register within  47 it, as they register they think they are increasing 15430  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 their rights to the land, many of them are encouraged  2 to think that, many are encouraged to think that by  3 registering they are going to be better defended  4 against the kinds of change they most fear, they are  5 encouraged to believe there is nothing about trapline  6 registration that need get in the way of their custom,  7 their patrilineality and so on, their matrilineality  8 and so on, but on the other hand the officials of the  9 day are, naturally enough, believing that they are  10 putting in place a whole new set of legal  11 arrangements.  At the same time, there are two  12 agencies at work here, on the white official side,  13 there is the Indian agent whose job it is to represent  14 the Indian point of view, and provincial wildlife  15 officers, whose job it is to put in place a provincial  16 system.  17 Q   Could you refer to tab 34 of volume three.  This is a  18 letter from Mr. Ditchburn, Indian Commissioner for  19 British Columbia, to a Bryan, with a Y, Williams, the  20 game commissioner of British Columbia, dated January  21 6th, 1932.  And the letter starts:  22  23 "In a letter addressed to you from this office on  24 the 29th ultimo, in partial reply to your letter  25 of December 21st ultimo, it was indicated that a  26 further letter would be sent bearing upon the  27 complaints made against Mr. Indian Agent Harper  28 Reed by you and your officers in connection with  29 difficulties in obtaining the satisfactory  30 registration of Indian traplines in the  Stikine  31 Indian agency.  This letter is sent therefore in  32 accordance therewith."  33  34 Do you know the background of this letter from your  35 own inquiries, Mr. Brody?  36 A   I know some of the background.  I know that Harper  37 Reed was an Indian agent in the Stikine area and he is  38 a man who came into conflict with other officials and  39 to some extent with his superiors, because he sought  40 to ensure that Indian hunting areas were protected  41 against incursions by white trappers, and he came into  42 considerable conflict I believe with provincial  43 authorities.  44 Q   If you could turn to page 3 of this document, the  45 second paragraph:  46  47 15431  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  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 agent..."  And I take it this is a reference to Mr.  Reed,  "...has from time to time appealed for closer  attention from the officials of the game  department.  Presumably, this is why he is blamed  for not working in co-operation.  It is  respectfully submitted that there can be no  co-operation where there is no apparent  operation.  The agent can not be reasonably be  expected to co-operate with officers who are  neither properly equipped nor informed in regard  to the work of investigating conflicting claims  of the areas in dispute between Indians, settlers  and fur traders.  Agent Reed  could not be  expected to co-operate with men like Const.  Webster. "  MR. GOLDIE:  I take it my friend is reading this for the truth  of the matters stated?  MR. JACKSON: I will be asking Mr. Brody to comment on this, on  the basis upon which he relies upon this document, my  lord.  MR. GOLDIE:  Well, this is not even in the claims area.  Now,  are we supposed to deal with this kind of thing in the  cross-examination?  MR. JACKSON:  My lord, this is being submitted as part of the  background to the ongoing, the statement Mr. Brody  made, was that there was a misunderstanding.  That  there were not only misunderstandings as between  provincial officials and Indian persons, approaching  them in terms of trapline registration, but there was  sources of confusion both within the bureaucracy, as  it were, between provincial and federal officials.  What's its relevance if it doesn't relate to the  territories in question?  JACKSON:  My lord —  COURT:  In any event, they may have had a different  misunderstanding in the territory in question.  MR. JACKSON:  I was going to ask Mr. Brody whether or not what  is revealed in this document is something which he has  any knowledge of in relation to Gitksan-Wet'suwet'en  territories, my lord.  THE COURT:  That would be, I think, a useful place to start.  THE COURT  MR.  THE 15432  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 MR. JACKSON:  2 Q   Mr. Brody, the comment, the statement I just read,  3 "The agent cannot be reasonably expected to co-operate  4 with officers who are neither properly equipped nor  5 informed in regard  to investigating conflicting  6 claims for the areas in dispute", is that something  7 which does apply within Gitksan-Wet'suwet'en  8 territories?  9 A   Just give me where that came from?  10 Q   Page 3, page 3 of the document.  11 A  Whereabouts are you on it?  The third paragraph?  12 Q   The second paragraph.  "The agent from time to time."  13 A   Second paragraph.  14 Q   It raises, as I understand, the question of  15 co-operation between Indian agents and the game  16 department.  17 A  Well, I have always been told, and always -- and many  18 times got the impression from the documents, that  19 those working for the department of Indian Affairs on  20 the one hand and those working as wildlife officers on  21 the other hand, came to the issue from two very  22 different points of view, and found it very difficult  23 to co-operate, especially at this period of trapline  24 registration.  25 MS. KOENIGSBERG:  I wonder, my lord, that kind of statement is  26 difficult to deal with and --  27 MR. JACKSON:  I am not going to pursue it.  28 MS. KOENIGSBERG:  My friend says he is not going to pursue it,  29 for which we are grateful, but I would go back and ask  30 if the witness is going to give evidence, even about  31 Mr. Reed, and he has made inquiries and he knows  32 certain things about Mr. Reed, it would be helpful to  33 have it, to have the sources of that.  They are not in  34 the book.  35 THE COURT:  I think we will take you up on your offer and allow  36 you to proceed.  37 MR. JACKSON:  My offer of not proceeding, my lord.  3 8 THE COURT:  Yes.  3 9 MR. JACKSON:  40 Q   Mr. Brody, at page 184 of your report, you state:  41  42 "But the most striking and anthropologically  43 revealing confusion lies in the presumed meaning of  44 the word trapline."  45  46  47 Could you -- perhaps I will read on: 15433  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 "In translations of discussions of 'hunting' and  2 'trapping' that could be found for the 1920s and  3 1930s and in the memory of persons old enough to  4 recall the period, an elision was effected between  5 the the words 'trapline' and 'hunting territory.'"  6  7  8 Could you explain that?  9 A   Yes, again and again one sees in the documents, and  10 one finds in interviews, that people talk about  11 hunting territories and traplines, as the same thing.  12 So they don't use the word trapline always to mean the  13 trapline that may or may not have been registered  14 according to the provincial scheme, they use it rather  15 to mean their hunting territory as a whole.  And this  16 is the elision I am referring to here.  I might say  17 that I say here that this is evidenced in the memory  18 of persons old enough to recall the period but it's  19 also striking in the everyday conversation of younger  20 persons too.  21 Q   There -- if you could refer to tab 36 of document book  22 three.  23 MR. GOLDIE:  Is my friend withdrawing the document under tab 34?  24 He is moving on, I should say.  25 MR. JACKSON:  I wish to consider that over lunch, my lord.  2 6    THE COURT:  Yes, all right.  2 7    MR. JACKSON:  28 Q   This is a -- can best be described as a bundle of  29 documents, my lord, which can be referenced as  30 trapline dispute between Amos Williams and Phillip  31 Johnson.  Could you provide us the context for these  32 documents, Mr. Brody?  33 A   In the 1920s, and perhaps before then, but I don't  34 know the historical depths of this, there is evidence  35 of an ongoing dispute between the Houses of Malii, and  36 Gwoimt, about a particular territory.  And in 1927,  37 arguments about whether or not Malii or Gwoimt had a  38 proper claim to this territory were heard by Mr. Hyde,  39 who was then the Indian agent at Hazelton.  In these  40 documents, there is a transcript of at least some part  41 of what the persons involved said to Hyde in 1927, and  42 they refer to, in their statements to Hyde, siisw, and  43 in Gitksan law siisw is when a piece of territory is  44 handed from one house to another in compensation,  45 usually for a murder.  That's the simple background to  46 it, I think.  47 THE COURT:  May I inquire, please, are these archival documents? 15434  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 MR. JACKSON:  I am advised, my lord, that these are documents  2 out of trapline files.  3 THE COURT:  Not archival then?  4 MR. JACKSON:  Not archival.  5 MR. GOLDIE:  Well, I am instructed that they are archival  6 documents, they are a copy of an extract from B. C.  7 Indian Commissioner correspondence file re law  8 enforcement and Game Act, re Luke Fowler, Jacob and  9 Wallace Morgan, Steven Morgan, Amos Williams, Phillip  10 Johnson, Jean Baptiste, Baptiste Francis, John Derrick  11 et al and there is a R. G. 10 reference, which is the  12 record group 10, and the -- there have been a bundle  13 of documents marked as Exhibit 2 on the examination of  14 Mr. Wale, Freddy Wale, is that -- cross-examination on  15 the affidavit in this case.  What is in the book  16 appears simply to be a recent re-typing of that, of  17 parts of the document, that's correct.  It's -- what  18 has been marked is a much more extensive one than  19 that.  2 0 THE COURT:  All right.  21 MR. GRANT: Possibly I can clarify, I do not have Exhibit 2 on  22 the Fred Wale commission, I was counsel on that, but  23 there was a document, a bundle of documents tendered  24 as an exhibit in that commission, and I do concur with  25 Mr. Goldie that these are a transcription of some of  26 those documents.  However, there is a question between  27 the parties as to which documents are archival or not  28 and I have not compared these ones with that  29 particular Exhibit 2.  So I think it's still open if  30 these are archival from the plaintiffs' position or --  31 THE COURT:  All right.  Thank you.  32 MR. GOLDIE:  Well, all of them came -- our copy comes from the  33 Public Archives of Canada, Record Group 10.  34 THE COURT:  Well, I am going to try and expedite this by saying  35 that as matters presently stand, I am going to treat  36 them as archival and they can go in if you want them  37 to go in, Mr. Jackson.  And it's my preliminary view,  38 although I haven't heard from counsel, that there has  39 been a dispute, and archival -- there is an archival  40 record of it, I would be disposed to rule that an  41 expert in this kind of anthropology would be entitled  42 to express opinions about it.  43 MR. JACKSON:  Thank you, my lord.  