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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-02] British Columbia. Supreme Court Mar 2, 1989

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 1263?  R. Daly (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Vancouver, B.C.  2 March 2, 1989.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia,  7 Vancouver, this Thursday, March 2, 1989, calling  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  I caution the witness you are still under oath.  10  11 RICHARD DALY, resumed:  12  13 THE COURT:  Miss Koenigsberg.  14 MS. KOENIGSBERG:  My lord, one or two small housekeeping  15 matters.  Mr. Grant had requested that I provide a  16 copy of what is now 901-25, the sessional papers where  17 the top of the page had been -- some of the writing  18 had been obliterated by the binding.  19 THE COURT:  Yes.  20 MS. KOENIGSBERG:  And I have now provided copies and copies that  21 can be read.  22 THE COURT:  All right.  Thank you.  23 MS. KOENIGSBERG:  If they could be substituted.  24  25 CROSS-EXAMINATION BY MS. KOENIGSBERG (Cont'd):  2 6 Q   And the small matter that was left from my  27 cross-examination had to do with the interpretation of  2 8 Reverend Tomlinson's journal.  Have you had an  29 opportunity, Mr. Daly, to review the journal?  30 A   Yes, I have.  31 THE COURT:  What number is that, please?  32 THE REGISTRAR:  21, I believe.  33 MS. KOENIGSBERG:  901-21, I believe.  34 THE COURT:  Yes.  Thank you.  35 MS. KOENIGSBERG:  36 Q   And are you able to say whether from the context of  37 the journal the Feast which is referred to on page --  38 and described on pages 254 and 255 and Mr. -- by  39 Reverend Tomlinson is referable to the Gitksan people?  40 A   It's referable in the sense that he states in the  41 course of that passage that the Nishga people were  42 having a deleterious tutelary affect on the Gitksan.  43 Q   Yes.  44 A   But it doesn't locate the actual incidents that he's  45 describing here where it actually occurs.  It had  46 occurred the previous fall I think he said.  And it  47 just comes to mind when he is describing his -- what 12639  R. Daly (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 happens when he gets to Kitwanga at that time.  He's  2 talking about something that occurred previously.  3 Q   Yes.  4 A  And -- and the whole -- it's very much on his mind,  5 because it seems from the whole context that Reverend  6 William Duncan had asked him to undertake this trip at  7 this time, because it was -- it is the season of --  8 that these winter dance ceremonies are beginning and  9 they begin from the mountains and then work out a bit  10 later to the coast.  So they start shortly after the  11 frost.  And then they are being practiced on the coast  12 by -- well, at least before Christmastime.  13 Q   There is no doubt in your mind that when he describes  14 that Feast he believes that that is representative of  15 what is going on in the Gitksan community?  16 A  Well, it's hard to say what he really perceives.  He  17 sort of merges what an anthropologist would see as a  18 number of different ceremonies and a number of  19 different social institutions into a whole body of  20 savage customs.  So it's quite difficult to see  21 specifically what he is referring to as an evil  22 institution in among one people or the other.  But he  23 basically feels that all these things are occurring  24 all over the region, yes.  25 Q   Yes.  And if you look at page 255 on the right-hand  26 column, for instance, he has just completed the --  27 THE COURT:  I am sorry, whereabouts?  28 MS. KOENIGSBERG:  Page 255, my lord.  2 9    THE COURT:  Yes.  All right.  30 MS. KOENIGSBERG:  31 Q   Completes the description of a Feast in detail and  32 then begins his discussion that:  33  34 "Such a custom clearly strikes at the root of any  35 real improvement."  36  37 And then over onto the next column he says, about the  38 eleventh line down he says:  39  40 "For several months I was aware of the turn  41 matters had taken, but it was not until last  42 spring when some from all the Kitikshean  43 tribes —"  44  45 That's Gitksan, am I correct?  46 A   Yes.  47 Q   Okay. 12640  R. Daly (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 " -- when some from all of the Gitksan tribes were  3 congretated at the Naas fishery, that from  4 information derived from various sources I felt it  5 to be my duty to call all the chiefs together at  6 Naas and address them on the subject,  7 contradicting many such statements as that  8 forbidding the giving away of property at  9 Metlakahtla and Kincolith was merely a local rule,  10 and did not necessarily affect a man wishing to  11 become a Christian elsewhere."  12  13 From that statement and his consequent discussion of  14 the results that occurred at that meeting, that is  15 that all the principal men and chiefs threw off their  16 masks of seeming adherence to the Christian ideal and  17 said that they were going to go ahead with the custom,  18 in his mind he was describing the Gitksan along with  19 the Nass people, is that correct?  20 A   No, I don't -- that's not -- my reading is that this  21 was a pernicious set of customs which the church saw  22 they had to deal with in the influential culture of  23 the Nass, because it was affecting these people who  24 are variously call brush Indians or stick Indians who  25 came from the Interior and would make their -- their  26 civilizing that much more difficult and lead to -- I  27 mean they certainly had the interest of the people at  28 heart, but they saw the development administrative  29 structure as leading to a lot of perhaps violence if  30 it -- if some of these customs could not be eliminated  31 first and tried to sort things out in the Christian  32 manner.  So they were thinking along the lines of  33 their -- the administrative present and future.  34 Q   You don't doubt that he aimed his sermons on this  35 subject to the Gitksan people chiefs when he knew that  36 they were congregated at the Nass fishery?  37 A  Well, I don't know what he did when he was at the Nass  38 fishery, but he certainly aimed his sermons when he  39 was on this trip against the winter dancing  40 ceremonies.  41 Q   No.  I am sorry.  The part that I just read to you --  42 A   Yes.  43 Q   -- places him --  44 A   On the Nass.  45 Q    -- on the Nass at the time that the Gitksan chiefs  46 are congregated there for the fishery?  47 A   For the fishery. 12641  R. Daly (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   And he aims his sermon at them by his recounting?  2 A  Well, I think he aims his sermon at the whole body, at  3 the gathered people there.  They were the hosts, the  4 Nishga hosts, and the Gitksan who would have come down  5 from the Interior to participate in the fishing.  6 Q   But from his recounting here --  7 A  Well, he's recounting it specifically about the  8 Gitksan, because he is now in the -- he is writing  9 from the Gitksan area.  10 Q   Yes.  11 A  And obviously assumes that it's the same situation in  12 both places.  But I think he's unfounded in his  13 assumptions.  14 Q   Okay.  So you assume that it's not necessarily true  15 that the Gitksan people were participating in the  16 feasting where the throwing away of the -- or wasting  17 of property from the missionary's point of view?  18 A   Oh, they were wasting property, but it wasn't in the  19 context of the feasting.  They were wasting property  20 in the context of the winter dancing which was quite  21 competitive, and there are instances of it in the  22 course of what they observed and what was happening in  23 Kispiox and Hagwilget, for example, when they came  24 through.  But I don't -- I don't think that can be  25 tied to the -- this whole complex of relationships  26 between houses and clans which I've termed feasting.  27 It's something that is part of -- Drucker lays this  28 out in his "Cultures of the North Pacific Coast" and  29 his earlier book from the American Museum of Natural  30 History about the nature of the movement of this  31 institution into that area and how it quite often was  32 mistaken for potlatching, because it did have this  33 competitive giving away and destruction of goods  34 associated with the spirit possession activities.  35 Q   Okay.  Just so I have it clear, you are not quarreling  36 that Tomlinson is describing an activity whether it  37 was a potlatch, a Feast or a winter ceremonial where  38 the wasting from his point of view of property was  39 going on and that he's describing that as occurring  40 among the Gitksan people and he wants to stamp it out?  41 A  Well, the description he's given in my opinion  42 occurred on the Nass.  Who was there and who was  43 giving it and who were the guests I have no idea.  44 Q   Just my -- lastly -- last.  Even when we were  45 discussing Mr. Tomlinson and then Mr. Loring and the  46 follow-up of Mr. Loring, I believe one of your answers  47 about why Mr. Loring would have written in his annual 12642  R. Daly (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 report that the wasting of property was going on or  2 had been stopped but had been going on among the  3 Gitksan people, I believe you said he was pressured by  4 the missionaries and that came directly from Tomlinson  5 I think you started off saying.  What would be your  6 source for that evidence?  7 A  Well, there is a book on Metlakatla and on the  8 activities of William Duncan.  There is innumerous  9 references to this whole debate in the local  10 newspapers for the area.  I read through the Ominica  11 Herald and there are a number of other papers.  And  12 various -- I found reference to it on various little  13 articles, little mentions in the historical records.  14 Q   In your list of references would there have been  15 anything that was referable to that?  16 A   It's not -- it wasn't central to what I was getting --  17 trying to get at the overall structure and  18 persistence.  I didn't -- I didn't cite a great deal  19 of that historical material that I had reviewed.  20 Q   Is it an inference that you've drawn from a book about  21 Duncan and Metlakatla as well as your reading of  22 newspapers?  23 A  And my reading of the recent biography of Father  24 Morrice as well and Father Morrice's book on the  25 History of the Tribes of Northern British Columbia.  26 You can draw these inferences from a number of  27 sources.  2 8 Q   You have —  29 A  As well as Barbeau talks about how the feasting was  30 carrying on persisting in 1919, 1920 in Kispiox.  And  31 there was a pressure on Mr. Loring to -- by the  32 missionaries to actually stop it.  And he gives an  33 instance of a policeman being sent there to put an end  34 to the some Feast that was going on, and the people  35 invited him in and they paid him money as a witness to  36 the events that were occurring there.  37 Q   That's in Barbeau?  38 A   That's in Barbeau, yes.  39 Q   At which —  40 A   Oh, it's in the -- it's in the Barbeau-Beynon files  41 among all the massive documentation.  42 Q   Okay.  And is it from that evidence that you infer  43 that Loring would have written something that he  44 didn't necessarily mean?  45 A  Well, you know, when you are assessing these  46 ethnohistorical texts, you have got to try to work out  47 motivations of the person who is writing.  That's part 12643  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 of the whole exercise.  So, yeah, that was -- it was  2 an inference from this sort of thing and it builds up  3 cumulatively.  4 MS. KOENIGSBERG:  Those are all my questions.  5 THE COURT:  Thank you.  Mr. Willms?  6 MR. WILLMS:  My lord, I have -- before I get started perhaps we  7 could mark the binder as the next exhibit number.  8 THE COURT:  Okay.  9 THE REGISTRAR:  Exhibit 902, my lord.  10 THE COURT:  9 02.  11 MR. WILLMS:  902.  12 THE COURT:  Thank you.  13  14 (EXHIBIT 902:  Gray binder)  15  16 CROSS-EXAMINATION BY MR. WILLMS:  17 Q   Dr. Daly, who told you not to make any notes of what  18 you observed while you were with the Gitksan and the  19 Wet'suwet'en people?  20 A   Nobody told me not to make any notes.  But a number of  21 the people I interviewed were very hesitant about me  22 writing things down and they wouldn't -- they wouldn't  23 give me any instances of the institutions that we were  24 describing about how it worked and what the rules were  25 and how people would break the rules and how it would  26 be -- how the rules would then be used to deal with  27 the breaking of rules.  These sorts of things.  28 Because people -- it's a small community and people  29 are afraid of being treated as gossips.  30 Q   Well, putting you --  31 A   So the same people knew that I was going to be  32 rendering an opinion in relation to the case, so they  33 were very careful about what they were saying or else  34 they would say, "I'll give you examples as long as you  35 don't write."  So that was my guiding principles.  36 Q   I want you to put your interviews to one side and who  37 told you --  38 A   I wasn't talking about any interviews.  I was talking  39 about my general approach.  40 Q   Who told you not to make notes of what you saw?  41 A   Nobody did.  42 Q   All right.  Now, I am showing you -- and this is an  43 extract.  My lord, this is a different extract from  44 the Pelto material which has already been put in as  45 Exhibit 901-8, but I would like to refer -- and the  46 pages that I've put before you, Dr. Daly, from the  47 Pelto Anthropological Research, the Structure of 12644  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Inquiry, are pages 90 to 94 which deals with  2 participant observation.  And I can't recall, but did  3 you say that you had reviewed this book before or you  4 were aware of Dr. Pelto?  5 A   I am aware of the book.  It's still a basic reference  6 book, but I haven't -- I haven't read this for quite a  7 long time.  8 Q   Yes.  9 A   For a hundred years.  10 Q   I won't read through -- starting at page 90 in the  11 middle of the page, Dr. Pelto quotes from Malinowski  12 over -- you'll see if you go to page 91.  I don't want  13 to read that quote, but at the bottom of page --  14 bottom of that quote, at top of page 91 he cites  15 Malinowski.  And I think you said in your evidence in  16 chief that Dr. Malinowski was known for his work on  17 participant observation?  18 A   Yes.  19 Q   Now, on page 92 towards the bottom, and this is at the  20 bottom, it's the last paragraph on the page and Dr.  21 Pelto says this:  22  23 "The anthropological fieldworker needs to become  24 aware of his own strengths and weaknesses in  25 observational style.  He should practice observing  26 and recording events in order to discover his  27 observational biases and to develop more  28 systematic techniques of recall."  29  30 Pausing there, did you practice observing and  31 recording events in this case?  32 A   In this case, no, I didn't, not in this case.  I did  33 in relation to my doctoral work.  34 Q   Yes.  He carries on, Dr. Pelto carries on:  35  36 "He should find out for himself how extensive his  37 note taking must be to ensure accuracy of recall."  38  39 Now, just starting with this case, did you do that for  40 this case?  41 A   I certainly did it in my interviews in Akwasasne  42 reservation and Six Nations reservation in Ontario and  43 I found I could recall up to three or four days of  44 events pretty accurately, because I would go back and  45 check later on.  46 Q   All right.  Is your memory --  47 A  And it grew, too, as the time went on.  I got so I 12645  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 could recall the sequence of events for even longer  2 periods.  At the beginning one day was about all I  3 could handle.  4 Q   Okay.  Is your memory of people, times, dates and  5 actions so accurate that it's not necessary for you to  6 make a note?  7 A  Well, I have noted in my -- in my interviews more or  8 less a couple of occasions where I didn't note down  9 the actual date, but --.  10 Q   How many people spoke at the Burns Lake Feast?  11 A   Oh, I don't know how many people spoke at Burns Lake  12 Feast.  It wasn't relevant.  13 Q   What was the date of the Burns Lake Feast?  14 A  April 4th and 5th, 1987.  15 Q   And how many people attended?  16 A   Oh, there were about four or 500.  17 Q   You didn't -- was there a count taken?  18 A   I don't know.  19 Q   Not by you?  2 0 A   Not by me.  21 Q   And it's the case, it's fair to say, Dr. Daly, that  22 most of your recollection of the Burns Lake Feast is  23 your impression after speaking to James Morrison in  24 the parking lot?  25 A   That was my impression of the whole sequence of  26 events, the speeches and the dancing and then the  27 actual all clan Feast at the end which went late into  28 the night on the second day.  29 Q   Now, on the next page of Dr. Pelto's work in  30 talking -- this is page 93, and I am in that first --  31 the first full paragraph on the page, the third line:  32  33 "A constant danger is the overly quick leap to  34 abstraction.  Primary reporting of concrete events  35 and things in field work should proceed at as low  36 a level of abstraction as possible."  37  38 Just stopping there.  You agree with that, don't you?  39 A   I agree with that, certainly.  And that's why I say  40 that if you are going to engage in the -- in the  41 building of mathematical models of social relations,  42 you've got to be emersed in the local level, low level  43 abstraction, the day-to-day lives of the people for a  44 significant period of time or you start building a  45 model which is -- perhaps does injustice to the data  46 that you have before you.  47 Q   Dr. Pelto carries on: 12646  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  2 "Thus, observational statements such as, 'The two  3 men were very hostile toward one another' or 'The  4 building was rather dilapidated' are overly  5 general statements, which may seem perfectly  6 adequate to the fieldworker at the time he writes  7 them, but which may well be difficult to interpret  8 in later months when the fieldworker sits down to  9 sort out and analyse these notes."  10  11 Now, that's an accurate proposition respecting  12 participant observation, isn't it?  13 A   Yes, I agree with you.  14 Q   Now, I wonder if Exhibit 894-6, these are the July  15 1986 interview notes with Alfred Joseph.  It's in a  16 multi-tabbed book, my lord.  And --  17 THE COURT:  What tab number?  18 MR. WILLMS:  It's at tab 6 of the —  19 THE COURT:  Yes.  20 THE REGISTRAR:  It's the blue book, my lord.  21 MR. WILLMS:  The blue book.  22 THE COURT:  Yes.  23 MR. WILLMS:  24 Q   And I think you've already identified, Dr. Daly, this  25 is one of your interviews with Alfred Joseph?  26 A   Yes.  27 Q   And can you please turn to page four of this interview  28 and you'll see you are noting down -- you make a note  29 in the left-hand column "Alfred," and I take it that's  30 when Mr. Joseph started to speak, you are quoting from  31 Mr. Joseph there partway down the page?  32 A   Yes.  33 THE COURT:  You are on page four?  34 MR. WILLMS:  I am on page four, my lord.  35 THE COURT:  Yes.  Thank you.  36 MR. WILLMS:  37 Q   And this is the quote:  38  39 "Another thing the people who went to the coast  40 were usually the ones who put out the least at the  41 Feast.  The stay-at-homes usually gave more.  It's  42 a question of attitude -- "  43  44 And I can't read -- what's the next word?  45 A   "Motivation."  46 Q  47 12647  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 " -- attitude, motivation, the heart and mind of  2 the person makes him/her decide to give freely or  3 to hold back.  Stay-at-homes were always gathering  4 stuff bit by bit for feasting.  The cash worker  5 tended to grab it, to spend it or to save it.  It  6 didn't go into the pot in the Feast."  7  8 Now, just pausing there, Dr. Daly, what exactly was it  9 that Alfred Joseph told you went into the pot at the  10 Feast on this interview?  11 A   This interview was about the nature of the seasonal  12 round of economic activities at the -- in the early  13 part of this century and the -- and the experience of  14 the people of Alfred's parents' and grandparents'  15 generation engaging in cash activities and non-cash  16 activities.  17 Q   Is that an answer to my question?  What did he tell  18 you went into the pot at the Feast?  19 A   He said that meat went into the pot, dried fish,  20 berries, cash.  And the source of the cash was to some  21 extent the proceeds from fur trapping and from factory  22 work or from cannery work, but for the most part the  23 cash was the savings of the older people who didn't go  24 to the coast, who stayed at home and used money from  25 selling chickens' eggs and whatever -- their savings,  26 their day-to-day local savings.  That was what went  27 in.  28 Q   And he told you all of this in July 1986 and you  29 remember it even though you didn't make a note of it?  30 A  Well, he told me in July 1986, certainly.  It wasn't  31 all in this interview.  It was some of it before.  I  32 was canvassing him to see whether he knew anything  33 about this area before I did this interview and I've  34 talked to him on many occasions since.  35 Q   Now, just going back to your note here.  What stuff  36 were the stay-at-homes gathering according to Alfred  37 Joseph in July of 1986?  What did he tell you was the  38 stuff?  39 A   Let's see.  It was -- I think he described that in  40 more detail in a later -- one of these -- one of these  41 examples.  But he said the stuff would be in terms of  42 commodity goods, it would be gifts that would be given  43 as special marks of esteem to the host -- to the guest  44 chiefs and those days it would be fishing rods and  45 mackinaws and rifles.  Maybe a suit of clothing or a  46 jacket.  Something which would be useful but also have  47 a little bit of luxury aura to it and they start 1264?  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 building these things up.  They are always building up  2 these things.  3 Q   He told you all of this in July of 1986 and you  4 remember it even though you didn't make a note of it?  5 A   Yes.  Because he told it to me more than once.  6 Q   Now, carrying on with that particular note, I take it  7 you are still quoting from Alfred Joseph.  