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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-04-11] British Columbia. Supreme Court Apr 11, 1989

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 14240  Proceedings  1 APRIL 11, 1989  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, Vancouver, this Tuesday, April 11, 1989.  6 Calling the matter of Delgamuukw versus Her Majesty  7 the Queen at bar, My Lord.  8 THE COURT:  Could I raise with counsel a matter that's given me  9 some minor concern, will become major in due course,  10 and it's convenient that Mr. Jackson is here.  Since I  11 heard his submission and gave reasons for judgment  12 over a year ago, nearly two years ago, on the question  13 of history, I have heard a lot of evidence, and I am  14 having some reason to wonder about the draconic aspect  15 or possible draconic aspect of the order that I made.  16 Let me just illustrate my concern with one matter.  17 The evidence of Dr. Ray about the observations made by  18 Mr. Brown.  Now, he describes certain things.  We also  19 have in his evidence or in other evidence the  20 observations of Mr. Ogden at Hots'et.  It may be that  21 Mr. Brown's observations are archival, and there may  22 be a special ruling relating to them, but I have heard  23 many, many things.  The blockage of the Babine River,  24 the finding of the racks of apparently abandoned  25 salmon, things of those kind, and the question  26 troubling me is whether in view of the ruling I made,  27 without the benefit of evidence, of the scope that I  28 have now heard, may be too severe.  And if that ruling  29 stands unchanged from the way I framed it, it may be  30 that a lot of this evidence that I have heard couldn't  31 be acted upon, couldn't be used.  Maybe it shouldn't  32 be used.  I'm just not at all sure of that.  33 But I invite counsel to give the matter some  34 consideration, and at some date I am going to have to  35 have the assistance of counsel on the question of  36 archival evidence, but I would like the area of  37 enquiry expanded to include the matters I have just  38 mentioned.  I don't think it's useful to say anything  39 more at this time, unless counsel wish to, but I'll  40 appreciate the wisdom of counsel on those matters at  41 some convenient time.  42 MR. GOLDIE:  I had the impression, and I can refresh it, My  43 Lord, but I think the principal subject matter of the  44 discussion before Your Lordship was that rulings with  45 respect to oral history --  4 6    THE COURT:  Yes.  47    MR. GOLDIE:  -- might better await a chance for Your Lordship to 14241  Submission by Ms. Koenigsberg  1 hear some of what was in that category.  I don't  2 recall that much was made of the archival aspect.  3 THE COURT: No.  Well, I haven't even reviewed the terms of the  4 ruling I did make, but I have been thinking about it.  5 MR. GOLDIE:  I think Your Lordship will find that it was — that  6 you would make no ruling.  7 THE COURT:  Well, if that's so, then there is no great harm  8 done, is there.  But I don't want counsel to proceed  9 on the -- on what might be a changing assumption.  So  10 I'll leave it with you, and we'll talk about it again  11 some time.  We shouldn't now interrupt the orderly  12 flow of the evidence, but I wanted to lay that matter  13 before counsel.  14 MR. JACKSON:  My Lord, perhaps just make a brief comment.  We,  15 as you are aware, have a running list of matters which  16 will be dealt with, hopefully, during the summer of  17 outstanding matters of an evidentiary nature, and we  18 did intend to revisit Your Lordship's ruling --  19 THE COURT:  All right.  Thank you.  20 MS. KOENIGSBERG:  My Lord, if I can conveniently put my  21 submissions on why the report as a whole of Mr.  22 Brody's should not be admitted into evidence.  That,  23 of course, is not to say -- this is not a submission  24 that there is no evidence that Mr. Brody could give,  25 some of which might be contained or touched upon in  26 this report, but those submissions, I think, to be put  27 under the following headings:  28 1.  That the report is overwhelmingly argument and  29 speculation;  30 2.  That it contains significant amounts of  31 inadmissible hearsay;  32 3.  That there are a significant amount of  33 repetition of evidence and conclusions that Your  34 Lordship has heard from both lay witnesses and other  35 experts.  36 And I have begun, and perhaps got a considerable  37 way through the submission on irrelevancy based on  38 argument and speculation, and I have asked Your  39 Lordship to look at some extracts from Mr. Brody's  40 report contained in approximately 10 pages.  And we  41 have stopped at page 4.  I had referred Your Lordship  42 to item 27, which is found on page 67 of the report,  43 and it was that:  44  45 "The encounter between native culture and  46 frontier whites may be said to constitute a  47 meeting of culture and anti-culture." 14242  Submission by Ms. Koenigsberg  1  2 And we had been discussing my objections to that  3 particular type of opinion, and I will just conclude  4 with that point or on that point.  That is, that over  5 onto the next page, which is not on the summary you  6 have, Mr. Brody on page 67 goes on from the analysis  7 of the culture and anti-culture, I should say the  8 characterization of whites and Indians meeting being  9 culture and anti-culture.  He discusses that briefly  10 and then says:  11  12 "Does this help establish a model of dealings  13 between whites and Indians in Northwestern  14 British Columbia."  15  16 And he then goes on to discuss in considerable  17 detail his concerns about the meeting between whites  18 and Indians.  And in my submission it's well  19 demonstrated through the quotes that are excerpted  20 here that what he is concerned with and what those  21 quotes show, that he is putting forward, is that  22 whites feel superior, are blind and ignorant of Indian  23 ways, to summarize.  Perhaps page 71, item 32  2 4 summarizes it.  25  26 "...  Newcomers, sure of their superior  27 knowledge, understanding and rights, do as they  28 think fit, encourage others to do likewise, and  29 call upon the forces of Canadian law and order  30 if too directly thwarted and opposed."  31  32 And then going on over just to show how  33 interspersed this kind of thing is and how extensive.  34 On page 6 of the summary, item 49, page 137:  35  36 "According to white interpretations of events,  37 the villages that make up most of the 45 square  38 miles ..."  39  40 He is there referring to the reserve system.  41  42 "... represent the conclusion of a historical  43 process (unless the reserve is viewed as a step  44 before a full and final assimilation, at which  45 time even reserve lands would be things that  46 the Indian past)".  47 14243  Submission by Ms. Koenigsberg  1 And in my submission what Mr. Brody is doing is  2 describing attitudes of white people, how they feel  3 about what's going on, and how to a certain extent the  4 Indians feel from his point of view in response.  And  5 in my submission that enquiry is irrelevant to the  6 issues in this lawsuit.  The issues that are being put  7 forward by the plaintiffs for Your Lordship to decide  8 is did the government, the white government impose  9 jurisdiction.  Questions like were reserves created  10 and what were they, how the whites felt, how the  11 Indians felt is beyond the purview of this enquiry.  12 It's an interesting question.  I am sure it is one  13 which has probably concerned many a graduate thesis,  14 but to determine -- to go into detail speculating, if  15 you will, about how whites felt about what was  16 happening is in my submission irrelevant.  It is, of  17 course, in my submission, also in the nature of  18 argument and speculative in the extreme.  19 I think that a review of these extracts and the  20 report itself demonstrate how pervasive this kind of  21 argument is throughout the report.  22 The second group of problems which arise in Mr.  23 Brody's report I put under a heading of inadmissible  24 hearsay.  And to a great extent Mr. Brody examines  25 what witnesses who have given evidence at this trial  26 meant by what they said.  He reviews the evidence of  27 chiefs in other ways, and I'll just touch on this  28 briefly.  But dealing with my submission on what's  29 wrong with his examining what witnesses meant by what  30 they said, and he does so quite specifically.  He does  31 it throughout the report, but there is an entire  32 chapter devoted to this exercise.  And I think we have  33 to ask what can he possibly be doing contributing to  34 this -- by doing so, and there are only two ways that  35 he can comment.  He can do as he has done, tell us  36 what a witness said, as he did in the case of my  37 friend, and then what it really means.  And in my  38 submission by quoting what Martha Brown said in her  39 commission and then telling us what it really means,  40 he is usurping the function of counsel in  41 re-examination, and in my submission counsel already  42 re-examined Martha Brown, and there is no opportunity  43 now, if Mr. Brody can come forward in the guise of an  44 expert and re-examine Martha Brown, we can't go back  45 and cross-examine Martha Brown.  46 Secondly, he tells us what witnesses said and what  47 it means.  And on the face of it, and again, My Lord, 14244  Submission by Ms. Koenigsberg  1 this is the essence of legal argument.  We put forward  2 as counsel our positions and then marshalled the  3 evidence and say George said this and Sam said that,  4 and that supports this proposition.  And Your Lordship  5 no doubt will hear a great deal of that kind of  6 argument from counsel.  7 The third thing that Mr. Brody does is that he  8 takes interviews that this witness has done of  9 witnesses who have given evidence.  And in the case,  10 for instance, of Johnny David.  Johnny David gave  11 extensive commission evidence.  He also was called  12 before Your Lordship to give additional evidence,  13 which had not been given on commission.  Now we have a  14 third form of evidence from Johnny David, without  15 Johnny David present to be cross-examined.  Mr.  16 Brody's interview of Johnny David, an interview which  17 was not produced to counsel before this witness was  18 going to be called, so we had no opportunity, of  19 course, to cross-examine Johnny David either at  20 commission or when he was before Your Lordship on the  21 basis of the interview of Mr. Brody.  But Mr. Brody,  22 and if he can give this evidence, can now come forward  23 and give the evidence of Johnny David, and Johnny  24 David cannot be cross-examined on it.  25 In my submission, My Lord, if this kind of  2 6 evidence in such large amounts can come forward this  27 way, it is tantamount to Your Lordship having made a  28 ruling that experts can act as counsel, and perhaps  29 more importantly, that it's as if all the 45 or 50  30 witnesses that Your Lordship has heard for over a  31 year, that Your Lordship cannot evaluate and interpret  32 that evidence, but that you require the assistance of  33 an expert to do so.  And I don't think Your Lordship  34 has made such a ruling, and I don't think Your  35 Lordship -- has asked Your Lordship to make such a  36 ruling.  That evidence was tendered on the basis that  37 Your Lordship could evaluate it and could interpret it  38 for the purposes of the legal issues in this case.  39 The third ground for the exclusion of the report  40 as a whole is that it is repitious.  There are four  41 bases or four areas of opinion that Mr. Jackson sought  42 to qualify Mr. Brody.  43 The first was the anthropology of social culture  44 and economic change and continuity.  Your Lordship  45 will recall Mr. Daly's evidence and Antonio Mills'  46 evidence, as well, of course, as that of the lay  47 witnesses.  But dealing with Mr. Daly and dealing with 14245  Submission by Ms. Koenigsberg  1 Antonio Mills.  Their opinions were given in this  2 court room, and they went precisely to the social, the  3 cultural and the economic change, and the continuity  4 that they postulated remained of the Gitksan and  5 Wet'suwet'en culture and its institutions.  6 The second is the nature of the Gitksan and  7 Wet'suwet'en society and institutions and systems of  8 knowledge.  It is not exclusively the feast that is  9 covered here, but it is primarily the feast.  And Your  10 Lordship will recall that Mr. Daly described in great  11 detail over many hundreds of pages of an expert's  12 report the function of the feast, the witnessing of  13 oral histories given in the feast, and the  14 anthropological meaning of all of that.  15 The third thing that is sought to be covered by  16 Mr. Brody is the nature of European Canadian society  17 at the northern frontier.  Your Lordship has my  18 submissions on that area, and it's not so much that it  19 is covered repitiously, as that in my submission it is  20 largely irrelevant as it deals with how whites felt  21 and not directed at what whites did.  And to the  22 extent that it directed to what whites did in  23 documents, it isn't just putting forward the  24 documents, and in most cases the documents have been  25 put forward and will be put forward, but it is Mr.  26 Brody's putting what he says it means forward.  27 Fourth, he was sought to be qualified and will  28 give opinions on the ways in which Gitksan and  29 Wet'suwet'en have experienced, understood and  30 responded to the following:  Missionaries, settlement,  31 the reserve system, trapline registration and new  32 economic circumstances.  I will refer Your Lordship to  33 each one of those areas specifically.  34 Dealing with missionaries.  Antonio Mills in her  35 report and in her evidence dealt with an entire  36 chapter called the Wet'suwet'en interface with the  37 world.  She dealt with Binii extensively.  Mr. Brody  38 deals with Binii extensively.  She dealt with Father  39 Morice extensively.  Mr. Brody deals with Father  40 Morice.  She dealt with Christianity adopted by the  41 Wet'suwet'en into their own system, and the ways in  42 which that was manifested.  So does Mr. Brody.  Even  43 the details of Morice burning the feast regalia or  44 inciting the Indians to do so is dealt with again, and  45 its meaning.  46 Dealing with settlement, the same thing.  47 Dealing with the reserve system.  Mr. Daly even 14246  Submission by Ms. Koenigsberg  1 used the same quotes.  Mary Johnson talking about the  2 feeling that she had of being fenced in.  The meaning  3 that that has for the Indian people has been discussed  4 by the Indian people in this court room and by Mr.  5 Daly.  6 Trapline registration.  An entire section of Mr.  7 Daly's report -- the trapline registration, its  8 meaning, the effect on the matrilineal system, and how  9 its been incorporated and dealt with, and resistance  10 and resurgence of the matriline when it appeared to be  11 patrilineal, Mr. Brody deals with it.  12 THE COURT:  Is there any legal prohibition against repetition?  13 MS. KOENIGSBERG:  Well, My Lord, yes, there is.  14 THE COURT:  We used to have a rule that you can call so many  15 experts --  16 MS. KOENIGSBERG:  I believe there is still such a rule.  17 THE COURT:  Is there such a rule?  18 MS. KOENIGSBERG:  And it's not one which I would say has been  19 given any lip service in this court room, and I think  20 that we perhaps all viewed the situation as -- that  21 there would not be a great deal of repetition.  And  22 it's one thing to call numerous experts, let's say, in  23 the same field with each covering a different aspect.  2 4 THE COURT:  Yes.  25 MS. KOENIGSBERG:  What we have here, Mr. Brody does have his  26 unique interpretation, he does have his unique  27 theories, but he does not have unique facts or  28 evidence.  And what he is offering are additional  29 anthropological theories in some cases.  It's not that  30 Your Lordship has not had the benefit of  31 anthropological interpretation of the events, the same  32 events.  33 The final is the new economic circumstances, and  34 that, of course, goes back to economic change in the  35 first one.  36 Mr. Daly wrote a 700 page report that we spent a  37 considerable amount of time over, dealing precisely  38 with economic change and the way in which the Gitksan  39 and Wet'suwet'en adapted or didn't adapt to that  40 change, the way they incorporated it or didn't  41 incorporate it.  I don't say that there can't be areas  42 or there might not be areas within that, that Mr.  43 Brody touches on and could provide some insight to  44 this court, but as a general proposition the report  45 itself is -- contains all, in large amounts, of the  46 topics which I have covered.  Its nature, its  47 argument, it contains a great deal of speculation.  It 14247  Submission by Ms. Koenigsberg  1 contains a great deal of inadmissible hearsay, and  2 it's everywhere, and again it's repetition.  3 So in my submission it would be impossible to  4 excise the parts of the report that have all those  5 problems in it.  It would not be impossible to lead  6 the evidence of Mr. Brody without putting in the  7 report and deal with the evidence as it comes forward,  8 if it's not inadmissible.  9 THE COURT:  Well, Mrs. Koenigsberg, how do you suggest I deal  10 with the matter?  How can I rule on your objection to  11 the admissibility of the report, unless I have read  12 it, which I haven't done.  You say that it's full of  13 inadmissible hearsay.  Unless your friend concedes  14 that point, do I not have to read the report before I  15 can rule on your objection?  16 MS. KOENIGSBERG:  Well, My Lord —  17 THE COURT:  And if I have to read it, why shouldn't I hear the  18 evidence subject to the objection and then rule?  I am  19 talking now purely practical matters.  20 MS. KOENIGSBERG:  As a practical matter, I think that Your  21 Lordship, without reading it -- I am not certain of  22 this -- did rule out Mr. Morrell's report going in  23 holus-bolus, and --  24 THE COURT:  That was because I could relate the evidence to  25 the -- or the report to the pleadings.  Mr. Macaulay  26 reminded me that the -- there was no claim against the  27 federal government, and that the issue of fisheries  28 management was not in issue.  It seems to me this is  29 in a different category.  30 MS. KOENIGSBERG:  Well, My Lord, my concern is essentially that  31 this report not be in evidence in the end, because it  32 is -- does contain so much material that is  33 objectionable, and it makes it a tremendous burden  34 for -- and time-consuming for counsel for the defence  35 to have to rise and deal with every aspect.  36 Now, if practically my friend goes through the  37 report, we assume that we are objecting all the way  38 through to things that we object to, and then have  39 argument on what should go in or shouldn't go in.  I  40 don't know as a practical how easy that is.  And  41 although it is interspersed throughout, I can tell  42 Your Lordship that the chapter 11, mixed messages, is  43 a particularly neat compilation of what I would submit  44 is inadmissible hearsay or inadmissible, because it  45 contains the evidence of the witnesses, and it's being  46 revisited by Mr. Brody in what I would  47 submit is counsels' function. 14248  Submission by Mr. Goldie  1 Although that does appear throughout, that's one  2 particular chapter that contains, I would say, almost  3 in its entirety word for word, I would submit, is  4 objectionable.  5 It is a difficulty, but I am not sure what the  6 most expeditious way is of dealing with it.  7 THE COURT:  Thank you.  Mr. Goldie.  8 MR. GOLDIE:  My Lord, my principal objection to this report is  9 the form that it takes.  The witness starts out by  10 saying in the introduction:  11  12 "This opinion constitutes an overview of  13 cultural continuity and change among the  14 Gitksan and Wet'suwet'en peoples of Northwest  15 British Columbia."  16  17 The word "overview" means that he cherry picks  18 from the evidence of others.  19 It addresses some large questions, and it  20 addresses questions which have no relevance to this  21 lawsuit:  22  23 "In what ways and forms have Gitksan and  24 Wet'suwet'en society and their systems of  25 authority persisted?  