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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-06] British Columbia. Supreme Court Mar 6, 1989

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 <3Jn ilje £>uprtms (Court of Jiriiislj Columbia  (BEFORE THE HONOURABLE THE CHIEF OUSTICE)  No 0843 VmmlL  Smithers Registry 6 March 1989  BETWEEN  AND  DELGAMUUKW, also known as KEN MULDOE,  suing on his own behalf and on behalf  of all other members of the HOUSE OF  DELGAMUUKW, and others,  Plaintiffs;  HER MAJESTY THE QUEEN IN RIGHT OF THE  PROVINCE OF BRITISH COLUMBIA and  THE ATTORNEY-GENERAL FOR CANADA,  Defendants.  Proceedings At Trial  iiiii  lyNiTEpi  UNTCDIEP0RTMGSMCEI7II. •» -WO WEST GEORGIA STFEn WNCOWBl. EC« 4H4 0O4)W-«B8 APPEARANCES:  STUART RUSH, Esq. ,  PETER R. GRANT, Esq.,  MS. LOUISE MANDELL,  M.D. ADAMS, Esq., and  D. PATERSON, Esq., appearing for the Plaintiffs;  D.M.M. GOLDIE, Esq., Q.C.,  C.F. WILLMS, Esq.,  NORMAN 3. PRELYPCHAN, Esq.,  JAMES M. MACKENZIE, Esq., and  MS. THORA A. SIGURDSON, appearing for Her Majesty the  Queen in Right of the Province  of British Columbia;  GAMES A. MACAULAY, Esq., Q.C.,  MS. MARVYN KOENIGSBERG,  MICHAEL W.W. FREY, Esq., and  MS. LORYL RUSSEL,       "      appearing for the Attorney-  General of Canada INDEX OF WITNESSES FOR THE PLAINTIFFS  NAME  PAGE  ANTONIA MILLS  In chief by Mr. Rush  on Qualifications  Cross-exam by Mr. Mackenzie  on Qualifications  Cross-exam by Ms. Koenigsberg  on qualifications  Re-exam by Mr. Rush on  qua 1 ifications  Submissions by Mr. Mackenzie  Submissions by Ms. Koenigsberg  Ruling by the court  In chief by Mr. Rush  12841  12847  12864  12865  12869  12870  12871  12872 INDEX TO EXHIBITS  umber Description Page Number  03 Curriculum vitae of Antonia Mills 12866  04 Social anthropology article - E.  E.  Evans-Pritchard 12872  03 Tab  2  -  Contract 12873  06 (Reserved)  07 Article myths of the Carrier Indians of  British Columbia by Diamond Jenness - 1934    12895  05 Jenness Article - The Carrier Indians of  The Bulkley River Their Social and  Religious life 12899  09  Interview by Alfred Joseph of Mary  George dated April 23, 1981 12900  10 Interview of Mary George and Gloria  George by George and Alfred Joseph  dated August 26, 1981 12901  11 Bulletin:No. 61 - Totem poles of the  Gitksan, Upper Skeena River, B.C. 12910 INDEX TO EXHIBITS  Number  Description  Page Number  903  904  905  9 06  907  908  909  910  911  Curriculum vitae of Antonia Mills  Social anthropology article - E. E.  Evans-Pritchard  Tab 2 - Contract  (Reserved)  Article myths of the Carrier Indians of  British Columbia by Diamond Jenness - 1934  Jenness Article - The Carrier Indians of  The Bulkley River Their Social and  Religious life  Interview by Alfred Joseph of Mary  George dated April 23, 1981  Interview of Mary George and Gloria  George by George and Alfred Joseph  dated August 26, 1981  Bulletin:No. 61 - Totem poles of the  Gitksan, Upper Skeena River, B.C.  12866  12872  12873  12895  12899  12900  12901  12910 INDEX TO EXHIBITS  umber Description Page Number  03 Curriculum vitae  of Antonia Mills 12866  04 Social  anthropology  article  - E.   E.  Evans-Pritchard 12872  05 Tab  2  -  Contract 12873  06 (Reserved)  ^7 Article myths of the Carrier Indians of  British Columbia by Diamond Jenness - 1934    12895  06 Jenness Article - The Carrier Indians of  The Bulkley River Their Social and  Religious life 12899  09  Interview by Alfred Joseph of Mary  George dated April 23,   1981 12900  1¬∞ Interview of Mary George and Gloria  George by George and Alfred Joseph  dated August 26, 1981 12901  11 Bulletin:No. 61 - Totem poles of the  Gitksan, Upper Skeena River, B.C. 12910 12832  Discussion Re:  Scheduling  1 6 March 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia; Vancouver, this Monday, March 6, 1989.  6 Calling Delgamuukw versus Her Majesty the Queen at  7 bar.  8 THE COURT:  Can we talk about scheduling?  9 MR. RUSH:  I think so.  10 THE  COURT:     Thank  you.    What  do you propose,   Mr.   Rush?  11 MR.   RUSH:     Let me  deal   first with  the month of April.  12 THE COURT:  Yes.  13 MR. RUSH: We will call the following expert witnesses on the  14 dates that I understand are available to the court in  15 the month, and they are, in the week of April 10, Mr.  16 Hugh Brodie; in the week of April 17, Mr. Marvin  17 George; and in the week of April 24, Mr. James  18 Morrison, each of those witnesses for one week, and I  19 understand that the week preceding April 10 is a  20 non-sitting week and the week following April 24 is a  21 non-sitting week; that is to say, that the first week  22 of May I think beginning with May 1st is a non-sitting  23 week.  24. THE COURT:  Is that — I will just check that.  