He said --  8 A   You see, I can refer -- I remember -- I know some  9 of -- many people he referred to and I have been in  10 their houses and there is a continuity with what he  11 said and what I see mounting up in the back wall of  12 their living room, for example.  13 Q   I am not challenging that Dr. Daly.  I just want to  14 know what he told you, that's all.  15 A   Okay.  16 Q   In July of 1986 from your notes.  Now, I carry on:  17  18 "I was in Babine in the 50s.  Stay-at-home  19 trappers were the back bone of the Feast."  20  21 Now, just pausing there, Dr. Daly.  What kind of  22 animals did the stay-at-home trappers trap and how did  23 they trap them according to Alfred Joseph?  24 A   Oh, he didn't explain that.  25 Q   You didn't ask him either?  26 A   I didn't ask him, no.  I mean you have to be very  27 careful when you're interviewing.  If you stop to  28 get -- get substantive clarification, quite often the  29 interview will go off the topic and you don't get the  30 general overview.  What I would do would be to explain  31 what sort of information I was interested in and let  32 the person just talk and then I would go back for  33 clarification on different points later on.  34 Q   All right.  35 A   It works better that way because especially with the  36 older people, they know more or less what they want to  37 say and if you break them -- break into what -- their  38 flow, you can very easily get off topic on to many  39 other fields.  40 Q   You continue on with your note of what Alfred Joseph  41 is telling you and you say:  42  43 "The log contractors who had money tried to come  44 up from their low Feast names using their cash."  45  46 Now, does that mean that -- did you ask him whether  47 that means they were trying to buy a higher name? 12649  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 A   Yes.  He said that, of course -- he said you can't buy  2 higher names.  But some younger people at that time  3 were putting a lot of money into the pot in the  4 feasting with a view that this would help them to  5 attain to be good contributors, then the elders would  6 look on them as good candidates for taking these high  7 chiefly names.  8 Q   Alfred Joseph told you that in July of 1986 and you  9 remember that by looking at your note?  10 A   Yes.  11 Q   All right.  Now, over onto the next page you say this  12 at the top of the page, quoting again from Alfred  13 Joseph:  14  15 "That the elders said our feasting stays at one  16 level all the time.  It's steady.  The amounts  17 stay the same.  But theirs, the log contractors  18 and -- "  19  2 0 A  With money.  21 Q  22  23 "with money is up and down and upsets the balance.  24 It's not right."  25  26 Now, what do you mean by up and down?  Did Alfred  27 Joseph tell you that it was hundreds of dollars,  28 thousands of dollars, tens of dollars?  29 A  Well, this is -- this is obviously a shortcut of -- I  30 couldn't write everything he was saying.  He referred  31 to a couple of instances where people who were pole  32 contractors or had certain sudden windfall profits in  33 furs from the Ootsa Lake area had put inordinate  34 amounts of money into the pot in the Feast.  He didn't  35 give me any actual figures.  There was no numbers to  36 play with.  And this had created very bad impression  37 in the community.  38 Q   Did elders feasting -- I mean from reading this you  39 would conclude that there was two types of feasting  40 taking place.  Elders feasting and log contractors  41 feasting.  Is that what you meant?  42 A   No.  That's not what I meant.  43 Q   Our feasting stays at one level.  "The amount stays  44 the same, but theirs, the log contractors," you are  45 not talking about two types of feasting there?  46 A   No.  I am talking about contributions.  47 Q   I see.  Now, just completing this top paragraph, the 12650  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 quote from Alfred Joseph you say:  2  3 "These people — "  4  5 Presumably log contractors,  6  7 " -- splurged on the Feast when they were in the  8 money beyond the status of their names. That was  9 not honourable."  10  11 Now, just pausing there, Dr. Daly, what did splurged  12 mean?  Did Alfred Joseph tell you what splurged means?  13 A  Alfred Joseph --  what's in brackets is my  14 understanding of what he told me at that time in this  15 part of the interview.  I wasn't writing.  I was  16 summing up in my head the anecdotes that he was  17 giving.  18 Q   So you can't quantify splurged?  19 A   No.  I can put it in some context and give a  20 comparison, but I can't quanitify it, no.  21 Q   Now, turning back to Dr. Pelto on page 93.  Carrying  22 on from where I left off, Dr. Pelto talks about the  23 language of observation in fieldwork, and says this:  24  25 "The following paired comparisons of  26 (hypothetical) field-note entries illustrate some  27 differences between over-generalized reporting and  28 notes that preserve the sense 'evidence' on which  29 descriptive generalizations are based."  30  31 And, Dr. Daly, if you review the examples one through  32 four, please, and I'll give you -- I have one  33 question.  34 A   Yes.  35 Q   It's a fair statement, is it not, that when we review  36 your interview notes they fall generally under the  37 category of vague notes rather than concrete notes?  38 A   No, I wouldn't say that.  39 Q   Even though you have just explained to the court how  40 "stuff" had much more meaning than you wrote down,  41 that "pot" had much more meaning than you wrote down,  42 that "splurged" had more meaning that you didn't  43 explore, that's not a vague note?  44 A   No.  It's because I was -- I was always filtering this  45 against other utterances by other members of the  46 community and my observations in visiting people's  47 homes and sitting in the Feast.  Mary George, for 12651  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 example, talked about this same thing at great length  2 in the interviews that had been done in the early  3 '80s.  Those elders' interviews that were discussed  4 the other -- raised the other day.  She gives a number  5 of very graphic examples what is the proper way of  6 doing things and the difference of opinion between  7 young people and old people and what the norms and  8 standards are.  Especially in the period of the  9 1930's.  10 Q   You will agree with me that another anthropologist who  11 picked up this particular note wouldn't know what  12 "stuff" meant, wouldn't know what "pot" meant and  13 wouldn't know what "splurged" meant?  14 A   Oh, yes, they would, because if they were an  15 anthropologist dealing in this general cultural area,  16 they would have a fairly good idea of what it meant.  17 They would probably want more data, of course.  But  18 there would be an over -- general understanding of  19 what I was going on about.  20 Q   Yes.  A general understanding.  They might want  21 something a little more concrete?  22 A   They might want something more concrete, yes.  23 MR. WILLMS:   My lord, can that be Exhibit 902-1?  2 4    THE COURT:  Yes.  25  26 (EXHIBIT 902-1:  Document entitled Anthropological  27 Research, the Structure of Inquiry.  28 by Pertti J. Pelto)  29  30 MR. WILLMS:  31 Q   The next document, the extract I am going to show you  32 is from a book called "My Old People Say" by Catharine  33 McClellan.  First of all, have you read this work or  34 heard of this work?  35 A   I have heard of it.  I haven't read it.  36 Q   You are aware that Professor or Dr. McClellan is a  37 well respected anthropologist?  38 A   Yes.  Since she works in the area of Athapaskan  39 studies.  40 Q   And that would be generally Wet'suwet'en as well,  41 Athapaskan/Wet'suwet'en?  42 A   No.  She worked in the Yukon, I believe.  43 Q   Now, in this extract --  44 A   She still works in the Yukon.  45 Q   -- Dr. McClellan discusses conduct of fieldwork  46 starting at page nine.  And just to give you the  47 dating of her fieldwork, you'll see right under 12652  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Conduct of Fieldwork she carried it out in the summers  2 of 1948 and '49 and in the winter of '50 and '51 and  3 then she describes how she did her fieldwork, if you  4 turn to page eleven.  And you'll see on page eleven  5 and after discussing the Inland Tlingit at the top of  6 the page that first -- that second paragraph down she  7 says:  8  9 "As my fieldwork progressed I took more and more  10 notes verbatim."  11  12 And then just skipping the rest of that paragraph and  13 carrying on at the next paragraph:  14  15 "My method is to take all my notes in pencil,  16 adding in ink as soon as possible after an  17 interview the general circumstances and anything  18 else of importance that I was not able to record  19 at the time."  20  21 And just pausing there, that's a pretty good practice,  22 isn't it, for taking field notes?  23 A   Oh, it depends on the context.  When you are working  24 with informants or with a community that notes that  25 your findings are going directly into the public  26 domain, you have to be as sensitive to the whole  27 question of how to -- how can you maintain some  28 anonymity and some respect of their inner secrets  29 which is part of the whole ethics of being an  30 anthropologist.  So this exercise I was engaged in  31 this time was quite unique.  And I had had some  32 training in this approach because of the strictures  33 put on me by the Iroquois when I was working with  34 them.  35 Q   Just carrying on then.  And I take it what you are  36 saying there is that it's -- it's a good practice for  37 some and not a good practice for others?  38 A   It's a very good practice.  But if there are no ways  39 of protecting the -- protecting the people that you  40 are interviewing, if everything you are collecting is  41 going into the -- into the -- into the public, then  42 you obviously as you are going to violate your ethical  43 principles as an anthropologist to do that.  So I had  44 to do the best I could without such notes.  It is --  45 it is a good -- a good procedure to write everything  46 down, if you can guarantee that it's not going to fall  47 into the hands of the general public.  And that's one 12653  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 thing you have got to guarantee to any granting body  2 who is going to finance research.  3 Q   But you knew that the purpose of your research was  4 that it was intended to fall into the hands of the  5 general public?  6 A  Well, I knew that it would be exposed to the public,  7 so I had to be very careful about the sensibilities of  8 the people I was collecting information from.  9 Q   Wasn't that the purpose of your research, to obtain  10 data that would be exposed to the general public?  11 A   Yes.  And that's what I have tried to do.  12 Q   So it wouldn't do any good to hold information back,  13 would it?  14 A  Well, if -- if I wanted to add my name to a whole  15 roster of non-natives who have -- who have done injury  16 to the cultures by exposing the inner most secrets and  17 problems of people's lives and taken information which  18 is the people consider to be their own family  19 property, then I would say yes, that --.  20 Q   You are not saying that you received some information  21 during your research which you consciously decided not  22 to incorporate into your report, are you?  23 A  Anthropologists do this all the time.  You get -- you  24 get an understanding of how the rules really work by  25 the way people talk about each other and you are not  26 going to put in -- in any of your published work you  27 are not going to put in this sort of detail about what  28 people say about each other, but it's extremely  29 important for helping you to understanding how the  30 rules work, how the whole body of morality and  31 customary law actually operates, and how it is used  32 and manipulated and redefined and so on.  So you try  33 to find some sections of your work where this can be  34 explained to show how the process works.  But in many  35 of the instances it's just unethical to put that on  36 the record.  37 Q   Now, just skipping down to that last paragraph on page  38 eleven, on the left-hand column you'll see that Dr.  39 McClellan said:  40  41 "In 1948 and 1949 Dr. Libby and I shared in the  42 writing of ethnographic events from memory and in  43 keeping a daily journal which supplemented our  44 formal notes."  45  46 Now, you did not keep a daily journal, did you?  4 7 A   No, I didn't. 12654  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   There was absolutely nothing preventing you from  2 keeping a daily journal to describe each day's events,  3 was there?  4 A   Just the general stricture that I have already  5 outlined with you.  6 Q   And I am going to suggest to you, Dr. Daly, there was  7 nothing to prevent you after observing an event from  8 immediately recording it at the time of the event or  9 as soon as practicable after the event had occurred.  10 A  Well, I think that falls under the same -- same  11 rubric.  People would not have been as free with me  12 had they known that everything I was hearing was going  13 to be committed to paper in that direct form.  That  14 they said, "We want you to understand our system, but  15 the best way is just don't write.  You listen to what  16 we have to say and when you get the lay of the land  17 then we -- then we'll see where we go from there." And  18 that's more or less the approach I took.  19 Q   And just finally dealing with the interviews, there  20 was nothing to prevent you from recording all of the  21 conversations that you heard formal or informal  22 immediately after the interview and away from the  23 person that you interviewed?  24 A   You mean behind their backs?  25 Q   Yes.  That's what I mean.  Nothing stopping you from  26 doing that?  27 A   That is unethical.  28 MR. WILLMS:  My lord, if that could be Exhibit 902-2.  2 9    THE COURT:  Yes.  30  31 (EXHIBIT 902-2:  Extract from book entitled "My Old  32 People Say" by Catharine McClellan)  33  34 THE COURT:  Doctor, you are not suggesting that this lady,  35 perhaps Dr. McClellan and Dr. Libby, were doing  36 something unethical?  37 A   No, certainly.  38 THE COURT:  It was your particular circumstances?  39 A   They weren't involved in these type of circumstances  40 that I had to work under.  41 MR. WILLMS:  42 Q   I am showing you the first page from your PhD thesis,  43 "Housing Metaphors:  A Study of the Role of the  44 Longhouse in the Persistence of Iroquois Culture," and  45 Appendix A at 285.  Now, this is your doctoral thesis?  46 A   Yes.  47 Q   And could you turn to page 285 which is Appendix A and 12655  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 here you say:  "Explanation of Interview Data Used in  2 This Study." And just going down to that second  3 paragraph you said this:  4  5 "Sensitive to general antipathy toward  6 anthropologists and their work, the writer did not  7 try to use a tape-recorder, or to take on the spot  8 notes.  Indeed, he was asked by some of the  9 traditional people, not to do so if he had any  10 such intentions."  11  12 Now, just stopping there.  That's the same as this  13 case, isn't it?  14 A   Yes.  15 Q   Well, here's how you dealt with it there:  16  17 "As a result he — "  18  19 That means you, right?  20  21 A   Yes.  22 Q  23  24 " -- would discuss and observe for relatively  25 short periods of time, and then immediately record  26 the contents of the interview, following the  27 chronology of the discussions."  28  29 Is that unethical, Dr. Daly?  30 A   No.  But it wasn't going into the public domain.  The  31 data that is there, these are nom de plumes about the  32 people that I interviewed.  The actual data went to my  33 committee.  They observed it.  They have it in their  34 files, but it's not -- it's an attempt to maintain the  35 anonymity of the people and the views that were given.  36 Q   And so because this was a court case you did it  37 differently than you did it with the Iroquois?  38 A   Slightly differently, yes.  39 MR. WILLMS:   My lord, 902-3.  4 0    THE COURT:  Yes.  41  42 (EXHIBIT 902-3:  Document entitled Housing Metaphors:  43 A Study of the Role of the Longhouse  44 in the Persistence of Iroquois  45 Culture by Richard Heywood Daly)  46  47    MR. WILLMS: 12656  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   In your reference list to your report, which works in  2 that reference list describe doing fieldwork and  3 making notes the way you did it here as being  4 appropriate?  5 A  What do you mean reference list?  6 Q   Well, you have got a reference list at the back of  7 your report?  8 A   I have a cited bibliography.  9 Q   Yes.  10 A   That's the title I cite in the text of the report.  11 Q   Yes.  Is there anyone in that reference list, any  12 anthropologist who describes doing fieldwork the way  13 that you've done it here as being an appropriate  14 method of anthropological fieldwork?  15 MR. GRANT:  May the witness have an opportunity to look at it,  16 my lord?  17 THE COURT:  Yes, certainly.  18 MR. WILLMS:  Certainly.  19 A  Well, it's not cited in the -- in any of these works.  20 But Anthony Wallace has used the same methods I do on  21 the last page, page 691.  22 MR. WILLMS:  23 Q   What's the name -- you say it's not in your reference  24 list, but he's done the same thing?  25 A   Yes.  26 Q   What's name of the book?  27 A   There is no book.  I have talked to him about it  28 personally face-to-face.  2 9 THE COURT:  Anthony Wallace?  30 A  Anthony C. Wallace.  31 MR. GRANT:  My lord, the bibliography is at tab — cited  32 bibliography is at tab five, the blue book, for ease  33 of reference.  34 THE COURT:  Thank you.  35 A   I have also discussed the same thing with Eleanor B.  36 Leacock in her --  37 MR. WILLMS:  38 Q   Dr. Daly, let's stay away from your personal  39 conversations --  40 A   -- seminar in City College, New York.  41 Q   Let's stay away from your personal conversations with  42 any of these individuals and just stick to what they  43 wrote.  If you can give me a reference to something  44 that somebody wrote for publication and exposure to  45 other anthropologists suggesting that the method of  46 fieldwork you did here, similar fieldwork, is  47 appropriate.  That's what I am interested in. 12657  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 A  Well, this has been -- this has been the subject of a  2 lot of discussions at the American Anthropological  3 Association and it's -- for many years as the head of  4 the ethics branch was Professor David Aberle who was a  5 quite well-known anthropologist and from the  6 University of British Columbia.  Again, they are all  7 working papers, but this is a problem which is  8 constantly under discussion.  The whole question of  9 ethics and verifiability of the data.  10 Q   On -- I am going to move to a different topic, my  11 lord, and do you -- do you have your report in front  12 of you, Dr. Daly?  13 A   Yes.  14 THE COURT:  Which volume?  15 MR. WILLMS:  I guess it's in Volume 1, page 13.  16 Q   Now, page 13 of the report, my lord, you say on page  17 13 in the second line in that paragraph:  18  19 "As well, both peoples maintain that they have  20 lived side by side for a very long time.  (Many of  21 the oral histories of the two peoples speak of a  22 large sprawling, original village site  23 (Temlaxamid/Dizkle) somewhere near the confluence  24 of the Skeena and Bulkley - see, for instance,  25 Barbeau-Beynon."  26  27 No date.  28  29 "'Temlarh'am, The Land of Plenty on the North  30 Pacific Coast', and Jenness."  31  32 Now, before -- I want to turn to Jenness in a minute,  33 but before I do, what do you mean by a very long time?  34 A   I mean in the ancient past.  It's -- at the present  35 level of scholarly studies it's impossible to tell.  36 But we can -- we can try to correlate data from  37 different fields to get some approximation of  38 complexities of the social and economic organization  39 in the past.  The archeologists tried to do this and  40 the linguists tried to do this and so on.  So it's  41 deliberately vague because it's impossible to pin it  42 down to any specific date.  43 Q   Because it could be a thousand years?  Perhaps?  44 A   I think with the -- from the archeological dating  45 which has been done about the complexity of the tool  46 kit, if you like, it would probably be from somewhere  47 between four thousand and two thousand years ago. 1265?  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   All right.  2 A   Roughly.  3 Q   So that's a very long time, four thousand to two  4 thousand years ago, we can insert that?  5 A   Roughly, yes.  6 Q   All right.  7 MR. GRANT:  This is the place you are referring to?  8 MR. WILLMS:  9 Q   Yes.  That's what I was talking about.  10 A   But that's not -- that's not drawn from the sources  11 that are cited here.  That's drawn from my knowledge  12 of the -- what the archeologists have found to date.  13 Q   Now, could Exhibit 847 be placed before the witness.  14 That's 13, 847-13, my lord.  And Dr. Daly, this is the  15 reference to Jenness that we find at page 13 of your  16 report, is that correct?  17 A  What was it, page 4 --  18 Q   476?  19 A   476.  20 Q   I just want to confirm, this is the Jenness that  21 you're talking about as Jenness 1943?  22 A   That's right, yes.  23 Q   All right.  And you cited page 476 and I'd like you to  24 look over 477 where Jenness says this, after  25 discussing the traditions of the Carrier and it's the  26 middle paragraph on the page beginning:  "I have  27 examined."  Do you have that?  28 A   Yes.  29 Q  30 "I have examined the supposed site of Dizkle, and  31 Harlan I. Smith, archeologist of the National  32 Museum of Canada, has visited the traditional site  33 of Temlaham.  In neither place did we discern any  34 traces of a permanent settlement.  One may  35 reasonably doubt, therefore, whether the two  36 villages, glorified by similar legends, ever held  37 the prominent place that tradition assigns to  38 them, if indeed they ever existed outside the  39 fertile imaginations of the Indians."  40  41 Now, were you aware that Miss Albright, the  42 archeologist, called as a witness by the plaintiffs,  43 was unable to find archeological evidence of Dizkle?  44 A   Yes, I was.  But I wanted to see what I actually said  45 on page 13.  