What I would like to do at  44 this point, the maps have arrived and I think it might  45 be appropriate before the break to just have the --  46 718 is the map.  I think I may, owing to the fragile  47 nature of this, I may have to lay this out other 15435  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 than --  2 THE COURT:  What are you going to ask the witness to do?  3 MR. JACKSON:  I am going to ask him to look at this map and  4 identify for the court, whether this is a map he has  5 looked at and whether it indicates the registration of  6 traplines.  7 THE COURT:  And the exhibit number is?  8 MR. JACKSON:  718, my lord.  9 THE COURT:  Thank you.  10 MR. JACKSON:  This, I understand, is an exhibit to Mr. Boys'  11 commission evidence, my lord.  12 MR. GOLDIE:  Well, that's right, but it may be one of those that  13 was produced in this court.  14 THE COURT:  Yes, it's Exhibit 718 here.  15 MR. GOLDIE:  Yes.  16 A   That's the one.  17 MR. JACKSON:  18 Q   Could you identify any of those corporate --  19 A  We start at the bottom of the map, that would be the  20 southeast corner here, if I am not mistaken, and run  21 along the bottom we can see Wright, Henry and Company,  22 Wright, Thomas and Company, Brown, Alex and Company,  23 Jack, Tommy and Company, Blackwater, Walter and  24 Company, and there is a Loring, Tait, Jack and Company  25 and then going up now to the north towards the  26 northwest --  27 THE COURT: I am not sure this is necessary.  The document's in.  2 8 MR. JACKSON:  Yes, my lord.  29 THE COURT:  Do you wish to mark it otherwise?  Do you wish him  30 to look at some other ones?  31 MR. JACKSON:  32 Q   Have you also looked at Exhibits 719 and 720, Mr.  33 Brody?  34 A   I believe I have, yes.  35 MR. JACKSON:  I am reluctant to take them out and subject them  36 to the same treatment, my lord.  37 THE COURT:  All right.  38 Shall we resume at 2 o'clock?  39 MR. JACKSON:  That would be convenient, my lord.  40 (Proceedings adjourned for lunch)  41  42 I hereby certify the foregoing to be a true and  43 accurate transcript of the proceedings herein.  44  45  46 Wilf Roy  47 Official Reporter 15436  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 (PROCEEDINGS RESUMED AT 2:00)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  Your honour.  If I can advise you and my friends  6 that I will be pulling tab 34 from document book 3.  7 THE COURT:  All right, thank you.  8 MR. JACKSON:  34.  Mr. Brody, if I can just take you back to  9 page 182 of your report, in relation to your statement  10 there that --  11 THE COURT:  I'm sorry, Mr. Jackson, what page?  12 MR. JACKSON:  Page 182, my lord.  13 THE COURT:  Thank you, yes.  14 MR. JACKSON:  15 Q   In relation to your statement there that the Gitksan  16 and Wet'suwet'en heritance of land was often able to  17 continue despite the registration system's emphasis on  18 patrilineality, was there a further comment you wish  19 to make regarding that statement to supplement the  20 answer you gave this morning?  21 A   Yes.  There's a consideration that I didn't manage to  22 deal with this morning.  The patrilineality of the  23 trapline registration system means that sons are  24 expected to inherit their father's territory or  25 trapline; expected, that is to say, by the Provincial  26 officials and others who might be administering or  27 monitoring the trapline registration programme.  And  28 it was possible under Gitksan and Wet'suwet'en law for  29 the matrilineality of their system, that is to say  30 inheritance through the mother's line, to take place  31 in spite of an appearance of patrilineality, and this  32 is through two laws, the Gitksan law, Amigwot,  33 A-M-I-G-W-O-T, and the Wet'suwet'en law, Negedeldes,  34 N-E-G-E-D-E-L-D-E-S.  These are laws that pertain to  35 when a -- might we call caretaking, that is to say the  36 son can take care of the father's territory for awhile  37 but not inherit it.  These caretaking rules created  38 the possibility for two quite different understandings  39 of what's happening to be taking place simultaneously.  40 Q   And you talked this morning regarding the group  41 registration and the registration of traplines in the  42 language of a company, and could you also at this  43 point refer to tab 41 of document book 3?  44 A   21, did you say?  45 MR. JACKSON:  41.  This is a letter from F.R. Butler  46 Commissioner, Office of the Game Commission,  47 Vancouver, to a Mr. Jeckell, controller from the Yukon 15437  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 Territory, "Registration of Traplines".  2 MR. GOLDIE:  Is this tendered as an archival document?  3 MR. JACKSON:  I will have to review that matter, my lord, I'm  4 not clear from my own copy whether it is.  Perhaps Mr.  5 Brody can advise me.  6 THE COURT:  It couldn't be, could it?  7 MR. GOLDIE:  I don't -- it's not a document that as far as I  8 know comes from the archives, but I can't say with any  9 certainty.  10 MR. JACKSON:  I'll endeavour to clarify that for my friend's  11 benefit.  12 THE COURT:  Thank you.  13 MR. JACKSON:  14 Q   Mr. Brody, who was Mr. Butler?  15 A  Mr. Butler was an employee of the Provincial  16 Government in its wildlife office and had been an  17 employee I think since 1910 or thereabouts, and he is  18 the man who was one of the key figures in designing  19 the trapline registration system that was put into  20 effect in 1925, '26.  21 Q   And this letter seems to -- perhaps I will ask you,  22 does this letter review the basic contours of that  23 registration system?  24 A   Yes.  This letter appears to be written to an official  25 in the Yukon Territory explaining to him the nature of  26 the registration system that Butler had been involved  27 with.  28 Q   Could you turn to page 2 of that letter under item 6,  29 the very bottom of the page, where Mr. Butler says:  30  31 "A few years after the trapline regulations were  32 put into effect, it was found that it would be  33 more satisfactory in respect to certain Indians to  34 allot a large extent of territory to a particular  35 Indian Band, or Bands.  Generally speaking, this  36 policy has been followed, but in recent months  37 complaints have been emanating from members  38 of these Indian Bands in regard to other members  39 encroaching on their particular trapping territory  40 within the Band Registration."  41  42 Was that one of the documents upon which you came to a  43 conclusion regarding a group registration?  44 A   Yes.  45 MR. JACKSON:  Could you now return to page 184 of your report.  46 You had just started to explain the nature of the  47 dispute regarding Amos Williams and Phillip Johnson. 1543?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 Could you revisit that and just set out for the court  2 the nature of that hunting ground dispute which is  3 reviewed in tab 36 of document book 3?  4 MR. GOLDIE:  Well, my lord, we're -- we didn't get finished with  5 this.  This is obviously a typing, and unless my  6 friend is prepared to produce a photocopy of the  7 document, and I'm quite happy to have him undertake to  8 do that, I don't see how we can even look at a  9 document which is obviously typed in very recent days.  10 It looks as if it's been done on a word processor.  11 MR. JACKSON:  I'm content to give my friend that undertaking, my  12 lord.  13 MR. GOLDIE:  And that undertaking will cover the letter which is  14 referred to at the top of the page, a copy of this  15 letter has been forwarded to the Indian Commission for  16 B.C. in Victoria, and that --  17 THE COURT:  Um-hum.  What document are you talking about, I'm  18 sorry?  19 MR. GOLDIE:  Tab 36, my lord.  It purports to be typed on a page  20 of -- a page of a document.  21 MR. JACKSON:  I think you might find —  22 MR. GOLDIE:  And I should say, it is not a complete copy either  23 of that page.  24 MR. JACKSON:  I can advise my friend that in tab 38 I think he  25 will find the Commissioner's answer to Mr. Mortimer's  26 letter, so we will in fact get to that in due course,  27 but I am prepared to give my friend an undertaking to  28 provide the originals of the material which is set out  29 in tab 36.  30 MR. GOLDIE:  I should say that I haven't finished saying what  31 made -- firstly, the page as typed is not a correct  32 typing, so that's --  33 THE COURT:  Which page are you talking about, Mr. Goldie?  34 MR. GOLDIE:  The first page under tab 36, my lord.  It's not a  35 correct copy of the actual document itself.  36 THE COURT:  I see.  37 MR. GOLDIE:  So that's the number 1 reason why I want a  38 photocopy of the original.  39 THE COURT:  Yes.  You have that, have you, Mr. Jackson?  4 0 MR. JACKSON:  No, but I —  41 THE COURT:  I mean you have access to it.  42 MR. JACKSON:  Yes.  My friend has a copy in his file, perhaps he  43 could --  44 MR. GOLDIE:  Yes, I do.  Mine is considerably marked up.  45 THE COURT:  All right.  46 MR. GOLDIE:  Secondly, on the copy that is -- on the typed copy  47 there's reference to a letter forwarded to the Indian 15439  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 Commissioner.  What is omitted is the request of Mr.  2 Mortimer to the -- to Mr. Perry that he would greatly  3 appreciate his personal opinion and advice.  Now, that  4 is on the copy that went to Mr. Perry.  Mr. Perry is  5 the person who is identified I think at tab 38.  And  6 then secondly, there is the letter from Mr. Perry  7 addressed to the Secretary of the Department of Indian  8 Affairs commenting --  9 MR. JACKSON:  I can advise my friend that's tab 37, my lord.  10 MR. GOLDIE:  What we require is the original of the document  11 that was under tab 36.  12 THE COURT:  All right, thank you.  Mr. Jackson.  13 MR. JACKSON:  I would presume, my lord, a photocopy will be  14 produced, will be identical to the photocopy in Mr.  15 Goldie's file.  16 MR. GOLDIE:  Well, I would be glad to furnish that to my friend  17 except that it has a number of my comments written on  18 it.  19 THE COURT:  Yes.  2 0 MR. JACKSON:  21 Q   Mr. Brody, could you set out the nature of the dispute  22 between Amos Williams and Phillip Johnson as you  23 understand it from a review of these documents?  24 A   I think I said just before lunch it starts with a  25 sisxw, S-I-S-X-W, from Malu and Gwoimt of a territory,  26 and an argument then follows within Gitksan society  27 about the proper application of sisxw laws, and I've  28 been given to understand by persons involved that  29 there are rival interpretations of this law, some  30 saying that a transfer of property under these  31 circumstances is for life, others saying it is until  32 the grief associated with the events has subsided,  33 which could be of course much less or much longer than  34 life.  That is, in terms of Gitksan law, the  35 background to the dispute, as far as I know.  The  36 dispute then in 1927 comes before Indian -- the Indian  37 agent at Hazelton, and the parties to the dispute try  38 and tell him their version of the events, that is they  39 present him, so to speak, with parts of the relevant  40 adaawk, using him at least as a witness.  