What kinds of pressure,  26 from the peoples' points of view, have  27 prevented or facilitated this persistense?  An  28 attempt to address these and other such issues  29 leads to a wide range of specific  30 anthropological and cultural questions.  The  31 answers represent my opinions.  32 In fact the many questions and answers are  33 necessarily interwoven in the opinion as a  34 whole.  Although it is possible to seperate  35 them out, as a list of opinions, such a listing  36 may misrepresent the nature of the evidence and  37 the argument that is employed."  38  39 Now, I stress that word, the word "argument" that  40 is employed.  It is not the function of an expert to  41 present to Your Lordship argument, and I support Mrs.  42 Koenigsberg's submissions with respect to that.  43 THE COURT:  Well, isn't argument in that sense used in the  44 academic sense?  I notice writers of papers at  45 universities often use that form to postulate their  46 views.  I have read over and over saying I would argue  47 that such and such, when really there is -- there may 14249  Submission by Mr. Goldie  1 be nothing saying to the contrary.  It's really just  2 an academic form of expression.  3 MR. GOLDIE:  It's perfectly proper for Mr. Brody to say to Your  4 Lordship you should evaluate the evidence with these  5 thoughts in mind.  That's all right.  I don't mind him  6 saying that every anthropologist except himself is  7 wrong and he's right.  That's his privilege.  But what  8 I do say is wrong is that he should take the evidence  9 and tell Your Lordship what the conclusion is.  10 Now, Mrs. Koenigsberg mentioned the evidence of  11 Martha Brown.  That happens to be a particularly  12 flagrant example, because her evidence was on video.  13 Your Lordship, if you have any concern about  14 credibility or what she is saying, has the opportunity  15 of examining that.  Something which from Mr. Brody's  16 own evidence he didn't do.  But he says this isn't  17 what she means, this is what she means he says.  Now,  18 that's not argument, in terms of theory.  That's not  19 argument with respect to which of two approaches is  20 the correct one.  That goes directly to the question  21 of the conclusions that Your Lordship should reach  22 with respect to that evidence, and how you should  23 characterize that evidence in dealing with the issues  24 in this case.  25 I don't want to repeat what Mrs. Koenigsberg has  26 said, but he provides conclusions which only Your  27 Lordship can arrive at.  He says, for instance, well,  28 an adaawk is the same thing as -- has some  29 comparability with respect to the rules relating to  30 hearsay.  Well, that's something that counsel can make  31 an argument on.  32 Mrs. Koenigsberg has mentioned his references to  33 the effect or the relationship of Christianity and the  34 Wet'suwet'en.  So far as I can make out, he relies  35 almost entirely upon the book of a man called Mulhall,  36 who has written a recent book on Morice, which is  37 highly controversial, and who is not here to be  38 examined on his views.  And when I compare what  39 Mulhall has written and what Mr. Brody says about  40 Morice, it's obvious that that's who he is relying  41 upon.  42 So my concern is with respect to the form of the  43 report.  It is a mixture of argument, and with respect  44 to the conclusions that Your Lordship is to reach, you  45 asked how do I deal with this in a practical manner.  4 6    THE COURT:  Uh-huh.  47    MR. GOLDIE:  And the simple answer to that is that my friend can 14250  Submissions by Mr. Jackson  1 lead from the witness his opinions.  We take the  2 report as a summary.  It's deficient as a summary,  3 because it doesn't tell us what facts he relies upon,  4 but we will take it as a summary, and my friend can  5 lead the witness with respect to what his opinions  6 are, and we can object to those as they come forward,  7 if we have an objection.  And I am not going to --  8 THE COURT:  All right.  May I ask you what I asked Mrs.  9 Koenigsberg.  Could I make that determination or  10 decide to proceed in that way without first reading  11 the report?  12 MR. GOLDIE:  Yes, I -- all Your Lordship is being asked to do at  13 this time is whether the report is to be accepted as a  14 report under Section 10, in which case my friend is  15 limited in his cross -- in his examination in chief,  16 or whether it is a summary under Section 11, in which  17 case he is at liberty to illicit the evidence and  18 opinions of the expert.  That's all that's -- that  19 Your Lordship is asked to rule on at this time.  2 0 THE COURT:  All right.  Thank you, Mr. Goldie.  21 MR. GOLDIE:  And I should say my friends have had ample notice  22 of the position that I was going to take on this, and  23 I believe the same for Mrs. Koenigsberg.  24 THE COURT:  Mr. Jackson.  25 MR. JACKSON:  My Lord, perhaps I could just deal with Mr.  26 Goldie's last point first.  What the plaintiffs intend  27 to do, My Lord, subject, of course, to Your Lordship's  28 ruling, is in fact to seek to conform to your previous  29 rulings in this matter.  Your Lordship may recall a  30 response which was made when this very issue was  31 raised in terms of Dr. Daly.  It's at volume 185,  32 February the 21st, page 11891.  33 THE COURT:  Sorry.  34 MR. JACKSON:  I have made a copy of that for Your Lordship.  35 THE COURT:  What volume is it?  3 6 MR. JACKSON:  Volume 185.  37 THE COURT:  Thank you.  38 MR. JACKSON:  And this was in relation to Mr. Willms'  39 submission.  And, My Lord, I think I ought to remind  40 the court that these various submissions were made in  41 a different way, but all the elements about opinions  42 being argumentative, speculative, opinion guised as  43 argument, they were made in relation to Dr. Daly and  44 Dr. Mills.  And Mr. Willms, as one of his submissions,  45 raised the Section 10, Section 11 point, and I think  46 Mrs. Koenigsberg receptively indicated that we were  47 probably operating sui generis, perhaps, in this case, 14251  Submissions by Mr. Jackson  1 which having regards the way the courts have  2 characterized native rights may not be entirely  3 inappropriate.  But Your Lordship there states that  4 the appropriate way to deal with these kinds of  5 matters is to tender the report, which we are seeking  6 to do, call the witness to give a modicum of evidence.  7 Modicum, I take it in the context of this case has a  8 special meaning, and to explain or expand upon it and  9 make it understandable, and that is what we would  10 intend to do.  11 The objections which my friends have made, as I  12 say, were made in relation to both the previous  13 reports, and the course Your Lordship adopted there  14 was to proceed subject to the objection, in much the  15 same way as Your Lordship has dealt with Mr. Goldie's  16 and Mrs. Koenigsberg's objection to Mr. Brody's  17 qualifications.  18 I have some specific submissions which I can  19 address dealing with the points my friends have made.  20 If you would like to hear me on that, I can certainly  21 proceed.  22 THE COURT:  What did I do with Dr. Daly's report in the sense of  23 marking it?  Was it marked for identification or as an  24 exhibit?  2 5    MR. JACKSON:  As an exhibit.  2 6    THE COURT  2 7    MR. GRANT  2 8    THE COURT  But subject to objection  9  Yes.  I believe the comment is here.  Yes.  And this witness is scheduled for five days,  29 and so the modicum of evidence in this case wouldn't  30 be any more than a couple of days?  31 MR. JACKSON:  That is my anticipation, My Lord, yes.  Bearing,  32 of course, in mind, we have taken up one day, and I  33 don't --  34 THE COURT:  Yes.  35 THE REGISTRAR:  The Daly report is 884-1 and 884-2.  36 THE COURT:  This is the two volume report?  37 THE REGISTRAR:  Yes.  38 THE COURT:  Thank you.  All right.  Well, in the great game of  39 rugby there is a rule of practise that says when you  40 are in doubt you get to touch.  I think I am in  41 serious doubt about this.  The examples that Mrs.  42 Koenigsberg has itemized lead me to be gravely  43 concerned about the admissibility of the report, but  44 not sufficiently to stop the trial so that I can go  45 away and read a 200 plus page report, because even if  46 I did that, as counsel have said, the report would  47 still serve as notice a modicum of evidence, or could 14252  Ruling  1 still be adduced, which might be a larger modicum than  2 might otherwise be the case.  3 I think counsel have to understand that there is a  4 serious risk that the report might be found to be  5 inadmissible.  I don't think there is any magic in  6 marking a report as an exhibit or as an exhibit for  7 identification in a situation such as this -- such as  8 we have here.  9 For that reason I am disposed to allow it to be  10 marked as an exhibit and to hear the evidence and to  11 receive the report in that way, subject to the  12 objection, because I do not think that I can properly  13 deal with the objections made until either the report  14 has been read or explanatory evidence has been adduced  15 so that I may have a more leisurely opportunity to  16 determine the objection finally.  17 I am going to proceed in this case more or less as  18 I did with regard to Dr. Daly, but with the clear  19 caveat that I have already issued that I think there  20 is some risk about this report.  21 I think that this situation is distinguishable  22 from what I faced with respect to Mr. Morrell's  23 evidence, for the reasons which I have already stated.  24 The report can be the next exhibit, which will be,  25 as I have said, taken into evidence subject to the  26 objection.  27 THE REGISTRAR: The next exhibit number is 991.  2 8 THE COURT:  991.  Thank you.  29  30 (EXHIBIT 991 - DR. BRODY'S REPORT)  31  32 THE COURT:  All right.  Thank you.  33  34 CONTINUATION OF EXAMINATION IN CHIEF BY MR. JACKSON:  35  36 THE REGISTRAR:  I caution you, Mr. Brody, you are still under  37 oath.  38 THE WITNESS:  Okay.  Thank you.  3 9 MR. JACKSON:  40 Q   I would like the report to be -- oh, we have the  41 report in front of you, do we, Mr. Brody?  42 A   Yes, I do.  43 MR. JACKSON:  Could Mr. Brody's report be given a number.  44 THE COURT:  Yes.  It's 991.  45 MR. JACKSON:  I beg your pardon?  I'm sorry.  46 Q   Mr. Brody, could you turn to page one of your opinion.  47 And to the second paragraph, paragraph to which my 14253  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 friend, Mr. Goldie, referred a moment ago.  And if you  2 would read that second paragraph, and could you  3 indicate to the court what you mean when you refer to  4 the nature of the evidence and argument, particularly  5 in the context of argument.  How are you using that  6 term?  7 A  Are you asking me to read this whole paragraph to  8 myself or read it out loud?  9 Q   No, read it out loud.  10 THE COURT:  I have read it.  You can read it yourself if you  11 have to.  12 THE WITNESS:   I don't need to read it out loud?  13 MR. JACKSON:  14 Q   No.  15 A  Well, in looking at the evidence I have relied on in  16 this opinion, there are many places where I have to  17 bring to bear quite complicated considerations, in  18 some cases from anthropological theory and in some  19 cases by reference to other kinds of data.  And this  20 means that what I write goes beyond the evidence  21 simply stated, and becomes in at least the academic  22 sense of the term argument.  I am raising intellectual  23 questions.  The word "argument" here, perhaps, is  24 almost synonymous with analysis.  25 Q   Thank you.  Turn to page 5 of your report.  26 MR. GOLDIE:  My Lord, I am objecting on page 2 to the last  27 sentence in paragraph 2, the last complete sentence:  28  29 "This means that settlers and governments have  30 tended to see native peopled through unclear or  31 distorting lenses."  32  33 In my submission this witness has no qualification  34 or basis for talking about how governments and  35 settlers see native peoples in any way that is  36 relevant to this case.  37 THE COURT:  I just don't think I can deal with the objection you  38 have just made, Mr. Goldie, additionally to what I  39 said a moment ago.  I am happy to have your  40 highlighting of that particular sentence.  I must  41 confess to some confusion about its legal  42 significance.  43 MR. GOLDIE:  Well, Your Lordship is going to find a great deal  44 of this.  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  And in my submission we run the risk, if this  47 document is marked as an exhibit, we run the risk of 14254  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 having every statement that we don't object to being  2 taken as proven by the witness or as bearing the stamp  3 of his expertise.  4 THE COURT:  I don't think you needn't be concerned about that.  5 I have expressed the view for some time that courts of  6 law are troubled on a daily basis with this question  7 of feelings.  Feelings are what make people function  8 the way they do in many cases, but it's not something  9 that laws and judges can manage very well.  And if  10 somebody wants to tell me what somebody else's  11 feelings are, I have to discount it very  12 substantially, because firstly he may have  13 misconstrued the feelings, and secondly, the feelings  14 may not be rationally founded.  15 MR. GOLDIE:  Well, the real point in this case is relevance.  16 THE COURT:  Yes.  And it may be relevant as well.  17 MR. GOLDIE:  Well, it may be irrelevant, My Lord.  18 THE COURT:  It may be relevant.  That's what I meant to say.  19 MR. GOLDIE:  The -- this is not to repeat something which has  20 gone over time and time again, a Royal Commission --  21 THE COURT:  Yes.  22 MR. GOLDIE:  -- where recommendations that would advance some  23 sociological objective are to be made.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  This case is for declarations of right in  26 accordance with Canadian law.  2 7 THE COURT:  Yes.  28 MR. GOLDIE:  And when a witness says:  29  30 "Our society has occupied the lands of  31 other societies and is committed to a  32 particular kind of historical process."  33  34 I think Your Lordship must ask yourself, if I am  35 not going to be continuously on my feet, what  36 relevance has that got to the Prayer for Relief in  37 this case.  38 THE COURT:  I confess that I have no answer to that question.  39 I'm -- I think that my function is to harken as best I  40 can to the evidence and try and sort it out at the  41 end.  I think that I am able to screen out those  42 passages that are properly expressions of professional  43 opinion on relevant matters from those which are  44 argumentative or otherwise not useful and probitive.  45 I think that you are entitled, Mr. Goldie, to point  46 out any passage that you think is particularly  47 offensive to the question of admissibility as you may 14255  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 be advised, and I think you are also -- I would like  2 to think that you are also safe in not objecting, and  3 to rely upon the blanket objection which you and Mrs.  4 Koenigsberg have already made.  I will leave that to  5 you.  I think that I have to be exposed to this, so  6 that I can make the triage-like decisions that I am  7 going to have to make in due course.  8 I really don't know what else I can do with this  9 problem, except to screen everything that's in it as I  10 learn about it and deal with it accordingly.  11 Go ahead, Mr. Jackson.  12 MR. JACKSON:  I would like to perhaps make one comment.  In  13 anticipation of this very problem, my friend Mr. Grant  14 wrote to Mr. Goldie on April the 5th, asking if he  15 could be more specific as to examples of what Mr.  16 Goldie was objecting to with respect to the reports,  17 and Mr. Grant goes on:  18  19 "The reason I am asking for specificity as to  20 expedite matters while Mr. Brody is on the  21 stand so that there will not be needless delays  22 in the presentation of his evidence."  23  24 And that kind of specificity was in fact provided  25 by my friends in relation to Dr. Daly's report, in  26 which the particular sections of the report --  27 particular pages are indicated as being ones which we  28 should be on notice as to the alleged objection and  29 nature.  30 THE COURT:  Well, you have seven -- I'm sorry, ten pages of  31 examples from Mrs. Koenigsberg's summary, and I  32 doubt -- I don't know when you received this.  33 MR. JACKSON:  Same time as Your Lordship.  34 THE COURT:  All right.  We will just have to carry on and do the  35 best we can.  36 MR. JACKSON:  My Lord, perhaps I might be permitted, in response  37 to Mr. Goldie's point, in reading that particular part  38 which you just read and the whole relevance of how  39 native society is perceived.  40 THE COURT:  Does it matter -- in any real sense does it matter?  41 MR. JACKSON:  Well, My Lord, my point was to deal with the way  42 in fact courts have sometimes dealt with these issues,  43 and the relevance of a social scientific analysis to  44 the appropriate legal conclusions, which of course are  45 for Your Lordship to draw.  46 THE COURT:  Let me state a proposition here.  Let us assume that  47 at the end of the day there is going to be a 14256  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 conclusion that the Gitksan-Wet'suwet'en have  2 aboriginal rights of some kind of description with  3 respect to the territory they claim.  Let's assume for  4 the purpose of this argument they are going to -- they  5 are going to be found to have the rights that are  6 claimed in the Statement of Claim.  Does it matter if,  7 from the time of contact, circa 1800 A.D., that they  8 have been treated badly or they have been treated  9 well?  Does it make any difference?  10 MR. JACKSON:  I think the way Your Lordship has framed it, no,  11 it does not.  But it is our submission that in coming  12 to that kind of conclusion as a matter of law that  13 they have rights, there are a number of matters which  14 have been pleaded in Defence, and there are a number  15 of matters pleaded in the Statement of Claim upon  16 which Your Lordship should hear evidence regarding  17 particular events, particular situations.  And I am  18 thinking, for example, in relation to the province's  19 argument regarding the establishment of reserves.  It  20 is our submission that understanding the cultural  21 context in which that took place will enable Your  22 Lordship to make a conclusion, a legal conclusion.  23 THE COURT:  The fact is that a reserve was established or an  24 area was logged or a mine was found and exploited or  25 something of that kind.  Those are facts that may go  26 to all sorts of issues relevant to this case, but  27 if -- does it make any difference if settlers and  2 8 governments have had an attitude or have viewed things  29 in a particular way?  The more I hear of this case,  30 the more it comes back to the old question, "What are  31 the facts?"  As the detective used to say, "What are  32 the facts, ma'am?"  33 MR. JACKSON:  "Just the facts".  34 THE COURT:  Yes, "Just the facts, ma'am".  I know that it's late  35 in the day to try and boil things down.  I know it's  36 late in the day to change the rules, and I don't want  37 to change the rules upon which we have been  38 functioning, but that sort of a passage:  39  40 "This means that settlers in governments have  41 tended to see native peoples through unclear or  42 distorting lenses."  43  44 Seems to me to be of highly questionable  45 relevance.  You might just as well say what happened  46 indicates that Indians have tended to see governments  47 through unclear or distorting lenses, and that 14257  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 probably the answer would -- what is -- what  2 difference does it make?  Of course do they have  3 rights and what are they, not how the people view each  4 other.  5 MR. JACKSON:  My Lord.  6 THE COURT:  As I said a moment ago, they may view each other  7 from completely irrational bases.  They probably do.  8 Most people do view each other from an irrational  9 bases.  Again what difference does it make?  10 MR. JACKSON:  I think it does make a difference, My Lord, in  11 terms of understanding events which have taken place  12 which are relied upon by my friends as evidence of  13 loss or acquiescence in the loss of rights.  