That citation is simply that it has been  46 noted by Jenness among others that the people say  47 there was an original village site somewhere near the 12659  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 confluence of the rivers.  And that's what -- that's  2 what this citation confirms.  3 Q   That -- the oral history said that?  4 A   Yeah.  Not that there was -- there was a -- it doesn't  5 say that there was an archeological basis for it.  6 Q   No.  In fact, so you are just saying that's what the  7 people say.  You are not saying that that's what  8 really happened?  9 A   That's right.  10 Q   Now, do you assume in your report that what the people  11 say there is true?  I mean -- or does that affect your  12 report at all?  13 A  Well, the quality of life of what I would say is a  14 tribal society based on a hunting gathering cycle,  15 annual cycle, with heavy reliance on a crop, which is  16 very much like an agricultural crop, from my reading  17 of the archeological records seems to have been in  18 place in that general period including the finds at  19 Moricetown and Hagwilget Canyon.  20 Q   Well, let's back up, though, Dr. Daly.  You already  21 acknowledged that Miss Albright, an archeologist  22 called by the plaintiffs, gave evidence in this case  23 and you knew that, that she couldn't find Dizkle?  24 A   That's right.  But she did discuss, I believe, the  25 findings of Ames in the Hagwilget Canyon and it had  26 done some work there too, which have a tool profile  27 which is similar to the same time period farther down  28 river at Kitselas and Prince Rupert harbour and to  29 some extent in Moricetown.  30 Q   Maybe I can put the question this way:  Does the  31 prehistoric existence of Dizkle make any difference to  32 your conclusions at all?  Whether it existed or not  33 does it make any difference to your conclusions?  34 A   I don't know that it does.  But it certainly is part  35 of the living culture today and it's -- it's -- it  36 links the continuity of the peoples' perceptions of  37 their rootedness in the area with the general findings  38 of the archeology as far as we can draw conclusions  39 from it at the present time.  40 Q   Just dealing with the oral histories, one thing that  41 you know as an anthropologist is that "where oral  42 histories refer to the distant past, they must be  43 handled with a good degree of reserve, for experience  44 shows that the historical and mythical merge  45 inextricably beyond a certain point."  That's your  46 anthropological experience, isn't it?  47 A   That's right. 12660  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 THE COURT:  Where did you read that from, Mr. Willms?  2 MR. WILLMS:  My lord, the reference to that is Sapir.  3 THE COURT:  Oh, I see.  All right.  4 MR. WILLMS:  It was only if Dr. Daly wasn't going to agree that  5 everybody knows that.  6 THE COURT:  Thank you.  7 MR. WILLMS:  And I was going to place Sapir before him, but  8 that's Exhibit 8 81A-4, my lord, that comment is made  9 by Sapir at page 395.  10 Q   Now, furthermore, Dr. Daly, oral traditions frequently  11 reflect contemporary social and political conditions  12 as much as they do historical reality?  13 A   Some oral traditions do.  You have to look into the  14 quality and the type of oral matter that you are  15 dealing with.  Certainly, if you are getting old  16 people to talk about their life's experience, they  17 tend to read in features of the present the time when  18 they are doing the telling into their accounts of the  19 past.  Or if it -- if you're getting one side of a  20 quite angry dispute, you must get two or three sides  21 of it to get some overall picture, because people will  22 colour the facts to serve their ends.  But when you're  23 dealing with the type of oral tradition that we have  24 here, it's the different -- it's quite a different  25 matter.  It's not the reminiscence of people and their  26 remembrance of things past.  27 Q   But isn't it the case that even if cultures such as  28 this one where there is a strong desire to preserve  29 the integrity of oral histories, that the stories may  30 unconsciously be reworked from generation to  31 generation?  32 A   That's always the danger, but there generally are some  33 checks built into the system such as with the Gitksan  34 and with the Wet'suwet'en, there is specific songs and  35 histories are known by very few.  They are not known  36 by -- in detail by everybody.  They are taught in a  37 very specific way to successors.  They must follow a  38 definite system of remembering and relating the events  39 when they go through them.  And they are being  40 witnessed by others who have overlapping knowledge in  41 the Feast hall.  So there are certain number of checks  42 and balances that the system provides.  43 Q   But those checks and balances that you have just  44 described, Dr. Daly, show that in the culture there is  45 a strong desire to preserve the integrity of the oral  46 history.  Those are all indicia that there is a strong  47 desire to preserve the integrity of the oral history, 12661  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 correct?  2 A  What was the word you used?  3 Q   Well, I'm -- the items that you have just mentioned  4 such as witnessing, retelling the story?  5 A   Yes.  The system of checks.  6 Q   The system checks?  7 A   On what is important for each family to remember from  8 its past.  9 Q   And I'm suggesting to you that even when there is  10 evidence of that strong desire to preserve the  11 integrity, that the stories may unconsciously be  12 reworked from generation to generation.  That's  13 accepted, isn't it?  14 A   There may be.  It's something you have got to be  15 guarding against when you are examining the matter all  16 the time certainly.  Or trying to figure out how the  17 system deals with this -- this very problem.  18 Q   And even if you have that, that strong desire to  19 preserve the integrity, with the checks and balances  20 oral histories supply a valuable information about the  21 not too distant past, isn't that the case?  22 A   That's what some people say.  23 Q   Well, you accept that, don't you?  24 A   In general I would, but I think in this culture area  25 it's quite unique.  It's quite -- it's quite a --  2 6 well, unique is the word.  And everyone has been  27 dazzled by it who has studied the area in the last  28 hundred years.  And also it's been subject to quite  29 good fieldwork by Barbeau and his assistant Beynon in  30 collecting versions of the Gitksan and the general  31 Tsimshian materials.  32 MR. WILLMS:  My lord, I am going to turn to a new point and this  33 would be an appropriate time to take the --  34 THE COURT:  I can't come back until 11:30.  35 MR. WILLMS:  Well, then I'll —  36 THE COURT:  Put in another five minutes.  37 MR. WILLMS:  I will press on, my lord.  It's an exhibit, my  38 lord, that I don't think —.  No.  Exhibit 888.  I  39 have to admit I don't know which tab that is, but it's  40 the Trigger reference, my lord.  41 MR. GRANT:  It's tab three of the blue book, my lord.  42 THE REGISTRAR:  Yes.  43 MR. WILLMS:  Oh.  Thank you.  44 Q   And Dr. Daly, could you turn to page 167 of the  45 Trigger article.  And there was a statement that was  46 put to you at the bottom, the beginning of the last  47 paragraph on page 167, and the statement was this: 12662  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  2 "The small populations of tribal societies, and  3 their general lack of concern with the inheritance  4 of private property, tend not to produce the  5 systematic variations and oral traditions that are  6 useful for evaluating their historical  7 authenticity."  8  9 And my note was, you were asked whether that statement  10 was true for the Gitksan and Wet'suwet'en and you said  11 no.  12 A  Well, part of the reason is there is a vast number of  13 tellings of these accounts and in some cases the  14 person who was the informant was not the legitimate  15 teller.  So there are -- but there are enough tellings  16 that you can get the general sense of the important  17 features as that house group, or that Wii' na t'ahl,  18 the group of houses consider is their history and  19 their story of their migration and what is meaningful  20 to them about the spiritual events and wars and other  21 things that have occurred to them over time.  22 Q   Just starting with that as a general proposition,  23 would you accept that as a general proposition?  24 MR. GRANT:  Which, what's said here?  25 MR. WILLMS:  Yes.  26 THE COURT:  As a general anthropological conclusion is what you  27 are asking?  28 MR. WILLMS:  That's right, my lord.  29 Q   Or is Dr. Trigger misstating the general proposition,  30 too?  31 A   I think he's misstating the general proposition  32 somewhat.  I am not sure that he has ever done much  33 work on the question of land tenure and how it feeds  34 into the cultural preoccupations of different  35 societies.  36 Q   Well, Dr. Trigger did a lot of work in among the Huron  37 and the Iroquois as well, didn't he?  38 A   Yes.  But it's ethnohistorical work.  He's very  39 masterful at that work.  He's extremely good.  40 Q   Yes.  41 A   But it's not -- it's not the work of being emersed in  42 a living culture.  43 Q   Ethnohistory includes the recording and evaluation of  44 oral histories?  45 A   It -- it makes use of recorded oral histories.  It  46 doesn't -- it's not -- the recording of them and  47 developing the context in which they're told, all 12663  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 that, that's a different aspect of subject.  2 Q   Now, the one difference that you noted with the  3 Gitksan and the Wet'suwet'en in respect of this  4 general statement is that although there may be a  5 general lack of concern with the inheritance of  6 private property, when you investigated the Gitksan  7 and Wet'suwet'en in 1986, you learned that they were  8 very concerned about the inheritance of private  9 property?  10 A  Well, private in the sense of kinship group property,  11 not private personal property.  12 Q   Do you accept the proposition that Dr. Trigger puts a  13 little further down that page that -- or just carrying  14 on:  15  16 "The recording of oral traditions as well may be  17 suspect.  The few committed to writing in eastern  18 Canada prior to the late nineteenth century were  19 done in an extremely cursory fashion and from  20 poorly identified sources."  21  22 And then he says this:  23  24 "Some of these oral traditions appear to have been  25 heavily influenced by White historical narratives,  26 missionary propaganda, and even anthropological  27 publications."  28 MR. GRANT:  "At least."  29 MR. WILLMS:  30 Q   Now, putting the words "at least" in front of "some,"  31 if that makes any difference, is that an accurate  32 general anthropological proposition?  33 A   For that region around the Great Lakes, yes, it's  34 quite accurate.  35 Q   And so you know, for example, that there are oral  36 traditions that have been influenced by white  37 historical narratives?  38 A   Yes.  But there are also the formal presentation of  39 history which validates social relations and reiterate  40 the people, the core of their very cultural identity,  41 it's being -- it's a -- it's a unit of the culture  42 which is very distinct and clear cut and it has been  43 recorded for the Iroquois at least very consistently  44 for -- since the days of Lewis Henry Morgan in the  45 early part of the nineteenth century.  And accounts in  46 the late nineteenth century were very full indeed  47 of -- they were collected in the language and later 12664  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 translated by members of the Iroquois community for  2 the Smithsonian Institution.  So some of it is very  3 accurate.  Others -- others it's -- that deal with  4 other peoples in the region are very shoddy.  5 Q   It's not geographic.  There are some North West Coast  6 legends which are influenced by white history and also  7 white stories?  8 A  Well, what do you mean by the legends?  What's the  9 context?  10 Q   Well —  11 A   I am very much opposed to this collecting so-called  12 Indian legends like bedtime stories all out of context  13 that doesn't show anything about the culture that they  14 come from and make the native people look like  15 imbecilic six year olds.  16 THE COURT:  Can we adjourn now, Mr. Willms, please.  17 MR. WILLMS:  Yes, my lord.  18  19 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING RECESS)  20  21  22 I hereby certify the foregoing to be  23 a true and accurate transcript of the  24 proceedings herein to the best of my  25 skill and ability.  26  27  28  29  30 Laara Yardley,  31 Official Reporter,  32 United Reporting Service Ltd.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 12665  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 xh2 R. Daly (for plaintiffs)  2 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Willms.  5 MR. WILLMS:  6 Q   Dr. Daly, we were just turning from what Dr. Trigger  7 said about oral histories being influenced -- oral  8 traditions being influenced by missionaries, white  9 historical narratives, and athropological  10 publications.  And I put -- I put before you -- and  11 this is a doctorial thesis entitled "The Text and  12 Context of Tilingit Oral Tradition".  And in this  13 thesis the author devotes a whole chapter -- and I've  14 put that chapter in, pages 123 through 142, all  15 dealing with a Russian fairy tale that had been  16 adopted into Tlingit oral tradition.  Just starting --  17 are you aware of that kind of borrowing into oral  18 traditions?  19 A   Yes.  20 Q   So that it's not surprising to you?  21 A   No, it isn't.  I'm not -- I don't -- I've never looked  22 at this before, but it's not uncommon.  23 MR. GRANT:  My lord, if my friend — if my friend is going to  24 question him on this document, I'd like him to have an  25 opportunity to look at this.  2 6 THE COURT:  You can't do that.  What do you mean?  Shut the  27 trial down while he does it?  28 MR. GRANT:  I think my friend clearly has many areas to cover.  29 THE COURT:  I don't think so.  If the witness gets in trouble,  30 by all means, but we're nowhere close to that yet.  31 MR. WILLMS:  And, my lord, I put the whole —  32 THE COURT:  When I say "in trouble", I mean if he's having  33 difficulty.  34 MR. GRANT:  Right.  I understood that.  35 MR. WILLMS:  36 Q   At the beginning of this chapter on the Russian fairy  37 tale in Tlingit oral tradition, the author says this:  38  39 "Most comparatists" —  40  41 This is on page 123.  42  43 "Most comparatists and folklorists today  44 seem not as concerned with problems of  45 direct influence, borrowing and migration as  46 in earlier periods of scholarship."  47 12666  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Just pausing there, does that statement apply to  2 anthropologists as well?  Was there a period in the  3 past when anthropologists were concerned with problems  4 of direct influence, borrowing, and migration in  5 reviewing oral traditions and has that concern faded?  6 A   It's a hard question to answer in general terms.  7 It's -- in the past there was more ready willingness  8 to not investigate something which was obviously a  9 borrowing from another culture.  It was considered to  10 be impinging on the pristine nature of the society  11 that you were studying.  But these days there's a much  12 more detailed textual analysis of everything which is  13 a living part of the culture no matter where it came  14 from and how the parts integrate.  15 Q   Now, the author carries on in this paragraph:  16  17 "But now and then a classic migratory  18 situation affords itself, and a story comes  19 to light, the uniqueness of which is best  20 illuminated by a traditional  21 historical-geographical approach."  22  23 What the author does is he goes through the rest of  24 this piece comparing the Russian fairy tale to the  25 Tlinget oral tradition to conclude that they're the  2 6 same.  But you're aware that some of the  27 anthropologists that you relied on in writing your  28 report had done the same thing with Tsimshian oral  29 tradition?  30 A   You mean comparing with foreign influences?  31 Q   And also comparing a classic migratory situation which  32 is unique and can be assessed in a traditional  33 historical-geographical way?  34 A   I'm not -- I'm sorry.  I'm not very clear on --  35 Q   All right.  36 A   -- what that actually means.  37 Q   Let me put the particular case to you.  One of the  38 references in your report is to the "Wolf-Clan  39 Invaders From the Northern Plateaux Among the  40 Tsimsyans by Marius Barbeau"?  41 A   Yes.  42 MR. WILLMS:  And you know that Dr. Barbeau using Tsimshian  43 informants constructed the origin of the leading wolf  44 clan at the beginning of wolf-clan invaders?  45 THE COURT:  I'm sorry.  What did he do again?  Using Tsimshian  46 informants --  47 MR. WILLMS: 12667  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   Using Tsimshian informants he worked back to the  2 origin of the wolf clan.  Are you aware of that or do  3 you recall that?  4 A   Yes, he did.  He did to the best of his ability.  5 Q   Yes.  And what he did is he used references in the  6 oral history to a passage under a glacier down the  7 Stikine River.  He used a reference to sea otter  8 hunting when the people coming down came to the coast,  9 and he used a reference to noxious fumes to conclude  10 that that particular migration story may not be much  11 older than 200 years?  12 A   I find his actual interpretations of the adaawks are  13 out of kilter with what the adaawk histories have to  14 say themselves, and this is also borne out by a lot of  15 the scholars who have worked in earlier times.  16 Wilson Duff did an assessment of his -- his work in  17 the -- I believe it was in the early sixties, where he  18 points out what a brilliant field worker Barbeau was  19 in terms of collecting data and getting things written  20 down from the culture and collecting material culture  21 at a time when it was under severe attack by  22 administration and church and so on.  23 Q   What work is that?  24 A   It's an article of about 1964, '65.  25 Q   It's not cited in your references?  26 A   Not in my reference list.  And he refers back to a  27 previous assessment by Phillip Drucker in about  28 1948 -- I think that was in the Academy of Sciences --  29 who had done a similar assessment of Barbeau in  30 relation to the dating of the phenomenon of the totem  31 poles.  32 MR. WILLMS:  Well, let's just stick with what's in your  33 reference list.  And what is in your reference list is  34 wolf-clan invaders of the Northern Plateaux.  And  35 could Exhibit 849-25 be put before the witness,  36 please?  It's Exhibit 849.  It was a book that was  37 marked during Ms. Albright's evidence, my lord.  38 THE REGISTRAR:  849.  39 MR. WILLMS:  And it's 25.  4 0 THE COURT:  8 4 9A?  41 MR. WILLMS:  Not 849A, my lord, just 849.  42 THE COURT:  Tab 25.  43 MR. WILLMS:  44 Q   Tab 25.  Now, just to identify this, this -- this is  45 the title page and the forward to it, but you've read  46 this before and this is what you're citing in your  47 reference list, isn't it? 1266?  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 A   Yes.  2 Q   And Dr. Barbeau starts off -- and if you can turn  3 to -- it's page number 3 in the upper right-hand  4 corner, where Dr. Barbeau describes the monograph that  5 he is embarking on here, including a listing of the  6 histories that he's recorded.  And he says this under  7 "Presentation":  8  9 "This monograph bears upon the southward  10 migrations of the native tribes of Alaska  11 and the northern Rockies.  It is the third  12 in a series meant implicitly to cover the  13 territories of the Denes, Tlingits, Haidas,  14 Tsimsyans and Kwakiutls, in the light alone  15 of the Tsimsyan adaorh"...  16  17 And it's spelled a-d-a-o-r-h.  18  19 "... traditional 'true' narratives - as I  20 have recorded it, from 1915 to the late  21 fifties, among the thirty or so nations of  22 the Tsimsyans:  the Tsimsyans proper of the  23 seacoast, the Gitksans of the Upper Skeena  24 River, and the Niskaes of the Nass River."  25  26 Just pausing there, what Dr. Barbeau is doing here or  27 what he's purporting to do is by using Tsimshian  28 informants to construct a migratory monograph,  29 correct?  30 A   No.  He was -- he was collecting the histories of the  31 crests that were very much in evidence on the material  32 objects that he was collecting from museums, including  33 totem poles and talking sticks and masks, Amhalayt  34 head-dresses and so on.  And in the course of doing  35 that he found that there were these narratives that --  36 that backed up the understanding and the meaning and  37 the importance of these crests to the community.  38 After collecting this body of material over a period  39 of 40 years, then he began to do these sorts of  40 correlations.  41 Q   Yes.  But the information that he took was Tsimshian  42 informant information?  4 3 Alt was, yes.  44 MR. WILLMS:  And —  45 THE COURT:  In that context —  46 MR. WILLMS:  I beg your pardon?  47 THE COURT:  In that context you include Gitksan and 12669  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Wet'suwet'en -- sorry -- Gitksan and Niskaes as  2 Tsimshian informants?  3 MR. WILLMS:  I do it in the sense that Dr. Barbeau does there.  4 THE COURT:  Which has given Tsimshian the extended meaning to  5 include both Niskaes and Gitksan.  6 MR. WILLMS:  Yes.  And he does say "Tsimsyans, the Gitksans of  7 the Upper Skeena and the Niskaes of the Nass".  And  8 your lordship, of course, has heard evidence that  9 there's now southern Tsimshian, a new language.  But  10 whether there's four or three --  11 THE COURT:  Yes.  12 MR. WILLMS:  13 Q   -- it's Tsimshian informants.  14 And you're aware, are you not, of the oral  15 histories among the Tsimshian of the wolf clan coming  16 down from the plateau?  17 A   Yes.  18 Q   The Stikine plateau?  19 A   Yes.  20 Q   Now -- and that is what?  21 A   That is some of them.  Some of them seem to come from  22 other directions too.  23 Q   Well, I just want to stick with this one because  24 that's what Dr. Barbeau analysed here.  And if you  25 turn to page 8 of Dr. Barbeau's -- now, I better --  26 sorry, my lord.  The page number is 7 at the top and  27 the number in the right-hand corner is 14.  