Well, I have to  25 be away on the week of the 24th but I can be here the  26 week of May 1st.  27 MR. RUSH:  Yes.  I am advised, my lord, that we can make that  28 adjustment from our standpoint although I must say  29 that my learned friends probably were working on the  30 assumption of running three weeks straight but that's  31 satisfactory to us. We can make that a week off in  32 the week of April 24, and go with Mr. James Morrison  33 on the week of May 1st.  34 THE COURT:  I am confused already.  35 MR. RUSH:  Your lordship said that the week of April 24th was a  36 non-sitting week so far as you were aware.  37 THE COURT:  No, I think that I have —  3 8 MR. RUSH:  I may have misunderstood you.  3 9 THE COURT:  Yes, I think so.  I have to be away the week of  40 April 3, so that's not a problem.  41 MR. RUSH:  Yes, that's right.  42 THE COURT:  Then we are here the week of the 10th, 17th and  43 24th.  44 MR. RUSH:  The weeks of the 10th, 17th and 24th are available to  45 the  court?  46 THE  COURT:     Yes.  47 MR.   RUSH:     That's  fine  then. 12833  Discussion Re:  Scheduling  1 THE COURT: But then you wanted not to sit the next week I take  2 it?  3 MR. RUSH: Well, I was working on the assumption of three weeks  4 of sitting time and one week of non-sitting time.  5 THE COURT: Well, that may be wise.  Let's see where we go from  6 there.  So if we don't sit — if we are off the week  7 of May 1st, down, all right.  Thank you.  8 MR. RUSH:  So the week of May 1st would be a non-sitting week.  9 THE COURT:  Yes.  10 MR. RUSH:  And I understand that your lordship is to be  11 available in the next following three weeks with the  12 last week of May as a non-sitting week when your  13 lordship is not available.  14 THE COURT: That's correct.  That would be — we would sit the  15 8th, the 15th.  16 MR. RUSH:  Now, I'd like to defer the scheduling of the trial  17 witnesses for the available court weeks in May until  18 the end of this week.  19 THE COURT:  Yes, all right.  20 MR. RUSH:  And I understand those weeks however to be as I have  21 indicated and I hope to be able to advise your  22 lordship by the end of this week of the schedule for  23 . the month of May and, if I can do so earlier, I will.  24 THE COURT:  All right.  Keeping in mind May 22nd is a four-day  25 week.  26 MR. RUSH:  Yes, but our present view is that the following  27 number of witnesses would not take more than one week  28 each so that I don't think we will have another  29 two-week witness, it is our present view.  30 THE COURT:  Then we are down May 28th.  31 MR. RUSH:  Yes.  32 THE COURT:  All right.  Monday is the 29th.  Are you able to  33 speak about June?  34 MR. RUSH:  I cannot, not at this point.  35 THE COURT:  All right.  36 MR. RUSH:  Except to say that on the present course of the  37 trial, our expectation continues to be the same, that  3 8 during the month of June the plaintiffs will finish  39 its case.  40 THE COURT:  Yes.  And we can — I think that counsel can assume  41 that I will be available for the whole of that month.  42 MR. RUSH:  The whole of the month of June?  43 THE COURT:  Yes.  I don't have any commitments that I am aware  44 of, and I don't propose to make any if I can possibly  45 avoid it.  46 MR.   RUSH:    Your  lordship at  one  point  indicated your  47 availability in  the month of July and, while  that was 12834  Discussion Re: Scheduling  1 two months ago, perhaps your lordship might indicate  2 what your intentions are with regard to July because I  3 think that if it is the court's intention to sit in  4 the month of July, that would certainly impact on the  5 plaintiff's ability and necessity to schedule for the  6 cross-examinations which would no doubt begin sometime  7 in July.  8 THE COURT: All right. Well, I am assuming from what I have  9 been told that the plaintiff will complete its case  10 during the month of June and that's still a reasonable  11 expectation, is it, Mr. Rush?  12 MR. RUSH:  Yes, it is.  13 THE COURT:  Then I have to ask the defendants whether they are  14 ready to proceed with their defence assuming we have  15 some time left in June and, secondly, what counsel's  16 views are about the month of July.  I have some plans  17 for July which are not firm, which can be cancelled  18 and, if we should sit in July, then we are prepared to  19 do so.  20 MR. RUSH:  I don't want your lordship to consider the comments  21 that I have made in raising your availability for July  22 that the plaintiffs are eager for you to sit in July.  23 THE COURT:  I understand that. Well, I am really more concerned  24 with the end date for the completion of the defence  25 than I am with when we start.  If we can conveniently  26 complete the defence in the fall, then probably we  27 shouldn't on the grounds of common sense abuse  28 ourselves by sitting in July.  