And I  14 will --  15 THE COURT:  Well, I don't recall at the moment whether  16 acquiescence is an issue.  I suppose it is --  17 MR. JACKSON:  It is pleaded in the further amended Statement of  18 Defence.  19 THE COURT: I am not going to stop you, Mr. Jackson.  I just  20 think it's useful to have a few of these discussions  21 as we go along, because I find that particular passage  22 to be one that surprises me a little bit, because I  23 look at it and I say well, what am I to do with that?  24 How does it make much difference, if anything?  25 Please, by all means, let's go ahead.  2 6 MR. JACKSON:  27 Q   Mr. Brody, could you turn to page 5 of your opinion.  28 A   Yes.  29 Q   And I would like to read two passages, the second  30 paragraph:  31  32 "The cultural anthropological focus in this  33 opinion is part of the widespread attempt in  34 the anthropological community to explain and  35 overcome this misconception about the nature of  36 aboriginal societies in general and Indian  37 societies in particular."  38  39 MR. GOLDIE:  Excuse me, My Lord.  I am going to make one further  40 objection, and then Your Lordship will begin to get a  41 flavor with what I am dealing with and my concern.  42 The preceding paragraph says:  43  44 "The word 'Indian' is the beginning of a  45 misconception.  It places in a single category  46 a whole range of diverse cultures."  47 1425?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 And of course I say so what, in terms of the relevance  2 to this lawsuit.  3  4 "This oversimplification is allied to a  5 tendency to regard all aboriginal peoples as  6 somehow at an earlier stage of evolutionary  7 development than ourselves."  8  9 My Lord, whatever -- if the witness wished to put  10 myself, and that he had complex institutions and  11 organizations, and that he had bases of jurisdiction  12 and so on, that there is -- and you will find it, My  13 Lord, and I won't refer to it again, throughout this  14 report an assumption that the witness speaks not only  15 for himself but the Canadian people, the Canadian  16 government, the Canadian courts.  17 Now, I say with the greatest of respect, Mr.  18 Brody's powers of observation and his training, that  19 those observations are totally irrelevant to this  20 litigation.  21 THE COURT:  Well, is it not the function of the anthropologists  22 to tell us about ourselves and about other societies?  23 MR. GOLDIE:  I said irrelevant to this litigation, My Lord.  It  24 would be a very interesting and perhaps educational  25 process if Mr. Brody told us about ourselves and held  26 up a mirror to us, but what has that got to do with  27 this litigation?  I am not going to argue the point of  28 this.  29 THE COURT:  I think my response to that is the same as I gave  30 before.  I simply don't know.  I don't know what  31 relevance it has, if any, and I think one of our tasks  32 at hand is to allow the evidence to proceed in the  33 hope that we may find the answer to that question.  I  34 am not sure that -- at one time I thought that Mr.  35 Jackson was going to develop some kind of a  36 conspiratorial theory of history, which I had always  37 thought to be a fallacy.  I think the accidental  38 theory is far more accurate.  But I'm not sure it even  39 goes to that.  I am not sure that this suggestive  40 conspiratorial theory, I think it's anthropological  41 theory --  42 MR. GOLDIE:  I think the conspiratorial theory comes a little  43 later.  44 THE COURT:  We can get to it.  I have grave misgivings about the  45 conspiratorial theory of history, but that's perhaps a  4 6 cultural impediment that I am going to have to try and  47 avoid as we proceed.  Go ahead, please, Mr. Jackson. 14259  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 MR. JACKSON:  2 Q   Mr. Brody, at page 5 in the third paragraph you go on  3 to say:  4  5 "There is a history to the relationship between  6 stereotypes of northern native people and  7 social-scientific people among Canadian native  8 peoples since the 1950s."  9  10 Could you explain that opinion?  11 A   In the 1950s it was widely believed in government  12 circles in this and other countries that native  13 cultures were somehow dead or dying.  In other words,  14 there was a crisis in the native community in this  15 country, and this perceived crisis led to the funding  16 of a great deal of research, in particular by the  17 Department of Indian Affairs here, but elsewhere too,  18 and often from government through academic  19 institutions.  And this work would be called  20 generically applied anthropology, the anthropology  21 that addressed itself to, for example, pathologists  22 that were thought to be rampant or extreme among -- in  23 native groups.  And it was also a concern with what  24 might be called salvage anthropology at the same time.  25 The wish to collect from museums and similar places  26 that which remained of native society.  27 I would say that my own work in the late sixties  28 even grew from within this tradition, where Indians on  29 skid row worked funded by government.  I was asked to  30 address questions that assumed in the Indian society  31 as it had been aboriginally was doomed.  32 In the 1970's this assumption shifted greatly and  33 work was funded not so much to look at the nature and  34 consequences of what might be called the death of  35 native society, but to look at the continuing  36 occupation of lands, especially in the north, hence  37 emerge the land use and occupancy projects that I  38 spoke about yesterday.  These land use and occupancy  39 projects were aimed to establish where people actually  40 lived, how far their land use reached and so on.  41 I think there was a weakness for the land use and  42 occupancy work, in that it failed to look at the  43 systems as a whole.  The problem with the  44 anthropology, therefore, the fifties, sixties and  45 seventies, was that it failed to see in native  46 cultures of the Canadian north in particular a system  47 of authority, for example, decision-making procedures, 14260  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 institutions that pertained to decision-making  2 procedures.  This part of the work tended to be  3 neglected, and that's the history of the development  4 of social science in this country that I am referring  5 to in this paragraph.  6 Q   At page 11 -- page 7.  I beg your pardon, Mr. Brody.  7 Page 7.  You say:  8  9 "A new approach to northern cultural must be  10 based on the work of the seventies and it must  11 recognize the existence of viable cultural  12 systems other than our own but it must go  13 further and identify in the peoples own  14 criteria for establishing rights to lands and  15 resources, that is it to say it must focus on  16 their own systems of management authority."  17  18 If you would then turn to page 11, the first full  19 paragraph:  20  21 "The social-scientific discovery that lies  22 behind this part of my opinion can be  23 summarized as a basic equation between culture  24 and a system of ownership and authority.  A  25 system of management is integral to culture.  26 To be a member of a society is to be  27 accountable to its conventions, rules,  28 regulations, procedures and beliefs - to be  29 therefore subject to the jurisdiction."  30  31 Is your use of the word "ownership" and the word  32 "jurisdiction" there an anthropological conclusion?  33 A   Yes.  In the case of ownership, I am trying to  34 identify ownership through the system of conventions  35 and rules that pertain to ownership.  And in the case  36 of jurisdiction, I think I am meaning the basic  37 relationships that are at the heart of every system  38 of -- at the heart of every social system.  39 Relationship between person and person, relationship  40 between people and their land, relationship between  41 people and their animals or their resources,  42 relationship between people and the supernatural  43 world.  There is a set of relationships which is  44 administered by and regulated by, established by the  45 institutions and conventions, rules and norms over  46 society.  47 It's an invitation -- if I may continue -- I think 14261  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 it's an invitation to anthropologists to be sure that  2 they are talking about a total system and not some  3 part of it.  So, for example, if all you are talking  4 about is land use and occupancy, you may come up with  5 very interesting facts, as we did in the seventies,  6 about the extent of a culture's land use, but you  7 don't come up with interesting facts about how the  8 culture functions as a culture, how it makes its  9 decisions, how it expresses its rules and conventions,  10 where its laws lie.  11 THE COURT:  I don't understand how you relate in this catalogue  12 jurisdiction to spirituality.  Are you saying that the  13 spirituality must conform to some norm within the  14 culture?  15 THE WITNESS:  There will be rules in the culture about how a  16 person should relate to the supernatural world, or  17 rules about how the spiritual world must be dealt  18 with.  19 THE COURT:  What do you say the rules are?  Are the rules the  20 jurisdiction, or is the conformance the jurisdiction,  21 or both?  22 THE WITNESS:  I think I am saying the sum of the rules is the  23 societies idea of its jurisdiction.  24 THE COURT:  So it's the jurisdiction of these — of the society  25 or the culture regarding these matters that you bring  26 within the rules of jurisdiction?  27 THE WITNESS:  That's what I am attempting to do, yes.  Taking  28 advantage of the fact that the secondary meaning to  29 the term jurisdiction is somehow the extent -- the  30 geographical extent to which it --  31 THE COURT:  Geographical extent?  32 THE WITNESS:  Yes, that a jurisdiction is also a geographical  33 issue as well as a body of rule issue.  34 THE COURT:  You are really relating jurisdiction to grasp of  35 society on its people --  36 THE WITNESS:   That's right, yes.  The intention within the  37 society that people follow certain rules.  Some  38 societies, of course, have a very formal way of  39 affecting that grasp, others do it informally and  40 rather subtly.  41 THE COURT:  Well then, in your -- by your definition, then, in  42 Anglo-Saxon history, the various forces which imposed  43 its religion on everyone became a matter of  44 jurisdiction, did it?  45 THE WITNESS:  I'm not familiar enough with what they were  46 imposing the new system upon, but I --  47 THE COURT:  Well, let's take the Calvinistic period represented 14262  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 generally by the commonwealth, when Catholicism was  2 banned from the realm.  You would say that was a  3 jurisdictional question?  4 THE WITNESS:  It was an aspect of the jurisdiction, yes.  5 Anthropologically speaking, I would say -- any given  6 moment in the history of Calvinist Europe be sets of  7 jurisdictional arrangements which would constitute  8 distinctive cultures, within which there would be  9 perhaps a conflict about which rules should prevail in  10 the matter of Christian belief and practise.  11 THE COURT:  I suppose we have the same problem, do we, if you  12 talk about the jurisdiction of the church?  13 THE WITNESS:  Yes, similar problem.  14 THE COURT:  Yes.  All right.  Thank you.  15 THE WITNESS:  In fact again we can ask what the people are doing  16 in relation to the rules, as well as ask what the  17 rules are.  18 THE COURT:  All right.  It's the usual time.  We will take the  19 morning adjournment.  Thank you.  20  21 (PROCEEDINGS ADJOURNED)  22  23 I HEREBY CERTIFY THE FOREGOING TO BE  24 A TRUE AND ACCURATE TRANSCRIPT OF THE  25 PROCEEDINGS HEREIN TO THE BEST OF MY  26 SKILL AND ABILITY.  27  2 8    2 9 LORI OXLEY  30 OFFICIAL REPORTER  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 14263  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 (PROCEEDINGS RECONVENED AT 11:30 A.M.)  19  2 0    THE COURT:  Mr. Jackson.  21 MR. JACKSON:  22 Q   My lord.  23 If you could turn to page 17 of your opinion,  24 chapter two.  In the bottom paragraph, my lord, second  25 sentence:  26  27 "To explain virtually any part of their system of  28 ownership and authority, Gitksan and Wet'suwet'en  29 chiefs have to present the history of their name,  30 House and territory.  In their system, both  31 explanation and validation are historical."  32  33 Could you explain that opinion?  34 A   This is an opinion that goes to the whole question of  35 facts in Gitksan and Wet'suwet'en society.  Many  36 anthropologists have commented that in hunting,  37 gathering and fishing cultures, people are very  38 preoccupied with facts, and often there are very clear  39 rules about truthfulness, rules that are reinforced by  40 an equation between being truthful and having power,  41 or facts and power, and so on.  42 Now, in Gitksan and Wet'suwet'en society, there is  43 a distinction made between what someone merely has to  44 say, in other words, a mere opinion, and something  45 that is knowledge.  I suppose it's like the  46 distinction between hearsay and something that's more  47 than hearsay.  That is something that is for sure, or 14264  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 true.  All cultures -- you could do an anthropology of  2 this questions.  All cultures make this distinction  3 and all cultures have their own way of delineating the  4 issue and have rules that govern the distinction.  5 For Gitksan, Wet'suwet'en, a mere personal  6 opinion becomes a fact by virtue of a witnessing  7 process.  And there are many rules governing this  8 process and they are the rules which I'm sure you have  9 heard a great deal about, that pertain to the feast.  10 So, each chief is entitled to speak about their own  11 name, their own crest, their own territory, give their  12 own facts, and other chiefs witness the giving of  13 these facts at the feast and thereby bestow upon the  14 facts, the status of knowledge.  15 Q   You -- if you could turn to page 20, you state that:  16  17 "In the course of his commissioned evidence, Fred  18 Johnson, Lelt, several times insisted that things  19 he was saying were true because they had been  20 witnessed and acknowledged."  21  22 You use the Gitksan word 'nidint, N-I-D-I-N-T.  Could  23 you turn to tab 43 of the first book of documents.  24 And could you, on the first -- it's volume --  25 transcript of March the 16th, 1988, page 4671.  It's  26 the evidence in chief, my lord, of Mr. Art Mathews.  27 Could you read, Mr. Brody, from the bottom on page --  28 from line 43 where it starts, "Lelt"?  29 A   Do you want me to read this aloud?  30 Q   Yes.  31 A  32 A  "Lelt.  When we give it to Lelt, it's a  33 great privilege for us to do it, because  34 he's our 'Nii dil.  35 Q  Now, can you explain for the court when  36 you refer to Fred Johnson as your 'Nii  37 dil, what that means?  38 A  'Nii dil in our language is the -- at the  39 Frog Tribes in Gitwangax, they would be  40 the one sitting at the head table,  41 guests.  When you put up a feast, they  42 are at the head table.  They sit directly  43 in front facing us.  And we are putting  44 up -- we call 'Nii dil sitting across  45 from the table.  If you have the table  46 and we are serving, 'Nii dil means that.  47 'Nii dil in our law, the feast law, if 14265  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 there was no 'Nii dil, feasts was  2 meaningless.  When I say feast or 'Nii  3 dil, are the very people that stamps  4 approval of your feast."  5  6 Q   If you could just go down to line 17, starting with  7 the question, and read the next few lines?  8 A  9 Q  "You said that your 'Nii dil, I think  10 you used the term, gives the stamp of  11 approval, or your 'Nii dil must be  12 present for the witnessing?  13 A  Yes.  14 Q  Can you explain why?  15 A When you say why, I would assume you are  16 talking about his role in the feast?  17 Q  Yes.  18 A  That he -- 'Nii dil is the first speaker  19 of a feast.  And when you tell your  2 0 adaawk, and I have to -- I went through  21 that already, adaawk, and your  22 territorial boundaries, if they are  23 complete and true, he will then address  24 it as true.  That's what I mean by  25 stamping and saying this is true.  There  26 is no lie to what you're saying."  27  28 Q   And is that consistent with your opinion?  29 A   Yes.  This is an illustration of what I'm trying to  30 describe in more general terms here.  31 MR. GOLDIE:  Shouldn't it be, my lord, that this is the source,  32 the fact relied upon?  That's the point.  33 THE COURT:  Yes.  34 MR. JACKSON:  Mr. Brody —  35 MR. GOLDIE:  Excuse me.  Have I got it right, that this is the  36 source of the opinion that he has expressed?  37 MR. JACKSON:  I was just going to clarify that.  3 8 THE COURT:  Thank you.  3 9 MR. JACKSON:  40 Q   Mr. Brody, in coming to your conclusions, had you  41 interviewed other individuals in order to come to that  42 conclusion, other than Art Mathews?  43 A   Oh yes.  This -- my first insight into this was  44 sitting in on the commission of Lelt, and it was  45 hearing repeatedly the use of the term "'nidint" and  46 noticing that there was a translation problem with it.  47 And after seeing this patterning a few times, I made 14266  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 the point of inquiring into what this term "'nidint"  2 was doing, and then I followed it up with, of course,  3 other questions to other chiefs.  And I notice -- in  4 fact, the piece that I read out, he -- the word there  5 is "'Nii dil" not "'nidint", and I suspect that's  6 another grammatical form of the same concept.  It's  7 being used grammatically differently but the idea at  8 work here is the same.  So no, I didn't -- I don't  9 think I ever interviewed Art Mathews about this  10 question, in fact.  11 Q   If you could turn to page 21 of your opinion, four  12 lines down, you say:  13  14 "In the Gitksan and Wet'suwet'en system of  15 knowledge, there are properly qualified,  16 experienced specialists, hereditary chiefs, and  17 they have responsibility for facts that are  18 more than individual opinions.  A chief undergoes  19 specialized training and study, which prepares him  20 or her to ensure that facts are stated and ordered  21 in the proper manner."  22  23 If you could just go on beyond that, my lord:  24  25 "By surviving in the feast system, facts acquire  26 the highest status, and come to constitute part of  27 accepted knowledge - much as scientifically  28 verified facts assume the status of knowledge in  29 the European system."  30  31 Could you comment on that --  32 A   Yes.  33 Q   -- opinion?  34 A   I'm struck by what might be called the Gitksan-  35 Wet'suwet'en scientific procedure here.  You have an  36 expert who is an expert by virtue of training and  37 experience, who has the job of processing the  38 information before other experts, who, as experts in  39 the same field, that is the field of these facts,  40 agree or disagree with the statements as made in the  41 proper place.  And if, over a period of time, this  42 assessing of the facts by experts in front of experts  43 continues, then the facts come to be established  44 truths, part of the culture's body of knowledge.  And  45 I'm -- though -- with the provision I don't want to  46 push the analogy too far, I'm struck by how this  47 parallels, in a way, the transition from fact to 14267  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 popularly accepted or widely accepted or  2 scientifically accepted knowledge in our system.  3 There is a specialist who has the job of processing  4 facts, there is a community of specialists before whom  5 the facts have to be heard, by whom they have to be  6 assessed, and as it were, tested, assented to.  If  7 this process continues, nobody succeeds in falsifying,  8 which would be the scientific method in our culture,  9 then these facts acquire the status of generally  10 accepted knowledge.  11 So you can -- it's just an anthropological device  12 for making clear that there is a system here.  If we  13 can see the analogue between our way of doing things  14 and their way of doing things then we come to  15 recognize the systematic nature of Gitksan-  16 Wet'suwet'en culture in this regard.  