And what  28 Dr. Barbeau is purporting to do here, Dr. Daly, is  29 take part of the story of the passage of Doubtful  30 Chief under the glacier, which he found in a number of  31 renditions of the history, and try to date it.  That's  32 what he's attempting to do here, isn't it?  33 A   Yes.  34 Q   And the way that he attempts to do it with the passage  35 under the glacier is described in that paragraph at  36 the bottom of page 7 or 14 in the corner:  37  38 "The passage is familiar enough in the  39 traditions of the eagle and wolf clans not  40 to be a mere episodic patter in a folktale  41 devoid of historical contents.  Experts --  42 the late John Muir, explorer and geologist,  43 the late Forrest A. Kerr, and George Hanson,  44 geologists versed in the formation of the  45 Stikine region -- all accept the Indian  46 narrative as a fair indication of what the  47 Stikine Glacier must have been at one time 12670  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 not so long ago when the Indians were  2 confronted with it in their drives down this  3 river.  It has now receded a very short  4 distance from the Stikine River, perhaps  5 less than a mile, after having somewhat  6 pushed it out of its course."  7  8 Now, just pausing there and turning to the top of the  9 next page, I won't read it to you, but what Dr.  10 Barbeau does from that is in his first reference to  11 time, he dates that arch from perhaps 200 to 400 years  12 ago based upon the geological evidence that he's  13 referred to and the explorer that he's referred to.  14 That's what he does?  I'm not asking you whether you  15 agree with it.  16 A   Yes.  That's what he does.  17 Q   That's what he does.  And that is to do something like  18 that is an appropriate method, is it not, to an  19 estimate, to date an oral history?  20 A   Yes.  21 Q   Now, when he goes to page 11, typed 11, written in 18  22 up in the upper right-hand corner, he then deals with  23 the reference in the tradition to sea otter hunting at  24 the bottom of the page.  And he says this:  25  26 "The reference in this glacier tradition to  27 sea-otter hunting, after the Chiefs Hill  28 fugitives had reached the salt water and  29 joined a coast tribe, is another detail  30 suggesting a historical date.  Intensive  31 sea-otter hunting developed only after the  32 Russians and other sea traders began to  33 press the natives, from the Aleutian Islands  34 down to the Tlingit country, into their  35 service; that is less than two hundred years  36 ago."  37  38 Now, once again Dr. Barbeau has looked for something  39 in the historical record to compare the oral tradition  40 with, correct?  41 A   Yes.  That's right.  42 Q   And it's appropriate to do that, to search the  43 historical record in an attempt to date the oral  44 tradition?  45 A   Yes.  46 Q   Now, finally, at the top of the next page he draws in  47 the third comparative and says this: 12671  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  2 "The passage under the glacier may not be  3 much older than two hundred years.  For the  4 wolf fugitives no sooner had crossed the  5 Tlingit country, and entered the Nass River  6 to the south, than they experienced a  7 fantastic cataclysm, which deeply impressed  8 itself upon tribal memories.  They were  9 smothered by poisoned fumes and thrown back  10 by a volcano in full eruption."  11  12 Once again pausing there, that's another appropriate  13 historical tool to use to date oral history?  14 A   Yes, it is.  15 Q   And you're aware, are you not, that there -- of the  16 Tseax, T-s-e-a-x, eruption on the Nass River in the  17 late 1700's?  18 A   Probably around early 1700's.  19 Q   Well, I think we had a geologist date it 1770 in this  20 trial.  21 A  Well, I was under the impression it was in the first  22 half of the eighteenth century.  23 Q   But that's another appropriate comparison?  24 A   Yes.  25 Q   Are you aware of any direct historical evidence that  26 would contradict Dr. Barbeau's dating of the origin of  27 the wolf clan coming down the Stikine River to about  28 200 years ago?  29 A  Well, you put me at a bit of a disadvantage.  This  30 isn't an area that I have particularly researched.  31 But there are -- there are -- there's an assertion  32 which is cited by many scholars by -- from the work of  33 Phillip Drucker that these -- the origins of this clan  34 of the wolves is very ancient.  They talk about the --  35 the sun didn't come out for a very long time.  The  36 conditions were very grey and misty and dripping wet  37 and so on.  There's also the fact that many of the  38 adaawk that are here are in a very abreviated and  39 shortened form, and what little experience I've had in  40 talking to elders, they quite often telescope what  41 could be very long periods of time in one sentence.  42 If they -- the intervening time had nothing of a  43 recallable importance for their clan or their house  44 group, then they'll dismiss it within a -- with one  45 sentence, and there may be a huge amount of time has  46 gone by.  And we get some indication of that, of the  47 complexity.  We've heard Art Matthews on the stand.  I 12672  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 read his transcripts.  And he was saying that their  2 adaawk for public consumption are concise, and when we  3 tell them within our house, they're very detailed and  4 take hours and hours and they're full of instructions  5 and details meant for the training of the family and  6 how to live.  7 MR. WILLMS:  That's not direct historical evidence.  My question  8 to you was are you aware of any direct historical  9 evidence which would contradict Dr. Barbeau's dating  10 of the origin of the wolf clan to about 200 years ago?  11 MR. GRANT:  Well, my lord, I object at the phrasing of the  12 question, because if my friend is referring to the  13 passage under the glacier, as he said before about 200  14 years ago, that I agree, but Dr. Barbeau even here  15 before he gets to that talks about a series of other  16 events.  And when my friend says this is the origin, I  17 don't believe from my reading of this that that's what  18 he's saying.  He is talking about this particular  19 passage under the glaciers 200 years ago, which is how  20 my friend framed it the last time, but not necessarily  21 origin.  22 MR. GRANT:  It doesn't matter to me.  I mean it's entitled the  23 "Tahltan Origin of the Wolf Clan", but — but it's the  24 passage under the glacier and the volcano that I'm  25 interested in.  I don't want to argue with my friend  26 about what Dr. Barbeau's talking about.  27 THE COURT:  Well, you're asking the witness if he's aware of  28 any --  29 MR. WILLMS:  Direct —  30 THE COURT:  — direct historical evidence of that kind —  31 MR. WILLMS:  Of that kind.  32 THE COURT:  -- which bears on this question of the origin of the  33 wolf clan.  34 MR. WILLMS:  35 Q   Or documentary.  36 A   You mean alternate volcanic evidence, that sort of  37 thing?  That hasn't been --  38 Q   What I understand --  39 A   By historical records you mean written documents about  40 the authenticity of the adaawks or what?  41 Q   No.  I mean something like what Dr. Barbeau has done.  42 Dr. Barbeau has taken a glacier and put that into, I  43 suppose, where the Stikine Glacier was a couple of  44 hundred years ago during the Little Ice Age.  He's  45 taken the volcano, and we know that there's an  46 eruption.  There was an eruption in the eighteenth  47 century along the Nass? 12673  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 A   Yes.  2 Q   And he's also taken the sea otter hunting.  He's taken  3 what I might call his assumptions of those three  4 historical facts and used those to date the tradition.  5 Now, I am -- my question to you is are you aware of  6 any similar historical facts which would contradict  7 that dating?  8 A   No, I'm not.  9 Q   Now, another work that you referred to and relied on  10 in preparing your report was "Raven Clan Outlaws on  11 the North Pacific Coast"; is that correct?  12 A   Yes.  13 Q   And in fact we've put in -- or in your evidence,  14 earlier evidence, selected histories from raven clan  15 outlaws were put into evidence, correct?  16 A   Yes.  17 MR. WILLMS:  My lord, maybe before I forget, I would like to  18 mark the Dauenhauer, the section on the Russian fairy  19 tale.  20 THE COURT:  That will be 902.  21 THE REGISTRAR:  - 4.  22 (EXHIBIT 902-4:  Text and Context of  23 Tlingit Oral Tradition - R.L. Dauenhauer)  24 MR. WILLMS:  Thank you, my lord.  25 MR. GRANT:  My lord, I checked with my friend's colleague and  26 I'm not sure if it's listed by the provincial  27 defendant or not.  I don't believe it's published.  It  28 certainly hasn't come to my attention before and I've  29 requested a copy of it before -- before completing the  30 redirect so I have a chance to review it.  Subject to  31 that —  32 MR. WILLMS:  Yes.  There's no problem with that, my lord.  33 MR. GRANT:  I presume it's not being put in for the truth.  34 THE COURT:  No.  We have enough trouble with our own fairy  35 tales.  36 MR. WILLMS:  37 Q   I'm putting it in the same way my friend's putting his  38 in, my lord.  I'll take whatever he's asking for.  39 What I've put before you, Dr. Daly -- and perhaps  40 you can confirm that this is the first page from  41 "Raven-Clan Outlaws" and then there's the table of  42 contents and then once again Dr. Barbeau has a  43 monograph at the beginning before he actually goes  44 into the oral traditions?  45 A   That's right.  46 MR. WILLMS:  Correct?  My lord, maybe we could mark that right  4 7 now. 12674  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 THE COURT:  902-5.  2  3 (EXHIBIT 902-5:  Raven-Clan Outlaws on the North  4 Pacific Coast - M. Barbeau)  5 MR. WILLMS:  Thank you.  6 THE COURT:  We've had this before.  7 MR. WILLMS:  Only an extract, my lord.  This is a fuller — it  8 was marked earlier as Exhibit 849-26, but only two  9 pages of it were marked.  10 THE COURT:  Yes.  All right.  11 MR. WILLMS:  12 Q   The -- if you turn to page 4 of the monograph, Dr.  13 Daly, and it's -- fortunately here it's 4 in typing  14 and 4 in handwriting in the upper right-hand corner.  15 You'll see that in the monograph Dr. Barbeau is  16 referring -- and I'm down in that last paragraph, not  17 in the footnote:  18  19 "The Kanhaades from time immemorial had been  20 one of the exogamic moieties or halves in a  21 social order brought over from Siberia by  22 the remote ancestors.  One half or moiety  23 intermarried with the other.  The opposite  24 moiety, devoid of a general name in Alaska,  25 lately assumed, among the Tsimsyans alone,  26 that of the wolf or Larh-Kibu  27 ('On-the-Wolf).  To this day the Tlingits  28 never have systematized its name or crest,  2 9 nor have the Haidas at any time admitted  30 into their own ranks the wolf as a clan  31 emblem.  If the two main moieties in Alaska,  32 the Yukon, and northern British Columbia  33 have become known to us as ravens and  34 wolves, it is merely due to cultural changes  35 under the influence of the white man."  36  37 Just pausing there, you know in this monograph Dr.  38 Duff is now reviewing once again among -- sorry -- Dr.  39 Barbeau is reviewing once again among Tsimshian  40 informants origin stories and other stories, but  41 origin stories respecting the wolf clan and the raven  42 clan?  Those are the stories that he lists?  43 A   Those are the stories that he lists, certainly, but he  44 didn't collect them in that as a historical operation.  45 It was an explanation of the crests on the poles and  46 so on.  47 Q   Yes.  And so what he does in this monograph, and he 12675  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 does it on the next page, is talk about the crests  2 which he was exploring at the top of the page.  And he  3 says this about the wolves:  4  5 "The wolves split up into halves or  6 moieties -- one of them, the wolves proper,  7 and the other, the eagles, in imitation of  8 the Russian imperial crest."  9  10 Now, first you know that the Russian imperial crest  11 was an eagle?  12 A   Yes.  And I know it's been the subject of debate  13 over -- all over the cultural history of Europe as to  14 whether the indigenous cultures had their own eagle or  15 whether they adopted the Russian or the  16 Austro-Hungarian eagles.  It's been a big debate in  17 folklore for many generations.  18 Q   Just returning back to the -- you don't need to look  19 at it, but the wolf-clan invaders, you'll recall that  20 the Stikine Glacier, the Russian trade and sea otters  21 and the volcanic eruption were all put together by Dr.  22 Barbeau to date that at about 200 years ago?  23 A   Yes.  24 Q   Now, he carries on on page 5 here to say this:  25  26 "The eagle moiety or phratry, at the height  27 of the fur trade with the Russians and the  28 British, rose to the first rank among the  29 Tsimsyans, the Haidas, and the southern  30 Tlingits."  31  32 Now, you know that -- that ethnohistorically that's an  33 accurate statement, isn't it?  The eagles did rise  34 above the other moieties?  35 A   In the nineteenth century.  36 Q   Yes.  37 A  Among the coast Tsimshian, yes, and they exerted an  38 influence on the Gitksan as well and on the social and  39 political life of the Nass.  40 Q   Legaix was an eagle?  41 A   Yes.  42 Q   Now, putting together the wolf clan coming down the  43 Nass and the Stikine, the glacier, the sea otter  44 hunting, the volcanic eruption, the rise of the eagle  45 clan among the Russians at the height of the fur  46 trade, isn't it possible --  47 A   I wouldn't necessarily agree that the eagle clan rose 12676  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 with the fur trade.  There's a -- --  2 Q   Let me change that.  I'll --  3 A   There's a florescence of their activities in that  4 period, but there are a lot of other events that have  5 occurred in their -- in their narratives that probably  6 preceded that period.  7 Q   On the coast during that period, the period of Legaix,  8 for example, they were pre-eminent?  9 A   But there have been many, many Legaix in a succession  10 going back a long, long way.  One of Beynon's  11 informants was talking about a Legaix, and he asked  12 him -- it's in one of the introductions somewhere --  13 which Legaix you're speaking of, and he said, "A very  14 recent one."  "How recent?"  "Only about 10  15 generations ago", he said.  So these names have --  16 through the process of feasting and system of  17 reincarnation and so on, the names and the  18 personalities go on and the contradictions they're  19 involved in tend to work out over several generations,  20 so you can't just limit a name of a chief to a certain  21 historic period.  It tends to stretch out in an  22 endless way, as kinship systems tend to do.  23 Q   Is it not possible, considering the historical facts  24 of glacier, the volcanic eruption, the Russian sea  25 otter trade and the level of the eagle clan during  26 that trade, that the eagle clan was created, as  27 suggested by Dr. Barbeau, in imitation of the Russian  28 imperial crest?  29 A   No.  I wouldn't agree with that, even though I don't  30 have the volcanoes and other glaciers to date it with  31 and the sort of analysis that is ongoing of such oral  32 traditions today where you look at the whole procedure  33 of how these things are remembered and how they're  34 performed, what is selected out at different stages of  35 the coalescing of the story.  The -- the whole  36 symbolic set of meanings and events which are  37 associated with the supernatural, the -- they denote a  38 certain degree of ancientness to the telling as  39 opposed to more secular histories of wars and  40 political intrigue and so on, which is generally a  41 more recent phase, as well as the fact that we have  42 few instances in the living culture and things that  43 have come to light in the record of detailed tellings  44 of adaawks that there's possibilities for alternative  45 datings and a broader scope of the whole -- of the  46 whole situation than you find in the analysis of  47 Barbeau. 12677  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   But one thing that Dr. Barbeau did was he did actually  2 try to date the oral history by reference to real  3 things?  4 A   Yes, he did.  5 Q   Now, just assume for a moment that -- never mind that.  6 Can you turn to page 40 of your report?  And this is  7 in volume one, my lord.  You say, Dr. Daly, that in  8 the paragraph -- the last paragraph on that page:  9  10 "Those scholars who address themselves to  11 the subject of native history today try to  12 integrate archaeological, ethnographic and  13 archival documentary data to produce an  14 accurate and meaningful cultural history.  15 This work is extremely complex, as Bishop  16 and Ray, (1976:122-123) point out."  17  18 And I'm going to show you now -- I'm putting before  19 you the first page from "Ethnohistoric Research in the  20 Central Subarctic:  Some Conceptual and Methodological  21 Problems".  And this is the Bishop and Ray that you're  22 referring to in your report?  23 A   Yes.  That's it.  24 MR. WILLMS:  My lord, Exhibit 902.  2 5    THE COURT:  6.  26 (EXHIBIT 902-6:  Ethnohistoric Research in the Central  27 Subarctic - C.A. Bishop and A.J. Ray)  28 MR. WILLMS:  29 Q   Thank you.  Now, here's what -- and you've referred to  30 these people.  You relied on them in writing your  31 report; is that correct?  32 A   Yes.  33 Q   You will see that on page 122 in the last -- the  34 penultimate paragraph after a discussion of folk  35 histories and oral traditions, the authors say this:  36  37 "The validity of oral tradition as  38 historical 'truth' must be carefully  39 cross-checked against other categories of  40 data.  Unless these canons are rigorously  41 adhered to, particularly with reference to  42 'memory ethnograph', ethnographic details  43 from different time periods may be  44 inadvertently jumbled together, fostering  45 the illusion of cultural stability."  46  47 Just pausing there, you accept that proposition, don't 1267?  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 you?  2 A   Yes.  And this is -- this is very much part of the  3 methodological cautionary tale things we've got to be  4 very careful about when we're assessing the data.  5 Q   And, in fact, that's what Dr. Barbeau was doing in his  6 monographs?  He was testing against other --  7 A  Against --  8 Q   -- other categories of data?  9 A  Against the level of knowledge of his day and his  10 general perceptions and hunches about the time depth  11 on the coast.  Of course there have been -- there's  12 been a fair body of work done since then.  13 Q   Then you say here -- sorry.  Bishop and Ray carry on:  14  15 "Such illusions are often manifest in  16 chronologies which include a seemingly  17 timeless 'traditional era' preceding one of  18 rapid modern changes."  19  20 Now, just pausing there, that's a fairly apt  21 description of the origin myths of both the  22 Wet'suwet'en and the Gitksan; is that correct?  23 A  Where exactly is it on here?  24 Q   I just carried on.  25 A  Well, I didn't find where you were reading from.  26 Q   Oh.  I started with "The validity of oral histories"  27 and I read that and I just read to you the last  28 sentence in that paragraph.  And --  29 A   No.  I wouldn't say that applies to the Gitksan and --  30 or the Wet'suwet'en, even though the -- there is a --  31 there's a difference in the nature of the -- of the  32 oral traditions between the two peoples.  The --  33 there's no -- there's no timeless -- there's no sense  34 of timelessness.  There's a --  35 Q   Wasn't there a lot of sense of a long time ago?  36 A   There's very much a sense of a long time ago,  37 certainly, and these are events at certain points in  38 the oral narratives which are considered to be very  39 ancient and they bring tears to people's eyes when  40 they're told because of the ancient ties that people  41 feel to their roots.  And they're loaded down with  42 symbolism, which is very meaningful in terms of the  43 crest system and the songs and the whole cultural  44 system of meaning of the present day as well as in the  45 earlier part of the century.  46 Q   I'd just like to carry on with what Bishop and Ray say  47 at that bottom paragraph in the first line.  The 12679  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 authors say this:  2  3 "Even when employed carefully, memory  4 ethnography can only provide totally  5 accurate information for relatively short  6 time spans, usually 100 years at the very  7 most.  Memory ethnography is most valuable  8 to fill in information on events which were  9 important to the people."  10  11 You'll accept what I just read to you as an accurate  12 general proposition?  13 A   In relation to what -- yes.  In relation to what I --  14 the distinction I made earlier about the oral recall  15 of events that someone has experienced or has learned  16 from their grandparents, say.  And we all use that and  17 we all have to vet its accuracy through  18 cross-referencing and asking several people for the  19 same information and so on.  20 Q   But that doesn't apply to the Gitksan and the  21 Wet'suwet'en oral histories; is that your evidence?  22 A   It doesn't apply to the -- to the oral histories which  23 are public events, which are witnessed and revealed in  24 the course of feasting.  That's the kungax and the  25 adaawk.  But it certainly applies to the -- to the  26 reminiscences of people about what life was like at  27 the turn of the century or in the early part of the  28 nineteenth century, and it applies to the stories  29 which people tell sometimes in the course of the  30 adaawk but in the course of instructing and informing  31 children about what you should do and what you  32 shouldn't do, just like the Russian folklore's full of  33 stories of cautionary tales about how to live your  34 life and how to not live your life.  That's a  35 different quality, a different type of oral tradition.  36 Q   So there's —  37 A   So what they're talking about here is -- especially  38 when you've got a culture which is -- is rather  39 tattered and there are only a few speakers left who  40 remember the past.  This is what's usually called  41 salvage anthropology and it's a key informant process  42 where you've got to rely on the knowledge and  43 authority of just the few people who are remembering  44 the past, and in those conditions these scriptures are  45 very much applicable.  