But on the other hand,  29 if we can't finish the case, the evidence, and of  30 course I have to think also about rebuttal, then I  31 think if we can't finish those matters in the fall  32 then I think we should sit in July so that we may.  33 And I think I should perhaps ask Mr. Mackenzie to  3 4 speak to that part of the case.  35 MR. MACKENZIE:  Thank you, my lord.  The Province's defence will  36 take an estimated two to three months in time, and we  37 are — we were anticipating not sitting in July and  38 August this year except insofar as would be necessary  39 to complete the plaintiff's case beginning of July.  40 We were anticipating commencing our witnesses in  41 September, the first sitting week in September.  So  42 that's our present view as far as July and August and  43 the length of the defence is concerned, my lord.  If  44 your lordship wished a further submissions on July and  45 August, I think I'd have to take more instructions but  46 that's the present situation as I am advised.  47 THE COURT:  Ms. Koenigsberg? 12835  Discussion Ret    Scheduling  1 MS.  KOENIGSBERG:    The Federal  defendant's case is still  2 anticipated to take approximately six weeks of court  3 time and it was my understanding, although Mr.  4 Mackenzie can perhaps assist if I am incorrect,  that  5 he included in the estimate of the Provincial  € defendant's case as the counter-claim?  7 THE  COURT:     Yes.  8 MS. KOENIGSBERG: And if that's so, then we have accounted for  9 essentially nine weeks that we would have assumed  10 would be taken up and I put it that if my friend is at  11 eight weeks for the Provincial case including the  12 counter-claim, then I don't know if he means eight or  13 ten or more.  I had counted on approximately 14 weeks  14 of trial time for both defences.  15 THE COURT: Well, that can't be done in four months if we —  16 MS. KOENIGSBERG:  Not at three and one.  It wasn't our  17 assumption that we would be sitting in July unless it  18 was to finish the plaintiff's case; however, I think  19 we probably all have to think about scheduling and how  20 long it is going to take.  21 THE COURT: Well, I think that counsel should consider the  22 matter further and speak to the matter again later  23 this week.  I am troubled about the prospects of  24 trying to squeeze that many weeks into that few  25 months.  The problem I have which is partly a personal  26 one is that there is a substantial cultural festival  27 going on in Cambridge in July that I was thinking of  28 attending, but I am not at all committed to it and I  29 think — but a decision has to be made and because of  30 things like — well, if I am not going, somebody else  31 wants the spot, they are entitled to know whether they  3 2 are going to go or not.  For that reason, I think we  33 have to look seriously about sitting through the month  34 of July and I would like counsel to instruct  35 themselves on that question and speak to it again  36 later this week.  If there are serious reasons why we  37 should not sit in July, I'd be glad to hear what they  3 8 are, but I am inclined very strongly of the view that  3 9 it's — that this case has to come ahead of any other  40             less urgent matters.  4i Can I ask counsel whether they have thought about  42 argument and what they had in mind and when, assuming  43 I think with the best we can do that we will finish  44 the evidence in December? On that basis, when will  45 counsel be ready to argue?  46 MR. RUSH:  My lord —  4^ the  COURT:     I  might   say  this,   and again  this  is a  partly 12836  Discussion Re:  Scheduling  1 personal matter, but I can't just go and sit on the  2 trial list when we are down because I need two others  3 with me now and I have to prepare next year's rota.  I  4 have to know whether I will be available or am not  5 going to be available, and it makes a big difference  6 in scheduling both for myself and for the rest of the  7 court, so I have to start preparing next year's  8 schedule for the Court of Appeal very soon and that's  9 why I have to get some indication of when we might get  10 to the argument.  Sorry, Mr. Rush, you were about to  11 burst into submissions.  12 MR. RUSH:  Yes.  I was just about to suggest to your lordship  13 that as far as the plaintiffs were concerned that we  14 would certainly need no less than one month between  15 the end of the evidence and possibly as many as two,  16 and we had anticipated as I think I indicated to you  17 before that we would — we think that it is desirable  18 to have argument in some written form supplemented by  19 oral submissions for your lordship and I think there  20 had been some talk that the argument might well take a  21 month.  