17 Q   In coming to your conclusions, you indicated that you  18 had done a number of interviews.  Is one of those  19 interviews tab 4 -- two of those interviews tab 4 and  20 5 of your field interviews, the first book of  21 documents?  Tab 4 is field interviews, Mary McKenzie  22 and Pearl Trombley.  Five is field interviews, Mary  23 McKenzie and Pearl Trombley?  24 A   Yeah.  These are two of the interviews that were done.  2 5 Q   And are --  26 MR. GOLDIE:  My lord, I object to receiving that material and I  27 object to it being included in the report, and I can  28 elaborate on that at a later point, but I just wish to  2 9 make my objection known here.  3 0    THE COURT:  Thank you.  31 MR. JACKSON:  32 Q   Parts of tabs 4 and 5 are in fact set out at pages 15  33 and 16 of your report?  34 A   That's right, yes.  35 Q   My lord, perhaps Mr. Goldie might make clear the basis  36 upon his objection, and perhaps I could seek to deal  37 with it.  Perhaps I could first ask Mr. Brody this  38 question:  Are those interviews part of the foundation  39 upon which your opinion is based?  40 A   Part of it, yes.  41 MR. JACKSON:  Perhaps if Mr. Goldie would explicate the nature  42 of his objection, my lord.  43 MR. GOLDIE:  Oh, I don't know whether I can explicate, but  44 perhaps I can explain, my lord.  These are interviews  45 taken for the film, and the limitations on the film  46 process are explained by the witness on page 17 of his  47 report.  He says: 1426?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1  2 "Even in these short extracts from a single  3 interview, one can discern some of the ways in  4 which family, territory, crests, poles, Houses  5 and the feast are a set of interlocking  6 institutions or arrangements.  But this is only a  7 limited view.  From what do the limitations  8 derive?  First, and obviously, every interview  9 creates its own conditions.  In this case, filming  10 meant that only brief statements could be made:  11 the technology of film and sound stock imposes  12 itself.  Gyolugyet and Kwamoon could not fail  13 to see this particular limitation, and tailored  14 length and provenance --"  15  16 I'm not sure what you mean by "provenance" there.  17 What did you mean by "provenance"?  18 THE WITNESS:  The number of topics they would cover.  19 MR. GOLDIE:  I see.  I understood provenance to be place of  20 origin.  21  22 "-- of their statements accordingly."  23  24 Your lordship will see that there is imposed upon  25 the evidence relied upon, the limitations of the  26 medium, namely the film.  It creates an artificial  27 situation.  The -- it is explained to the witnesses  28 that there is a film, there has to be an explanation,  29 otherwise one might wonder why there are lights and  30 cameras and assistants with clapboards and things like  31 that.  It is not just that we are unable to  32 cross-examine either Pearl Trombley or Mary McKenzie  33 with respect to these statements, it is that these  34 statements are made in a circumstance which renders  35 their reliability as factual, suspect.  They are  36 responding to a circumstance, namely a film being made  37 for the purpose of gaining support for their cause.  38 That limits, if not destroys, the reliability.  I am  39 not suggesting that these people are telling untruths,  40 I am simply saying that this is a case where  41 self-interest informs the speaker in a manner which  42 advances his or her perception of his or her cause.  43 This is not -- is self-evidently hearsay is what I'm  44 getting at, of course, but it goes beyond the normal  45 objection to hearsay.  46 THE COURT:  Well, what — I would like to ask you, Mr. Brody, if  47 one looked at the film, assuming this interview was 14269  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 used?  2 THE WITNESS:  A piece of it was, yes.  3 THE COURT:  Would we find these words?  4 THE WITNESS:  No.  You would find — well, you would find the  5 words that are used in the film are, evidently.  I  6 think in the film we didn't, in the end, include any  7 of Mary McKenzie's interview.  We used a small amount  8 of Pearl Trombley in which she explains some of the --  9 some aspects of the feast.  I can identify those.  10 THE COURT:  So this is not a transcript of what was filmed?  11 THE WITNESS:  Oh, no, no.  This is a transcript of what was  12 recorded.  13 THE COURT:  So this is a script?  14 THE WITNESS:  This is a recording of an interview lasting  15 perhaps an hour.  16 THE COURT:  But it's only three pages — it's only four pages?  17 THE WITNESS:  Yes, my lord.  When I say the interview lasted an  18 hour, the amount of time that the tape recorder was  19 running may determine how much is in here, but if you  20 look at the tab 4, that's four pages, that must be all  21 that was recorded of Mary McKenzie from that interview  22 then.  It's hard for me.  23 THE COURT:  Well, "PT" is Pearl Trombley, isn't it?  24 THE WITNESS:  Sorry?  25 THE COURT:  "PT" is Pearl Trombley?  26 THE WITNESS:  Pearl Trombley, yes.  2 7 THE COURT:  Who is "RO"?  28 THE WITNESS:  Well, RO must be me, I think, because I did the  29 interview.  I don't know who RO is being referred to  30 in there.  31 THE COURT:  You see, we don't even know what the question was,  32 if there was a question.  33 MR. GOLDIE:  My understanding would be that all of this was  34 filmed and it was edited out of the film.  But if we  35 had the out-takes, or whatever the technical term is,  36 we would know what questions were asked.  37 THE WITNESS:  Well, you might not.  It depends whether or not  38 the voice of the interviewer is being recorded.  39 Normally, when you are doing an interview -- I think I  40 said a little bit about this yesterday --the  41 interviewee is what's called on line, that is to say  42 there is a microphone placed to be sure to catch their  43 voice.  In the film of this kind where there was never  44 any intention to use the interviewer's voice in the  45 final film, the interviewer is not put on line, so  46 there is a question, therefore, as to whether or not  47 the microphone catching the interviewee's voice is 14270  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 also picking up the interviewer's voice.  2 MR. GOLDIE:  Well, I'm glad to have that elaboration, my lord.  3 It simply tells us that the promptings are unavailable  4 to us.  5 THE WITNESS:  I can assure you that when it comes to Mary  6 McKenzie there is not much prompting.  7 MR. GOLDIE:  I accept that also.  8 THE COURT:  But on page 8, after the second paragraph, there is  9 a break and I suppose there was a question, was there?  10 And then Pearl Trombley continued to --  11 THE WITNESS:  Yes, one can try and deduce the question from the  12 answer, but, yes, she is being asked a question  13 THE COURT:  And what am I to take from the opening where in  14 square brackets it says "[Dialogue in Gitksan]"?  15 THE WITNESS:  Pearl Trombley — you are asking me, my lord?  16 THE COURT:  Yes?  17 THE WITNESS:  Pearl Trombley and Mary McKenzie would talk to  18 each other always when interviewed about who was going  19 to address what.  There is a question of permissions  20 between them, a thing that they take extremely  21 seriously.  I think in one of the interviews they do  22 it -- Pearl Trombley refers to the permission issue in  23 English, I think probably in a later interview, not in  24 this one.  So I imagine -- I'm pretty sure that what's  25 being said in Gitksan there is, "Is it all right for  26 me to speak about your crest?"  "Yes, it is."  "Is it  27 all right for you to speak about so and so?"  And so  28 an exchange of permissions.  Sometimes there are  29 exchanges -- I'm not sure if it's the case in this  30 interview -- in Gitksan which are about how to  31 translate particular terms into English.  Pearl  32 Trombley's English is more fluent than Mary  33 McKenzie's, and sometimes Mary McKenzie would ask for  34 translation assistance.  So that would always be  35 obvious from the context.  36 THE COURT:  So what we have is an incomplete recording of an  37 interview which has been in some way programmed or  38 compressed to meet the requirements of the film  39 industry or the video film media?  40 THE WITNESS:  No.  Video — 60 millimetre film raises a problem,  41 video, in fact, you can run continuously, it wouldn't  42 raise a problem.  I would just like to point out, my  43 lord, that all interviews entail compression.  That  44 even if I go and sit down in someone's front room and  45 ask them a question, there is a compression that takes  46 place.  There is a certain amount of time that  47 everyone knows is allotted to it.  People's patience 14271  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 is limited and so on.  2 MR. JACKSON:  Perhaps I could ask some further questions of Mr.  3 Brody to help your lordship.  4 THE COURT:  Yes, thank you.  5 MR. JACKSON:  6 Q   Mr. Brody, you have conducted -- let me put it this  7 way:  Have you conducted interviews outside of the  8 context of making a film?  9 A   Yes.  10 Q   Could you —  11 A   Yes.  12 Q   -- inform the court whether in the context of this  13 particular interview, the film medium, in terms of  14 your standard methodological approach, precludes you  15 from drawing judgments and conclusions about the  16 information which you are being given, or in what ways  17 you would take that into account in formulating your  18 opinions?  19 A  Well, I think the first and most important  20 consideration is what it is I'm asking people about.  21 And if I'm asking somebody a question about their name  22 or territory, specially if it's a Gitksan person, the  23 answer, in a way, is clearly established in their  24 mind, independent of any circumstance of the  25 interview.  That is to say, what Mary McKenzie has to  26 say about her name, her crest, the feast and so on,  27 what she has to tell of her adaawk, is completely  28 clear in her mind and there is no way in which  29 anything that I am setting up is going to influence  30 that, other than to perhaps shorten it.  So I would be  31 quite happy to draw inferences from what she says  32 without too much anxiety.  33 There may be other kinds of questions, however,  34 where the presence of the camera would constrain,  35 inhibit, or in other ways, affect what the interviewee  36 was likely to say.  So, for example, I've often been  37 aware of persons censoring themselves when it comes to  38 an interview, so I've prepared for an interview with  39 many conversations.  And someone has indicated to me  40 what it is that they have to say, but when the camera  41 is there, they don't say it, out of shyness or other  42 reasons.  This doesn't apply.  That difficulty doesn't  43 apply in the case of the interviews with Mary McKenzie  44 and Pearl Trombley, or actually, on the whole, with  45 interviews with Gitksan, Wet'suwet'en, about the feast  46 system or those -- or related aspects of their lives.  47 THE COURT:  But regardless of out-takes, these are the words 14272  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 that the person being interviewed spoke on camera, are  2 they?  3 THE WITNESS:  They are words spoken on camera, my lord, and when  4 the camera runs out and people continue talking, the  5 tape recorder is left switched on.  So the tape  6 recorder is recording more than the camera is  7 recording and these are transcriptions of the tape  8 recorder.  9 THE COURT:  All right.  Well, I think that I can only treat this  10 as a subtraction from the weight, if any, to be given  11 to this material at the end of the day.  It is  12 axiomatic that a response, even an editorial response  13 of this kind might be better understood if the  14 question were known.  And for that reason, it must be,  15 as I have said, a subtraction of some kind from  16 weight.  But I think it still goes to weight, and  17 that, of course, subject to the over- arching  18 objection that has already been made to the  19 entire report, and I am not going to stop you from  20 proceeding with your examination using this material.  21 MR. JACKSON:  22 Q   Mr. Brody, his lordship referred to the interviews as  23 a script.  Were these interviews rehearsed in any form  24 before they were filmed?  25 A   No.  I would like to say that my method -- I have a  26 very distinct method which is now, I think, well  27 established in anthropological film making of  28 conducting interviews, which is to confine myself to  29 very general questions.  So I am confident that in the  30 case of the interviews with Mary McKenzie and Pearl  31 Trombley, the questions would be something like, for  32 example:  "Would you like to say something about your  33 name and crest?"; "Would you like to tell something  34 about the feast?"  This isn't an interview in which I  35 am pursuing a line of questions; I am inviting the  36 person to speak.  And the reason for this is that when  37 we are making anthropological films, it's crucial to  38 have long, clear statements uninterrupted by intrusive  39 comments and questions by someone else.  Every  40 intrusion creates problems in the construction of an  41 anthropological film.  The purpose is to have the  42 voice as the foundation, therefore, the interviews  43 tend to be broad questions, long answers.  That's the  44 basic technique.  45 MR. JACKSON:  I would like those two interviews to be marked as  46 the next exhibit, my lord, subject, of course, to my  47 friend's objection. 14273  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 THE COURT:  Yes, all right.  This is 990, so it will be 990-4  2 and 990-5.  3 THE REGISTRAR:  Thank you.  4  5 (EXHIBIT 990-4 - Interview with Mary McKenzie and  6 Pearl Trombley)  7 (EXHIBIT 990-5 - Interview with Mary McKenzie and  8 Pearl Trombley)  9  10 MR. JACKSON:  11 Q   Mr. Brody, is the study of oral history part of the  12 evidentiary basis upon which anthropologists draw in  13 coming to opinions about the nature and development of  14 a culture?  15 A  My lord, history is what -- is a part of what anthro-  16 pologists work on and with, yes.  17 Q   If I can just go back to page 21, and just reread  18 several lines, my lord, near the end of the paragraph.  19 Your lordship may already have noted this:  20  21 "By surviving in the feast system, facts acquire  22 the highest status, and come to constitute part of  23 accepted knowledge - much as scientifically  24 verified facts assume the status of knowledge in  25 the European system."  26  27 Have you, in light of that statement and in light  28 of the evidence you previously have given that you  2 9 have reviewed some of the adaawk, have you come to any  30 opinions on the significance of the adaawk as oral  31 history?  32 A  Well, I've come to a number of opinions about the  33 nature and meaning of the adaawk and the kungax as  34 well here -- which is sort of an equivalent of the  35 adaawk -- including the fact that -- let me say that  36 again.  The conclusions I've come to about the adaawk  37 and kungax include the following:  First, they are  38 their names and crests of houses and so on, recorded  39 and given their standing in the culture.  They are the  40 place where people establish the historic dimension to  41 their culture in several ways.  The adaawk and kungax  42 give meaning to the lands where they live, meanings  43 that reach far back in time, according to the adaawk  44 and kungax.  They also, in some very striking cases,  45 describe fairly recent history.  I have in mind here  46 the Miluulak adaawk, for example, which tells how a  47 house acquired a white man's dog as a crest, and gives 14274  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 episodes in the last hundred years of history.  2 The adaawk also indicates something about the  3 nature of territoriality in the culture.  The extent  4 of specific territories are indicated in the adaawk  5 and kungax.  They say something about the basic  6 relations, I included under my account of jurisdiction  7 earlier today.  They indicate the sort of relationship  8 that is required between a person and another person,  9 a person and the land, a person and animals, a person  10 and the supernatural, and the required relationships  11 take the form of prescriptions or laws.  So one can  12 learn a lot about the legal structure, so to speak, of  13 the cultures from the adaawk and the kungax.  14 There is also something to be said about the way  15 in which the adaawk and kungax function, compared to  16 oral histories in neighbouring societies.  I am very  17 struck, reading the adaawk and hearing the adaawk,  18 that ancient attachment to place and descriptions of  19 dispersal relate to where people live right now.  So  20 the "Temlarh'amam" adaawk, for example, Skawaw  21 adaawk -- I could give many examples -- are about  22 movements of people that keep referring to -- but, I  23 should say, they are about movements of people that  24 keep referring to the places nearby.  25 Now, among the Inuit, for example, or the  26 Dunee-za, the northeast B.C. people where I've heard  27 many oral histories, there are similar stories but  28 they don't always relate and they often don't --  29 usually don't relate to places right here.  That is to  30 say, the -- an ancient attachment to the place is  31 indicated by the adaawk that you don't find in  32 neighbouring cultures.  This is rather an elusive  33 point.  Perhaps I'm not making it quite clear.  34 THE COURT:  I think one of the problems is that I'm not sure  35 Madam Reporter has the spelling of the word "Skawaw".  36 THE WITNESS:  S-K-A-W-A-W is the spelling I have.  I'm  37 hesitating because there are so many different  38 spellings.  39 THE COURT:  S-K-A-W-A?  40 THE WITNESS:  W at the end as well.  41 THE COURT:  S-K-A-W-A-W, okay.  42 THE WITNESS:  That's the spelling I have in my notes.  43 THE COURT:  That's the way we always spell too.  44 MR. GRANT:  I believe it was referred to earlier, so it's the  4 5 same adaawk.  4 6 THE COURT:  Oh yes.  4 7 MR. JACKSON: 14275  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 Q   You have referred to the Miluulak and Skawaw adaawks.  2 Could you turn to tabs 44 to 60 of the first book of  3 documents.  Are those some of the adaawk upon which  4 you have based the opinions you have just expressed?  5 A   Yes.  6 MR. JACKSON:  My lord, could those be marked as the next  7 exhibits?  8 MR. GOLDIE:  I think these ones have already been marked, my  9 lord.  At least some of them.  10 THE COURT:  Well, because I don't think there is a serious  11 problem in having them marked twice -- the only  12 problem is that the ones I have don't seem to have a  13 title to them.  Do we know what they are?  14 MR. JACKSON:  I don't know whether that's the fault of the  15 photocopying machine, my lord.  16 THE COURT:  Someone's fault.  17 MR. GOLDIE:  They are all Barbeau-Beynon.  Could we not be given  18 the folio numbers?  I think you've -- these are quite  19 readily available.  20 MR. JACKSON:  I can seek to do that, my lord.  21 THE COURT:  Yes, all right.  Which numbers are you seeking to --  22 MR. JACKSON:  Tabs 44 through to tab 60.  23 THE COURT:  All right.  They will be marked as 960-44 to 60,  24 inclusive.  25 THE REGISTRAR:  990.  26 THE COURT:  990, sorry  27  28 (EXHIBIT 990-44 to 990-60 Inclusive - Tabs 44 to 60  29 Inclusive, Adaawks)  30  31 MR. JACKSON:  Mr. Brody, if you would now turn to chapter 3 of  32 your report.  This chapter, my lord, is -- relates to  33 the —  34 THE COURT:  I'm sorry, which page?  35 MR. JACKSON:  36 Q   Chapter 3 starts at page 24.  It relates to the feast  37 system.  Mr. Brody, if you could turn to page 27,  38 second paragraph, the last sentence, you say:  39  40 "If the whites knew about the feast, they did  41 not - in the early days - seek to stop or even  42 change it."  43  44 Could you explain that statement and indicate the  45 sources upon which you have relied in coming to that  46 statement?  