46 Q   So you're drawing a distinction between the traditions  47 that are told at feasts and the traditions that are 12680  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 just passed on generation to generation within a  2 house?  3 A   No, because what's passed on generation to generation  4 in a -- inside the kinship grouping of the house is  5 usually an elaboration of what's told in the feasts.  6 But in addition to that, there are lots of other  7 things that are told, all the stories about the  8 animals and how you learn from -- and the wiget  9 stories and the trickster stories all through the  10 hunting areas of North America.  There's hundreds and  11 hundreds of them, and they all inform the people about  12 different aspects of life with a lot of humour about  13 when you do things wrong, you get -- you really get  14 into a pickle.  This is the sort of moral of the story  15 that is -- comes out.  16 Q   I'm showing you an extract from an article by  17 Catharine McClellan entitled "Indian Stories About the  18 First Whites in Northwestern America".  Have you read  19 this article?  20 A   No, I haven't.  21 Q   But you recognize Catharine McClellan as an  22 anthropologist who's worked among the Athabascans?  23 A  And I know Margaret Lantis' book that it comes from.  24 Q   Now, the -- at pages 115 to 118 -- and that's the  25 extract that I've put before you -- the author  26 discusses the classification of Indian stories about  27 the first whites.  And starting partway down that  28 second paragraph, she says this:  29  30 "As it happens, all the Tlingit and  31 Athabascans being considered distinguish two  32 main classes of story which seem to  33 correspond fairly well with Bascom's 'myth'  34 and 'legend'.  The first class is designated  35 by native terms which are often translated  36 as 'long ago stories' or occasionally as  37 'fairy stories'.  The chief actors are  38 usually animal-named beings with superhuman  39 powers, who nevertheless look and behave  4 0 much of the time like human beings and who  41 only rarely assume animal guise.  However,  42 they also participate in events which have  43 nonhuman qualities and which help to explain  44 the ordering of the world today.  Examples  45 in this category are the familiar raven  46 stories of the coast (told as crow stories  47 in the interior) or the Smart Man cycle of 12681  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 the interior."  2  3 Just pausing there, there are stories like that in  4 Gitksan and Wet'suwet'en oral tradition, aren't there?  5 A   Yes, there are.  6 Q   The second paragraph she says this:  7  8 "The second class of prose narratives is  9 designated by terms which the Indians  10 usually render in English as 'histories' or  11 'true stories', although 'long ago stories'  12 are, of course, thought to be equally true.  13 These tales tell what has happened to the  14 narrator himself, to his contemporaries, or  15 to his immediate ancestors - for example,  16 about a shaman's acquisition of power or the  17 feuding between the Inland Tlingit and the  18 Tahltan.  It is in this category that the  19 Indians usually put their stories about the  20 first whites, if they classify such a story  21 at all.  In a general way all such stories  22 tell of the ordinary world of today or the  23 not-too-distant past."  24  25 Now, just pausing there, there are stories or oral  26 traditions among the Gitksan and Wet'suwet'en that  27 fall into that category, aren't there?  28 A   There are, yes.  29 Q   Now, just carrying on, the author says this:  30  31 "Yet these categories are loose ones at  32 best, and neither our own characterization  33 of their nature nor that of the Indians  34 should lull us into thinking that the scheme  35 is absolutely rigorous.  Thus, they may  36 explain that 'long ago stories' are  37 distinguished from 'histories' chiefly by  38 chronological criteria - because they  39 happened in 'myth time' - but myth-time and  40 mythlike events can nevertheless form  41 important parts of 'histories'.  In fact,  42 both the Tlingit and the Athabascans have  43 what appears to be a high tolerance for  44 discontinuity in time, in the sense that it  45 is possible for myth-time to exist  46 simultaneously with either the present or  47 the recent past." 12682  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  2 Now, in respect of the last sentence, if you put in  3 Gitksan and Wet'suwet'en, the sentence would be  4 accurate as well, wouldn't it?  5 A   You'd have to make a distinction between them.  I  6 think it to some extent would apply to the  7 Wet'suwet'en, but with the Gitksan there is a much  8 stronger sense of linear time.  The myth -- what she's  9 calling a myth time here or the events which are  10 infused with great power and meaning of a nonmaterial  11 type are generally events in -- considered to be in  12 the distant past while with the Wet'suwet'en it is  13 sometimes much more recent.  14 Q   You mentioned the raven and the darkness earlier in  15 your evidence today, and on 117 at the bottom, the  16 author deals with raven origin stories in that last  17 full paragraph, and she says this:  18  19 "Even 'long ago stories' often seem to lack  20 our idea of true temporal sequence.  While  21 many narrators of the raven cycle tell of  22 certain key events in much the same order,  23 the ordering is really one of logic:  after  24 the earth is made, raven gets water, then he  25 gets daylight, and so on."  26  27 Now, that's accurate, isn't it?  28 A   That's not what I was talking about.  29 Q   I thought you were talking about the darkness and the  30 mist and the --  31 A   I was talking about the mist and the fact that there  32 was no sun in the early parts of the -- a number of  33 the adaawks for the different clans and --  34 Q   That could be getting daylight?  35 A   I'm not a climatologist or a quaternary specialist,  36 but I have consulted a few people who said that this  37 is consistent with the deglaciation conditions of  38 steam and mist and lack of clear skies, and so there  39 are various -- they're just hypotheses, but there are  40 other alternate explanations.  41 Q   Like the Ice Age?  42 A   But the raven stories are what I would call stories,  43 exemplary stories, as opposed to the histories and  44 validations of -- of family and clan legitimacy to  45 property and to -- to speak for a kinship group in the  46 society today.  47 Q   If you turn to page 118, she concludes with this 12683  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 paragraph.  In the middle of the page before she  2 starts talking about function, style and content, she  3 says:  4 "None of the Indians, however, should ever  5 face the dilemma of the western  6 historiographer in deciding what is fact and  7 what is fiction in their oral literature.  8 In theory, at least, no deliberately  9 fictitious stories are ever told.  So far as  10 I know, Bascom's category of folktale does  11 not exist in any of the groups.  Like all  12 their other stories, therefore, those about  13 the first whites are true."  14  15 Now, that is the approach that you adopted in  16 assessing the oral histories that you reviewed, isn't  17 it?  You adopted the Indian approach?  18 A   It's emphasized in the literature on methods and the  19 attitude between the culture of the researcher and the  20 culture of the researched that you pay attention to  21 what people are saying and look in as minute detail as  22 you can at the actual -- well, the jargon word today  23 is text that the people utter and analyse it as a true  24 document and then see what implications you can draw  25 from the whole thing instead of jumping to conclusions  26 partway through the process, which has unfortunately  27 been a tendency in our profession.  28 THE COURT:  Is this last paragraph spoken cynically?  "In  29 theory, at least, no deliberately fictitious stories  30 are ever told."  Is she saying that's what they say  31 or --  32 THE WITNESS:  I think she's saying that this should be a  33 research approach; that you should assume that this is  34 a true statement by the people and then assess it in  35 terms of your anthropological knowledge.  But  36 obviously --  37 THE COURT:  I have evidence from Mrs. MacKenzie, for example,  38 that there are stories --  39 THE WITNESS:  Yes.  4 0 THE COURT:  — apart from their adaawk.  41 THE WITNESS:  I was going on to mention that.  There are a lot  42 of stories in all of the cultures along the British  43 Columbia coast which are hilarious stories.  They're  44 just stories and they're out of time and they're  45 important for humour and for teaching a moral or a  46 variety of things.  47 THE COURT:  If this isn't cynical, well then this writer is 12684  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 saying that we should assume to be true what the  2 Indians themselves don't say is true.  3 THE WITNESS:  She's assuming for in order to be able to typify  4 them and evaluate them as sources of linear history as  5 we know it, they should be for purposes of research be  6 treated as true data, I think.  I don't think it's a  7 cynical statement.  8 MR. WILLMS:  My lord, I think the answer to the question is  9 that -- is to go back to the very first part of  10 McClellan's article where she says there is -- if you  11 read partway down, she talks, first of all, about two  12 kinds of narrative.  13 THE COURT:  I'm sorry.  Where are you now?  14 MR. WILLMS:  I'm on page 115.  15 THE COURT:  Yes.  16 MR. WILLMS:  17 Q   And she's talking about Bascom talking about two major  18 kinds of prose narrative are myths and legends.  19  20 "Both kinds of narratives are thought to be  21 true, unlike the third category:  folktales,  22 which are pure fiction deliberately devised  23 for entertainment."  24  25 Now -- so the part that I wrote, and I apologize for  26 not reading that first -- the part that I wrote -- or  27 read.  The part that I wrote.  I wish.  The part that  28 I read, my lord, is not the folktale part.  It is the  29 part that is myth or legend.  And I -- what I  30 understand the author is saying is that the  31 ethnographer may be concerned about whether to his  32 view the story is true or not, but from the Indians'  33 perspective they should be assumed to be true.  That's  34 what I -- do you agree with that?  Is that essentially  35 what the author is concluding there?  That when you  36 look at it, you shouldn't impose the western  37 historiographer's perspective on the teller of the  38 story?  39 A   That's right.  40 Q   However, the western historiographer's perspective is  41 important for western civilization's attempts to date  42 the history, isn't it?  43 A   Yes.  44 MR. WILLMS:  Could we mark that as Exhibit 802 — 902?  45 THE REGISTRAR:  -7.  46 THE COURT:  902-7.  47 (EXHIBIT 902-7:  Indian Stories about the First Whites 12685  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 in Northwestern America - C. McClellan)  2 MR. WILLMS:  And I'm going to turn to another document, my lord.  3 THE COURT:  All right.  4 THE REGISTRAR:  Order in court.  The trial will adjourn until  5 two.  6  7 (PROCEEDINGS ADJOURNED)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings transcribed to the best  12 of my skill and ability.  13  14  15  16 Kathie Tanaka, Official Reporter  17 UNITED REPORTING SERVICE LTD.  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 12686  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE COURT:  Mr. Willms.  4 MR. WILLMS:  5 Q   Dr. Daly, you will recall, and you don't need to turn  6 back to it, but the McClellan reference drew a  7 distinction between two types of stories or two types  8 of histories, one in which the informant himself was  9 able to place himself as part of the story --  10 MR. GRANT:  Sorry, which one of them is it?  He referred to two  11 McClellans.  12 MR. WILLMS:  Is it's the last McClellan.  Maybe I will just —  13 MR. GRANT:  Tab seven.  14 MR. WILLMS:  15 Q   It's 902-7 at page 116 what McClellan describes and I  16 read this to you.  This is the second line:  17  18 "These tales tell what has happened to the  19 narrator himself, to his contemporaries or to his  20 immediate ancestors."  21  22 A   Yes.  23 Q   Are you with me?  24 A   Yes.  25 Q   So that there are some oral traditions where you may  26 be able to date the tradition by internally  27 referencing the tradition?  28 A   Yes.  29 Q   All right.  And in fact Exhibit 896-68 which I think  30 is the --  31 THE REGISTRAR:  Green book.  32 MR. WILLMS:  Green book.  33 THE COURT:  Green book?  34 THE REGISTRAR:  Yes.  35 THE COURT:  Thank you.  36 MR. WILLMS:  I can't find mine, my lord.  37 THE REGISTRAR:  I don't think yours is green.  38 MR. WILLMS:  I know mine isn't green.  That's probably why.  39 It's gray.  40 Q   If you turn to tab 68, this is -- and you refer to  41 this in your evidence in chief.  This is history  42 number 46 entitled Lutrhaisu, L-u-t-r-h-a-i-s-u, and  43 Naeqt, her son.  This is one of the ones that you  44 relied on in your report?  45 A   Yes.  46 Q   And when you look down you'll see that this oral  47 history was recorded, the informant was Salomon 12687  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Johnson, and if you look down in the middle of the  2 paragraph beside interpreter Mrs. Constance Cox, it  3 was recorded in 1920?  4 A   Yes.  5 THE COURT:  Where do you find all that information?  6 MR. WILLMS:  Sorry, my lord.  It's on the very first page and  7 the information is in the very first paragraph in  8 parenthesis.  So it starts off saying the informant  9 was Salomon Johnson.  That's the very first line.  10 THE COURT:  Oh, yes.  Yes, I see it.  11 MR. WILLMS:  And then if you -- and it describes what the  12 narrative is, and then it goes down and it describes  13 that the interpreter was Mrs. Constance Cox at  14 Hazelton in 1920.  15 THE COURT:  Thank you.  16 MR. WILLMS:  17 Q   So now you'll -- the paragraph starting with -- the  18 next paragraph it says:  19  20 "Right after the flood, which is called Ptalks,"  21  22 P-t-a-1-k-s.  23  24 "Swell-of-the-water, the town of Temlarh'am  25 On-the-good-land-of-yore was established."  26  27 And then I just skip down, you will see there is a  28 line there that says:  29  30 "My great grandfather was also living at  31 Temlarh'am."  32  33 That's six lines down in that paragraph.  34 A   Yes.  35 Q   So that accepting that what this informant is saying  36 is historically accurate, Temlaham exists in the time  37 of his great grandfather or perhaps 60 years or maybe  38 80 years prior to 1920?  39 A  Well, that's one interpretation.  But among the  40 Gitksan there is not much concern generally for  41 generations prior your grandparents' generation.  42 Anyone from beyond that is quite often referred to in  43 a very cavalier fashion as being an ancestor is a  44 grandfather or great grandfather or a grand uncle  45 sometimes.  So it's -- it has to be taken with a grain  46 of salt in terms of the common usage of these terms in  47 the community. 126?  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   All right.  Well, if you turn to the second page here  2 and look to that very middle little paragraph there,  3 and this is the informant speaking again, the last  4 line of that middle paragraph, the informant says:  5  6 "It was my great grandfather, Yae'l"  7  8 Y-a-e-1,  9  10 "who had founded the Village of Kispayaks."  11  12 A   It's the same comment would pertain there I would  13 think.  14 Q   So it could be his great grandfather, it could be  15 somebody else, is that what you're saying?  16 A   I'm saying that by the whole structure of the whole  17 series of adaawks, it's unlikely that it was his  18 living grandfather or his own blood tied great  19 grandfather.  20 Q   But if we accept this particular oral history, which  21 you refer to and rely on in preparing your report as  22 being literally true, then that would place both  23 Temlaham and Kispiox in historic times, correct?  24 A  Well, literally true in whose terminology?  That's the  25 question.  You are working between two sets of -- two  26 assumptions about the nature of history and how you  27 account for actions of one's ancestors.  28 Q   Well, you accepted that when they said oolachan grease  29 in this oral history, he meant oolachan grease?  30 A   I think oolachan grease is a little more  31 straightforward than great grandfathers.  32 Q   I see.  Well, maybe we can look at another oral  33 history that doesn't have great grandfathers in it.  34 THE COURT:  Are you finished with this?  35 MR. WILLMS:  Yes, my lord.  36 MR. GRANT:  This is the whole —  37 MR. WILLMS:  This is the whole thing.  38 Q   Now, I'm showing you -- and this is another of the  39 Raven Clan Outlaw origin agreement.  It's not one of  40 the ones that you've listed in your report and it's  41 not one of the ones filed as an exhibit, but it's  42 number 84 from Raven Clan Outlaws.  And this is one of  43 the oral histories that you reviewed in preparing your  44 report, isn't it?  45 A   Yes, I believe so.  46 MR. WILLMS:  My lord, might this be —  47 THE COURT:  902-7. 12689  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 THE REGISTRAR:  No.  902-8.  2 MR. WILLMS:  902-8, my lord.  3 THE COURT:  All right.  What was seven, please?  4 THE REGISTRAR:  It was the one referred to Indian stories about  5 the white.  6 THE COURT:  Yes.  Thank you.  7  8 (EXHIBIT 902-8:  Document entitled Indian Frontiers at  9 Kiskagas and Babine)  10  11 MR. WILLMS:  And you'll see —  12 MR. GRANT:  My lord, just to be clear, I don't think my friend  13 intended to mislead, but my recollection of how he  14 framed it is that Dr. Daly did refer to the entire  15 Raven Clan Outlaws in the bibliography and the ones  16 that were filed were an excerpt and section of those  17 and as I understand he is saying this is one from that  18 same group.  19 MR. WILLMS:  Yes.  I thought I said that, but —  20 MR. GRANT:  Okay.  21 MR. WILLMS:  But I'm very grateful to my friend there.  22 Q   The informant you'll see is Arthur Hankin, Hazelton,  23 in 1923?  24 A   Yes.  25 Q   And so -- and he starts off:  26  27 "I have heard chief Kaidarhkyit, Almighty, of  28 Kiskagas, a Larhsai'l, say that the Indians  29 moved to Bear Lake from Kiskagas to be with the  30 Hudson's Bay Company.  They disagreed over the  31 boundary line between the Gitksan and the  32 Tsetsaut.  So they went to war over it."  33  34 Now, just pausing there, there is no great grandfather  35 there?  36 A   No.  37 Q   And that's in historic times, isn't it?  38 A   Yes.  39 Q   And he carries on to date it, and I am sure the dating  40 is by Dr. Barbeau, but I'm sure it's not far off.  You  41 will see the second line from the bottom, the second  42 paragraph:  43  44 "This happened not so long ago, after the Hudson's  45 Bay came to that country."  46  47 Now, 1808 would be the date put in by Dr. Barbeau? 12690  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 A   That's right.  2 Q  3 "The man who brought about this settlement is  4 living still."  5  6 Do you see that?  7 A   Yes.  8 Q   So there is no doubt that this oral history about the  9 dispute over the boundary is in historic times?  10 A   It would be in the early part of the nineteenth  11 century probably.  12 Q   And it's a boundary line between -- you recognized the  13 Tsetsaut?  14 A   Yes.  15 MR. WILLMS:  I am finished with that one, my lord.  I am going  16 to move on to another one.  17 THE COURT:  Thank you.  18 MR. WILLMS:  19 Q   Now, I am showing you -- it's number 80 in Raven Clan  20 Outlaws and it's entitled "The Niskae and the  21 Tsetsaut."  This is another one that you reviewed in  22 preparing your report?  23 A   Yes.  24 MR. WILLMS:  My lord 902-9.  2 5 THE COURT:  Yes.  26  27 (EXHIBIT 902-9:  Document entitled "The Niskae and the  28 Tsetsaut")  29 MR. WILLMS:  30 Q   And you'll see that this is information collected for  31 the National Museum in manuscript form by James Teit  32 from the Tahltan ca. 1915.  Are you aware of the  33 material that James Teit collected from the Tahltan?  34 A   Yes.  I haven't gone through in detail, but I'm aware  35 of it.  36 Q   Anthropologically speaking, is there any information  37 that you are aware of that Tahltan oral history is  38 less reliable or more reliable than Gitksan oral  39 history?  40 A   I really don't know much about the Tahltan oral  41 history.  42 Q   Now, in this history it starts off:  43  44 "Some Indians claim that the Tsetsaut were the  45 same as the old Bear Lake tribe."  46  47 And I won't describe the Tsetsaut country, but 12691  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 starting on the beginning of the next paragraph it  2 says this:  3  4 "They stretched across the head of the Skeena  5 River above the Kuldo River over to Bear and  6 Sustut Lakes.  They had the Gitksan south of them  7 on the Skeena River, and the Babines south of  8 them, at Bear Lake."  9  10 And I won't go through the Ominica and the Inginika.  11 But then to date you will see the beginning of the  12 next paragraph:  13  14 "Over one hundred years ago, it is not known how  15 long ago, one of the Tsetsaut killed a Niskae near  16 Miziadin Lake."  17  18 Now, just pausing there, are you aware from your  19 review of the oral histories of the existence of the  20 Tsetsaut in the Upper Skeena and near Bear Lake in the  21 oral histories that you've reviewed?  22 A  Well, the various people have been called Tsetsaut and  23 some accounts refer to interactions with these people  24 around Bear Lake and others around Miziadin farther to  25 the west.  26 Q   Carrying on, it describes in that paragraph where I  27 read you the first line, an attack after the killing  28 of the Nishga, and then the third line from the  29 bottom:  30  31 "The Gitksan pushed up the Skeena River on  32 trapping expeditions as far as Bear Lake.  The  33 Carrier or Babine trappers also came in there, and  34 the Sekani from the east.  The fur traders put a  35 station there.  This was resented by the Gitksan,  36 who carried on all the trade with the Bear Lake  37 Indians."  38  39 Now, just pausing there, there is no question that the  40 timing of this oral history and that description is in  41 historic times, is that correct?  42 A   That's correct.  43 Q   And is that consistent with -- oh, now, this is the  44 Tahltan oral history.  