41 MR. JACKSON:  On page 185 —  42 MR. GOLDIE:  I'm sorry, I didn't catch that last answer, my  43 lord.  I wonder if the witness would repeat it again?  44 A   Using him at least in part as a witness.  45 MR. GOLDIE:  To whom is him?  4 6 A  Agent Hyde.  47 MR. GOLDIE:  That's your interpretation, not — 15440  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 MR. JACKSON:  My lord, perhaps the witness could continue.  Mr.  2 Brody --  3 MR. GOLDIE:  Well, my point, my lord, is we're dealing with  4 documents, we're dealing with an event in which the  5 witness has no personal knowledge, and if he's going  6 to give an interpretation it should be confined to  7 that which he places it in some anthropological  8 context, if any, but when he characterizes the Indian  9 agent in a certain way he's going beyond his  10 competence and what he can do as a witness.  11 MR. JACKSON:  12 Q   My lord, the point here is not to characterize the  13 Indian agent in the context of how the Indian agent  14 understood his own role, the point here is to provide  15 a context for the way in which Gitksan people dealt  16 with an issue relating to the inheritance, ownership  17 of a particular territory.  The point I wish to get  18 to, my lord, is set out at page 185 of Mr. Brody's  19 report, and I will get to it directly.  Mr. Brody, you  20 set out at page 185 a statement made by Abel Oakes,  21 and I want to read it to you and invite your comment  22 as an anthropologist on this matter:  23  24 "Since the death of Moses Gwoim (Gwoimt)in 1912  25 Amos Williams has said that he (Amos) thinks the  26 trapline should be returned to the original  27 owners.  According to Indian law, a trapline given  28 as a peace offering because of a killing stands  29 forever.  He says Amos Williams told him that the  30 hunting ground had been held long enough  31 by Moses Gwoim and his descendants and that it  32 should be returned."  33  34 A   Do you want me to comment on that?  35 Q   Yes.  36 A  Well, in relation to the trapline question, perhaps  37 the most striking thing about this passage is the  38 lesion between trapline and hunting territory or  39 hunting ground.  Abel Oak is reported having said  40 according to Indian law a trapline given as a peace  41 offering, four lines to the bottom and then two lines  42 to the bottom of the quote he then refers to it as the  43 hunting ground, and this is a good example of the way  44 in which the term "trapline" and the special hunting  45 ground are used interchangeably.  46 MR. JACKSON:  And at page 186, having reviewed that extract and  47 a number of other extracts, or all of which I should 15441  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 point out, my lord, are statements made by Gitksan  2 persons.  3 THE COURT:  Are these statements all in tab 36?  4 MR. GOLDIE:  Yes.  5 MR. JACKSON:  Yes, my lord.  6 THE COURT:  Yes, all right, thank you.  7 MR. JACKSON:  8 Q   You say:  9  10 "What do these short extracts from the account  11 organized by Indian Agent Mortimer reveal?  First  12 and foremost, that, as far as the Gitksan are  13 concerned, their way of establishing and then  14 adjudicating rights to territories is all that  15 counts.  The question for them is whether or not  16 the disputed territory was transferred in  17 perpetuity when a murder was committed - that is,  18 according to Gitksan laws of sisxw.  To answer  19 that question, they consult one another's  20 historical records - the oral testimonies so  21 important to the system - and hope to find an  22 accord.  In the 1930's, therefore, Gitksan  23 jurisdiction was what mattered to the Gitksan -  24 and they sought to have this witnessed in whatever  25 way they could."  26  27 And that is your opinion based on your review of these  2 8 documents?  29 A   Yes.  30 MR. GOLDIE:  My lord, you have my objection of the witness  31 making any characterization of Mr. Hyde.  32 THE COURT:  Yes.  33 MR. JACKSON:  My lord, as I understand it, characterization is  34 not of Mr. Hyde.  35 MR. GOLDIE:  It is.  It is characterizing him as a witness.  3 6 MR. JACKSON:  From —  37 MR. GOLDIE:  It's not the witness, he's the adjudicator.  38 MR. JACKSON:  He's being characterized, my lord, as a witness  39 from the perspective of the Gitksan, that's my point.  40 MR. GOLDIE:  He has no personal knowledge of that, my lord.  41 That may be his opinion.  42 THE COURT:  Well, I'm still working, and I may be way behind the  43 times, but I'm still working on the St. John's rule.  44 I think what the witness has done is he's taking what  45 he understands is a record of an event of recent  46 history and he is saying that from an anthropological  47 point of view I think this event carries this 15442  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 significance.  I don't think that if in the course of  2 that opinion he characterizes a participant either as  3 a witness or an adjudicator or in any capacity as  4 really the significance of the opinion, or as they say  5 in the law of libel, the sting of what he is saying,  6 and for that reason it seems to me that what the  7 witness is doing is something that, subject to the  8 objection, he should be allowed to do.  I'm not going  9 to be very concerned with what characterization he  10 attaches to a person long since deceased, I think what  11 I'm anxious to know is from an anthropological point  12 of view what does this all mean, and that, as I have  13 said, is subject to the objection.  14 MR. JACKSON:  15 Q   Yes, my lord.  Mr. Brody, tab 36 at the beginning is a  16 copy of Agent Mortimer's letter to the Indian  17 Commissioner for British Columbia in Victoria.  Could  18 you turn to -- well, perhaps before we turn to the  19 response, what is it Mr. Mortimer is seeking advice on  20 in that letter?  21 A   Indian Agent Mortimer is confronted with a dispute  22 between chiefs which he takes to be serious and is  23 fearful of making a mistake in his judgment, and on  24 the basis, I assume, of his experiences in the area,  25 is anxious about the outcome of a possible error,  26 indicates here quite clearly that the dispute is of  27 many years standing and wants advice as to how best to  28 deal with the matter.  29 Q   Could you turn to tab 38 -- tab 37.  This is a letter  30 from Mr. Perry, who is the Assistant Indian  31 Commissioner for British Columbia, to the secretary,  32 Department of Indian Affairs in Ottawa dated October  33 the 4th, 1932.  And if you go to the third paragraph,  34 Mr. Perry says:  35  36 "My experience as Indian agent in the North country  37 for many years brought me into contact with scores  38 of similar cases, and I'm afraid it will take  39 several years to break down the resistance of the  40 Northern Indians to the statutes and regulations  41 which challenge their own vaunted claims to right  42 of possession and ownership of the country and  43 resources."  44  45 And if you would comment on that from the perspective  46 of someone who is reviewing the issue of changing  47 continuity in Gitksan and Wet'suwet'en society in the 15443  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 area of a trapline and hunting territory?  2 A   This letter is dated 1932, trapline registration was  3 introduced in 1925 after seven years in the northern  4 part of the province, as that says here.  Officials  5 involved note that the Indian system of what I would  6 take to be authority and ownership is still being  7 followed by the people themselves, and this is making  8 it difficult for the trapline registration programme  9 to have the dimensions that were intended for it.  10 Q   If you could turn to tab 38.  This is Mr. Perry's  11 response to Agent Mortimer, which bears the same date,  12 October the 4th, 1932, as his letter to the Secretary  13 in Ottawa.  And if you would go to the first page of  14 that letter, the fourth paragraph down where Mr. Perry  15 says to Indian Agent Mortimer:  16  17 "The sort of dispute now going on should, in my  18 opinion, be discouraged by our officials, by  19 refusing to recognize any fictitious claims made  20 by the Indians and not supported by either  21 Dominion or Provincial Statutes.  22 Of course, in connection with the registrations  23 of Indian traplines, care should be taken to  24 register the ground for individual Indians who are  25 recognized as being most reasonably entitled to  26 trap and hunt in the territory to be assigned to  27 them.  This is, admittedly, sometimes, as in the  28 present case, difficult to determine."  29  30 And if you would turn to the second page of the  31 letter, the second paragraph on page 2 of the letter,  32 Mr. Perry continues:  33  34 "In view of the foregoing, it is considered that  35 the Indians should apply for the registration of  36 their traplines and be shown by yourself as Indian  37 Agent that it is futile for them to expend all  38 their energy in the pursuit of something that is  39 not feasibly obtainable.  If they were to exert  40 the same amount of energy in endeavoring to obtain  41 something that is attainable, they would  42 ultimately get farther and obtain greater  43 satisfaction.  They cannot expect the Governments  44 of the country to change all their laws and  45 regulations just to satisfy an isolated instance  46 of tribal vengence that has not --"  47 15444  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  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  THE COURT:  "Revenge", isn't it?  MR. JACKSON:  "Revenge", thank you, my lord.  THE COURT:  Yes.  MR. JACKSON:  "Of tribal revenge that has no support either in  law or in civilized perspective.  The sooner these Indians are convinced that the  laws of the Governments take precedence in their  relations to Indian tribal custom the better it  will be for everybody."  And again from your perspective as an anthropologist,  could you comment on that letter?  A   Yes.  This is the letter from head office to the  field, so to speak, the response to the Indian Agent's  anxiety about the possibly dangerous consequences of a  failure to resolve the dispute, and the recommendation  is get them to register their traplines.  But imbedded  in this document is the confusion, the sort of double  message that I was trying to draw attention to before  lunch.  Somehow inside the trapline registration  process there is, on the one hand, a wish to put a  stop to the Indian system of doing things, in this  case the Gitksan authority, but on the other hand  there's a concern to register traplines to which the  Indians have a claim according to their own customs.  And I imagine that for the Indians who are registering  there could well be quite a confusion here as to what  really is going on and quite a good deal of confusion  between the Indians' understanding and the officials'  understanding, and if the Indians are being told  "Well, tell us who this land really is and we'll write  it on our documents", and really is they are meaning  according to your laws, then there is an  acknowledgement in the registration process of Gitksan  law, and yet behind this acknowledgement we can see  from the documents there is an intention to put a stop  to the application of those laws.  