47 A   The sources I've relied on include early journals of 14276  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 the Hudson's Bay Company employees, and there is one  2 striking document which I think is a memorandum from a  3 Hudson's Bay clerk called Clifford -- a man called  4 Fitzstubbs, written in the 1880's, which indicates his  5 enthusiasm for the feast and suggests that at least  6 from early contact, 1820's to 1880, there was a point  7 of view held, at least by traders, to the effect that  8 the feast was something that might well be beneficial  9 to the trader.  It encouraged the circulation of  10 goods, it encouraged a high demand for the kind of  11 things that traders had to offer, and therefore, was  12 part of the set of forces that drew people into the  13 fur trade or kept them in the fur trade or kept them  14 in trading relations with white traders in the area.  15 Q   The next paragraph, the last sentence, you say:  16  17 "Missionaries had, by this time --"  18  19 And "by this time", I take it from the context of that  20 paragraph, is by the end of the 19th century.  21  22 "Missionaries had, by this time, decided that the  23 feast as an institution ought to be suppressed; in  24 1884 this pressure reached the Canadian parliament  25 and the feast was made illegal."  26  27 Could you explain, based upon your research, the  28 reasons why the feast was made illegal, as you  29 understand it?  30 MR. GOLDIE:  Well, are we talking about the Gitksan and  31 Wet'suwet'en or are we talking about some general?  32 Because unless we are talking about the Gitksan,  33 Wet'suwet'en, I think the question of why the feast  34 was declared illegal is irrelevant to the issues  35 before your lordship.  I don't recall any issue that  36 involves the legality or illegality of the feast.  37 THE COURT:  Well, is there agreement that there was legislation  38 making the feast illegal?  39 MR. JACKSON:  Well, the Indian Act, my lord, of 1884 does so  40 prohibit the feast and another -- variety of other  41 institutions.  42 THE COURT:  All right.  And does it apply to the Gitksan and  43 Wet'suwet'en?  44 MR. JACKSON:  Yes, it does, my lord.  45 MR. GOLDIE:  Yes, it's general.  4 6 THE COURT:  All right.  And what is the relevance of it?  47 MR. JACKSON:  My lord, the relevance of this is to explain and 14277  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 to give your lordship some understanding of the nature  2 of the pressures which were applied to Gitksan and  3 Wet'suwet'en societies, and the nature of their  4 response as part of the question, which -- as an  5 evidentiary basis upon which your lordship can  6 conclude that there was acquiescence in the terms of  7 paragraph 39 (a) of the statement of defence.  8 MR. GOLDIE:  It doesn't refer to a potlatch.  9 MR. JACKSON:  It is also, my lord — the statement of claim  10 asserts that the Gitksan and Wet'suwet'en continue to  11 maintain their institutions.  It is part of the  12 evidentiary basis necessary to establish aboriginal  13 title that there is an organized society, and your  14 lordship has heard the nature of those institutions.  15 The -- Mr. Brody, in this chapter, is seeking to  16 establish and provide anthropological evidence in  17 relation to change and continuity in relation to this  18 particular institution, which of course, as your  19 lordship has heard, is one of particular significance.  20 THE COURT:  Well, I have been hearing from the start of this  21 trial two years ago that feasts were made legal.  This  22 is the first time anyone has given a year as to when  23 it happened, and it's the first time that anyone has  24 discussed it even in the modest terms we have  25 discussed it today.  I have never seen the language  26 and I have been waiting and will continue to wait  27 patiently for it to be made -- for its relevance to be  28 made more clear.  But I think that, as I said  29 previously, that the plea of acquiescence might be  30 sufficient to make this relevant.  And for that  31 reason, I see no reason why you shouldn't continue.  32 MR. GOLDIE:  My point, my lord, was the -- unless the evidence  33 is going to relate to the Gitksan, Wet'suwet'en, it's  34 irrelevant.  35 THE COURT:  Yes.  36 MR. JACKSON:  I will seek to so relate it, my lord.  37 THE COURT:  Yes, all right.  Thank you.  3 8 MR. JACKSON:  39 Q   Mr. Goldie -- Mr. Brody, based upon your research in  40 the Gitksan and Wet'suwet'en area, in relation to  41 sources which pertain to the Gitksan, Wet'suwet'en,  42 have you come to an opinion regarding the reasons why  43 the feast was prohibited?  44 A   In fact, the prohibition of -- or the campaign against  45 the feast in British Columbia I found through -- of  46 its importance, sources in Gitksan and Wet'suwet'en  47 country.  I think in the 1870's, according to the 14278  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 documents I've looked at, the missionaries on the  2 coast were very unhappy to hear that there was a great  3 deal of feasting going on in the upper Skeena, and a  4 missionary, if I remember right, by the name of  5 Tomlinson, was sent up the Skeena to identify the  6 extent to which the feast was continuing there, with a  7 view to campaigning for its suppression; a campaign  8 which was conducted among the people and with whatever  9 white officials he might come across.  10 Similarly, in Wet'suwet'en territory, Father  11 Morice was very active in his attempt to suppress the  12 feasts.  And it's clear from what the people say who  13 were interviewed, for example, in the Barbeau-Beynon  14 archives, and clear from other documents of the day,  15 that there was certain aspects of the feasts that were  16 particularly disturbing to the missionaries.  17 And I must emphasize that it was the missionaries  18 who led the campaign against the feasts in this  19 period.  The things that they objected to were what  20 might be called profligacy and barbarism.  The fact  21 that people gave their possessions away, or in some  22 cases even destroyed possessions, although amongst the  23 Gitksan, the descriptions one finds are of description  24 of oil, the pouring of fats into the fire.  This upset  25 the priest.  They saw this as very wasteful.  They  2 6 thought the people -- and one must remember the  27 consciousness that these people had at the time.  They  28 thought that the people should be thrifty, especially  29 people who are, in a way, poor.  They should save  30 their possessions and resources and should not waste  31 them by burning them and by giving them away.  32 They would also -- and again here I'm talking  33 about the missionaries when I say "they".  The  34 missionaries were also very disturbed by the power the  35 halayt or shaman had at the feast.  And the feast  36 was -- tended to be a place where shamanistic power  37 was reaffirmed and accepted.  And since the  38 missionaries saw the halayt as their straightforward  39 rivals in the religious domain, it was important for  40 them to do whatever they could to weaken the hold that  41 the halayt may have had upon people's views and  42 practices, and banning the feast was a way of  43 achieving this.  44 There's also indications in the documents --  45 though now I'm talking a bit more about Indian agent  46 reports, a slightly later period at the very end of  47 the 19th Century and early 20th Century -- indications 14279  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 that the feast was an irritant because it caused  2 people to move about a great deal, visiting from  3 village to village.  Indian agent Loring refers in his  4 reports and papers to the irritating custom the people  5 have of going from village to village, and reports on  6 one striking occasion, I believe in 1901, that he has  7 stopped a boat load of people setting off to go to a  8 feast and has arrested one of the principals, on the  9 grounds that he doesn't want this moving about.  And  10 he makes this clear in his reports.  11 So those are some of the -- some of the  12 obj ections.  13 MS. KOENIGSBERG:  I wonder if my friend could identify for the  14 sake of the record and the sake of the report and our  15 assistance, what the references are that Mr. Brody  16 relies on to say that.  They are certainly not set out  17 in the report.  18 THE COURT:  Can you assist us in that regard, Mr. Brody?  19 THE WITNESS:  I don't have the documents at hand, but I could  20 overnight, and -- find them, I suspect, in my  21 collection of Loring papers.  I hope I can find them  22 in my collection of Loring papers.  We are talking  2 3 about a huge amount.  24 MS. KOENIGSBERG:  Actually, the point he made about Loring —  25 and he has documented elsewhere in his report in  26 reference to a slightly different point that he has  27 given as a reference for the Loring papers -- but  28 missionaries in particular, which ones Mr. Brody is  29 relying on, are not set out at all.  30 THE COURT:  Was the impediment of this group to leave for a  31 feast, which you described in the early 1900's,  32 something that was found in the Loring papers or  33 elsewhere?  34 THE WITNESS:  That one is found in the Loring papers.  35 THE COURT:  All right.  36 THE WITNESS:  And the missionary evidence would be found in  37 other papers and I could again, overnight, try and  38 locate at least the references to the provincial  39 archives.  4 0 THE COURT:  All right.  We have some of the Tomlinson reports.  41 MR. JACKSON:  Yes, my lord.  I believe one of the letters Mr.  42 Brody is referring to was submitted as an exhibit as  43 part of cross-examination of Dr. Daly by Ms.  44 Koenigsberg.  45 MS. KOENIGSBERG:  No question.  I know what I relied on for  46 these things.  It's helpful to know what the witness  47 is relying on. 14280  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 THE COURT:  Yes.  Well, if you can find something that would be  2 helpful.  Thank you.  3 MR. JACKSON:  4 Q   Mr. Brody, if you would turn to page 30 of your  5 opinion, first full paragraph:  6  7 "In a document that is dated 1914, seven Kispiox  8 chiefs seem to have put their signatures to a demand  9 that 'no more Potlatch' be held 'in our village'."  10  11 And could you turn to tab 62 of the first book of  12 documents, and could you identify whether that is the  13 document to which you are referring in that paragraph?  14 A   Yes, that's the document.  15 MR. JACKSON:  Could that document be marked as the next exhibit,  16 my lord?  17 THE COURT:  Yes.  18 THE REGISTRAR:  990-62.  19  20 (EXHIBIT 990-62 - Tab 62, Petition signed by Chiefs)  21  22 MR. JACKSON:  23 Q   What is the anthropological significance of that  24 document?  25 A  Well, anthropologically, I would identify the feasts  26 as a central institution, and the feasts and the  27 chiefs' participation in feast-related events as of  28 great importance to the organization of the society.  29 And here we find in 1914 a petition which is demanding  30 the abolition of the feast referred to in the document  31 as a potlatch notice, signed by seven chiefs from  32 Kispiox, some of whom have high names, not just  33 ordinary chiefs, some are very important chiefs here.  34 And so it immediately invites the question, "What had  35 happened to this institution in 1914 that makes it  36 possible for seven chiefs to sign a petition asking  37 for its abolition?"  38 Q   And what conclusions -- what further investigations  39 have you conducted in terms of answering that  40 anthropological inquiry as to what it means?  41 A  Well, I discovered by looking at the documents, that  42 in fact in the two or three years immediately  43 preceding this petition, missionaries had been  44 campaigning very vigorously -- missionaries had been  45 campaigning very vigorously for more effective  46 suppression of the feast in Gitksan country.  And two  47 missionaries, Raley and Tomlinson, were prominent in 14281  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 this campaign, and I believe that they were arguing  2 that the Indian agent of the day, Loring, was failing  3 to suppress the feast with enough vigour.  And Raley  4 and Tomlinson are aware, like Loring in his reports,  5 of the fact that the feast in fact -- the feast is  6 thriving in the period.  7 So these did -- this petition, I believe, has to  8 be understood as a symptom of the strength of the  9 feast, but we are still left with the question, "Why  10 did people sign it?"  And of course I don't know what  11 the people at the time thought or whether in fact they  12 understood what they were signing, and these are all  13 matters of complete and, on the whole, unsupportable  14 conjecture.  15 Q   And do you, in your opinion, seek to come to  16 conclusions of that nature in this matter?  17 MR. GOLDIE:  Well —  18 A   The only evidence I can rely --  19 MR. GOLDIE:  My lord, my friend has said they are unsupportable  20 conjectures.  21 THE COURT:  The witness has said.  22 MR. GOLDIE:  The witness has said.  2 3 THE COURT:  Yes.  24 THE WITNESS:  I said, if I — may I respond to that?  2 5 MR. JACKSON:  26 Q   Yes.  27 A   I think I said, Mr. Goldie, that questions like, "What  28 were the people thinking at the time?"; "Did the  29 chiefs who signed this know what they were signing?"  30 Those are conjectures that are impossible to support.  31 There is another kind of question one might ask,  32 however, that is not amenable to support and is not a  33 question of conjecture, and that is what's happened to  34 the names of the chiefs who signed this, since names  35 are passed on.  36 MR. GOLDIE:  Well, I was objecting to the question, my lord.  37 THE WITNESS:  Oh.  38 THE COURT:  Yes.  Well, that sounds argumentative to me.  39 MR. JACKSON:  As I understand, my lord, what Mr. Brody was  40 seeking to explain, was the kinds of questions and the  41 kinds of opinions which had he expressed an opinion on  42 would appropriately be, to use Miss Koenigsberg's  43 terms, speculative.  And my point in raising the  44 question, my lord, was to indicate, in fact, that  45 those were not questions which Mr. Brody sought to  46 answer, because of the event -- the reasons he gave.  47 THE COURT:  But, you see, the witness is really referring to 14282  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 turning this document on its head, isn't he?  He is  2 saying the chiefs are saying no more feast, and he is  3 saying that shows how healthy the feast was.  And then  4 he is saying you -- for the fact that it's healthy,  5 you wonder what happened to the chiefs that signed it,  6 and an invitation for me to treat the document as  7 being totally unrepresentative of what it purports to  8 be.  And it's just as speculative one way or the other  9 as to what it really means.  That may be the right  10 view, it may -- maybe it should be taken as face  11 value, but it's a futile inquiry because we'll never  12 know.  13 MR. JACKSON:  My lord, again, as I understand the witness'  14 answers, it was to give the context in which this  15 petition was signed, and to endeavour to express an  16 anthropological opinion on the relationship of this  17 document as part of an inquiry as to the continuity of  18 a central institution.  19 THE COURT:  I tend to think that as an anthropologist he can  20 certainly tell me what his opinion is on the true  21 state of affairs in that village at that time, but I  22 regard it as futile for him to express a view on what  23 this document means.  Miss Koenigsberg?  24 MS. KOENIGSBERG:  I rise once more to ask in the context of the  25 opinion evidence which the witness just gave which  26 gives the context or his interpretation of this.  He  27 referred to the campaign to more vigorously suppress  28 the feast to be banned from Tomlinson and Raley, but  29 there is no source for that given and I would  30 appreciate knowing what documents or on what basis he  31 says that.  32 THE WITNESS:  I will, again — it's on the list of things to  33 look at tonight.  34 THE COURT:  All right.  Well, we'll look forward to hearing the  35 answer to that question either later this afternoon or  36 tomorrow morning.  37 THE REGISTRAR:  Order in court.  Court stands adjourned until  38 2:00.  39  4 0 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  41  42  43 I hereby certify the foregoing to be  44 a true and accurate transcript of the  45 proceedings herein transcribed to the  46 best of my skill and ability.  47 14283  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1  2  3    4 Toni Kerekes,  5 O.R., R.P.R.  6 United Reporting Service Ltd.  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 14284  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  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 14283  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  I have been informed that security officials  5 recommend taking a different route every day.  I must  6 find some new routes to the courtroom.  My chambers  7 are nearly a block away, and I just can't seem to find  8 a secret passage where I don't get delayed along the  9 way.  And I apologize for being late.  I must get a  10 false disguise to get through the corridor.  Thank  11 you.  Mr. Jackson.  12 MR. JACKSON:  13 Q   Mr. Brody, if you could turn to page 31 of your  14 opinion report.  At the top of the page, and this is  15 in relation to the 1916 -- 1914 petition signed by the  16 seven Kispiox chiefs, you pose the question:  "Who  17 were these men?"  And in the next paragraph you answer  18 that question.  Who were these men, Mr. Brody?  19 A  Well, I think I can best answer that by reading the  20 paragraph.  21 MR. GOLDIE:  And telling us where the information came from.  22 MR. JACKSON:  Yes, My Lord, that was my    23 A   Should I read the paragraph?  24 Q   Yes, would you.  25 A  26 "Walter Kail was Geel,"  27  28 G-e-e-1,  29  30 "Who was born in 1861 and died in 1930.  31 Solomon Johnson was Wihlwiiaxgai,"  32  33 W-i-h-1-w-i-i-a-x-g-a-i,  34  35 "a chief in the House of Delgamuukw, born in  36 1863 and died in 1935.  The identity of Isaac  37 Sholsh"  38  39 S-h-o-l-s-h,  40  41 "is unclear, but he also was probably a member  42 of the House of Delgamuukw.  John Kunnulaha,"  43  44 K-u-n-n-u-1-a-h-a,  45  46 "Was Guuxganahlx,"  47 14284  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 G-u-u-x-g-a-n-a-h-1-x,  2  3 "Paul Thlamleha,"  4  5 T-h-1-a-m-l-e-h-a,  6  7 "was Kliiyem Lax Haa, "  8  9 K-1-i-i-y-e-m L-a-x,  10  11 "Philip Williams was Wiibawax,"  12  13 W-i-i-b-a-w-a-x,  14  15 "And later became Wii Mugulsxw,"  16  17 W-i-i M-u-g-u-1-s-x-w,  18  19 "Robert Williams, also known as Wilson, was  20 Philip Williams' brother, born 1861 and died  21 1924.  He was Wii Mugulsxw."  22  23 Q   Mr. Brody, what is the basis for those assertions?  24 A  When I saw the 1914 petition, I thought it would be  25 important to establish the Gitksan names for the  26 people who had signed it, and I started to ask around.  27 I asked Mary Johnson, I remember, and I think I asked  28 Mary MacKenzie too, and got some of the answers, and  29 eventually got a lot of the answers, thanks to Heather  30 Harris's genealogies.  31 Q   Okay.  If you can just drop down the page to the  32 paragraph beginning:  33  34 "All their names have continued, and therefore  35 have been passed on at the appropriate feasts."  36  37 Do you have a comment to make in relation to that  38 sentence?  39 A   Yes.  On the basis of my first round of enquiries,  40 that was the conclusion I came to, but of course the  41 exception of Isaac Sholsh, who no one seemed to be  42 able to identify, probably because the writing of his  43 name in English is so remote from his actual name.  44 And in fact I subsequently discovered and I saw  45 Heather Harris's genealogies quite recently in their  46 form, that one of the names is not continued, and  47 that's the Johnson name,  Wihlwiiaxgai.  In fact was 14285  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 inherited, I discovered, by his brother who died in  2 1935, and at that time due to illnesses and loss of  3 population in the House, there was an amalgamation,  4 and that name we know out of currency.  5 MR. GOLDIE:  Is this all from Heather Harris?  6 THE WITNESS:  This is all from Heather Harris, yes.  7 THE COURT:  Which name has not been continued?  8 THE WITNESS:  Wihlwiiaxgai.  9 MR. JACKSON:  Solomon Johnson.  The end of the first line, My  10 Lord.  Solomon Johnson was Wihlwiiaxgai.  