Is that consistent with the  45 Gitksan oral histories that you reviewed?  46 A   The events are consistent, I think, roughly.  The  47 interpretations probably are somewhat different. 12692  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  Q  2  A  3  4  5  6  7  8  MR.  WILLMS  9  10  11  Q  12  13  14  15  16  A  17  Q  18  A  19  Q  20  21  22  A  23  24  25  26  27  28  29  Q  30  A  31  32  33  34  35  36  THE  COURT:  37  38  39  40  41  MR.  WILLMS  42  MR.  GRANT:  43  THE  COURT:  44  MR.  GRANT:  45  MR.  WILLMS  46  47  How about the timing?  Well, some of the -- some of the animosity between  people in the Gitksan areas and those referred to as  Tsetsaut I think are quite definitely in historic  times and others may be somewhat earlier.  But there  is some -- some of them are -- yes, they would be  consistent.  :  This is -- I am going to move on to a different  topic, my lord, but I have one more question before I  move to the other topic.  In your interviews with Pearl Trombley and Mary  McKenzie - you don't need to turn to it unless you  want to, but you noted a description of the use of  storage pits by Pearl Trombley's grandmother.  Do you  recall --  Yes.  -- having that described to you?  Yes.  Did anyone tell you when either the Gitksan or the  Wet'suwet'en stopped using storage pits for storing  food?  Well, Mary Johnson gave me a graphic description of it  that she had observed in her childhood.  So it would  be in existence sometime at least in the earlier part  of this century.  And the one that Mary McKenzie and  Pearl Trombley were describing or the series of pits  was in the Four Mile Canyon area between Kispiox and  Gitanmaax.  Did anybody ever show you one?  They -- they showed me the location, but I couldn't  distinguish any -- any depression in the ground there.  I have seen the depressions up in Kisgagas.  There is  a whole row.  They go on a huge area.  It's upriver  from the old village site on the north side of the  river.  I am not sure how I am going to treat that evidence,  what this witness says of what Mary McKenzie told him.  Oh, I suppose if she is a plaintiff it's a statement  that's made against interest, but she wasn't asked  about it.  :  Well, my lord --  It was Mary Johnson.  It was Mary Johnson.  It still applies, my lord.  :  I will just say this, my lord, because we don't  need to really take up much time right now, but first  of all, the reference to storage pits and Pearl 12693  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Trombley's grandmother has been marked by my friend.  2 So that's in evidence.  That was marked by my friend.  3 THE COURT:  Yes.  4 MR. WILLMS:  And secondly, and your lordship will recall Miss  5 Albright's reluctance to say when they stopped using  6 them, and that's what that goes to.  7 THE COURT:  Yes.  All right.  Well, it's just a matter that —  8 it's a fleeting concern I have and I don't think it's  9 going to be determinative of the principal issues in  10 this case.  11 MR. WILLMS:  12 Q   Now, what I would like to turn to now, Dr. Daly, is if  13 you could have your report in front of you and I think  14 it's Volume 1 at page 215.  15 MR. GRANT:  My lord, if my friend is finished with 902-8 and  16 902-9, I just want to comment that my friend's use of  17 the term oral history may be different than mine.  The  18 fact that something is typed out in this format does  19 not mean it's an oral history and I will deal with  20 them on redirect.  But --  21 THE COURT:  All right.  22 MR. GRANT:  — I just don't want you to be left with that  23 impression that we agree with that.  24 THE COURT:  All right.  25 MR. WILLMS:  I am simply putting them in for the same reason my  26 friend put the other ones in, my lord.  Whatever he  27 says they are I say they are.  28 MR. GRANT:  Well, there is different things.  There is different  29 categories and the same format, that's all.  30 MR. WILLMS:  31 Q   On page 215, Dr. Daly, of your report, and there are a  32 couple of extracts that I would like to put to you in  33 succession and then ask you one question.  And the  34 first one is on page 215, and you say in that second  35 paragraph -- and here you're talking about access to  36 fishing places.  You say this:  37  38 "Common access also pertained, at different times,  39 to one or two fishing places near villages.  For  40 the most part, this common use has been limited to  41 villagers and their close kin, by the consent of  42 the community."  43  44 Now, the next one is on page 226 and there in terms of  45 the rights to use places, you've cited Martha Brown's  46 commission evidence.  And it's under the rights to use  47 one's in-law's places after marriage, and you say -- 12694  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 the answer that you quote ends with:  2  3 "This has all been the Indian law to oversee --  4 all chiefs to oversee other members of in-laws."  5  6 Then -- so that's what Martha Brown said and then on  7 page -- flipping ahead to page 229.  8 THE COURT:  I can't help but wonder if that's a complete answer,  9 whether she didn't mean oversee other members of  10 something comma and in-laws.  How do we ever know  11 these things?  It doesn't really make much sense the  12 way it reads.  13 MR. WILLMS:  Well, I will just take the conclusion then, my  14 lord, in the next line that it suits the same purpose.  15 THE COURT:  All right.  16 MR. WILLMS:  The witness says:  17  18 "This quality of inter-House and inter-Clan  19 alliance can be seen in a Feast when a chief will  20 announce some of the persons he is delegating to  21 use and care for parts of the House territory."  22  23 THE COURT:  All right.  24 MR. WILLMS:  25 Q   So there is a reference to use again.  And then if you  26 can turn to page 229, you talk about use again in the  27 first -- in that full paragraph on 229 at the start  28 you say:  29  30 "In this way, succession to chiefly names through  31 a matrilineal line of inheritance transmits the  32 rights of ownership and resource management from  33 one incumbent to another.  Succession to a chiefly  34 name also transmits the right to grant or withhold  35 temporary permission to use the territories."  36  37 So that's use again on page 229.  The next -- well,  38 sorry, I have to work backwards here, my lord.  I  39 tried to work forwards and it doesn't always work.  Go  40 back to page 225, Dr. Daly.  At the bottom again you  41 are talking about access:  42  43 "In some non-state economies inheritance through  44 kinship tends to be highly flexible and open to  45 many categories of relationship.  In other  46 non-state economies, including those of the  47 Gitksan and the Wet'suwet'en, permanent access to 12695  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 landed resources is restricted, and available only  2 to those with a narrowly defined kin-based right  3 to membership."  4  5 And then finally, the final extract on this point is  6 at 243, and this is in respect of boundaries where you  7 quote Alfred Joseph as saying in that quote there:  8  9 "Whatever we did was always done by the advice of  10 the chiefs and elders."  11  12 Now, you talked earlier about the community, you  13 talked later about the chiefs and here it's the chiefs  14 and the elders.  And my question to you is:  Who has  15 the right to grant or withhold permission for  16 temporary use of property?  17 A   The chief of the House.  18 Q   Now, can I take from your opinion that Gitksan and  19 Wet'suwet'en society is in your opinion an egalitarian  20 or is it hierarchical?  21 A   It's both.  It's egalitarian in terms of the relations  22 between the kinship groupings and there is a degree of  23 hierarchy and a variety of social statuses within  24 those groupings.  The people who have been described  25 by some of the informants as princesses and princes or  26 as ordinary people.  And in the past under some  27 circumstances there seems to have been a little bit of  28 captives or slave population, but everyone stresses  29 that it was always a peripheral in this area unlike  30 the coast where it was much more significant.  31 THE COURT:  I am sorry, did you say it was egalitarian within  32 the kinship groups?  33 A   Between the groups that no group was allowed to rise  34 above the others for very long.  There would be  35 mechanisms to redress the imbalance.  36 THE COURT:  The hierarchical within the group, within individual  37 groups?  38 A   Yes.  39 MR. WILLMS:  40 Q   Now, just on this point of egalitarianism and  41 hierarchy, I am showing you -- this is an extract from  42 Exhibit 734.  Now, it's an extract from Neil  43 Sterritt's evidence before a Parliamentary Commission.  44 And -- Penner Commission, my lord, I believe.  And  45 the -- first of all, you are aware that the  46 Gitksan-Wet'suwet'en Tribal Council is a band council?  47 MR. GRANT:  That's not right.  My lord, so I — whether he is 12696  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 aware of it or not, it's not correct what my friend  2 has asked.  3 MR. WILLMS:  4 Q   All right.  You are aware that it's an elected  5 council?  6 A   Yes.  7 THE COURT:  Which one?  8 MR. WILLMS:  The Gitksan/Wet'suwet'en Tribal Council.  9 MR. GRANT:  That's not correct either, my lord.  And the  10 Constitution is before you as an exhibit.  11 THE COURT:  Yes.  12 MR. GRANT:  So my friend's assumption is wrong.  13 MR. WILLMS:  Okay.  All right.  14 THE COURT:  The band councils are elected and the Tribal Council  15 is elected.  Not a --  16 MR. GRANT:  Well, it's -- it was a complex arrangement, but it  17 was a delegated system and the Constitution is before  18 you as an exhibit, I believe.  19 THE COURT:  Yes.  20 MR. GRANT:  But my friend's statement is incorrect.  21 MR. WILLMS:  22 Q   All right.  Well, this is what Mr. Sterritt said to  23 the Penner Commission.  The first page that I have  24 given to you is -- it's got 8:45 in the upper  25 right-hand corner.  And he says this in the third  26 paragraph, Dr. Daly:  27  28 "Maybe I might have given a wrong impression about  29 the Simgiget and the tribal council."  30  31 Now, just pausing there.  Do you know what the  32 Simgiget is?  33 A   Those are the hereditary chiefs of the Gitksan.  34 Q  35 "The hereditary chiefs, you could say, are  36 blessing the tribal council.  They see it as their  37 vehicle to work on this issue.  Over the last  38 eight years it has been at times a direct struggle  39 between the band councils and the hereditary  40 chiefs, but as the band councils started to  41 understand what was happening there was a  42 lessening of that tension, a more cooperative  43 working relationship between the high chiefs and  44 the band councils.  The tribal council really is  45 an arm of the band councils, by definition, but  46 through our activities and our policies we are  47 working on behalf of the high chiefs and trying to 12697  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 work also for the band councils.  It is a  2 dilemma."  3  4 Now, in your investigations in the community, did you  5 observe that dilemma?  6 A   In what -- in what sense?  That's a pretty broad  7 question.  8 Q   Well, did you observe a struggle between the band  9 council and the hereditary chiefs?  10 A  Well, I didn't attend any band council meetings.  I  11 have talked to and have heard various things within  12 the communities pertaining to matters of the  13 particular bands and issues of the Tribal Council.  14 They -- my impression was that they are -- basically  15 were working in two different areas for the most part  16 with some overlapping of social services that they  17 respectively provide.  18 Q   Now, if you turn to the next page --  19 A  And also a lot -- there is a lot of the hereditary  20 chiefs who were involved in both processes.  It's --  21 it would be hard to characterize it whether this was a  22 battle or whether it was a co-operation.  23 Q   I am just asking if there is something you saw.  Did  24 you notice anything that might qualify for a struggle  25 between the band council and the hereditary chiefs  26 while you were there?  27 A   No, I don't think I did.  28 Q   All right.  Now, turning over to the next page, which  29 is 8:10 in the upper left-hand corner where Mr.  30 Sterritt -- if you look just below the three hole  31 punch on the left-hand side and not that paragraph,  32 but the paragraph "Our name for the high chief."  33 A   Yes.  34 Q  35 "Our name for the high chief is Simgiget.  'Sim'  36 in front of the 'glget' is very important, because  37 it speaks to the truth; it speaks to what is real.  38 They are the people with authority, with power;  39 and therefore they have to have the qualities of  40 leadership, all the qualities you require for any  41 leadership group."  42  43 Now, your experience in the community and your  44 participant observation, did it confirm that?  Is that  45 accurate?  46 A   Yes, it is.  47 Q   Okay.  Now, just carrying on: 1269?  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  2 "The other people... We use that as a triangle;  3 and that applies to any society in the world,  4 including Canadian society today.  There are  5 people with authority and people without.  So it  6 was with us.  We had the Simgiget and the  7 Lixgiget, and the Lixgiget are simply people  8 without authority.  That does not mean they are  9 not important, just as any citizen or voter in  10 Canada is important."  11  12 Now, once again, based on your participant observation  13 in the community, is that accurate?  14 A   Yes, that's accurate.  And the other thing is that  15 both the Simgiget and the Lixgiget are linked by ties  16 of blood and marriage.  So it's not -- it's quite  17 often portrayed as though it were a highly stratified  18 class society.  But it leaves out the linkages that  19 follow through the lines of blood and marriage.  20 Q   At any of the Feasts that you attended, did you  21 observe any elections by the Lixgiget of chiefs?  22 MR. GRANT:  Of?  23 MR. WILLMS:  Chiefs.  24 MR. GRANT:  Hereditary or elected?  25 MR. WILLMS:  26 Q   No.  Hereditary chiefs, any election, any voting?  27 A   I don't know that there was anybody that  28 constituted -- any political grouping that constituted  29 Lixgiget.  30 Q   Well, I think that's clear if you turn to the next  31 page of the extract that I have handed to you, Mr.  32 Sterritt drew planning hierarchies past, present and  33 future.  By the way, did you review this in preparing  34 your report?  35 A   No, I didn't.  36 Q   Did you even know it existed?  37 A   No, I didn't.  38 MR. GRANT:  What, the Penner report or this graph?  39 MR. WILLMS:  40 Q   Neil Sterritt's evidence at the Penner Commission.  41 A   No.  I didn't even know he was at the Penner  42 Commission.  43 MR. WILLMS:  44 Q   And you will see here that Mr. Sterritt sets out  45 planning hierarchies.  And if you look, he's got two  46 columns in the middle: past and present.  And past  47 he's described as traditional.  And present 12699  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 fed-Indian.  Do you see those columns there?  2 A   Yes.  3 Q   And if you go down those columns and you review them  4 to the activity on the left-hand side, you'll see that  5 for the past all of the policy making activities are  6 the Simgiget, correct?  7 A   Yes.  8 Q   So the Lixgiget are not involved in policy.  They are  9 involved in -- according to this diagram, they are  10 involved in the operations if you go below the line,  11 but not the policy?  12 A   I suppose so.  I don't really know what it means.  13 Q   Now, is it your understanding that people who could be  14 called Lixgiget are allowed to vote in band council  15 elections?  16 A   Oh, sure.  17 Q   Now, you say at page 174 of your report -- and just  18 please keep Mr. Sterritt's diagram open in front of  19 you.  At 174 in the top paragraph you say, in that  20 last line:  21  22 "Decision-making in these groups -- "  23  24 And you are referring to House groups,  25  26 " -- is consultative; the views of the chief, the  27 elders and general members are the regular  28 components of decisions taken with regard to  29 ownership rights."  30  31 Now, is that traditional Indian government as you  32 understood it in 1986?  33 A   Yes.  34 Q   So that in 1986 if you were going to draw this  35 diagram, you'd move the Lixgiget up into the  36 policy-making area as well?  37 A  Well, I have trouble with schemes like this.  38 Policy-making.  39 Q   Well, do you have trouble with the concept of  40 developing a policy and then implementing the policy?  41 A   No.  No.  42 Q   And as I understand this, the traditional method  43 according to this diagram is that the development of  44 the policy is Simgiget and the implementation is the  45 Simgiget and the Lixgiget?  46 A  Well, I don't know whether that's what it means or  47 not.  It's hard to -- it looks like one of these 12700  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  teaching devices for a seminar.  MR. GRANT:  My lord, I am just hesitating -- I presume that this  was an exhibit, that this particular graph was put to  Mr. Sterritt and he explained it.  I am operating on  that assumption.  I was not present during this cross.  THE COURT:  I think it was.  I have seen this before and I think  it was explored, but of course I have just been given  a fresh copy.  If I knew where it was before I could  quickly tell you if I had my notes on it.  MR. GRANT:  Yes.  I was looking for —  THE COURT:  But I wouldn't have them here anyway.  MR. GRANT:  No.  I don't have Mr. Rush's here and I was looking  to check to see if he had notes of it.  THE COURT: I am sure I have seen this plan before.  MR. WILLMS:  It's Exhibit 734, my lord.  THE COURT:  Mr. Sterritt was cross-examined on this diagram.  I  am almost certain.  MR. WILLMS:  Q   In your discussions with the hereditary chiefs, it was  clear to you that they wanted to return to traditional  Indian government?  A   Yes.  Not that they wanted to return necessarily to  the technology of the past, but the decentralized way  of making decisions, the consultation within the  kinship group and between those you are closely linked  with in every day life and through your historical  ties.  To that extent I'd say yes.  Q   Now, could you turn to page 136 of your report.  MR. GRANT:  Which page?  MR. WILLMS:  Q   136.  In your report on page 136 in that paragraph  starting about the middle of the page you say:  "This is not to say that a man's House owns his  gillnetter, store or sawmill, but rather that the  House, at times of Feast-holding, has the right,  through the person of its chief, to ensure that a  substantial portion of the income from the wage  occupation or the enterprise be devoted to the  proper conduct of House affairs, and particularly  to feasting obligations which centre upon the  management of the territories and the proper  conduct of marriages, births, deaths and  successions."  Now, just pausing there.  In your interviews with the  hereditary chiefs, they would like to return to that 12701  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 system of government?  2 A   They would like to return to the decentralized system  3 somehow based on the way they organize their Feasts  4 and the way they organize their extended family  5 economies and so on today.  The degree to which it --  6 such a process would be systematized, I don't think  7 they have -- not all the chiefs have thought that  8 through and it's a whole thing that's in -- under  9 discussion and in the community today.  10 Q   Just turn to page 139 of your report, and it's in the  11 bottom right-hand portion.  It's that last full line  12 on page 139 you say this:  13  14 "In economic terms the Houses own the rights to  15 the labour of their sons and daughters, and of  16 their daughters' offspring, and they of course  17 own lands and river sites as well."  18  19 Now, first of all, that ownership is exercised through  20 the person of the hereditary chief, is that correct?  21 A   Yes.  And it's very clear in terms of the actual  22 productive activities on the land.  When it concerns  23 the market sector today, there is a certain degree of  24 give and take between the chief and the other members  25 of the House.  If the chiefly people are going to be  26 able to continue to demand support in times of crisis  27 and feasting and so on, they have to be able to  28 provide what in the old days was a lot of hospitality  29 and support and material needs to all their members.  30 And they have -- today they have to be of assistance  31 in social problems and the fighting for job -- access  32 to jobs and so on to their members.  And in the  33 long-run this will maintain the support of their  34 grouping in times of life crisis.  35 Q   Dr. Daly, when you review the notes that you made from  36 your informants, that is the 35 or 33 odd notes, the  37 vast bulk of your informants were Simgiget in those  38 notes?  39 A   Yes.  40 Q   During your term of participant observation, did you  41 take any formal pole, that is written down among the  42 Lixgiget in Gitksan and Wet'suwet'en society to see  43 whether or not they agreed that the traditional form  44 of property ownership and control by the Simgiget  45 continue?  46 A  Well, it's hard to -- it's hard to make that sort of  47 distinction, because the Lixgiget, as you have put it, 12702  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 are -- if they live long enough will one day be  2 Simgiget.  Many instances people are able to accede to  3 a position so long as they're active in the social  4 responsibilities within the community.  So you talk to  5 young people who don't have any high names and they  6 are Lixgiget, but many of them will reflect the  7 attitudes of their chiefs, because that is -- that's  8 where they are being trained in that direction to  9 become chiefs one day.  10 Q   You know that there is approximately 60 hereditary  11 chiefs named, head chiefs?  12 A  Well, there are more than that, but within the present  13 functioning Houses, yes, there is roughly that.  14 Q   And during your stay with Gitksan and Wet'suwet'en  15 society, what population estimate did you have of the  16 whole society?  17 A   Oh, roughly six or seven thousand people.  