MR. JACKSON:  Mr. Brody, could I refer you to tab 39 of document  book 3.  THE COURT:  What's the name?  That's — Oh, Ackerman, is it,  A-C-K?  A  A-C-K-E-R, I believe, my lord.  MR. JACKSON:  My lord, this is an extract from a file referred  to as the Johnny David trapline dispute, and it is an  extract from the evidence of Mr. Les Cox, a sworn 15445  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 statement made in the course of an inquiry held under  2 the Wildlife Act of British Columbia.  3 THE COURT:  Do you know when?  4 MR. JACKSON:  January the 26th, 1982.  5 MR. GOLDIE:  Mr. Cox is alive, is he not?  6 MR. JACKSON:  Yes, my lord.  7 MR. GOLDIE:  What possible basis can this be admitted?  8 THE COURT:  Well, as far as I can see, only on the St. John's  9 principle.  10 MR. GOLDIE:  Well, the St. John's principle isn't suggesting  11 that the value of such and such a house is -- the  12 objection was that the opinion was based upon hearsay,  13 the hearsay being the records of the office in which  14 the appraiser got his numbers from.  15 THE COURT:  Yes.  16 MR. GOLDIE:  There wasn't any issue taken with the fact of those  17 numbers.  The numbers in themselves were simply the  18 basis of an opinion.  19 THE COURT:  Well, is the analogy not taken this far that,  20 accepting the St. John's principle for a minute, and  21 there the way you describe it is it not a failure for  22 the proposition that someone forming an opinion can  23 collect his information from a variety of sources  24 without each of them having to be called and saying as  25 a result of that, that amalgum of information, I have  26 this opinion.  27 MR. GOLDIE:  Well, he has an opinion that has nothing to do --  28 it's an opinion with respect to this piece of property  29 here, it's not an opinion with respect to the other  30 pieces of property.  And yet what we're hearing is an  31 opinion with respect to the other pieces of property.  32 The Indian Agent Mortimer thought this, here's what  33 they were doing.  It's as if the expert was being  34 asked to say whether the opinion of one of the  35 comparison properties was properly arrived at.  36 This -- I don't know what Cox has said, but I do know  37 that something said in 1982 by somebody who is alive,  38 well, and presumably could be called, and on which  39 this witness is going to comment goes far beyond the  40 issue -- any issue in this lawsuit, or the matters  41 which my friend said he was qualified to comment on.  42 THE COURT:  Well, I have not in my thinking assumed that the  43 purpose of the examination was to prove the rights and  44 wrongs of this particular dispute, but for the witness  45 having examined the dispute would be giving an opinion  46 on the process and the anthropological consequences of  47 the process.  But I don't -- I haven't a clue what Mr. 15446  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 Cox says and I --  2 MR. JACKSON:  That is exactly the point which I'm using, my  3 lord.  4 MR. GOLDIE:  As I understand, he's giving his version of  5 something -- of the resolution of the dispute.  6 THE COURT:  Well, if he is I wouldn't pay much attention,  7 because I don't really care, and I don't say that in  8 in any disrespectful sense to the participants, I  9 don't really care who came out ahead in that dispute.  10 I'm sure in most adjudication processes someone's  11 happy and someone is unhappy, and seldom that they're  12 both happy, although sometimes they're both unhappy.  13 But that doesn't seem to me that matters, and if he's  14 going to say Johnny David won or lost and that's a  15 terrible shame, I don't really care, and I'm not going  16 to pay any attention to that, but if he has anything  17 to say about the process, then I think he's entitled  18 to say it.  19 MR. JACKSON:  On the next page, half-way down the page,  2 0 somebody's underlined the word:  21  22 "Unfortunately, there was two few native people who  23 could speak and understand and write in the  24 English language and there were no Game Wardens  25 that I am aware of that could speak and understand  26 and write in the Native language."  27  28 Well, what -- he's speaking about -- he said:  29  30 "Johnny David is well known to me.  He had a  31 sawmill he and his son Moses worked a sawmill  32 in the Knockholt area."  33  34 And so on.  35 THE COURT:  I'm not going to be very impressed by the minutia of  36 that kind.  I will be listening or recording and  37 trying to remember only those things that he says  38 about the process, and if he uses this as the basis  39 for an opinion that sometimes these problems, these  40 matters are made more difficult because of a lack of  41 Gitksan or English, I think that's a proper matter for  42 him to comment on.  It may not -- the truth of that  43 fact may not arise just out of this evidence, it may  44 arise from the whole corpus of evidence, which is  45 gaining larger parts all the time.  46 MR. GOLDIE:  It's got nothing do with the St. John's principle  47 on that basis. 15447  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  Perhaps not, but I'm not — I'm not sufficiently  2 convinced of that that I would exclude it.  3 MR. JACKSON:  4 Q   Mr. Brody, if you could turn to tab 39, page 131,  5 about two-thirds of the way down the page, starting  6 with "The disputes that are":  7  8 "The disputes that are arising now are coming as a  9 result of more of the older people passing on to  10 their just reward and younger people trying to  11 carry on it with what they understood was  12 their rights.  Other problems -- my problem over  13 the years was to try and determine who was right  14 and who was wrong.  If that was possible and as a  15 result we kept close contact with the Indian  16 Superintendent as a matter of fact no traplines  17 during my sojourn as District Game Warden  18 traplines were not transferred.  With that is  19 Indian traplines were not transferred without the  20 approval of the Indian Superintendent even in  21 those cases the Indian Superintendent that I would  22 call often have meetings with the people.  Now,  23 some of you in Morrice Town will recall there were  24 meetings at Morrice Town meeting at Hazelton, at  25 Haigilgit, at Kispiox all of these places they had  26 meetings with places with the people that had a  27 claim on the traplines.  Most of this was brought  28 about a person being deceased someone dying and  29 the selection of the new head man was very  30 important at that time.  Unfortunately, there  31 was too few Native people who could speak and  32 understand and write in the English language and  33 there were no Game Wardens that I am aware of that  34 could speak, understand or write in the Native  35 language.  So these were the problems.  I don't  36 know of any Indian Superintendent who could  37 either.  So undoubtedly there was some problems.  38 However, we tried to make sure that as did our  39 understanding of it was that the line would  40 pass at least with and stay within the clan to  41 which it belonged.  Now, in recent years we have  42 come to know that there were other arrangements  43 made where certain people were special Chiefs,  44 certain privileges were given to him to trap in  45 an area and the Indians, the Native people would  46 tell us that those were special privileges to that  47 person only for his lifetime.  That is something 15448  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 that we didn't know, we assume that persons have  2 the right of that trapline and could pass it on to  3 his -- to the people in his Clan.  This has been  4 done for many years."  5  6 And that was the point at which I stopped, my lord.  7 MR. GOLDIE:  Well, you see, my lord, that exactly illustrates  8 the problem.  We don't know the period that he's  9 talking about, we don't know what he is referring to  10 by recent years, we don't know to whom he's referring  11 to.  It is a statement plucked out of context that may  12 have an entirely different meaning.  If we could put  13 dates and do all of the things which Mr. Cox would be  14 expected to do if he was giving evidence here, and how  15 any opinion, whether according to the St. John's  16 principle or otherwise, could be founded upon  17 something which is in itself so imprecise, I don't  18 know.  19 THE COURT:  Well, there's no doubt that I'm stretching the St.  20 John's principle out of recognition, and it may be  21 that what we ought to be -- it may be that your  22 question of the witness, Mr. Jackson, is to put that  23 set of assumptions or hypotheses to the witness, and  24 if assuming those facts does he have an opinion as an  25 anthropologist, it would be a permissible way to  26 proceed.  2 7    MR. JACKSON:  28 Q   That's appropriate.  Assuming what Mr. Cox said there  29 were to be true, Mr. Brody, what conclusions would you  30 draw from that?  31 A   I've tried to identify in the course of talking about  32 traplines the way in which the officers in the field  33 responsible to the administration of traplines tended  34 often to accommodate, knowingly or unknowingly, the  35 Indian view of things.  So whatever the regulations  36 might say, when a line was registered, often it was  37 being registered by people who thought their system  38 was being registered.  What Mr. Cox says here is of  39 importance to me because he was the officer in the  40 field from 1948 to sometime in the 1970's, so he was  41 the key man at the interface between the trapline  42 registration system and the people who were  43 registering their lines or having problems and  44 disputes that he had to cope with, and it's clear to  45 me that Mr. Cox was a man who was aware of an Indian  46 system and who was sensitive in many ways to it.  I'm  47 not trying to use what Mr. Cox says here to go beyond 15449  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 a continuation of my understanding of what I called  2 the geography of the cultural encounter.  3 MR. JACKSON:  Mr. Brody, could you turn to tab 42 of document  4 book 3.  This is a letter dated February the 6th, 1975  5 from Conservation Officer McLeod to Chief Johnny Mack,  6 Chief Councillor, Moricetown.  7 MR. GOLDIE:  Excuse me, before you go on, is there any way we  8 have of dating these statements of Cox?  Did you tell  9 us anything beyond 1982, is there a month or --  10 MR. JACKSON:  Yes, my lord.  The hearing was — transcript  11 proceedings are from January the 26th, 1982.  12 THE COURT:  Well —  13 MR. JACKSON:  I understand my friend has the transcript.  14 THE COURT:  In tab 40 there is an interview with Cox, 1987 —  15 MR. JACKSON:  That is not the document which we're referring, my  16 lord.  17 THE COURT:  Yes, all right.  When do you say this tab 39  18 evidence was given?  