11 THE COURT:  Thank you.  12 MS. KOENIGSBERG:  I wonder if we could have a reference to the  13 information, if it was Heather Harris or asking  14 around, and if it was asking around, of whom, and are  15 there any notes or anything, and that's where all the  16 names have continued and therefore have passed --  17 MR. JACKSON:  18 Q   Mr. Brody, could you turn to Exhibit 64 — tab 64,  19 volume one.  Could you turn to page 6 of that  20 genealogy.  Page 6 near the top, Mr. Brody.  You see  21 Walter Geel?  22 A   Yes.  23 Q   And below that Simon Gunanoot?  24 A   Yes.  25 Q   If you can turn to page 5.  Do you see Henry Aluxw?  26 A   Yes.  2 7 MR. JACKSON:  Do you have that, My Lord?  28 THE COURT:  No, not yet.  Henry?  29 MR. JACKSON:  You have Walter Geel and Simon Gunanoot?  3 0 THE COURT:  Yes.  31 MR. JACKSON:  Page 5, Henry — it's on the — to the left-hand  32 side of the page, the second name in.  33 THE COURT:  Yes, I have it.  Thank you.  34 MR. JACKSON:  35 Q   On page 4 -- do you see a further reference to  36 transmission of the name Geel, Mr. Brody?  37 THE COURT:  Silas Johnson?  3 8 MR. JACKSON:  39 Q   Silas Johnson.  40 A   Oh, yes, at the top there.  Yes.  41 Q   And if you turn to page one.  42 A   Yes, I see that.  Walter Harris.  43 Q   And to your knowledge is he the present holder of the  4 4 name Geel?  45 A   Yes.  46 Q   If you turn to tab 63.  47 THE COURT:  What page please? 14286  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 MR. JACKSON:  Tab 63, My Lord.  2 Q   Do you see the name on page 2 of that, Guuxganahlx?  3 A  At the top there?  4 Q   Yes.  5 A   Yes, Charlie Smith.  6 Q   And on page one?  7 A   Joshua Johnson.  8 Q   And on page 6 --  9 MR. GOLDIE:  Excuse me, My Lord.  I'm not quite sure what the  10 purpose of this is.  Is it to identify the people on  11 the genealogies who were referred to in the report?  12 THE COURT:  I assume so.  13 MR. JACKSON:  Yes, My Lord.  14 MR. GOLDIE:  Because the person referred to in the genealogy  15 holding that name is not found in the report and vice  16 versa.  17 MR. JACKSON:  No, My Lord —  18 THE COURT:  You are dealing with which name in the report now?  19 MR. JACKSON:  At the moment we dealing with Guuxganahlx.  20 MR. GOLDIE:  Is that John Kunnulaha?  21 MR. JACKSON:  John Kunnulaha.  I think what I am attempting with  22 this review, My Lord, is to indicate the foundation  23 for that conclusion.  2 4 THE COURT:  Yes.  2 5 MR. JACKSON:  26 Q   And do you know who the present holder of the  27 Guuxganahlx is?  28 A   Present holder of the name Guuxganahlx.  Are you  29 referring to the genealogy?  30 Q   Yes.  31 A   On which page?  32 Q   On page 6.  33 THE COURT:  Are you saying Pete Muldoe on page 6?  34 MR. JACKSON:  Yes.  I want to go through the same process, My  35 Lord.  Tab 65 is the genealogy of Kliiyem Lax Haa.  36 MR. GOLDIE:  Well, I don't want to waste time, My Lord, but is  37 the report of the witness's evidence that John  38 Kunnulaha is on the genealogy, because I can't find  39 it.  40 THE COURT:  Or just his chiefly name.  41 MR. JACKSON:  Just his chiefly name, My Lord.  42 MR. GOLDIE:  The only people holding that name are all given  43 English names on the genealogy.  One is Joshua  44 Johnson, the other is Charlie Smith, and then we have  45 the present holder, who is, I think, Lloyd Muldoe.  If  46 the source of the witness's information, with respect  47 to John Kunnulaha is the genealogy, I would like to be 14287  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 aware of that.  If there is some other source, I would  2 like to be aware of that.  3 MR. JACKSON:  4 Q   Mr. Brody, page 31, first paragraph, you indicate that  5 Guuxganhlx was the name held by John Kunnulaha.  What  6 was the source of that information?  7 A   That was enquiring at the times before I saw the  8 genealogies, I asked persons in the Gitksan community  9 and I asked Heather Harris if they could identify who  10 John Kunnulaha was, and I was informed that it was  11 Guuxganahlx.  12 Q   And have you reviewed the genealogy at tab 65, the  13 genealogy of Kliiyem Lax Haa?  14 A   Yes.  15 Q   And have you satisfied yourself that the name Kliiyem  16 Lax Haa has been passed on to the present time?  17 A   Yes.  And it's now held by Eva Sampson, I believe.  18 MR. JACKSON:   I wasn't intending to go through the genealogy.  19 The transmission, My Lord -- I have one, two, three,  20 four, five, six, seven, eight holders, and --  21 THE COURT:  Yes.  22 MR. JACKSON:  For the record, My Lord, Paul Kliiyem Lax Haa,  23 this is the order of succession as the genealogies  24 indicate --  25 MR. GOLDIE:  My Lord, Martha Brown gave all of this.  It's  26 chapter and verse from Paul Kliiyem Lax Haa right on  27 down.  There is no -- I am not quarrelling with Mrs.  2 8 Brown's evidence.  29 MR. JACKSON:  My purpose is not to initiate a quarrel.  I  30 thought for the record it would be appropriate to set  31 out that transmission.  If Your Lordship feels that --  32 THE COURT:  I am in counsels' hands.  I would rather not know  33 things that are already in evidence, although I have  34 some sympathy for you, Mr. Jackson, you don't know  35 what your friend accepts in the evidence to date and  36 what he doesn't accept.  I doubt if there is much  37 dispute about this.  38 MR. GOLDIE:  It gets no better by Mr. Brody repeating it.  39 THE COURT:  No.  The story is only as good as a story.  40 MR. GOLDIE:  And, for instance, not that this is terribly  41 important, but it's indicative of what happens when  42 somebody is giving evidence as if it was his own  43 knowledge, but he says the Solomon Johnson was a chief  44 in the House of Delgamuukw.  Well, according to  45 Heather Harris's genealogy, he wasn't a chief in that  46 House at all.  He was a chief in Axgigii'ii, which  47 didn't become allied with Delgamuukw until much, much 14288  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 later.  That's all demonstrated in her genealogies.  2 Unless Mr. Brody is saying I assert that Solomon  3 Johnson was a chief in the House of Delgamuukw, in  4 that case we can explore why he differs from Heather  5 Harris.  6 THE COURT:  Uh-huh.  7 MR. JACKSON:  8 Q   Mr. Brody, could you also look at Exhibit 853-44.  9 That's not a tab in the document book, My Lord, but I  10 understand Madam Registrar has placed that before you.  11 THE COURT:  What is that place?  12 MR. JACKSON:  853, tab 44.  13 Q   There are two names, Mr. Brody, which you have  14 identified in the report as being in the House of Wii  15 Muglusxw, and that's 'Wiibawax and Wii Muglusxw.  Have  16 you reviewed this genealogy and satisfied yourself  17 that those names have been passed onto the present  18 day?  19 A   Yes.  20 Q   And who is the present holder of 'Wiibawax to your  21 knowledge?  22 A   I believe it's Al Muldoe.  2 3 Q   Al Muldoe.  24 THE COURT:  Which Muldoe please?  25 THE WITNESS:   One moment.  I have to confess, I am getting  26 quite confused by all of this.  27 MR. JACKSON:  My Lord, this is not a test of Mr. Brody's  2 8 knowledge.  2 9 THE COURT:  No.  30 MR. JACKSON:  Perhaps I can lead.  31 Q   The genealogy indicates that Percy Sterritt is the  32 present holder on page one of the genealogy.  That's  33 about three lines down, My Lord.  The column starting  34 Sharon Olson, Simon Sterritt, two, four, five over we  35 have Percy Sterritt.  And who, Mr. Brody, to your  36 knowledge is the present holder of the name Wii  37 Muglusxw?  38 A  Art Wilson.  39 Q   Did you, as part of your enquiries, interview Art  40 Wilson?  41 A   Yes, I spent quite a lot of time with Art Wilson, and  42 did one formal interview with him.  43 Q   And did he relate to you the circumstances under which  44 you acquired the name?  45 A   Yes.  He told me on -- on certain occasions about  4 6 acquiring the name and becoming Wii Muglusxw and all  47 that it meant to him. 14289  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 Q   Did he indicate whether that took place in a feast  2 or --  3 A   He told me that in 1982, if I remember rightly, he was  4 surprised to be summoned by his family and told that  5 he was going to inherit -- in 1982 he was surprised to  6 be told that he was to inherit Wii Muglusxw.  And he  7 told me about the feelings he had about the  8 inheritance, and how it was his duty.  He told me that  9 he realized in retrospect he had been trained and  10 prepared for an inheritance of her name, and he told  11 me about the feast of which he received the name, and  12 at which the song that goes with the name was sung.  13 And he told me what -- some of what that meant to him.  14 Q   In the course of your enquiries as to the period  15 during which the feast was prohibited under the Indian  16 Act, did you have occasion to interview Johnny David  17 regarding that period?  18 A   Yes.  I interviewed Johnny David on two occasions, and  19 I think on both occasions he talked about that period,  20 but certainly on one occasion he went into a little  21 bit of detail about it.  22 Q   Is the interview you had with Art Wilson, the  23 interview that you set out at tab 16 of volume one?  24 A   Yes, that's it.  25 MR. JACKSON:   I would ask that be marked as the next exhibit,  2 6 My Lord.  27 MR. GOLDIE:  Subject to the usual objection.  2 8 THE COURT:  Yes.  29 MR. JACKSON:  Perhaps I should just indicate for Your Lordship  30 that parts of that interview are set out in Mr.  31 Brody's report at page 32 to 34.  32 THE REGISTRAR:  990-16.  33  34 (EXHIBIT 990-16 - TAB 16 - ART WILSON INTERVIEW)  35  3 6 THE COURT:  Thank you.  37 MR. JACKSON:  38 Q   And the interview which you had with Johnny David,  39 extracts of that are set out at page 24 to 25 in your  40 report?  Is that correct, Mr. Brody?  41 A   That's right, yes.  42 Q   And if you could turn to tab 21.  Is that the  43 interview from which extracts are taken?  44 A   Yes, I believe it is.  45 MR. JACKSON:   And I would ask that be marked the next exhibit,  46 subject to my friends' objection.  4 7 THE COURT:  Thank you. 14290  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 MR. GOLDIE:  There is, of course, the additional objection that  2 Mr. David has given evidence.  3 THE COURT:  Yes.  4 THE REGISTRAR:  990-21.  5  6 (EXHIBIT NO. 990-21 - TAB 21 - JOHNNY DAVID  7 INTERVIEW)  8  9 MR. GOLDIE:  It is understood, of course, My Lord, that my  10 objections as to admissibility include that nothing  11 contained in these documents is evidence of the truth  12 of the matters therein stated.  13 THE COURT:  Yes.  14 MR. JACKSON:  At this stage, My Lord, they are being exhibited  15 as the basis upon which Mr. Brody has come to certain  16 opinions.  17 Q   At page 34, Mr. Brody, the bottom of the page --  18 THE COURT:  I am sorry?  19 MR. JACKSON:  Page 34.  2 0 THE COURT:  Yes.  21 MR. JACKSON:  22 Q   You state:  23  24 "The testimonies of Mugh Lagh Legh and Wii  25 Mugulsxw, when placed against a historical  26 background that includes prohibition of the  27 central institution of Gitksan and Wet'suwet'en  28 culture, reveal the continuity of that culture.  29 Feasting never stopped.  The names have  30 continued."  31  32 And that is your opinion based upon the sources  33 you have indicated?  34 A   Yes, based not only on interviews with Johnny David  35 and Art Wilson, but also on interviews with many other  36 chiefs.  37 MR. GOLDIE:  Which other chiefs?  3 8 MR. JACKSON:  39 Q   Could you indicate what other interviews you have had  40 in relation to the continuity of the feast and the  41 continuation of the names?  42 A  Alfred Joseph talked to me at some length about the  43 feast in Wet'suwet'en territory.  Mary Johnson, Pete  44 Muldoe, the members of the Axtii Hiikw House.  That's  45 A-x-t-i-i H-i-i-x.  46 Q   The interview with Mary Johnson.  Could you turn to  47 tab 14, and also tab 15.  Are those the interviews you 14291  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 are referring to?  2 A   I am referring to many conversations I had with Mary  3 Johnson, not specifically those interviews, no.  I  4 meant long periods of time talking to some key  5 individuals in the course of their work, what  6 anthropologists call key informants.  And much of my  7 understanding of the feast system and its continuity  8 comes from those conversations, which I don't have  9 notes, so I didn't transcribe the conversations.  10 Q   In the course of those interviews at tabs 14 and 15  11 was the feast the subject of the interview in part?  12 A   I would have to reread them to be sure.  13 Q   Perhaps you could do that over the break.  I'll return  14 to that, My Lord, without spending more time on that.  15 If you could turn to page 37 of your report.  The  16 first paragraph:  17  18 "Cultural systems are often most clear where  19 the need for definition and likelihood of a  20 dispute cause institutions to make themselves  21 explicit.  At a disputed periphery very little  22 can be taken for granted.  Thus at Bear Lake,  23 Gitksan laws pertaining to ownership,  24 inheritance, marriage, history, trespass and  25 conflict resolution could all be seen.  This  26 reveals both the workings and the vigour of the  27 jurisdictional system."  28  29 Mr. Brody, what is the significance of Bear Lake  30 from an anthropological perspective?  31 A  Well, I have come to a number of opinions about Bear  32 Lake anthropologically.  I think, first of all, I  33 should say that Bear Lake lies at a remarkable meeting  34 point geographically.  It's at the headwaters of three  35 major river systems.  It's at the very top of one part  36 of the Skeena system.  Bear Lake is on the headwaters  37 of the Skeena.  The Fraser system reaches almost to  38 Bear Lake, and the artic drainage comes almost into  39 Bear Lake.  If you look at Bear Lake on a large map of  40 Northwest Canada, it is extraordinary how it is placed  41 in relation to these three drainages going off in  42 different directions.  43 Now, anthropologically this corresponds to, but it  44 doesn't in any -- though it doesn't in any simplistic  45 way explain anthropologically the meeting point of  46 cultures.  At Bear Lake there is an extraordinary  47 meeting of cultures.  Gitksan, northwest coast culture 14292  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 from the west up the Skeena system; Carrier from what  2 you might call the south up the Fraser system; Sekani  3 over the mountains from the east following what is in  4 effect the Peace-MacKenzie drainage system; and  5 Tahltan from the north at the headwaters -- just  6 beyond the headwaters of the Stikene system.  7 I have come to the conclusion anthropologically  8 that Bear Lake for a very, very long period of time  9 has been at the edge of these cultures' territories.  10 So it has all, as it were, always been a meeting place  11 of cultures.  12 When I looked at the evidence of the adaawk in  13 relation to Bear Lake, I was surprised to find that in  14 the Guuhadak adaawk, which is Thomas Wright,  15 G-u-u-h-a-d-a-k, Guuhadak adaawk -- I am sorry, I am  16 going to correct myself.  It's the Miluulak adaawk,  17 not the Guuhadak adaawk.  The Miluulak adaawk, that's  18 M-i-1-u-u-l-a-k, indicates that Bear Lake was  19 established by Gitksan at the time of Temlaxham, that  20 is in very ancient times.  The Miluulak adaawk  21 indicates a killing of Miluulak shortly after leaving  22 Temlaxham, a killing of Miluulak which precipitated a  23 confrontation between the Gitksan and the people  24 referred to in the adaawk as the Tsetsaut, who  25 anthropologists usually take to be Athabaskan peoples  26 of the interior.  So my view of this meeting place is  27 evidenced in a striking way by the Miluulak adaawk.  28 And that in brief is the outline of the  29 anthropology of the area as I understand it.  30 Q   If you could refer to tab 44 of volume one.  Is that  31 the adaawk to which you have just referred?  32 A   This is the adaawk -- this tab, I think, is versions  33 of the adaawk collected in the Barbeau Beynon archive.  34 Q   The subsequent adaawks, tabs 46, 47, are they also  35 part of the source?  36 A   Yes.  In fact it's tab -- as I am looking at this now  37 more carefully, tabs 44 to 47 and 48 and 49 and 50 and  38 51 and 52 are all Miluulak adaawk.  Should I go on?  39 Q   And 53 might be the last one.  Perhaps you could just  40 look at that.  That's one of them --  41 A  Which one?  42 Q   53.  43 A   53.  Yes.  44 Q   If you could turn to page 38 of your report, Mr.  45 Brody.  These are all adaawk which you have culled  46 from the Barbeau Beynon collection?  47 A   Yes. 14293  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 THE COURT:  Which page please?  2 MR. JACKSON:  Page 38, My Lord.  The first main paragraph.  3 Q   Mr. Brody, you say:  4  5 "By a remarkable and probably fortuitous  6 choice, it was at this cultural crossroads, in  7 1827, that the Hudson's Bay Company established  8 Fort Connelly, its first trading post within  9 Gitksan or Wet'suwet'en territory."  10  11 And then the beginning of the next paragraph:  12  13 "Also completed the formula for inter-tribal  14 conflict."  15  16 Could you explain that conclusion and the source  17 of those statements?  18 A   Fort Connelly was the trading post established by the  19 Hudson's Bay Company at Bear Lake in 1827.  And  20 according to the evidence of the adaawk, the evidence  21 of elders today and the evidence of the historical  22 record, the period around its establishment was one of  23 a great deal of struggle and inter-group warfare.  It  24 seems to me that the ancient conflicts at Bear Lake  25 were rekindled by the new importance that the Hudson's  26 Bay Company gave to it.  If Bear Lake had in fact  27 become a place at the very edge of Gitksan territory  28 by the early 1800s, a place to which the Houses of  29 Miluulak or Nii Kyap may have laid, as it were, formal  30 ownership in the feast or in adaawk, but in fact  31 didn't really use at that time, once the Hudson's Bay  32 Company was there, the issue of who really did own the  33 territories at and around Bear Lake became an  34 important one.  And it seems that there was a battle  35 between conflicting claims there that involved,  36 according to the record, some killings and eventually  37 a peace settlement between the Sekani and all Carrier  38 people on the one hand, and the Gitksan people on  39 other hand.  40 Q   What is the source of that -- you mentioned the  41 record.  What is the source of that statement?  42 A   Statement about the peace?  43 Q   Regarding the conflict in the peace.  44 A   The conflict is evidenced by the adaawk, which covers  45 the historic period.  It's also what people tell you,  46 if you ask them about it, people who know that area  47 and its history, and it's also in documents of the 14294  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 day.  2 Q   When you say documents of the day, are you referring  3 to Hudson's Bay documents?  4 A   Hudson's Bay documents, and there is a comment on the  5 place that appeared, I think, in the British Columbia  6 mining record in the 1880's, in which some of the  7 circumstances of Bear Lake are described.  8 Q   And that is set out at page 39 of your report?  9 A   Yes.  10 Q   Middle of that paragraph, My Lord.  In relation to the  11 peace you referred to, what is the source of that  12 statement?  13 A  Again it's in the adaawk, and it's in the oral  14 history, and I think it's in this British Columbia  15 mining record, 1889 note.  I imagine that the person  16 that wrote this in 1889, having been to the area, had  17 been listening to some of the adaawk or the oral  18 histories of the people there at the time.  19 Q   The bottom of the page, My Lord.  20 Mr. Brody, if you will just refer to this, the  21 last sentence.  "They", and you are referring here to  22 the Miluulak adaawk collectively:  23  24 "They also record a formal peace being made  25 between Gitksan and Sekani in the mid 1800s,  26 with the help of a major feast and a symbolic  27 lodging of arrows in the rock face."  28  29 Could you turn to tab 49 and tab 50.  30 MR. GOLDIE:  My Lord, while the witness is refreshing his  31 recollection of those two, I see on this page, namely  32 38, a point which recurrs in a number of places.  It  33 is a change from the draft of the word "claimed" to  34 the word "owned", line 4, the second -- the first  35 complete paragraph.  