But there  18 is also, there is also innumerable other chiefly names  19 within the House, not full chief names, but associated  2 0 chief names and names which are on the road to  21 becoming -- if one assumes that name one is definitely  22 on a trajectory to become a chief, and of course not  23 everybody does, but there is a massive number of names  24 which are royal or semi-royal that peoples --  25 Q   How many would you say?  26 A   Oh dear.  27 Q   Are we talking about a thousand, two thousand?  28 A  Well, there is up to 20 or 30 per House.  29 Q   Two thousand?  30 A   Possibly, yes.  31 Q   And so you deduced from that, because everybody had a  32 crack at becoming a Simgiget, that the Lixgiget agreed  33 that this traditional form of government that you've  34 described in your report should continue?  35 A   People don't -- don't view themselves as Lixgiget.  36 They -- the chiefs are very prominent and the wing  37 chiefs in the House and some of the other old names  38 and around -- within each -- within many of the Houses  39 now, particularly those where there has been  40 amalgamations with people from the northern two  41 villages, there are several names that look like  42 sub-chiefs, but each of them in former time was a full  43 chief surrounded by sub-chiefs and these are all  44 potentials -- potential House groups that would --  45 would -- if their circumstances were such would be  46 able to come to fruition and raise up their names and  47 strengthen the House or in that case it would be -- it 12703  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 would expand from one House to maybe three or four.  2 They would all be part of the Wii' na t'ahl, the  3 expanded group of kin that work together.  4 Q   You'll agree with me that the society that you  5 observed from an individual perspective, I am not  6 talking about a House to House perspective, but from  7 that individual perspective is not egalitarian?  8 A   From an individual perspective.  Well, no society is  9 egalitarian.  There is a definite devolution of  10 authority from the old to the young.  And from -- in  11 many -- in many respects from the chief to the  12 non-chiefs.  But it's not -- it's not a cut and dried  13 matter.  It's family relations.  It's face-to-face  14 relation.  You're talking about people who are uncles  15 and grandchildren and so on.  So things are couched in  16 that terminology.  17 Q   But I thought you said that Houses which didn't repay  18 their debts would diminish compared to other Houses  19 that were paying their debts?  20 A   Yes.  21 Q   And they would have less power?  22 A   They'd have less influence in the community, yes.  23 Q   And in that sense between the Houses it's not  24 egalitarian?  25 A  At any one time there is a political imbalance.  Of  26 course that's the political process.  But the amount  27 of hierarchical authority that the system allows to  28 remain in place is severely limited.  So that if you  29 look at the fortunes of any one House group over a  30 period of time, it fluctuates basically on the basis  31 of the skills and talents of the people who have held  32 the high names in that House and names which have been  33 very illustrious of two or three generations ago are  34 quite often quite low in the terms of how they are  35 being handled today.  And vice versa.  36 Q   So it's in that context that you are using the word  37 egalitarian?  38 A   Yes.  39 MR. WILLMS:  My lord, I don't know if I need to — it was marked  40 as Exhibit 734.  I could mark this extract.  Perhaps I  41 should.  42 THE COURT:  I prefer that you did so I can keep them in the same  43 material together in one place.  44 MR. WILLMS:  902-10, my lord.  4 5    THE COURT:  Yes.  46 (EXHIBIT 902-10: Document extract from Indian  47 Self-Government) 12704  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS:  2 Q   Dr. Daly, I am showing you an agreement for consultant  3 services dated April 22, 1986.  This is the agreement  4 that you and Dr. Lee signed in respect of your report  5 in this case?  6 A   Yes, it is.  7 MR. WILLMS:  Could that be 902-11, my lord?  8 THE COURT:  Yes.  9  10 (EXHIBIT 902- 11:  Agreement for consultant services  11 between Dr. Daly and Dr. Lee dated  12 April 22, 1986)  13  14 MR. WILLMS:  15 Q   Now, Dr. Lee signed this agreement as well and we've  16 already seen correspondence that was between Mr.  17 Overstall and yourself and Dr. Lee.  Did Dr. Lee write  18 any part of your report?  19 A   No, he didn't.  Initially we were going to do the  20 whole project together and he became very busy with a  21 project on aging and gerontology in Southern Africa,  22 so he didn't have time to carry on.  23 Q   You described in your evidence earlier the fact that  24 you wrote this report and added to it while you were  25 writing it on a computer?  26 A   Yes.  27 Q   Now, where was this computer?  28 A   This was in the Tribal Council office in Hazelton.  29 Q   Okay.  Was it a computer terminal hooked up to -- did  30 other terminals have access to the computer or was it  31 your PC or your personal computer that you were using?  32 A   It was the Tribal Council system.  33 Q   All right.  And is this -- so you went to the Tribal  34 Council office whenever you wanted to run off or put  35 some more material in?  36 A   Put more stuff in and change.  37 Q   When was the first time that you ran off a hard copy,  38 that is a copy on paper, of the material that you were  39 putting into the computer?  40 A   I didn't run off a full copy for a very long time.  I  41 would run off parts and when I was asked to do so by  42 the lawyers.  It was more or less in the works part by  43 part until -- until almost to the end of this  44 procedure.  I was reviewing all of the court  45 transcripts and making changes and additions and  46 deletions and so on right through till the spring of  47 last year. 12705  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1  Q  2  3  A  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  Q  19  20  21  A  22  23  24  25  26  27  Q  28  A  29  30  31  32  Q  33  34  35  A  36  Q  37  A  38  Q  39  A  40  Q  41  42  A  43  Q  44  45  46  THE COURT:  47  MR. WILLMS  Did you save any of those hard copies that you ran  off, the early ones?  No.  I would pass them on to the lawyers and get them  back marked up or with suggestions.  Then I would  decide whether I would concur with them or not.  Sometimes I didn't like their suggestions.  And when I  finished I made my changes into the computer and  generally destroyed the stuff.  When I was doing my  contract I keep reams and reams of paper and I got so  confused about the -- I had two and a half filing  cabinets of different versions and I was not going to  go through that process again.  It is at the same time  very hazardous because I was working one weekend and  someone hit a power pole and there was a power outage  and I lost a whole weekend's inputting and had to  start all over from scratch.  But I didn't keep any  substantial materials.  Did you also receive some of the hard copy that you  had written off with comments back from Richard  Overstall?  Richard didn't make any comments.  In the course of  things, the work I was doing I could see it wasn't --  it was going to be somewhat different from what we  signed here.  And I discussed it with him about what I  would like to do and he said, "Well, go ahead and  we'll see what comes up."  So in terms of people --  He read -- he read -- he read the draft that I  eventually ran off in the spring of last year and made  a couple of verbal comments on it, but nothing really  substantial.  Okay.  But you did have written comments from the  lawyers on the substance of your report, some of which  you accepted and some of which you didn't?  Yes.  And those are gone now?  As far as I know.  Certainly they are gone from your file?  Yeah.  And you don't know whether other copies exist in other  people's files?  No, I don't know.  I haven't checked.  Now, produced through your counsel have been a draft  dated March 1988 -- sorry, through the plaintiffs'  counsel and a summary dated February 1987.  I am sorry, the draft dated? 12706  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   March 1988, and a summary of February 1987, but you  2 did run off hard copies of what was in your computer  3 other than those two?  4 A   I ran off parts of what I was working on when I was  5 told I had to prepare a summary.  And on the basis of  6 discussions at that time I worked out the outline for  7 the overall report and stuck to it as well as I could  8 for the -- in the following period.  9 Q   Certainly in your -- now, by the time that you did  10 your summary in February of 1987, did you have at  11 least in a bear bones outline a full draft of your  12 report with all the chapters that ultimately became in  13 it?  14 A   No.  15 Q   I am not saying --  16 A   No, I didn't.  I had the -- I had the last chapter.  17 That was pretty much in order.  The second chapter I  18 did later I did virtually after the summary, I had the  19 bones of the third chapter.  I did the trade chapter  20 later on.  What is now chapter four, five and six I  21 was working on it in various versions and various  22 combinations and that was -- that didn't get sort of  23 solidified until the summary.  24 Q   Did anyone else -- were you the only person to input  25 in respect of your report or did other people do input  2 6              work for you on the computer?  27 A   I had some help with the summary.  We were raising for  28 a deadline and one of the secretaries helped me a  29 couple of afternoons.  But apart from that I was in  30 control of it, because it was much more manageable,  31 otherwise I would have had to type out material and  32 give it to the secretary and it was much faster to  33 just work it myself.  34 Q   In respect of the material inputted in by the  35 secretary, was she working from your handwritten notes  36 or your typed notes?  37 A   She would be -- I don't remember.  38 Q   You didn't dictate to her, did you?  Or did you?  39 A   It would have been some sort of draft of the summary,  4 0 but I can't remember.  41 Q   You don't have that any more, do you?  42 A   No.  43 Q   In fact, all you've got now is your February 1987  44 summary, your March 1988 draft and your final report?  45 A   Yes.  46 Q   Now, one of the important aspects of your work was to  47 describe both at the present and in the past Gitksan 12707  R. Daly (For Plaintiffs)  Cross-exam by Mr. Willms  1 and Wet'suwet'en social organization.  2 THE COURT: Mr. Willms, you are going on to something else now?  3 MR. WILLMS:  It's a short —  4 THE COURT: All right.  Go ahead.  5 MR. WILLMS:  — point, my lord.  6 THE COURT: Go ahead.  7 MR. WILLMS:  Well — well, my lord, that's fine.  8 THE COURT: Whatever you say.  9 MR. WILLMS:  I can carry on after.  10 THE COURT: Thank you.  11  12 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON RECESS)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceeding herein to the best of my  17 skill and ability.  18  19  20 Laara Yardley,  21 Official Reporter,  22 United Reporting Service Ltd.  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 1270?  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  REGISTRAR:  Order in court.  COURT:  Mr. Willms.  GRANT:  My lord, before my friend proceeds, at the break I  took an opportunity to review Exhibit 734, and the  document that was the portion -- the diagram that was  put to Mr. Sterritt was the triangle on 8A:5, that is  the series of three triangles.  And from my review of  the evidence in volume 135, which deals with this  evidence, this document was tendered by the  defendants.  Mr. Goldie's cross-examination of Mr.  Sterritt did deal with the citation on 845 that my  friend referred to, but it does not appear that the  diagram on 8A:4, which was put to Dr. Daly, was ever  put to Mr. Sterritt for an explanation.  THE COURT:  The cross-examination was limited to the triangles,  was it?  MR. GRANT:  That's correct, my lord.  So I would object to my  friend to the extent that I can ex post facto or that  you disregard any cross-examination with respect to  that, because this was put -- this was put in evidence  during the cross-examination of Mr. Sterritt.  It came  from the provincial defendant.  They have had a full  opportunity to cross-examine Mr. Sterritt on it.  MR. WILLMS:  My lord, if I can just rise, this is an expert  witness who is giving opinions based on facts and to  the extent that my friend can show later on in  argument that the facts that I'm suggesting to the  witness don't exist, then all the more power to him in  argument, my lord.  But it doesn't render the question  inadmissible and my friend should save these comments  for argument.  That's where they belong with an expert  witness.  That's not -- this isn't a normal lay  witness, my lord, where the sensitivities about  putting something which may be inaccurate arise,  because if I put something inaccurate to Dr. Daly, it  will be worthless in terms of generating an opinion  from Dr. Daly, and my friend can make that point in  argument.  He doesn't need to make it now.  Also --  MR. GRANT:  Of course my objection is much more fundamental, my  lord, is that presumably either Mr. Sterritt, if not  the author of this diagram, was its proponent at the  Penner Committee, and in order to rely on it, he  should have been -- it should have been put to him.  THE COURT:  Mr. Grant, I'm going to reserve on your objection  and maybe we'll have a chance to speak to some of  these things, but at the moment my inclination is to 12709  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 say that in a case of this magnitude where Mr.  2 Sterritt was under cross-examination for I don't know  3 how many days, but I would think three to four weeks,  4 that it's stretching the rule a bit to say that when  5 he's cross-examined on a document but not asked about  6 a particular passage in a document, that -- that --  7 that it can't ever -- no other part of the document  8 can be looked at, particularly in connection with  9 putting the proposition to an expert and asking an  10 opinion on it, because if that were so, I suppose the  11 cross-examination of Mr. Sterritt would necessarily  12 have been twice or three times as long as it was, or  13 it might not have been, but it just seems to me when  14 he's asked about a document and he isn't  15 cross-examined on it and so it isn't just sprung on  16 the plaintiff's side of the case, is in evidence, it  17 was put in at that time, and that it's going a long  18 way to say that the witness can't be asked about  19 something that Mr. Sterritt prepared but wasn't asked  20 about.  I -- I want to think about your -- your  21 proposition.  I'm not prepared to rule at the moment  22 that the fact that the witness is an expert is  23 conclusive, but it's worthy of some further thought.  24 It doesn't need to take up the time on  25 cross-examination now, but I will certainly be glad to  26 hear from you further about that question if anything  27 turns on it.  28 MR. GRANT:  Thank you, my lord.  29 MR. WILLMS:  Could Exhibit 901-1 be put —  3 0 THE COURT:  9 01-1.  31 MR. WILLMS:  901-1.  It's the letter of February 6th, 1986.  32 THE COURT:  You mean 901 or 902?  33 MR. WILLMS:  901.  34 THE COURT:  Yes.  Thank you.  35 MR. WILLMS:  36 Q   This -- if you turn to the second page of the letter  37 which sets out what -- the research that initially was  38 sought, items 4 and 5, you were requested to:  "Can  39 the differences in ecosystems, and thus resource  40 bases, between the Gitksan, Wet'suwet'en and  41 neighbouring peoples logically account for the volumes  42 of various commodities traded between them both before  43 and after the introduction of European goods?"  And  44 item 5:  "Can the changes in the Gitksan and  45 Wet'suwet'en economics after contact be in part  46 related to the use of their resource base by the  47 European industrial system?"  You were asked to assess 12710  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 changes in the Gitksan and Wet'suwet'en economy both  2 pre and post-contact; is that correct?  And that's one  3 of the underlying functions of your report, Dr. Daly?  4 A   That's one way of putting it, yes.  5 MR. WILLMS:  I'm showing you —  6 THE COURT:  Is an ecosystem the same thing as an economic  7 system?  8 THE WITNESS:  No, it isn't.  9 THE COURT:  No.  10 THE WITNESS:  It's the relationship between all of the living  11 organisms on the land, including the human.  12 THE COURT:  That includes the trees?  13 THE WITNESS:  Yes.  14 THE COURT:  And the berry bushes?  15 MR. WILLMS:  Maybe a biogeoclimatic system, my lord, with  16 people.  17 THE COURT:  Does it include the climate?  18 THE WITNESS:  Yes.  19 THE COURT:  All right.  20 MR. WILLMS:  21 Q   I'm showing you an extract from the "Proceedings of  22 the Eighteenth Annual Conference of the Archaeological  23 Association of University of Calgary" on "Ethnicity  24 and Culture".  Are you aware of this conference?  25 A   No.  26 Q   There is an extract at the beginning by Dr. Hatt on  27 "Folk Generalizations and Expert Generalizations About  28 Human Differences".  And the doctor on page 3  29 discusses here ethnographies.  In the left-hand column  30 partway down he starts:  31  32 Most ethnographies, I think, have this  33 syndrome of lapse-into-reification in them;  34 it is an occupational hazard of  35 ethnographers.  Though starting off with a  36 sophisticated awareness of the construct or  37 artificial status of their entities of  38 analysis (societies, culture-bearing-units  39 or whatever), it is all too easy to slip  40 into thinking that one has 'found' what in  41 fact one has created."  42  43 Just pausing there, as a general proposition the field  44 of ethnography, part of anthropology, that's accurate,  45 isn't it?  That's a fair statement of a problem?  46 A   It's a statement of a problem, yes.  47 Q   Now, what you were asked to do here in this case was 12711  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 to look at the Gitksan-Wet'suwet'en economy and how it  2 had changed over time or if it had changed over time?  3 A   That was a component part of it, yes.  4 Q   The underlying component part of that is the  5 assumption that there is a Gitksan and Wet'suwet'en  6 economy?  7 A   Yes.  Every society has some sort of economy.  8 MR. WILLMS:  And so you started off with that proposition.  9 MR. GRANT:  Which one?  10 MR. WILLMS:  11 Q   That there is a Gitksan and Wet'suwet'en economy.  12 A   Yes.  13 Q   Now, what did you do in terms of looking at the  14 neighbouring regions, for example the coast Tsimshian  15 in native culture or the Carrier to the south or the  16 Tahltans to the north, to determine whether or not  17 there was a Tahltan economy or a coast Tsimshian  18 economy or a Carrier economy or anything of the like?  19 Did you do any analysis of that?  20 A   I reviewed the literature on the area.  21 Q   What analysis did you do of the European economy, say,  22 from Prince Rupert to Prince George?  23 A   I read some of the document -- documentation of -- of  24 different scholars, sort of general background.  One  25 was a study on the Kitsumkalum people in Terrace, two  2 6 volumes by James MacDonald.  27 Q   Isn't it the case that only through --  28 A   There was another one on some aspects of -- this was  29 part of the doctorate of, I think, Robert Adlam on the  30 Tahltan.  And I looked at some of the stuff that had  31 been done in the past on some of the Carrier groups.  32 Q   Is there a Gitksan economy to the exclusion of a  33 Wet'suwet'en economy?  34 A   The structure of the Gitksan economy and the structure  35 of the Wet'suwet'en economy are very, very similar.  36 They're a combination with the market sector in their  37 traditional use of the land and use of modern  38 technology in relation to the land and so on.  39 Q   Is there a Gitksan economy separate from a Nishga  4 0 economy?  41 A  Well, in any area that the anthropologist is working,  42 there are peculiarities and specificities in terms of  43 the relationship, the economic activities and the  44 types of interaction in the local community and in  45 relation to the wider economy in which it is enmeshed.  46 Q   We've heard evidence here that there is a common  47 language called Babine-Wet'suwet'en, which extends 12712  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  A  5  6  7  8  9  10  Q  11  12  13  A  14  MR.  WILLMS  15  THE  COURT:  16  17  MR.  WILLMS  18  19  20  THE  COURT:  21  MR.  WILLMS  22  Q  23  24  25  26  27  28  29  30  31  32  A  33  Q  34  35  36  A  37  38  39  40  41  42  43  Q  44  A  45  46  47  MR.  WILLMS  beyond the territory claimed by the Wet'suwet'en in  this action.  Did you discover a Babine-Wet'suwet'en  economy?  I didn't look for a Babine-Wet'suwet'en economy.  Economies don't necessarily follow the contours of the  linguistic groupings, but if the -- if the Babine  people have been part of this action, I suppose I  would have -- I would have included a number of people  from that region in my investigation.  Of course then it would be the  Babine-Gitksan-Wet'suwet'en economy that you'd be  reporting on?  Yes.  :  My lord, can this be Exhibit 902-12?  Yes.  (EXHIBIT 902-12:  Ethnicity and Culture)  :  Dr. Daly, could you turn to page 329 of your  report?  I think it's in -- my lord, I think it's in  volume one.  Page 3 --  Page 329.  In the middle of that paragraph on page  329, Dr. Daly, you say:  "Prior to European settlement this was an  area of open forests and meadows"...  And you cite Hauessler 1987 and Hatler 1987.  And then  you cite some of the abundant berries after that.  In  making that statement you're relying on the reports of  Hauessler and Dr. Hatler; is that correct?  That's correct.  Now, were you aware of Dr. Hatler's opinion that  before 1860 that moose were not significant in this  region due to climate?  Well, one strain of moose seems to have come into the  area, from what I understand in his report, in the  nineteenth century and another strain seems to have  been much older and have come from a different  direction.  One came in from the south and the west  and the other came down from the north at an earlier  point.  You might be mistaking mule deer.  No.  I'm not mistaking mule deer.  There were two  different -- I think genuses is the word of moose in  his report.  :  You saw -- did you see map -- the moose map?  