Wait a minute, that was given --  19 MR. GOLDIE:  That was January.  20 MR. JACKSON:  That was January the 26th, 1982.  21 MR. GOLDIE:  It was the month I was concerned about, my lord.  22 THE COURT:  Yes, all right, thank you.  2 3 MR. JACKSON:  24 Q   The whole of that document was disclosed to the  25 plaintiffs by the defendants in preparation for  26 cross-examination of Johnny David last year, my lord.  27 If you could look at tab 42, Mr. Brody, the third  28 paragraph Conservation Officer MacLeod says to Chief  29 Mack:  30  31 "We would like you to obtain a Band Resolution  32 stating that this transfer is officially approved  33 by them and send this to us.  If we are to follow  34 the crest system of inheritance it will be up to  35 the Band Councils to decide who should rightly be  36 on these traplines.  They are the ones who know  37 and this will help to keep situations  38 under control."  39  40 And could you also turn to tab 43 of the document  41 book.  This is another letter from Conservation  42 Officer McLeod.  This one is to a Mr. Mclntyre, who's  43 the District Real Estate Officer from the Department  44 of Indian and Northern Affairs in relation to the  45 Seymour Tom and Company Trapline, and Mr. McLeod says:  46  47 "My records show no official transfer of this line 15450  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 from Seymour Tom to Henry Isaac.  I cannot find  2 any reason why August Pete was removed from this  3 line but we do know he was placed on a line of his  4 own in another area.  5 Mr. Sam Pete was in to see me the other day and we  6 had a lengthy discussion of the matter.  It would  7 appear that his claim is based on Native Clan  8 inheritance; he is related to Seymour Tom.  9 I am in the process of organizing a meeting with  10 all the people involved on this line to see who  11 actually have a claim to the line.  Hopefully we  12 will be able to accomplish something.  13 I think you can appreciate that the native people  14 wish their traplines to be transferred on the Old  15 system rather than our system.  To this end we are  16 working with the Band Councils to administer the  17 lines."  18  19 And if you could turn also to tab 44, which is a  20 letter written by Mr. Mclntyre, it would seem in  21 response to Mr. McLeod's letter, and this is dated  22 March the 4th, 1975, in which Mr. MacLeod after the  23 appropriate salutations goes on to say in paragraph 2:  24  25 "The question as to whether or not traplines should  26 be transferred according to local custom or by the  27 often conflicting common rules of inheritance is  28 indeed somewhat of a problem.  Many Indian people,  29 including those identified above, feel strongly  30 about their right of inheritance and the  31 Administrator of Estates of our Department is  32 somewhat compelled to treat trapline rights as an  33 estate asset has supported their inheritance  34 position.  On the other hand, the custom of  35 Clan oriented inheritance which more or less  36 begins in your area and prevails westward has to  37 be considered.  I suppose involvement with Band  38 Councils and/or Native clan spokesmen is a fairly  39 conclusive method of dealing with these transfers,  40 yet I cannot help but wonder what the end result  41 might be if an individual heir, who became  42 disinherited by the workings of the clan method,  43 took his case to a court of law. "  44  45 Now, bearing in mind those three documents from the  46 1970's, what conclusion do you draw as an  47 anthropologist in relation to the issues under 15451  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 discussion in this chapter of your report?  2 A  What I think I'm finding here is the persistence of  3 the peoples' wish to have their system shape how land  4 is administered, that is to say their ideas of  5 ownership and authority or the ideas they're seeking  6 to maintain in spite of many many years of contrary  7 pressures, and throughout a period which was beset, as  8 I said earlier today, with many confusions and mutual  9 misunderstanding.  Trapline registration begins in  10 1925.  In 1975 people in the Gitksan-Wet'suwet'en  11 area, anyway, are still asserting their forms of  12 inheritance and land ownership, despite 50 years of a  13 contrary policy administered by Provincial officials.  14 MR. GOLDIE:  Well, I object to that last statement.  There is no  15 evidence of 50 years of contrary policy.  That's  16 precisely the reason why this witness should not be  17 allowed to comment on documents of this kind which are  18 perfectly understandable on their face.  19 THE COURT:  Thank you.  2 0    MR. JACKSON:  21 Q   Mr. Brody, could you turn to document tab 45.  This is  22 a letter from Mr. Ackerman, Regional Conservation  23 Officer, and it seems to be a circular letter to all  24 staff in the Skeena region on the subject of transfers  25 of native traplines to "non-Native status".  It reads:  26  27 "Sr. C/O Fraser sent you the attached January, 1981  28 memo which instructed you to follow certain  29 procedures when a Native proposed to transfer his  30 trapline to a non-Native.  These procedures were  31 endorsed by myself and the Band Councils in the  32 region.  It was an attempt on our part to abide by  33 the wishes of the Native people that their  34 traditional traplines maintain 'Native' status by  35 giving the Band Councils first option to purchase  36 any Native line available for sale."  37  38 We go to the third paragraph:  39  40 "You are therefore instructed that effective  41 immediately, our instructions contained in the  42 January, 1981 memo are cancelled.  If a Native  43 wishes to transfer his trapline to a non-Native  44 you are to process the transfer in the normal  45 fashion.  If there is any opposition to this  46 procedure by the Band Councils, you are to inform  47 them that the Fish and Wildlife Branch is taking a 15452  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 'strictly legal' stand on this issue."  2  3 Again, could you give the court the benefit of your  4 comment as an anthropologist on that document.  5 MR. GOLDIE:  Well, my lord, I object because the document is  6 perfectly understandable.  There is -- if your  7 lordship requires assistance in interpreting this  8 document, then there's no need for all of the lay  9 witnesses we've had, there's no need for counsel or a  10 judge, all there is need of is Mr. Brody.  11 THE COURT:  Well, I don't have any difficulty with the letter,  12 but I'm not sure that I wouldn't be assisted by an  13 anthropological opinion on the consequences of such a  14 policy or such a decision.  15 MR. GOLDIE:  Well, the consequences are spelled out.  A native  16 has challenged the informal procedure.  17 THE COURT:  Yes.  18 MR. GOLDIE:  And as a result there is going to be a strictly  19 legal stand.  Now, what could be clearer than that.  20 THE COURT:  Well, nothing could be clearer than that from a  21 legal -- strict legal rights point of view, but there  22 may be anthropological consequences that transcend the  23 immediate parties to the dispute, and that I think is  24 a proper subject for an anthropological opinion.  25 MR. GOLDIE:  Well, I say, with all respect, my lord, that the  26 anthropological consequence is the same as the  27 ordinary consequence.  In 1981, as a result of a  28 challenge by a Native who apparently,  29 anthropologically speaking, decided the old way wasn't  30 his way, the law is to be administered as it is on the  31 Statute books.  Now, what the consequences are of  32 that, your lordship is in the position as well as  33 anybody else to come to your own --  34 THE COURT:  I'm not sure about that part of it.  You see there  35 could be -- when Hal Laycoe brought his hockey stick  36 on Rocket Richard's head, I know he got five minutes  37 for drawing blood and there was a riot in Montreal for  38 three nights in a row.  39 MR. GOLDIE:  Anybody who attended that hockey game in the forum  40 would know that would be a foreseeable consequence.  41 THE COURT:  I'm wrong, it wasn't the hockey stick, it was -- the  42 player didn't get suspended for life, I think he was  43 suspended for the rest of the series.  I think there  44 are consequences that extend beyond the immediate  45 parties of the dispute, and I think it may be that  46 there is something that the anthropologist can tell me  47 that doesn't spring out of this letter to me which is 15453  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 clear as far as it goes.  I think you can answer the  2 question, Mr. Brody, please.  3 A   The issue that I've been trying to get at and all that  4 I've been saying about traplines is a struggle over  5 the laws.  There are two systems of law, and they're  6 meeting and contradicting one another, bypassing one  7 another, and I feel there's a great burden on me now  8 to provide complex anthropological explanations of  9 this letter, which I don't feel up to, but I think  10 very simply spoken, this is showing that in 1981 this  11 struggle over the laws continues, and I know from my  12 anthropological work in the area that there are  13 ramifications of this going through many Gitksan and  14 Wet'suwet'en houses, the question of what is the law  15 saying how does our law, our Gitksan, our Wet'suwet'en  16 law apply to this other law is the subject of much  17 confusion, much conversation and many attempts at  18 reconciliation.  19 MR. JACKSON:  20 Q   If I could refer you to page 187 of your opinion  21 report, the last paragraph, you say:  22  23 "The evidence available shows, therefore, that  24 registration of traplines has been a deeply  25 confused and confusing process.  Two different  26 cultures met in this issue and yet succeeded in  27 misinterpreting or bypassing one another's central  28 intentions.  Provincial authorities believed they  29 were establishing a regulatory system under their  30 jurisdiction; they believed that their cultural  31 systems were being established at, and were  32 extending, a northern frontier.  Gitksan and  33 Wet'suwet'en authorities believed that they were  34 defending or consolidating their cultural system  35 in opposition to extension of the newcomers'  36 frontier."  37  38 And that is your opinion based upon the materials  39 which you have set out in this -- this chapter?  40 A   Based also upon my extensive field work in the area,  41 yes.  42 MR. JACKSON:  Thank you.  I would like to mark, my lord, tabs 25  43 to 33.  Tab 34 will be deleted.  44 THE COURT:  I'm sorry, what were they, 25 to 33?  45 MR. JACKSON:  To 33.  Tab 34 will be deleted.  I am also  46 deleting tab 40.  And I would like to have tabs 36 to  47 39, and 41 to 45 marked as the next exhibits. 15454  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  Yes.  All subject to the objection of Mr. Goldie.  2 MR. GOLDIE:  Well, the non-archival documents are being tendered  3 for the truth of the matters therein stated.  4 MR. JACKSON:  No, my lord, that —  5 MR. GOLDIE:  The witness has adopted the statements made and he  6 said "This is the basis for my conclusion, that there  7 is -- my conclusion that there is confusion."  