36 THE COURT:  This is on tab?  37 MR. GOLDIE:  This is on the page — not the tab, My Lord.  It is  38 page 38 of his report.  39 THE COURT:  Sorry, I was looking at the wrong thing.  What are  40 you pointing out?  41 MR. GOLDIE:  I am pointing out that in line 4 of the first  42 complete paragraph the word "owned" has been  43 substituted for the word "claimed" in the draft, and I  44 am asking Your Lordship to read "claim" throughout  45 wherever "own" appears.  That's an objection that was  46 taken before.  47 MR. JACKSON:  My Lord, I resist that, as it were. 14295  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 THE COURT:  Well, I am not going to respond to that.  If it was  2 intentionally changed, I will accept it as his  3 opinion, and it will be a matter for  4 cross-examination.  If it's an error, then it might as  5 well be corrected now.  Is it your intention it should  6 be "owned" or "claimed"?  7 THE WITNESS:   My intention is the word should be "owned".  It  8 seemed to make better sense of the issue.  9 THE COURT:  All right.  10 MR. JACKSON:  11 Q   Have you reviewed those two --  12 THE COURT:  We are at tab 49.  13 MR. JACKSON:  49 and 50.  14 THE COURT:  Yes.  15 MR. JACKSON:  16 Q   And are they the sources of the statement, the bottom  17 of page three regarding a major feast and a symoblic  18 lodging of arrows in the rock face?  19 A   One of the sources, yes.  20 THE COURT:  These aren't the same thing, are they?  No, they are  21 not the same.  22 MR. JACKSON:  I think I reviewed them, My Lord, and they didn't  23 appear to me to be.  24 THE COURT:  What is Tab 49?  25 MR. JACKSON:  As I understand it, My Lord, that's from Barbeau  2 6 Beynon.  27 THE COURT:  This is a handwritten copy?  28 MR. JACKSON:  It's a handwritten copy of -- do you know whether  29 that's Barbeau Beynon, Mr. Brody, from the  30 handwriting?  31 THE WITNESS:  I think it's Barbeau, but I'm not sure.  32 THE COURT:  And is that first word Kisgegas?  33 THE WITNESS: Kisgegas, yes, My Lord.  And the second word is  34 Tsetsaut.  Kisgegas, Tsetsaut frontiers.  35 THE COURT:  Yes, all right.  And then Arthur Hankin is it?  36 THE WITNESS:  Hankin I would imagine it would be.  H-a-n-k-i-n.  37 THE COURT:  All right.  38 MR. GOLDIE:  And there is a notation on the upper right-hand  39 corner, which I assume is not Barbeau Beynon.  40 THE COURT:  22, 27 and 28.  41 MR. GOLDIE:  No, this happened, and then on the right-hand side,  42 "NJS note December 12, '84".  That, I assume, is Mr.  43 Sterritt's note.  44 THE COURT:  I can't read it anyway.  Yes.  4 5 MR. JACKSON:  I don't know, My Lord.  I would not admit that.  4 6 THE COURT:  All right.  47 MS. KOENIGSBERG:  Before we go too far beyond page 39, there is 14296  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 a footnote at the bottom of page 39 dealing with the  2 information that the witness apparently relied upon,  3 and that footnote says:  "Personal communication Bear  4 Lake".  I wonder if we could be assisted to know with  5 whom and if there are any notes.  6 MR. JACKSON:  7 Q   Mr. Brody, did you interview anybody in relation to  8 the history of Bear Lake?  9 A   I spent three days at Bear Lake, and became extremely  10 interested in the whole subject of Bear Lake.  It  11 seemed anthropologically very intriguing, and I put  12 together the whole history of Bear Lake as the people  13 whom I first spoke to gave it to me.  That is to say,  14 I didn't read any adaawk or conduct any formal  15 interviews or pursue any formal enquiries until quite  16 late in the day of my Bear Lake work.  So I had been  17 given an account of the comings and goings of the  18 Tsetsaut ancient times, the coming of the trading  19 post, the battles that surrounded its early days, very  20 vivid accounts of the peace-making arrangements, the  21 arrows and rock and so on.  And I wrote this up as I  22 went along.  I had a Bear Lake assay which kept  23 evolving, and evolved eventually into this chapter in  24 my opinion.  But I was quite well on into versions of  25 this assay before I came to what were more formal or  26 written pieces of evidence.  Does that help?  27 MR. JACKSON:  I am sure my friends can pursue it further in  28 cross-examination, if they need further assistance.  29 MS. KOENIGSBERG:  Perhaps I could rise, in case my friend thinks  30 this is just an idle exercise.  It is exercise that I  31 get to my feet, but it is not idle, I assure you.  The  32 difficulty in waiting until cross-examination, is that  33 if I then determine that there is a person identified  34 specifically that's given information, I then will not  35 be able to see if we have other information given by  36 that person in another form in this trial, to  37 determine if there is anything that arises out of  38 that.  And that's the reason why it would be of great  39 assistance to us if we could have just specific  40 references which the witness has --  41 THE COURT:  Are you able to assist us, Mr. Brody?  42 THE WITNESS: Yes, I can give the names of the persons who  43 provided the information at Bear Lake.  Would that be  44 helpful?  4 5 MR. JACKSON:  Yes.  46 MS. KOENIGSBERG:  It sure would.  47 THE WITNESS:  David Gunanoot, an important person, David Green, 14297  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 Neil B. Sterritt, the three most important sources of  2 my initial account at Bear Lake.  Then I also heard  3 from, as I think I say in the opinion, and I think  4 their names are in the opinion, Tommy Patrick, William  5 Charlie.  Two anyway.  6 MR. JACKSON:  7 Q   But there are no notes of those interviews, in the  8 sense of formal notes which you have?  9 A   No.  All the information I relied on kept going into  10 this ongoing assay with the documentation built into  11 it.  I should explain.  These were not interviews  12 carried out in comfortable circumstances.  We were  13 walking along the mountains east of Bear Lake and  14 camping at the top of Bear Lake itself.  15 MR. JACKSON:  I could advise the Court, My Lord, that my friend,  16 Mrs. Koenigsberg, did ask whether there were any  17 interviews in relation to the personal communications  18 referred to in this chapter, and we did indicate that  19 there were none, as the witness had in fact indicated  20 to us.  21 Q   Did you review subsequent cultural history of Bear  22 Lake in the period after the peace settlement which  23 you have referred?  24 A   Yes, in the same way as I have described.  I was given  25 an account of the Hudson's Bay Company establishing  26 its post, moving the post, the post being burnt down,  27 then somewhere at the turn of the century abandoning  28 the area all together, and then a free trader setting  29 up a post at the very top of the lake, which remained  30 there until, I think, 1940.  31 THE COURT:  You are talking about Fort Connelly, are you?  32 THE WITNESS:  Fort Connelly, sometimes known as Bear Lake.  33 There seems to be two or three different sites at  34 which the posts were located.  35 MR. JACKSON:  36 Q   On page 41 of your report, Mr. Brody, in the middle  37 paragraph you state:  38  39 "A small number of Gitksan speakers always  40 remained at the lake, and have seasonal hunting  41 cabins there to this day.  But Carrier became  42 the cultural point of reference, and in 1910  43 when the Department of Indian Affairs drew up  44 its revised administrative districts, Bear Lake  45 was placed in the Stuart-Trembleur region with  46 head offices at Fort St. James on Stuart Lake.  47 As a result, the families who used and occupied 14298  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 Bear Lake have come to think of themselves as  2 part of the Carrier-Sekani land claim area.  3 Yet many of these people speak Gitksan, descend  4 from Gitksan ancestors through the mother's  5 side and know the Miluulak adaawk.  The lands  6 they use are, on the basis of the feast system,  7 within the boundaries of Gitksan jurisdiction.  8 Inevitably, the land claim areas of the two  9 tribal councils overlapped.  Here is a  10 divergence between claims based on formal  11 jurisdiction and those based on use and  12 occupancy."  13  14 Could you explain those comments?  15 A   I have said that Bear Lake -- an interesting boundary  16 between cultures, and that with the coming of the  17 trading post it became important who did and did not  18 have clear rights there.  When the traders moved away,  19 importance of Bear Lake declined again, and it was  20 only the emergence of the land claims process that  21 reinjected it with importance.  It was rather like the  22 establishment of the Hudson's Bay Company in some of  23 its consequences.  That is to say suddenly the  24 question had to be asked and answered "Whose is this  25 land?"  Where do the boundary lines go on the map?  26 And when people came to look at Bear Lake, it became  27 clear that it was used and occupied by Sekani-Carrier,  28 but the Gitksan had never ceased to identify their old  29 boundary, as established in the adaawk, as including  30 some of the lands used and occupied by persons who now  31 call themselves Carrier-Sekani.  So here we have a  32 formula for great confusion and potential conflict.  I  33 think that's what I am trying to get at in this  34 paragraph.  35 Q   Where you refer to --  36 MS. KOENIGSBERG:  If I can just interject again, I hope for the  37 last time on this particular chapter.  Mr. Brody in  38 this chapter seems to have relied upon a record of  39 meetings at Bear Lake.  Mr. -- we, of course, asked  40 for the record of proceedings which was in the report,  41 and are reported to be at the Gitksan-Wet'suwet'en  42 Tribal Council library, and I understood it to be a  43 record of the proceedings of, I think, what could be  44 described as an overlap meeting, and from which Mr.  45 Brody appears to take much of his information.  46 I asked for production, and Mr. Grant did advise me  47 that Mr. Brody had a tape recording, and that he would 14299  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 provide it to us in due course.  And I would object to  2 the admissibility of any of these opinions without the  3 production of that recording, or a transcript of it.  4 MR. GRANT: Possibly, as I have been dealing with this more  5 technical aspect, I can advise the court.  As you  6 know, as a result of those concerns Mr. Rush has  7 raised, the library archive facility was moved, and in  8 this transition period, unfortunately which is right  9 now and was at the time of the request in the week --  10 the couple of weeks before and after the request of  11 Mrs. Koenigsberg -- that request I received on late on  12 Friday, actually delivered to me April 7th by Mrs.  13 Koenigsberg.  But I am pursuing that.  She made a  14 request on Friday, April 7th, and I think that she may  15 have made the request earlier, and I overlooked it as  16 part of a much larger request, all of which I  17 responded to.  I am pursuing it, and I would hope that  18 would be available to them prior to cross-examination  19 of this witness.  I am going to make every effort to  20 have it available, I can advise Your Lordship and Mrs.  21 Koenigsberg.  22 THE COURT:  All right.  Well, I suppose we have to proceed on  23 the basis -- best intentions.  I think that it should  24 be produced, and it should be produced before  25 cross-examination.  26 MR. GRANT: My concern is its existence, but that's what I am  27 tracking down now.  28 MS. KOENIGSBERG:  I don't know if Your Lordship is in any  29 confusion about my request.  It was many weeks ago,  30 and my friend did indeed overlook it, and when I asked  31 him, he responded back it was a tape recording --  32 THE COURT:  Thank you.  33 MR. JACKSON:  34 Q   Mr. Brody, can you identify who -- which Houses, which  35 Gitksan houses have claims based on formal  36 jurisdiction in the Bear Lake area?  37 A   Nii Kyap, Wii Gaak and Miluulak.  That's N-i-i  38 K-y-a-p, W-i-i G-a-a-k, and M-i-1-u-u-l-a-k.  39 Q   And in terms of the conflicting claims you identified  40 based upon use and occupancy, can you identify who  41 those -- who you are referring to there?  42 A   The Gitksan persons?  43 Q   No, the Carrier-Sekani.  44 A   The Carrier-Sekani.  Tommy Patrick is an important  45 figure in this regard, because he had built a cabin at  46 the top of Bear Lake and was hunting and trapping out  47 of that cabin, it would appear through Gitksan eyes, 14300  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 on Wii Gaak territory as well as Nii Kyap territory.  2 William Charlie has a house at the top of Bear Lake  3 that had been there a long time, I believe.  He also  4 was hunting and trapping on Nii Kyap, Wii Gaak and  5 probably Miluulak territory.  A good two or three  6 other persons I met when at Bear Lake, who identified  7 themselves as Carrier-Sekani, were Gitksan speakers  8 who hunted and trapped in the area or had done so in  9 comparatively in recent times, but the persons I spoke  10 to most or heard most from were William Charlie and  11 Tommy Patrick.  12 THE COURT:  Take the afternoon adjournment, Mr. Jackson?  13 MR. JACKSON:  Would be convenient, My Lord.  14 THE REGISTRAR:  Order in court.  This court will recess.  15  16 (PROCEEDINGS ADJOURNED)  17  18 I HEREBY CERTIFY THE FOREGOING TO BE  19 A TRUE AND ACCURATE TRANSCRIPT OF THE  2 0 PROCEEDINGS HEREIN TO THE BEST OF MY  21 SKILL AND ABILITY.  22  23  2 4 LORI OXLEY  25 OFFICIAL REPORTER  2 6 UNITED REPORTING SERVICE LTD.  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 14301  H. Brody (for plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21 (PROCEEDINGS RECONVENED AT 3:15 P.M.)  22  23 THE REGISTRAR:  Order in court.  24 THE COURT:  Mr. Jackson.  25 MR. JACKSON:  My lord, I have spoken to my friends and if it  26 would be convenient to the court, we could start  27 tomorrow morning at 9:30.  28 THE COURT:  Very awkward.  I don't think we can tomorrow.  There  29 is just so much happening these days that it's a very  30 busy time between 9:00 and 10:00 -- actually, between  31 8:00 and 10:00.  But I don't think I can commit myself  32 to early mornings for the next few days.  33 MR. JACKSON:  Okay.  I raise the matter, my lord, because -- and  34 I haven't advised your lordship before because I  35 wanted to see how we proceeded.  Mr. Brody, in fact,  36 has quite a severe back problem and it may be  37 difficult to go late, depending on how he feels.  3 8    THE COURT:  Yes.  39 MR. JACKSON:  And I have, in fact, been communicating with him  40 as we go along just to see whether or not we can press  41 the matter, and I will advise you accordingly.  42 THE COURT:  All right.  Well, we are four judges short at the  43 moment and it's just very awkward, and a condition of  44 a lot of other things happening, I just find it very  45 difficult to do without that hour in the morning.  But  46 maybe towards the end of the week it will be possible  47 to sit earlier and I am happy to sit later in the 14302  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 afternoon if there -- because everybody seems to have  2 gone home by then.  But I'll leave that with counsel  3 to let me know if that will be convenient.  4 MR. JACKSON:  5 Q   Thank you, my lord.  6 Mr. Brody if you could turn to page 42 of your  7 report.  The top of the page you state that:  8  9 "On July 15th, 1985, Gitksan met with Carrier and  10 Sekani elders and representatives at the centre of  11 the overlap:"  12  13 And on page 42 to 45, you set out the circumstances  14 and the events that took place.  Could you summarize  15 those events and circumstances you observed?  16 A   Yes.  I've explained the background to this  17 sufficiently, I think, for it to be clear that there  18 was a meeting of Gitksan with Carrier-Sekani at Bear  19 Lake, and for two days there was an inquiry, so to  20 speak, into the boundary issue.  And this was  21 conducted in many ways like a feast.  Of course it  22 wasn't a feast, the feast could only be, had a  23 conflict been resolved.  But it had, in many ways, the  24 character of the feast, that is to say, people told  25 the histories that were relevant to the territory.  26 They had the advantage of a helicopter this one day, I  27 believe, and they went in small groups to the tops of  28 the mountains and named the land that they could see,  29 and identified what features were named in what  30 language.  And people discussed where the boundaries  31 had been in the past as their -- according to  32 different points of view, and where people hunted and  33 trapped now.  34 There were also the social events that go along  35 with the feast.  The huge amount of eating, dancing,  36 singing, the attempts to build an accord between  37 groups; attempts that are always associated with  38 entertainments in the Gitksan and probably in the  39 Carrier-Sekani systems.  40 Despite these attempts to build an accord, there  41 was a great deal of unease growing at the meeting in  42 the course of those two days.  The Gitksan were not  43 happy to discover the extent to which the  44 Carrier-Sekani people I've already mentioned, were  45 using these areas, and the Carrier-Sekani people were  46 not happy to hear that the Gitksan claimed these lands  47 fell within Gitksan house territories.  Both sides 14303  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 expressed their unease in no uncertain terms.  And it  2 was evident to me, as I was talking to the Gitksan who  3 were there -- and to a less extent to the Carrier-  4 Sekanis who were there -- in any event, it was  5 apparent to me that the people were feeling a need for  6 at least some kind of a temporary resolution of the  7 problem.  Nobody was happy with this degree of  8 conflict.  9 On the last -- at the last public occasion of  10 this meeting, Wii gaak, W-i-i g-a-a-k, Neil B.  11 Sterritt, made a very striking statement to the people  12 assembled there.  He said that he would adopt William  13 Charlie into his house and acknowledge William Charlie  14 as a Lax Gibuu, as a member of the wolf clan.  He  15 signaled this with a symbolic gesture, that he was  16 wearing -- Wii gaak was wearing a woollen cardigan,  17 and he suddenly took it off and said to William  18 Charlie, "Here.  I understand you're cold," or words  19 to that effect, and asked William Charlie to wear it.  20 And on the back of this cardigan was a wolf pattern  21 knitted in.  So William Charlie was given a symbolic  22 membership of the wolf clan, and Wii gaak, in fact,  23 said, if I remember correctly, that in his view,  24 William Charlie had always been a member of the wolf  25 clan through inheritance in the mother's line.  26 Wii gaak made it clear that this gesture meant  27 that William Charlie now had permission to trap and  28 hunt on Wii gaak territory; which he was de facto  29 doing in any case.  And he also made it clear that, of  30 course, this was a right that was not inheritable,  31 just as he, Wii gaak, couldn't pass on the territory  32 of Wii gaak to whomever he so chose.  33 So with this speech, with this symbolic event, Wii  34 gaak effected a temporary -- at least temporary  35 solution to the conflict that had emerged in the  36 course of the two days of telling of stories and  37 naming of places.  38 Q   And there are, on pages 43, 44 and 45, some statements  39 taken from the speeches of William George, Tom  40 Patrick, and Wii gaak, who you say is Neil Sterritt  41 Senior, and those speeches are taken from where?  42 A  A tape recording was made of all the proceedings by  43 Neil Sterritt.  Wherever he went, he recorded what  44 happened, and I had the opportunity to review some of  45 those tapes at tribal council offices, and I  46 transcribed the sections that I felt were useful to  47 me.  In fact, I made some jottings myself of the 14304  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 speeches from memory, and I would use the tape to make  2 it true to the recorded word.  3 Q   And that is the tape to which my friend, Ms.  4 Koenigsberg referred some moments ago?  5 A   Yeah, I think so.  6 Q   Yes.  7 MR. GOLDIE:  My lord, I wonder if my friend might tell us what  8 the relevance of this is.  Is my friend abandoning the  9 claim to the Bear Lake area?  