My 12713  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 lord, I'm referring to Dr. Hatler's map 13.  2 MR. GRANT:  It's 35813.  3 THE WITNESS:  Yes.  I've seen it.  4 MR. WILLMS:  5 Q   And in the -- you'll see:  6  7 "As provincial government reports indicate  8 that moose were still scarce in the Bulkley  9 and Skeena areas in 1928, but by 1931 they  10 were increasing in most areas and had spread  11 westward as far as Terrace.  By 1947 moose  12 had spread as far south as Kamloops and had  13 been seen in the west almost at tide water  14 both in the vicinity of Kitimat and on the  15 lower Nass River."  16  17 Then if you look over, he's drawn a -- a limit,  18 estimated limits of distribution in 1860, and you'll  19 see the cross-hatching, Dr. Daly, is far to the left  20 above the claim territory, that is to the north?  21 A   Yes.  22 Q   Right.  Were you aware of that when you wrote your  23 report?  24 A   I wasn't aware of this map, but from my reading of his  25 report and discussing the question with him  26 personally, there is certainly the open-ended  27 possibility of moose coming into the region, into the  28 general region from the north, from the refugia in the  29 Yukon area, sometime after the recession of the ice.  30 He leaves that as an open possibility, and the fact  31 that on the northern fringes of the region, these --  32 these species have been -- are recorded now.  33 Q   Well, if moose were not predominant in this area at  34 all until after 1860, if his lordship should find that  35 as a fact, would that affect your opinion at all?  36 A  Well, it might, because the people themselves are  37 adamant that there have been moose in the region,  38 ancient moose in the old days.  And this is one  39 connection I can use for an explanation of this  40 assertion.  And it comes up in the adaawk histories as  41 well, moose being -- they assert the moose are very  42 ancient.  They also say that there were no moose until  43 the nineteenth century in the area.  So you have both  44 statements that in the ancient times the people use  45 the moose and for a long period in their history moose  46 was extremely important in the feasting complex, and  47 then they say, well, in more recent times there were 12714  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 no moose in our area until after the coming of the  2 white man.  So it's not founded in any -- any hard  3 facts, but I put it in that way as a possibility, a  4 possible explanation.  But if this can be unfounded,  5 then it can do damage to the whole authenticity, I  6 suppose, of the oral tradition, but I think the jury's  7 still out on that one.  8 Q   Were you aware that the Little Ice Age, which ended as  9 recently as 1850, affected the regional climate?  10 A   Yes.  11 Q   And were you aware that Dr. Hatler has given evidence  12 that the climate which seems to have prevailed during  13 the Little Ice Age would have been hard on everything?  14 A   Yes.  15 Q   And, my lord, I won't put this to the witness, but  16 it's Exhibit 849-36, page 25, and it's a quote from  17 Dr. Fladmark, "Glass and Ice".  You've read "Glass and  18 Ice" by Dr. Fladmark?  19 A  Which one?  What's the — that's his full title?  20 Q   The full title is —  21 A   It's not the piece on the diffusion of obsidian?  22 Q   It's "Glass and Ice.  The Archaeology of Mt. Edziza".  23 A   No, I haven't.  24 MR. WILLMS:  Perhaps —  25 THE REGISTRAR:  I have it here.  26 MR. WILMS:  Perhaps that could be put before the — it's 849-36,  27 page 25.  28 MR. GRANT:  I just wonder if my friend has a reference to where  29 he was referring to Dr. Hatler's evidence.  30 MR. WILLMS:  Page 9554.  It was Mr. Grant's re-examination of  31 Dr. Hatler, volume 149.  32 MR. GRANT:  Thank you.  33 MR. WILLMS:  34 Q   In the extract you'll see in the middle paragraph on  35 page 25, and I'm at Tab 36, of "Glass and Ice", Dr.  36 Daly —  37 A   Yes.  38 Q   -- he talks about the neoglacial period and -- and  39 then getting towards the bottom of that paragraph, he  40 says:  41  42 "On the coast of Southeast Alaska, the  43 Tlingit Indians retain numerous oral  44 traditions describing their interaction  45 through time with the coming and going of  46 the ice, including accounts of glaciers  47 over-running villages and blocking river 12715  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 communication routes inland."  2  3 And then Dr. Fladmark says:  4  5 "For people dependent on interior alpine  6 resources, the neoglaciation must have been  7 even more severe."  8  9 Now, were you aware of that when you wrote your  10 report?  11 A  Well, I was certainly aware that there have been many  12 climatic fluctuations.  This is reflected in the oral  13 histories in the post-glacial times.  14 Q   So the fact that the climate was significantly colder  15 as --  16 A  Well, for example, when it's colder, and in the -- my  17 knowledge of the post-glacial conditions in central  18 Canada, the alpine tundra regions extend out from the  19 receiving glaciers.  So your main subsistence animals  20 under those conditions are caribou generally, the  21 tundra caribou, and then that's followed by a whole  22 ecological cycle of vegetational growths that roughly  23 approximate the boreal forests.  And as it warms up,  24 these bands move -- the tundra ones move farther north  25 and the more temperate ones move farther north as  26 well.  27 Q   But are you saying that you took that into account in  28 coming to the conclusion that the subsistence economy  29 still remain?  3 0 A  At what time?  31 Q   Precontact subsistence economy of the Gitksan and  32 Wet'suwet'en is still alive and well today?  33 A   Oh, yes.  Yes.  34 Q   Now, you also cited Hauessler on page 329 of your  35 report.  Now, were you aware that Dr. Hauessler gave  36 evidence that her berry distribution maps were a  37 snapshot of around 1985 and that she didn't know what  38 the regional climate had done in a study area over the  39 last 200 years?  40 A   Yes.  41 Q   You were aware of that?  42 A   Yes.  43 Q   And were you also aware that she gave evidence that  44 the majority of the vegetation in the area is younger  45 than 150 years?  46 A   Yes.  47 Q   Does that change your opinion at all in respect of the 12716  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 precontact Gitksan and Wet'suwet'en subsistence  2 economy?  3 A   No.  I don't think it does, because the early  4 accounts -- if we just look at the -- the  5 ethnohistorical record, the early accounts of what was  6 being consumed and exchanged in the feasts in the  7 Tsimshian area in general, say in the late 1700's,  8 included references, for example, to the berries and  9 the -- and the hides from the -- from the interior  10 regions, from the Hagwilget people and from the  11 general Gitksan-Wet'suwet'en area.  So there -- there  12 are clues from the oral histories and the records of  13 the -- of the first contact that show that there's a  14 continuity of local produce which is being exchanged  15 at that time with what was being exchanged in the  16 present century, and at that time the effects of this  17 mini-ice age were still in effect.  18 THE COURT:  Mr. Willms, could you give me the references to Miss  19 Hauessler's evidence?  20 MR. WILLMS:  My lord, Miss Hauessler's evidence are in volume  21 151, page 960 and 9 — sorry — 9680 and 9681.  22 THE COURT:  Thank you.  23 THE WITNESS:  The people say that there were various features  24 which were affected by the cold climate before the  25 coming -- in the period immediately before the coming  26 of the white man, such as the rivers were smaller, the  27 glaciers were bigger, it was easier to put weirs  28 across the Skeena River.  It was much, much smaller  2 9 than it was, and that the warming trend -- they view  30 with alarm the warming trend of the last century or  31 so.  32 MR. WILLMS:  Turning to page -- and this is still on the same  33 point.  If you could please turn to page 346 of your  34 report.  35 THE COURT:  I'm sorry.  Page?  36 MR. WILLMS:  37 Q   346, my lord.  Oh, this might be in volume two,  38 beginning of chapter five.  And at the bottom of the  39 page, you say this:  40  41 "According to the chiefs, the seasonal round  42 has been followed for millennia except when  43 interrupted by periods of major glaciation.  44 The data of the archaeological, biological  45 and climatic record"...  46  47 Then you cite Hatler again in there and you cite 12717  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 Chilton as well, along with some others.  2  3 "... suggested the environmental conditions  4 have long been available for human harvest  5 and sustenance."  6  7 Now, just stopping there, putting to one side the  8 archaeological record, my lord --  9 A   I don't think you can put aside the archaeological  10 record, because you need the both sets of factors to  11 arrive at that opinion I've offered there.  12 Q   All right.  Well, I'm particularly interested in -- in  13 your -- your note that the seasonal round is followed  14 except when interrupted by periods of major  15 glaciation.  And I'm going to suggest to you that when  16 Dr. Daly describes the Little Ice Age as being hard  17 on -- I'm sorry -- when Dr. Hatler describes the  18 Little Ice Age being hard on everything, that that's  19 consistent with what you've set out there.  That is  20 it's going to interrupt the seasonal round?  21 A   No.  I don't think that necessarily follows.  And also  22 this is -- this is an opinion that I've received from  23 the chiefs.  It's not necessarily my considered  24 opinion.  The first sentence that -- I don't know to  25 what degree the chief's present knowledge of  26 glaciation affects what they've told me.  27 Q   That makes sense though, doesn't it?  I mean what they  28 said makes sense?  29 A   Yes.  30 Q   So not only did they tell it to you, but it also makes  31 sense?  32 A  Well, it can make some sense.  You have to check it  33 against a lot of other types of data to --  34 Q   Now —  35 A   -- draw some conclusions.  36 Q   Mr. Chilton gave evidence at this trial that the  37 climate was cooler during the Little Ice Age and that  38 if the climate was different 100 years ago, it would  39 affect the ability of the atmosphere to take up water  40 and would affect the relative ability of the  41 atmosphere to dry anything.  And he also said that his  42 map was a snapshot in time, that is a snapshot of  43 1985.  Now, does that -- adding that to Dr. Hatler,  44 what Dr. Hatler has given in evidence and what I've  45 already told you about Miss Hauessler, does that  46 change your opinion about the precontact subsistence  47 economy during the Little Ice Age? 1271?  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 A   Not really, because even if the conditions were -- I  2 don't -- if they were better or dryer than they are  3 today, they would -- it would be correspondingly  4 wetter or dryer on the coast.  And there is a -- at  5 least in the present time there is a recognition by  6 people that drying conditions are pretty good in the  7 interior, and the fish, for example, are highly sought  8 after on the coast, the fish which are caught in the  9 Gitksan-Wet'suwet'en area, because of the way they're  10 dried and the -- they have less fat in them when they  11 reach that point in the river.  At the same time, the  12 whole technology isn't totally dependent on the -- on  13 the transpiration rates of air, because berries for  14 the most part are dried on racks over the fire,  15 smoked, and the fish were dried in ventilated  16 smokehouses and still are.  17 Q   Even at the coast?  18 A   Even at the coast.  But at the coast it does make a  19 difference in the degree of humidity on certain years,  20 and I cited that example from Scott and Heller along  21 the coast of Alaska where they say every once in a  22 while they lose a fair proportion of their smokehouse  23 contents due to mildew and so on.  24 MR. WILMS:  My lord, the reference to Mr. Chilton's evidence is  25 volume 147, pages 9397 to 9399.  2 6    THE COURT:  Thank you.  27 MR. WILLMS:  28 Q   Dr. Daly, you've given some evidence earlier about the  29 trails, the trading trails in the region, the grease  30 trails as described by MacDonald?  31 A   Yes.  32 Q   And from your assessment of that description, was  33 there any impediment in prehistoric times to travel  34 along those trails?  35 A   Just the regular seasonal -- seasonal problems of  36 heavy snow packs in some areas, but no.  I don't think  37 there would have been.  38 Q   Now, I'd like you to assume first that the climate was  39 colder 200 years ago in this area so that it was less  40 hospitable to human habitation.  41 A   I wouldn't assume it was less hospitable.  It may --  42 you may have had the range of certain species changing  43 within the area; that some animals would come into the  44 area which normally wouldn't and others would  45 disappear that normally would and that some species of  46 plants would come to fruition in the area that  47 wouldn't under other conditions and vice versa. 12719  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 Q   Well, let's just start with the climate.  The climate  2 is colder 200 years ago.  The cooling climate had an  3 effect on the vegetation and the productivity.  I  4 think you just said that.  There could be a change.  5 Third, that the climate was hard on all animals in the  6 region and, fourth, that it was relatively easy to  7 move along these trails to the coast.  Now, if you  8 make those assumptions, isn't it logical and more  9 likely that people would spend more time near the  10 coast rather than inland?  11 A   It depends on the actual circumstances, I think.  For  12 example, when the -- when the slide took place on the  13 Bulkley River roughly around 1820, the Wet'suwet'en  14 people, a lot of them moved to the Babine area and  15 stayed there for a few years and then they negotiated  16 an agreement with the people at Gitanmaax for the --  17 Gitksan people at Gitanmaax for the ability to do  18 their fishing there, and the same time the Babine  19 people and people from as far east as Stuart Lake  2 0 would come to the Wet'suwet'en when they had a failure  21 or a problem with their salmon run.  So there was a  22 lot of -- I think over time a lot of extended safety  23 net activities because the ethic throughout the region  24 is nobody should be allowed to starve.  So I don't  25 know what you're getting at, but perhaps people did go  26 out to the coast at some -- in response to some  27 crisis.  28 Q   Well, didn't they go out for the oolichan run?  29 A   Yes.  But that was just a period of three or four  30 weeks every year.  31 Q   So from your own investigations -- there was no  32 difficulty from your investigations of getting to the  33 coast for the oolichan run; is that right?  34 A  Well, it was hard work, but it wasn't impossible.  35 Q   What —  36 A   Every year it was hard work.  Even if you had a higher  37 snow pack, you had to work much harder, especially  38 coming back packing the heavy oil.  You'd be taking  39 down dried produce.  Given that the conditions were  40 probably much tougher, the population was probably  41 somewhat smaller at the time of contact or in the --  42 in the period before the populations were subject to  43 severe attack by the European diseases.  44 Q   Your investigations confirm that the Nishga, for  45 example, along the coast and the coast Tsimshian and  46 the southern Tsimshian had available to them pretty  47 much a year round supply of subsistence food stuffs? 12720  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1 A   Yes.  2 Q   Now, if the climate is colder, if the vegetation is  3 different, if the -- it's harder on all the animals  4 and if you can get to the coast where there is a  5 supply of food stuffs, what economic reason is there  6 for going back into this climate that you've come  7 from --  8 A  Well —  9 Q   -- in the dead of winter in the Little Ice Age?  10 A   The economic reason would be probably an  11 overharvesting of the resources of the area you've  12 gone to; that the resources there can stand to be  13 shared at certain seasons or to certain -- for certain  14 periods of time, but on the long run it leads to  15 fighting over resources and a lot of social animosity,  16 as -- as I explained with the text of that Men of  17 Medeek adaawk last week.  18 Q   Didn't you just say a minute ago that the populations  19 were likely lower?  20 A   Yes.  21 Q   So that that's certainly an explanation for why in the  22 last while there may have been a population expansion  23 out of the Nass River, but you've got to make a big --  24 A   Population out of the Nass River?  25 Q   Yes.  Over the trails to the Skeena.  Isn't that how  26 the people went back and forth?  Didn't they go  27 through Kitwancool?  28 A   They went down to the Nass River to take their  29 oolichan and then they went home again.  30 Q   Let's just deal with the way they went.  I thought  31 there was a grease trail running from the Skeena River  32 through Kitwancool to the Nass; isn't that right?  33 A   That's one of them, yes.  34 Q   Well, isn't that the one that's described as being  35 worn down by Fladmark or something?  Didn't you refer  36 to that?  37 A   It's in the citation for MacDonald, yes.  38 Q   Well, my suggestion to you, Dr. Daly, is if we assume  39 what Dr. Hatler says about the climate is accurate and  40 the animals, if we assume that the vegetation is  41 different, if we assume that it's colder, which  42 perhaps -- perhaps we need expert evidence for this,  43 but if it's colder, it's less hospitable; isn't that  44 correct?  45 A  Well, not necessarily.  It depends on the -- on the  46 way you make your living.  If under those cold  47 conditions there are species that you can -- you can 12721  R. Daly (for plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  exploit, then you look forward to the cold.  And this  is the case of many of the hunting groups across the  subarctic of Canada.  They much prefer the cold winter  weather to the -- to the summer, because they can get  back to the species that -- where they have an ease of  harvesting.  It's certainly the case -- it has been  the case in the contact period at least with the Inuit  people up on the arctic coast.  Q   But we're not talking -- I mean the Gitksan and the  Wet'suwet'en are not in an Inuit or subarctic society,  are they?  A  What you're suggesting, with the drop of temperature  even a couple of degrees, you begin to get subarctic  conditions in this region, which today is overlaid by  those three biogeoclimatic regions of the continent.  Q   Well, the evidence was that the glaciers came down as  low as 1200 metres.  That's evidence at this trial,  Dr. Daly.  Now, all that I'm suggesting to you is  isn't it logical, given that situation and given the  food supply at the coast, that people would spend more  of their time at the coast?  A   It might be logical, but I don't see it being  consistent with the -- with the history and the  culture and so on.  There are certain -- certain  periods from the oral record where people had a very  tough time and they speak endlessly about obtaining  enough food.  And there are other times when it's not  mentioned.  So you presume that -- that the conditions  were -- were easier for basic survival.  MR. WILLMS:  My lord, this would be an appropriate time for a  break.  THE COURT:  All right.  MR. WILLMS:  I would still like to start at nine, my lord.  THE COURT:  All right.  I'm beginning to have some difficulties  with scheduling; that I should like to have a  conversation with counsel as soon as possible about  scheduling for May and June.  When will it be  convenient to do that, Mr. Grant?  MR. GRANT:  My lord, I believe that when Mr. Rush came in at the  beginning of this month, at the beginning of February,  you -- he advised that on March 6th that he would  advise you.  I'm not saying that as being  faint-hearted and leaving that discussion, but I've  had discussions with Mr. Rush and I think that we had  assumed that you wanted some reporting at that stage.  THE COURT:  Yes.  MR. GRANT:  And that's what we had anticipated. 12722  R. Daly (for plaintiffs)  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  All right.  MR. GRANT:  And I'd like to — I'd have to have further  discussions with Mr. Rush.  I won't be here on Monday,  but I assume that will be an appropriate time to deal  with it.  Hopefully that's not inconvenient to your  lordship.  THE COURT:  That's fine.  Do we start another witness on Monday?  MR. GRANT:  On Monday we would start a one-week witness, a Ms.  Antonia Mills.  Then we would be taking a week off.  Then we would have Dr. Arthur Ray, a historian, for  one week -- actually four days, my lord, because  that's the Easter week.  THE COURT:  Yes.  MR. GRANT:  Then we would have Mike Morrell, a fisheries  biologist, for the four days on the week following  that.  THE COURT:  There are two four-day weeks in a row, aren't there?  MR. GRANT: Yes. And I believe you're unavailable the week  following that if I recall rightly.  THE COURT:  I think that's right.  MR. GRANT:  And so we only have two weeks.  THE COURT:  Yes.  MR. GRANT:  And if it's any -- I believe we will be dealing with  the cross-examination of remaining witnesses in the  off week between Antonia mills.  It's not that we're  not doing anything on the trial now.  THE COURT:  All right.  We're relatively on schedule then?  MR. GRANT:  Well, you had indicated hopefully two expert  witnesses a month and I think that we're probably  going to be able as we get along to better that.  But  we are certainly now -- we're advising the other side  of our proposed schedule for the end of April.  THE COURT: All right. I'd like to discuss with counsel on  Monday if possible the schedule for May and June.  Thank you.  THE REGISTRAR:  Nine o'clock tomorrow morning.  THE COURT:  Yes.  Nine o'clock.  THE REGISTRAR:  Order in court.  Court is adjourned until  tomorrow morning, 9:00 a.m.  (PROCEEDINGS ADJOURNED UNTIL MARCH 3, 1989 AT 9:00 A.M.) 12723  R. Daly (for plaintiffs)  Discussion  1  2  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings transcribed to the best  8 of my skill and ability.  9  10  11    12 Kathie Tanaka, Official Reporter  13 UNITED REPORTING SERVICE LTD.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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