There  8 is no other way in which these documents can be  9 tendered.  10 THE COURT:  Well, these are -- these are government documents  11 which your friend can put in against you, they may  12 hurt him, but they're your documents.  13 MR. GOLDIE:  Absolutely.  But what I'm saying is they can't —  14 if my friend is using them in the manner that he has,  15 they go in.  There's no -- there's no hanging issue  16 with respect to non-archival documents.  17 THE COURT:  It seems to me it's a matter of law, not a matter of  18 my ruling that it is or it isn't.  19 MR. GOLDIE:  Absolutely.  20 THE COURT:  It's a matter of law.  21 MR. GOLDIE:  Yeah.  22 MR. JACKSON:  Yes, my lord.  23 THE COURT:  I'll estrange myself from pronouncing on it, because  24 I'm going to hear an argument.  25 MS. KOENIGSBERG: It is my position, I have a mere technical  26 problem with some of these tabs.  Tab 42, 43, and 44  27 are all documents which apparently come from the  28 A.G.B.C list, but which I do not find referred to in  29 the witness' actual report in support of this point,  30 and my problem is one which may seem obscure but  31 presents a problem for cross-examination.  It would be  32 helpful to know if in fact these are documents which  33 he did rely on in coming to the opinion which he came  34 to in this report or if there's something he's seen  35 afterwards that he is now adopting.  36 THE COURT:  It seems to me that's a matter that can be cleared  37 up in cross-examination.  38  39 (EXHIBIT 993-25 to 993-33 - Letters, file extracts  40 of trapline disputes)  41  42 (EXHIBIT 993-36 to 993-39 - Letters, file extracts  43 of trapline disputes)  44  45 (EXHIBIT 993-41 to 993-45 - Letters, file extracts  46 of trapline disputes)  47 15455  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  I have a terrible confession to make too, it wasn't  2 the way I put it.  Rocket Richard put his stick down  3 on Hal Laycoe, it was Rocket that --  4 MR. GOLDIE: I thought you were talking about Maurice.  5 THE COURT: Maurice Rocket Richard.  6 MR. GOLDIE: Wasn't it Maurice who —  7 THE COURT: Yes.  8 MR. GOLDIE: Hit —  9 THE COURT: Maurice was the Rocket.  10 MR. GOLDIE:  Yeah, not Pocket Rocket.  11 THE COURT:  Henri.  It was 30 years before this happened.  12 MR. JACKSON:  When I've been in Canada maybe another 20 years I  13 can join in with your lordship's and my friend's  14 comments.  I feel at a disadvantage.  15 THE COURT:  It was a wonderful riot anyway.  16 MR. JACKSON:  Is it convenient to take the afternoon break?  17 THE COURT:  Oh, yes, certainly.  18 MR. JACKSON:  Yes.  19 THE REGISTRAR:  Order in court.  20  21 (PROCEEDINGS ADJOURNED AT 3:00)  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein transcribed to the  26 best of my skill and ability  27  28  29  30  31 Graham D. Parker  32 Official Reporter  33 United Reporting Service Ltd.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 15456  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  2  3 THE COURT:  Mr. Jackson?  4 MR. JACKSON:  Yes, my lord.  5 Q   Mr. Brody, I would like to refer you to chapter 13,  6 Kisgagas?  7 A   Give me a page number.  8 Q   Page 163, K-I-S-G-A-G-A-S.  Mr. Brody, what are the  9 bases for the opinions you express in chapter 13 of  10 your opinion report?  11 A   I made a series of visits to Kisgagas.  Kisgagas lies  12 some 14 miles from Hazelton at the end of an extremely  13 difficult road, and I travelled there by road in  14 spring and had the opportunity of looking at the  15 evidence of the ancient village there.  In particular,  16 I saw a great collection of salmon storage pits, I was  17 shown around the old houses there and taken on a visit  18 to the church, which doubled up as a school, and I was  19 given an explanation of what life was like there by  20 persons who had lived there.  21 At the time of my first trip there, I was extremely  22 struck by the evident former size and perhaps  23 importance of the place, the sheer number of the  24 salmon storage pits had a great deal of cultural  25 significance, the graveyards that I was shown were  26 very striking indeed, especially the upper hidden  27 graveyard where there were old grave houses hidden, as  28 it were, in the woods, and I began to ask a whole lot  29 of questions about Kisgagas, in my mind at first, and  30 how big was this place, how important was it.  When I  31 was there on my first trip there seemed to be only two  32 permanent residents, had a very strong feeling of  33 being abandoned, so I looked into other possible  34 sources of information.  I went to the adaawk and I  35 went to historical records, I inquired of historians  36 what information there was, I looked at Indian -- the  37 annual reports of the Department of Indian Affairs and  38 I came up with some basic statistics about population.  39 I discovered that in 1891, according to the official  40 reports, there were about 300 people living at  41 Kisgagas on a permanent basis.  I followed the course  42 of these population statistics through decades,  43 roughly decades, and arrived at a population of  44 approximately 65 in 1929 and then talked to Gitksan  45 people who had lived at or used Kisgagas about the  46 developments there since the 1930s and tried to get a  47 sense of its continuing de-population and I thought -- 15457  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 I think at that time what I was doing was putting  2 together a profile of a part of the Gitksan territory  3 or Gitksan cultural system, that had fallen into a  4 sort of dis-use.  Kisgagas is really a very, very  5 striking place for an anthropologist, it's a haunting  6 place for an anthropologist, because there is so much  7 evidence of human habitation and because it is  8 mainfestly a highly productive place, it seems an  9 ideal salmon fishery.  10 I returned to Kisgagas for two more trips in the  11 fall of the year, I believe in late summer and early  12 September, the time of year is important because I  13 went during the sockeye salmon run and far from  14 finding an abandoned place, I then found a place that  15 was humming with activity.  There were many families  16 camped there, using cabins there, there were many  17 children there, for example, playing on the rocks by  18 the river, there were people canning fish, smoking  19 fish in the smokehouse, and there were people dip  20 netting, for sockeye principally.  I then was there a  21 bit later in the year, goat hunting, and passed  22 through Kisgagas on my way to the mountains with the  23 hunters.  We stayed there overnight I think going both  24 directions, and again there were people there now  25 fishing the end of the salmon runs, with set nets in  26 the canyon there.  And I had the opportunity of going  27 high into the mountains above Kisgagas into the  28 territories that lie sort of beyond it, if one were  29 looking at it from the Hazelton direction, hunting for  30 groundhog and goat, and got a sense of productivity,  31 the importance and the nature of those territories.  I  32 continued talking to people about Kisgagas and tried  33 to come to a sense of its place, not in some previous  34 epoch of Gitksan life, but what was then the present  35 day, 1985-'86, it would have been.  And when I looked  36 at the numbers of people who were there during my  37 later trips, it struck me that -- and talked to people  38 about how much salmon they were getting from the  39 Kisgagas canyon fishery, it struck me that Kisgagas,  40 although full of abandoned houses, although replete  41 with Gitksan memory, and even nostalgia, I might say,  42 was nonetheless part of the living tissue of the  43 culture, if only because it yielded up all these fish,  44 because it was so important to so many individuals,  45 because it was a part of people's life, history,  4 6 culture and economy.  And that led me to think about  47 the way in which one can easily be deceived about the 1545?  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 meaning of a place.  2 THE COURT:  What year were you there, please?  3 A   '85, 1985 and 1986, my lord.  4 THE COURT:  Thank you.  5 A   I made several attempts to get there and failed at  6 other times.  I am only relying here on the successful  7 journeys to Kisgagas.  And the failure being to do  8 with the road.  9 MR. JACKSON:  10 Q   You referred to an adaawk, is that the adaawk part of  11 which you set out on page 163 and 164 of your report?  12 A   Yes, I found this use of the Guuhadk adaawk in Thomas  13 Wright's commission evidence, and I excerpted here, I  14 am afraid it's rather difficult to follow, but it's  15 very suggestive of the way Kisgagas is located in the  16 Gitksan scheme of things.  17 MR. JACKSON:   As Mr. Brody said, that's set out in commission  18 evidence, my lord.  19 Q   Could you turn to chapter 11 of your opinion report,  2 0 Mr. Brody?  21 A  Again, it helps if you give me a page.  22 Q   Page 132.  This chapter is headed "mixed messages",  23 could you explain to the court what you mean by mixed  24 messages?  25 A  When I looked at and thought about the interviews I  26 had carried out in Gitksan and Wet'suwet'en country, I  27 was often struck by the fact that two very different  28 kinds of things were being said to me: People were  29 presenting themselves, their history, their lives in  30 two different and rather contradictory ways.  On the  31 one hand, people would make a point of describing  32 cultural and economic and social loss that they had  33 experienced.  For example, my Wet'suwet'en interviews  34 of Johnny David and Basil Michell and Ann Michell, I  35 was told about the loss of their villages, lands,  36 about many of the things that have come up in the  37 course of discussing Wet'suwet'en life here and in my  38 opinion.  39 Similarly, in interviews with Gitksan, there would  40 be a great deal of emphasis that they would place on  41 what they had lost.  At the same time, the interviews  42 had a sort of optimism to them and there was a lot of  43 emphasis on the strength and vigour of their system,  44 emphasize on their belief in it, the truth of it,  45 their lands and so on.  Vigorous descriptions of how  46 people spent their time being Gitksan-Wet'suwet'en in  47 their own terms.  This is what I mean by the mixed 15459  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 message, that in interviews and conversations one is  2 hearing two very different kind of thing.  That's what  3 I mean.  4 Q   As an anthropologist, how do you come to terms with  5 interviews which have that duality to them?  6 A  Well, first of all I would like to say that my  7 experience here isn't peculiar to working in the  8 Gitksan and Wet'suwet'en area.  