Otherwise, I don't  10 understand what the purpose of this is.  11 MR. JACKSON:  Well, perhaps with my next question I could --  12 MR. GOLDIE:  No, no, it's not for the witness to tell what the  13 relevance is; it's for counsel.  14 MR. JACKSON:  I wasn't suggesting that it was the witness' role  15 to respond to my friend's question.  16 THE COURT:  Well, I'm not sure that I have enough of this  17 evidence at my finger tips that I can relate what I've  18 just heard to the large volume of evidence I have  19 heard about that disputed area around Bear Lake.  But  20 as I read this evidence -- or as I have just read it,  21 it sounds to me like the Gitksan people were claiming  22 the area, and the people there who seemed to have  23 closer attachments to the Carrier-Sekani tribal  24 council were advancing a contrary view, and some kind  25 of accommodation was offered by the Gitksans,  26 particularly Wii gaak, to adopt one of the Carrier-  27 Sekani in, and which diffused mounting tensions.  But  28 it doesn't seem to have solved anything so far as I  2 9 can make out.  30 MR. JACKSON:  My lord, this evidence is not being tendered to  31 prove the claim made by the plaintiffs.  As your  32 lordship has indicated, there has been a plethora of  33 evidence which has been presented and it will be  34 principally upon that evidence upon which your  35 lordship will be asked to make an adjudication.  This  36 evidence is being tendered, my lord, as was indicated  37 in the beginning of this chapter, to provide an  38 evidentiary basis as to how disputes in relation to  39 territoriality are addressed from within the Gitksan  40 system.  And it goes, my lord, in support of the issue  41 of whether there are Gitksan institutions, whether  42 there are Gitksan ways of resolving disputes in  43 relation to territory.  44 THE COURT:  But this kind of a settlement doesn't prove an  45 institution or any policy, it's ad hockery at its  46 best, isn't it?  4 7 MR. JACKSON:  I would submit not, my lord. 14305  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 THE COURT:  And of course it happened on July 15th, 1985, after  2 the action was started.  I must say, I think your  3 friend is probably entitled to an answer to his  4 question, although maybe you've given it, that you are  5 seeking to establish institutions.  6 MR. JACKSON:  Yes, my lord.  I certainly do not intend to  7 abandon any claims asserted by the plaintiffs, nor is  8 his evidence adduced, as I say, for the purpose of  9 proving --  10 THE COURT:  Certainly it will prove -- or goes towards proving  11 that there is a disputed boundary.  12 MR. JACKSON:  Yes.  I think, my lord —  13 THE COURT:  There are contrary claims to the territory, but I --  14 I'm -- well, I'm -- subject to what further  15 submissions I may receive, it may be some evidence of  16 institutions.  As I read it, it sounded like ad  17 hockery.  Nothing wrong with ad hockery.  The word  18 wouldn't function well without it.  But I did not -- I  19 do not see at the moment a connection with an  20 institution, but that may be a matter for more  21 evidence and argument.  22 Do you have anything else to say in answer to what  23 Mr. Goldie has rhetorically inquired about?  24 MR. JACKSON:  No, my lord.  As I said, my lord, if Mr. Goldie  25 was seeking an admission in relation to the  26 plaintiffs' claims in this area, that is not an  27 admission I am prepared to make.  2 8 THE COURT:  Yes, all right.  2 9 MR. JACKSON:  30 Q   Mr. Brody, in relation to his lordship's statements  31 that the events you have described -- how would you  32 characterize these events in the context of the  33 institutional framework or structure of the Gitksan  34 system?  35 A   I think the Bear Lake episode goes to show a number of  36 things that, from my point of view, are quite  37 striking.  First of all, for me, I can -- me as an  38 anthropologist, I can see the application of the  39 adaawk to an area.  That's of great interest to me,  40 the fact that there is an ancient historical -- what  41 the Gitksan would call an ancient historical  42 definition of the place of Bear Lake in their system  43 of ownership.  44 There is also an account of how use and occupancy  45 may vary at the boundary of the territories, and yet  46 the formal statement of ownership remains in place.  47 That, anthropologically, is very interesting.  It 14306  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 suggests to me that an inquiry about land use and  2 occupancy, as I was suggesting earlier, doesn't really  3 fulfil the anthropological obligations that are  4 necessary, that is to say, it doesn't give us a  5 picture of the institutions that are relevant.  6 MR. GOLDIE:  Well, excuse me for a moment.  Well, we are now  7 getting exactly into the area that was giving me some  8 concern, my lord.  My friend said the purpose of this  9 evidence is to display the existence of an  10 institution, and that's what I wrote down and that's,  11 as far as I'm concerned, is what the evidence is all  12 about.  13 Now, if I follow the witness, he is saying, "Well,  14 it is evidence of use and occupancy in one case where  15 a formal assertion is made."  Well, that goes to the  16 question of whether this territory is to be taken as  17 included in the claim for exclusive right and  18 jurisdiction.  And if that's so, then I find that the  19 evidence which has been given so far is an  20 acknowledgement that the use and occupancy, or the  21 claimed jurisdiction is nonexclusive.  And if that's  22 what it's being tendered for, that's fine.  23 THE COURT:  Well you see, Mr. Jackson, if the — the  24 significance is, the operation of the adaawk, it comes  25 after the commencement of the action.  And the  26 individual operation led out in this case is probably  27 not probative.  If it's not just the operation of the  28 adaawk in this set of circumstances, then the argument  29 can be made by counsel after the adaawk has been  30 proven.  If the adaawk by its terms establishes a  31 basis for claim to the title, well then I don't need  32 an anthropologist or any witness to explain that to  33 me.  That's counsel's job.  34 But I don't see any escape from just plodding  35 ahead and getting this done in the way you think it  36 should be done.  I think there are serious  37 difficulties standing in the way of drawing lines that  38 are too close together as between legal admissibility  39 and probative value and these other more gentle  40 disciplines.  41 I think I am going to have to allow you to  42 proceed.  I have some misgivings about it.  I don't  43 think I can put it any more helpfully than that, and I  44 I'm sure that that's no help at all.  But I think  45 everytime we have one of these dialogues we may assist  46 ourselves to recognize what differences exist between  47 us, and that may be helpful.  At the moment I am 14307  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  Ruling by the Court  1 having great difficulty with the evidence, but that's  2 not the end of the world.  That happens in every  3 trial.  So please carry on.  4 MR. JACKSON:  I will try and clarify this, my lord.  5 THE COURT:  I don't -- I intend no criticism, it's just we are  6 in a different conceptual area and I am -- I'm  7 struggling to try and give this legal relevancy and I  8 am -- I just confess, I am having some difficulty.  9 But please go ahead.  10 MR. JACKSON:  11 Q   Mr. Brody, if you could just look at page 45 of your  12 report, your concluding comments:  13  14 "It was clear to everyone present that this  15 dispute had arisen between the cultures because  16 the cultures are fiercely alive.  It was a dispute  17 that had perhaps been intensified or given its  18 modern form by the white man and his fur trade."  19  20 Could you, in relation to that first sentence, could  21 you explain that conclusion?  22 A   There is only a dispute in Bear Lake, because the  23 Gitksan, in spite of not going there for many years,  24 have retained Bear Lake within their definition of  25 their territories.  So that goes to the question of  26 the life of the Gitksan system.  And there is only a  27 dispute at Bear Lake -- or I should say two conditions  28 have to be met for there to be a dispute:  One is for  29 the Gitksan to have a continuing definition of Bear  30 Lake within their system, and secondly, for the  31 Carrier-Sekani who are at Bear Lake -- and I should  32 emphasize these are Carrier-Sekani who speak Gitksan  33 and who, according to the Gitksan, trace their  34 ancestry through Gitksan -- to Gitksan down the  35 matrilineal line.  People who, nevertheless, call  36 themselves Carrier-Sekani at their laigahuls (ph) or  37 Sustadenee, at Bear Lake, are hunting, fishing, and  38 trapping there according to their own cultural habits.  39 So the dispute arises because of the life in two  40 systems; on the one hand in the Gitksan territory  41 house ownership system, and on the other hand, the  42 Carrier-Sekani or Sustadenee hunting and trapping  43 system.  44 I should also say that I think the -- in this  45 case, my lord, your point about ad hockery -- which I  46 think is well made -- the attempt to resolve this  47 dispute is done according to fairly clear Gitksan 1430?  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 laws.  And one of the advantages of going to a  2 dispute -- or going to a boundary is that it is there  3 that conventions and laws are made explicit.  One can  4 often see the institutions of a system very well at  5 its edge.  So, Wii gaak improvises a solution in an ad  6 hoc manner, but he does so according to clear Gitksan  7 laws, the law of matrilineal inheritance, the law of  8 the validity of the adaawk, and the law of an  9 adoption, three that are applied by him there.  And  10 he, indeed, in the course of effecting his solution,  11 makes clear the matrilineal law of the Gitksan.  12 THE COURT:  But surely adoption has to be done in the feast with  13 the consent of the chiefs and the members of the  14 house?  15 THE WITNESS:  That's right.  I think I said it had the  16 characteristics of the feast, this meeting, but it  17 couldn't be a feast unless it was resolved.  18 THE COURT:  Yes.  19 THE WITNESS:  I should have said that towards the end of this  20 two or three day process, it was agreed that there  21 would -- as soon as there was a full resolution, there  22 would be a feast at which these moves were formalized,  23 including the adoption.  I'm speaking loosely when I  24 say "adoption".  I should say a putative adoption.  25 The intention to adopt was made clear.  And also, a  26 witness, as I think Wii gaak says, the witnessing of  27 this is of some importance, so here again is the  28 application of a Gitksan law; in this case, the law  29 pertaining to witnessing, or part of the law  30 pertaining to witnessing.  31 MR. JACKSON:  With your lordship's permission, I would move onto  32 another point.  I may return to this issue.  33 THE COURT:  All right.  34 MR. JACKSON:  35 Q   Mr. Brody, if you would turn to page 66 of your  36 report, and I just want to read a passage and then  37 return to page -- chapter 5.  At page 66, the second  38 paragraph, my lord, the second sentence:  39  40 "In order to understand the cultural developments  41 and exchanges between the Gitksan or Wet'suwet'en  42 on the one hand and white newcomers on the other,  43 we must seek to put ourselves at the point of  44 contact, and enter imaginatively into the  45 processes that lie behind (and can often explain)  46 the circumstances of the present.  An  47 understanding of Gitksan or Wet'suwet'en culture 14309  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 is essential in this endeavour."  2  3 And then, if we can go back, chapters 5 and 6  4 provide a review of some of the essential features of  5 Gitksan and Wet'suwet'en society for the purpose of  6 that inquiry.  I'm trying to give your lordship some  7 guidance as to the purposes for which five and six are  8 there.  It goes to my friend's point regarding  9 question of duplication.  Mr. Brody is not seeking to  10 duplicate the extensive evidence you have heard from  11 Doctors Mills and Daly, but to, as it were, isolate  12 some features of Gitksan-Wet'suwet'en society for the  13 purposes of the inquiry which is identified at page  14 66.  15 Mr. Brody, at page 48, you indicate that  16 anthropological literature classifies human societies  17 in a number of ways, and you indicate developmental,  18 ecological and linguistic.  At page 49, at the top,  19 you state, the first paragraph:  20  21 "I would like to suggest another way of  22 categorizing human groups, based on their degree  23 of mobility."  24  25 Could you explain why?  26 A   If you think of a spectrum and at one end there is  27 complete sedentism, that is people remain always in  28 one place, and at the other end complete nomadism,  2 9 people roaming around with no attachment to any  30 particular territory, and it's possible to place on  31 this spectrum any given society by virtue of its  32 degree of mobility or degree of sedentism.  Now,  33 obviously there are no cases that would fill the  34 conditions in -- virtually in which one could put them  35 at either of the extreme ends, but many societies  36 would have quite distinctive places along this  37 spectrum.  The Inuit, for example, would be quite far  38 along the mobility end.  The *Iroqois would be quite  39 far along the settlement end.  And I think there are  40 immense advantages of using this spectrum for  41 understanding Gitksan and Wet'suwet'en societies.  And  42 I think there is a very worthwhile endeavour to be  43 found in locating where they fit on this spectrum and  44 how their places compare one with the other.  The  45 question takes us into some of the most important  46 characteristics of Gitksan-Wet'suwet'en society.  47 Anthropologically, what one finds is that from a place 14310  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 on this spectrum, i.e., from the degree to which a  2 culture is or is not mobile, certain other things  3 flow, certain, as it were, crude correlations.  People  4 who are very settled tend to have very formal  5 institutions of law.  For example, their spiritual  6 life tends to be made very explicit.  They tend to  7 bring up their children in a fairly authoritarian  8 manner.  People who live at the very mobile end of the  9 spectrum tend not to make their laws explicit.  Their  10 laws tend to be wrapped up in ideas of individual  11 responsibility and in metaphysical and supernatural  12 notions.  They tend to be very unauthoritarian in  13 their dealings one with another, and very permissive  14 in their relations with children.  So there is a whole  15 cluster of cultural traits that go along with  16 different places on this mobility spectrum.  17 Now, if we ask ourselves where do the Gitksan and  18 Wet'suwet'en fit on this spectrum and what cluster of  19 cultural trades can one find that fit in with my  20 theory here, the answers are, I think, quite  21 suggestive.  I can begin, perhaps, by saying a little  22 bit about where the Gitksan fit, and I really do not  23 want to duplicate the massive amount of evidence that  24 has been heard on the evidence of Gitksan-Wet'suwet'en  25 culture in this case.  26 So very briefly, assuming that there is already  27 an immense understanding of the culture, I can say  28 that the Gitksan belong to the northwest coast  29 culture, which is famous for its sedentism.  It tends  30 to be made up of villages that remain in one place,  31 very strong attachments to specific, quite large  32 villages, and with, as I've indicated, the associated  33 cultural traits.  A body of law that's quite formal,  34 it's quite explicit.  Clear rules that govern the  35 relations between people, clear rules that govern --  36 when I say "clear" I mean "explicit", rules that are  37 made explicit at formal gatherings of some kind, clear  38 explicit rules that govern relations between people  39 and their land, people and their animals, people and  40 their spiritual life.  And Gitksan, along with other  41 northwest coast cultures, have this cluster of  42 characteristics.  But -- and this is where I think  43 what I have to say might become more directly  44 relevant -- but many Gitksan are not only well placed  45 towards the sedentary end of the spectrum, they also  46 have within their cultures a considerable degree of  47 mobility and movement.  They have extensive 14311  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 territories within which, culturally, they have always  2 been somewhat flexible.  They move from one place to  3 another around the year.  They are not, of course,  4 flexible about the boundaries between house  5 territories, but they move from a fishing camp at one  6 time of year, to a hunting place at another time of  7 year, back to the village for feasting, out again to  8 the territory, and so on.  That is the pattern of  9 aboriginal life as developed by the culture.  10 So in the case of Gitksan, there is a very  11 intriguing mixture between a sedentary life and quite  12 a mobile life.  13 In the case of the Wet'suwet'en, the placing of  14 them on the spectrum is equally interesting.  The  15 Wet'suwet'en-Athabaskans -- Athabaskans are well known  16 for their mobility, for their use of a summer  17 gathering place, and their spreading out over the land  18 for the rest of the year.  Now, the Wet'suwet'en are  19 not like their Athabaskan neighbours to the east.  20 They have a summer gathering place, okay, former  21 Moricetown, Hagwilget.  That's where they were over  22 many centuries.  But this is not a place which simply  23 is where people gather, it's a centre of economic life  24 as well.  It's a place that is productive of immense  25 amount of food in the form of salmon.  26 So although the cultural pattern of the  27 Wet'suwet'en is Athabaskan with a summer gathering  28 place and a spread around the territories, the summer  29 gathering place has some of the characteristics of a  30 northwest coast culture in being of great economic  31 importance and providing a kind of a centre of life.  32 So one can see that the Gitksan and Wet'suwet'en  33 fit sort of side by side on this spectrum, but coming  34 from rather different places.  The Gitksan are settled  35 with a certain degree of mobility and a number of  36 institutions and cultural traits flow from that.  The  37 Wet'suwet'en are mobile but some with -- settled with  38 a number of cultural traits and institutions that  39 follow from that.  40 The important point here, I think, is that one can  41 predict from the place on the spectrum, the response  42 the people will have to newcomers.  That is to say, to  43 some extent, the placing of a culture in the spectrum  44 will tell us how a people will react to intrusion from  45 outside.  The more-settled people will react more  46 combatively, the less-settled people will react with  47 movement and evasion and so on.  And insofar as the 14312  H. Brody (for Plaintiffs)  In chief by Mr. Jackson  1 Gitksan are at the settled end, they are more  2 combative and that's what we predict; and insofar as  3 the Wet'suwet'en are more mobile, they are more  4 inclined to move away from conflict.  5 Q   That analysis, Mr. Brody, is set out in somewhat more  6 detail in chapters 5 and 6 of your report on page 48  7 to page 64; is that correct?  8 A   Yes.  9 MR. JACKSON:  My lord, I did review with Mr. Brody those  10 sections in a way which would speed us along.  He has  11 speeded to the point where it would be a convenient  12 point to break.  I appreciate we are stopping early  13 but I think it would be worthwhile in terms of  14 facilitating things in the morning.  15 THE COURT:  All right.  Six minutes is no big deal.  We will  16 adjourn until ten o'clock.  Thank you.  17 THE REGISTRAR:  Order in court.  Court will adjourn until 10:00  18 a.m. tomorrow.  19  20  21 (PROCEEDINGS ADJOURNED AT 3:55 P.M.)  22  23  24  25  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein transcribed to the  30 best of my skill and ability.  31  32  33  34  35  36 Toni Kerekes,  37 O.R., R.P.R.  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47

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