I had the same  9 experience working in northeast British Columbia and  10 indeed in the high arctic, perhaps most strikingly in  11 the high arctic, where by the normal criteria of  12 cultural strength, people's system is extremely  13 vigorous, and even there my interviews with elders  14 would produce similar kinds of mixed messages, and I  15 think there is a very simple point to be made that in  16 most cultures old people regard it as part of their  17 job to point out what's not right.  They are, as it  18 were, the institutional conservatives.  This is a  19 feature of social and cultural life, very broadly.  20 In the case of the Gitksan-Wet'suwet'en system, I  21 think this feature of cultural life, this conservatism  22 of the elders, this need to point to that which is not  23 right, is intensified by the cultures themselves.  In  24 Gitksan-Wet'suwet'en culture, the self respect and  25 standing of a chief depends upon upholding the respect  26 owing to the name that the chief holds.  There is a  27 law that we have referred to quite a few times in the  28 course of this evidence that centres on compensation,  29 therefore, I think that what one's seeing in the case  30 of Gitksan-Wet'suwet'en, is people trying to get  31 recognition and compensation for their loss, and so  32 feeling obliged to focus particularly extensively and  33 intently, upon that which has been lost.  It's a  34 matter of pride.  It's a matter of the respect owing  35 to the name, to have damage done to them, acknowledged  36 and compensated.  37 Q   And you have said that this was a feature, this mixed  38 message was a feature of your own interviews with the  39 Gitksan-Wet'suwet'en?  40 A   Yes, in my interviews with the chiefs I felt often  41 that I was being used somehow as a person before whom  42 they would lay their requests -- I was going to say  43 demand, that would probably over-state it -- their  44 request that loss be acknowledged and compensated in  45 so far as they saw me as a representative of the a  46 society that had caused the loss and had failed to  47 compensate.  And yet once they had gone through, as it 15460  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 were, that necessary procedure, that necessary  2 application of their system, they would then tell me  3 about many things or show me many things that were not  4 to do with loss but they were to do with the more  5 obvious vigour in the system.  6 Q   Was Martha Brown one of your informants?  7 A   Yes, I spent a good deal of time with Martha Brown.  I  8 visited her often and went with her to her family, one  9 of her family fishing places in Glen Vowell and to one  10 of the smokehouses there, and talked to her about all  11 these matters.  I won't say I talked to her, she  12 talked to me about her sense of loss and so on, and  13 she also talked to me about the fishery, the  14 smokehouse, berry patches and the parts of her life  15 that I was able to watch her enjoying.  16 Q   Did you observe the, what you have referred to as the  17 mixed messages, in your interviews with her?  18 A   Yes, it was a characteristic of, I would say, of  19 interviews or conversations with almost any high  20 chief.  21 Q   What did you observe when you were at the fish camp?  22 A   I saw Martha Brown who was then Kliiyem lax haa,  23 receiving fish that had been caught by her grandsons,  24 cleaning those fish with her daughter and a grandson,  25 filleting fish, putting them in the smokehouse and  26 related activities.  27 MR. GOLDIE:  Have you any notes of the interviews to which the  28 witness is referring?  29 MR. JACKSON:  There are two interviews with Martha Brown in tabs  30 18 and 19 of volume one of the book of documents.  31 Q   Mr. Brody —  32 MR. GOLDIE:  You have -- are these the ones that are being  33 referred to?  34 MR. JACKSON:  35 Q   Were there any other interviews which you had with  36 Martha Brown?  37 A  Many conversations I had with Martha Brown for which I  38 don't have notes.  The available material on Martha  39 Brown, if I remember rightly, comes from the  40 transcripts of the film work, she was somebody whom I  41 was able to film at work, and I think there is -- now  42 I am dredging around in my memory a bit -- there is  43 some conversation with her that was recorded then  44 about her lands in the Kispiox Valley, about farmers  45 she had dealings with, about berry picking, and of  46 course there is the activity at the smokehouse.  The  47 tape recorder doesn't pick up those activities in any 15461  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 obvious way.  2 Q   Mr. Brody, in terms of your observations of Martha  3 Brown, and your interviews with her, how do you locate  4 those in the context of change and continuity in  5 relation to Gitksan-Wet'suwet'en?  6 MR. GOLDIE:  My friend's referring to tabs 18 and 19?  7 MR. JACKSON:  No, my lord, I am talking about Mr. Brody's  8 interviews, observation, with Martha Brown, and at her  9 fish camp.  10 MR. GOLDIE:  Well, tab 19 is Mrs. Brown dressing fish, which I  11 assume is at the fish camp?  12 MR. JACKSON:  Perhaps I can clarify that.  13 MR. GOLDIE:  Well, I want to be sure that the question is  14 directed to the sources that we have.  15 MR. JACKSON:  Mr. Brody has identified a number of sources, my  16 lord, two of which are in the form of interviews in  17 the document book.  But he has referred to other  18 sources which are not reduced to writing.  19 Q   Mr. Brody —  20 THE COURT:  What is the — is Ms. Brown still alive?  21 MR. JACKSON:  No, she died.  22 MR. GOLDIE:  In 1987, I think.  She gave, of course, extensive  23 commission evidence.  24 THE COURT:  All right.  Thank you.  I think to solve the  25 problem, perhaps you better find out from the witness  26 first then what it is that he is relying on for  27 whatever evidence it is that you are going to ask him  28 for, so that there will be as much certainty about  29 that as possible.  3 0 MR. JACKSON:  31 Q   In addressing the issue of change and continuity in  32 Gitksan-Wet'suwet'en societies, in the context of your  33 work with Martha Brown, what are the sources of your  34 work with Martha Brown, other than what is set out in  35 the field interviews, tabs 18 and 19?  36 A  As I said, I visited Martha Brown many times, I  37 suppose I could try to count them up in my mind, but I  38 would often drop in on her.  We had many discussions  39 about -- free-ranging discussions, and what  40 anthropologists would call non-directional interviews,  41 that went here, there and everywhere, and I spent time  42 seeing how she lived and going with her to visit her  43 family at Glen Vowell.  44 Q   And the sources --  45 A  And then, of course, the film work which has been  46 recorded.  47 Q   Did you also review her commission evidence? 15462  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 A   Yes, I did.  2 Q   And on the basis of those reviews and on the basis of  3 your observation, do you have any further comment in  4 relation to the issues you have addressed in your  5 report relating to change and continuity?  6 MR. GOLDIE:  Well, we know what Mr. Brody is about to say, my  7 lord, because it's in his report.  He purports to tell  8 us that what Mrs. Brown said in her evidence is not  9 really what she said.  10 MR. JACKSON:  That is not my question to Mr. Brody.  11 MR. GOLDIE:  I know it's not your question but I know what the  12 answer is going to be to your question.  13 MR. JACKSON:  If Mr. Goldie would allow the answer he would find  14 out.  15 MR. GOLDIE:  No, my lord, I have a submission to make on this.  16 THE COURT:  Let me first ask Mr. Jackson, what is it that you  17 are seeking to examine this witness about?  Because  18 it's more than somewhat irregular to ask a witness to  19 comment on the evidence of another witness.  20 MR. JACKSON:  No, I am not asking him to comment on the evidence  21 of Martha Brown at commission.  I am asking him to  22 comment on the -- all the work he has done as part of  23 his research, using all the sources he has used in  24 relation to Martha Brown, and if my friend would  25 prefer, the commission evidence could be excluded from  26 that.  I am asking Mr. Brody not for an opinion that  27 Martha Brown did not mean what she said in her  28 commission, that was --  29 MR. GOLDIE:  That's just in the report.  30 MR. JACKSON:  That was not my intention.  31 THE COURT:  What are you seeking to ask him about Martha Brown?  32 She was examined, there is a transcript, she was -- I  33 think she was videotaped, we know what she looks like,  34 we know what her ambience was, why are you asking the  35 witness to talk about that?  36 MR. JACKSON:  I am trying to have the witness address, my lord,  37 the -- what he saw and what opinions he draws relating  38 to the role of Martha Brown in the context of her  39 family, in the context of her house, in terms of the  40 issue of change and continuity in relation to Gitksan  41 society.  42 THE COURT:  Well, I'd be much happier if that kind of  43 examination was not directed at a person who has  44 already been thoroughly processed as a witness in this  45 trial.  No matter how you approach this question, it  46 has the earmarks of trying to qualify or in some way  47 explain her evidence, which has to really stand on its 15463  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 own.  If the witness has a theory about the changing  2 continuity of Gitksan culture or Wet'suwet'en culture,  3 subject to any comments counsel have, I would be happy  4 to hear what he says about that.  But to relate it to  5 Mrs. Brown it seems to inevitably invite the kind of  6 objection you have, which seems to me to be awkward to  7 deal with because it's such an unusual procedure.  Do  8 you have to have the evidence you are seeking from the  9 witness to Mrs. Brown --  10 MR. JACKSON:  No, my lord.  I can direct the question more  11 generally in terms of the --  12 Q   The body of interviews that you have conducted with  13 people of Mrs. Brown's generation, the elders of the  14 Gitksan and Wet'suwet'en peoples --  15 A  Well, perhaps you could state the question to me again  16 because it's quite hard for me to keep up with the  17 exact nature of the question.  18 Q   My question is:  In the context of a chief, such as  19 Kliiyem lax haa, Martha Brown, or any of the other  20 chiefs you have interviewed in the course of your work  21 with the Gitksan and Wet'suwet'en, how do you  22 evaluate, in the context of change and continuity, the  23 evidence which you -- words you have heard in the  24 context of change and continuity?  25 MR. GOLDIE:  Well, again my friend is excluding from that any  26 evidence that has been given?  27 MR. JACKSON:  Yes, my lord, I am.  2 8    THE COURT:  All right.  29 A   On the basis of talking to many chiefs, then I would  30 say also on the basis of not just chiefs but on the  31 basis of talking to persons who held names that were  32 not senior names, not senior names and younger  33 persons, again and again I found that there were great  34 shifts, losses, adaptations, on at least the surfaces  35 of things, but I would also say I found, in many  36 regards rather to my surprise, that the basic  37 institutions of Gitksan-Wet'suwet'en society, that is  38 to say, their ideas about law, inheritance,  39 territoriality, their ideas about the basic  40 relationships between people and people, people and  41 land, people and the supernatural world, these basic  42 ideas were very strongly held and supported in persons  43 who had deviated from these laws, who had broken the  44 rules, tended to be fiercely criticized.  And I also  45 noticed that elders were very concerned to pass on  46 what they believed to be the proper Gitksan and  47 Wet'suwet'en ways to the next generation. 15464  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 MR. JACKSON:  Those are all the questions I have of Mr. Brody.  2 My lord, there are some other matters which I would  3 like to address in the report.  At page 210, of the  4 report, the first full paragraph, I wish to delete.  5 THE COURT:  The so-called barricades agreements?  6 MR. JACKSON:  Yes.  Having regard to your lordship's ruling in  7 relation to the evidence of Mr. Morrell, I would  8 withdraw that paragraph.  9 There are a number of matters my friend, Mr. Grant,  10 brought to my attention, I wonder if we might break  11 for a few moments and I could complete this matter.  12 THE COURT:  All right.  How long do you want?  13 MR. JACKSON:  Five minutes would be fine.  14  15 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  16  17 MR. JACKSON:  18 Q   Mr. Brody, I am showing you your document headed "List  19 of Barbeau-Beynon files relied upon by Mr. Hugh  20 Brody."  Are those the Barbeau-Beynon archive files  21 from which you -- which you have reviewed for the  22 purposes of preparing your opinion report?  23 A   I gave a list to Mr. Grant first thing this morning of  24 the ones that I relied upon and I assume this is a --  25 this is the typed-up list and, yes, it looks like the  26 right numbers, 68 -- yes.  Yes, this is it.  27 MR. JACKSON:  A copy of this has been delivered to my friends,  2 8 my lord.  29 THE COURT:  Yes.  All right.  994.  30 MS. KOENIGSBERG:  I wonder if I could have a clarification, if  31 that is -- put it this way -- a collection of those  32 which are mentioned in the report or are they in  33 addition thereto?  34 MR. JACKSON:  This is a list which — Mr. Brody, perhaps you  35 should answer.  36 A   I believe yesterday I was asked to identify all the  37 Barbeau-Beynon files upon which I relied for my  38 opinion, and that includes those that are not  39 mentioned in the footnotes in the report.  40 Q   If also includes those that are mentioned as well?  41 A   Yes.  42 MR. JACKSON:  Inclusive.  43 THE COURT:  994.  44  45 (EXHIBIT 994:  LIST OF BARBEAU-BEYNON FILES REVIEWED  4 6 AND RELIED UPON BY HUGH BRODY FOR REPORT)  47 15465  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1 MR. JACKSON:  I would like you to turn to volume one of the book  2 of documents that we -- if volume one could be put  3 before the witness, madam registrar?  4 A number of the -- of Mr. Brody's field notes have  5 already been marked as exhibits, my lord, and I would  6 like to file the rest.  7 Q   Mr. Brody, having reviewed tabs 2 to 42 of volume one,  8 are those the field notes of interviews upon which you  9 have relied for the purposes of your opinion?  10 A   These are all notes of mine, yes.  11 THE COURT:  All right.  990-2 to 42.  12 MR. GOLDIE:  Ad nauseum, it is objected to.  13 THE COURT:  Subject to objection.  14 What about the rest of this book, are they in?  15 MR. JACKSON:  Yes, the rest of the book.  16 THE COURT:  They are all in, are they?  17 MR. JACKSON:  61 has already been put in as an exhibit by my  18 friend, my lord.  19 THE COURT:  44, 45, 46?  20 MR. JACKSON:  Yes, those were all marked.  21 THE COURT:  All right.  22 MR. JACKSON:  63, 64 and 65, my lord, although they are already  23 in evidence, I think have already been marked for your  24 lordship's use of reference.  25 THE COURT:  All right.  26 MR. JACKSON:  My lord, I would request that cross-examination of  27 this witness commence tomorrow morning.  We are  28 prepared to start earlier if that would be your  29 lordship's wish.  30 THE COURT:  How are we -- you're finished, are you, Mr. Jackson?  31 MR. JACKSON:  Yes, I am.  32 MR. GOLDIE:  We can certainly use six minutes, my lord.  33 THE COURT:  Let's use the six minutes then.  Is there any  34 special reason why we shouldn't?  35 MR. JACKSON:  Yes, I did want to discuss certain matters with  36 Mr. Brody this evening before he commences cross-  37 examination, given there are only six minutes from the  38 normal break hour.  39 MR. GOLDIE:  He can do so providing he gives me the usual  40 undertaking that he won't discuss the topic that I  41 raised in the cross-examination to date.  42 THE COURT:  You mean in the next six minutes?  43 MR. GOLDIE:  Yes, I won't be able to get very far.  44 THE COURT:  You have no difficulty with that, have you?  4 5 MR. JACKSON:  No, my lord.  4 6 THE COURT: All right. Mr. Goldie?  47 15466  H. Brody (For Plaintiffs)  In Chief by Mr. Jackson  1  2    CROSS-EXAMINATION BY MR. GOLDIE:  3  4 MR. GOLDIE:  5 Q   Mr. Brody, throughout your report you use the words  6 "whites" and "Indians"?  7 A   Hm-hmm.  8 Q   I assume by whites you mean non-Indians?  9 A   Yes.  10 Q   How do you define Indians?  11 A   I would think it varies according to the context.  I  12 think perhaps we would have to look at the context.  13 Sometimes I use the term "white" in a very general  14 anthropological sense to mean Euro, European or  15 western culture, in the context of European and  16 western culture.  I would have to look at the context.  17 Q   How do you define Indians though, how do you use  18 Indians in your report?  19 A   If I am referring again to the Indians as a whole, I  20 am using it in a very general anthropological sense.  21 Q   Would you tell me what that is, please?  22 A   That would be the aboriginal peoples of the area at  23 issue so I am talking about the Indians of northern  24 Canada, aboriginal peoples of northern Canada, the  25 Indians of -- I can't remember, the Americas, I would  26 be talking about the aboriginal peoples of the  27 Americas.  28 Q   When does a person cease to be an Indian?  29 A  As I am sure you are aware, there is a gray zone  30 between persons who are clearly Indian and persons who  31 are clearly not Indian.  Again, it would depend on  32 context, I think.  33 Q   Well, in the context of this case, when you speak of  34 the Gitksan and the Wet'suwet'en, and then you use the  35 word "Indians" when you are talking about the  36 relationship with whites on the frontier and things of  37 that order, when does a person cease to be a Gitksan?  38 A  Well, there is a gray area between the Gitksan and  39 persons who are not Gitksan.  I would have to go to  40 context, I think.  There are persons whom the Gitksan  41 insist are Gitksan by virtue of inheritance, the  42 Gitksan law itself provides a definition of the  43 Gitksan, I would think, I would have to ponder that a  44 bit, and there are persons who choose to define  45 themselves.  This is a persistent question in  46 anthropological theory, a question of self-definition.  47 Q   Well, the Gitksan, as I understand it, can adopt 15467  H. Brody (For Plaintiffs)  Cross-exam by Mr. Goldie  1 somebody that would otherwise be described as white,  2 is that not correct?  3 A   That's right, yes, here is an application of Gitksan  4 law.  5 Q   And that person thereby becomes a Gitksan?  6 A  According to Gitksan law that person does, yes, and  7 depending on my context I might well be including them  8 in my account or I might not be including them in my  9 account.  10 Q   Well, do you include adopted white people as Indians  11 in your account?  12 A   Depends on the context.  13 Q   What context?  Give me an example of the context that  14 you do and the context that you don't?  15 A   It would be easier for me if you give me an example  16 from my opinion.  17 Q   I just see the word Indian.  18 A  Well, I would see it in context I think.  19 Q   I see.  For instance, are you a member -- do you have  20 a chief's name, are you a member of a house?  21 A   No, no.  22 Q   But a Gitksan man who marries a white woman, their  23 children are non-Gitksan; is that correct?  Is that  24 your understanding?  25 A   I think that varies from case to case in my  26 understanding.  27 Q   There is no law that is applicable generally, it is  28 just a case by case --  29 A  As I understand Gitksan law, the child of a white  30 woman who has not been adopted as a member of Gitksan  31 culture, has to be adopted or, as it were, remains to  32 be adopted into the society in order to acquire  33 membership according to the laws.  34 Q   All right.  So when I read your report and I see the  35 word "Indian", it may or may not refer to somebody who  36 is not, by blood, an aboriginal person?  37 A  We would have to look at the context, the bits of the  38 report that you are reading, I think.  39 Q   That's what I say, I have to stop and think each time  40 I run across the word "Indian", what you mean by it?  41 A   I would think sometimes you wouldn't have to stop and  42 think.  I think the context would be fairly clear.  43 Q   A couple of minor points, on page 77, you say in the  44 first line, "In the 1920s, the French anthropologist,  45 Marius Barbeau, conducted  numerous interviews in  46 northeast British Columbia."  47 A   Northwest British Columbia. 1546?  H. Brody (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Northwest Thank you.  Why do you describe him as  2 French?  3 A  Well, I have always understood that he grew up and was  4 educated in France and was primarily French speaking.  5 Q   Does it -- do you intend to indicate by that that he  6 carries with that a certain, I will call it,  7 intellectual baggage, arising out of his birth place  8 and his education?  9 A   I know nothing about Barbeau that goes to that  10 question. I don't know what his intellectual baggage  11 was.  For example, I don't know whether he received  12 anthropological training within the French tradition  13 of that period.  That would be the kind of thing I  14 would need to know.  15 Q   He was in fact a Francophone, he was born in Ste. Anne  16 De Beauce, Quebec, was he not?  17 A   You know more than I do about his biography.  18 Q   You didn't bother looking up anything about him when  19 you used the word "French"?  20 A   No, I didn't look anything up before using the word  21 French.  22 THE COURT:  Should we adjourn, Mr. Goldie?  23 MR. GOLDIE:  All right, my lord.  24 THE COURT:  I think, Mr. Jackson, there is an awful lot  25 happening here these days and I think I have to start  26 at 10 o'clock.  We are going to be here Saturday  27 anyway.  10 o'clock, please.  28  29 (PROCEEDINGS ADJOURNED TO FRIDAY, APRIL 14, 1989 AT 10  30 O'CLOCK A. M.)  31  32  33  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein to the best of my  38 skill and ability.  39  40  41  42  43  44 Wilf Roy  45 Official Reporter  46  47

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