22 THE COURT:  Yes.  23 . MR. RUSH:  At the moment I don't think I can say much more than  24 that but I think that it's the plaintiff's view that  25 we would certainly need at least a month, possibly  26 two, before we would start the argument and, with that  27 being the case, I could see our starting the argument  28 this time next year.  29 THE COURT:  Yes.  Well, I must say — well, I better hear what  30 Mr. Mackenzie and Ms. Koenigsberg says first.  31 MR. MACKENZIE:  As Mr. Rush said, my lord, these are very  32 preliminary comments and estimates, but the Provincial  33 defendant estimates that approximately one month would  34 be required for its complete argument and that assumes  35 that the written argument with oral highlighting.  36 MR. RUSH:  For the defendant?  37 MR. MACKENZIE:  Yes.  3 8 THE COURT: One month to prepare I think you said.  3 9 MR. MACKENZIE:  One month between the close of the evidence and  40 the beginning of the plaintiff's argument. We agree  41 with Mr. Rush as far as that's concerned and then —  42 well, that's what I am saying, and then two weeks  43 between the end of the plaintiff's argument and the  44 beginning of our defence argument and then our  45 argument itself, a very preliminary estimate, we are  46 looking at a little under a month, that's four weeks,  47 four trial weeks; very preliminary estimate. 12S37  Discussion Res Scheduling  1 THE COURT: Ms. Koenigsberg?  2 MS. KOENIGSBERG: Well, our estimates weren't quite so great.  3 We have discussed that one month would be a reasonable  4 amount of time from the close of arguement — I mean  5 from the close of evidence until argument began. We  6 had anticipated that there would be an exchange of  7 written argument between the plaintiffs and the  8 defence a week or two weeks; that is, the plaintiffs  9 would provide their written argument and then the  10 defence would provide theirs, and there be then no  11 break, that we would go ahead and argue. And if  12 written argument is complete as I would imagine it  13 will be, that it would take no more than three weeks  14 in total if it in fact is a highlighting of the  15 written argument and more responsive to your  16 lordship's concerns than just an attempt to summarize  17 the evidence.  I would anticipate that the summary of  16 the evidence is the lengthier part and then applying  19 the law and that, if that's done in writing, it might  20 not be quite so necessary to go so long.  I would have  21 anticipated approximately three weeks or a month  22 between.  23 MR.   MACKENZIE:     My lord,   is Ms.  Koenigsberg saying three weeks  24 for  everyone?  25 MS. KOENIGSBERG:  Yes, I am, on the assumption that we have  26 exchanged written argument and had some time for the  27 defence argument to be responsive, if I can put it  28 that way, to the plaintiff'6 argument.  29 THE COURT: All right. Well, I think first I have to get some  30 definition of what counsel propose to put in writing.  31 Mr. Rush, are you proposing an outline or are you  32 proposing the conventional written argument that is  33 for the written portion of your argument?  34 MR. RUSH:  The written portion of the argument would be more  3 5 akin to the conventional form of argument.  It would  36 be more than that. At the same time I find myself  3"1 situated somewhere between the Province and Federal  3 8 Government here because I think that my friend's  39 estimate, Mr. Mackenzie's estimate, is too long and  4C perhaps my friend, Ms. Koenigsberg, is too short, but  41 certainly I think that we would want to be somewhat  42 more expansive in the written argument than we were  43 outlined.  44 THE  COURT:     You wouldn't propose  to  read the argument?  45 MP.    RUSH:      No,   no.  4f the  COURT:     All   right.     Well,   I  have  to  say  that  I  don't  find  4^ what   I  will   describe as a   request  by  the plaintiffs 12836  Discussion Re: Scheduling  1 for two months from the close of evidence to prepare  2 their submissions unreasonable at all or in any way.  3 I think that I would like to have Mr. Rush consider  4 whether it isn't possible to have that argument in the  5 hands of their friends say six weeks from the close of  6 evidence or, put it another way, two weeks from the  7 commencement of the argument because we might finish  8 the evidence in early December which I still wouldn't  9 think that we should advance the date for the  10 commencement of the argument if that should occur.  I  11 think we should instead fix a time when we can assume  12 the argument will begin, and I think your friends  13 should be assisted by having at least a draft of your  14 submissions two weeks before the argument begins.  If  15 they have that, I don't think your friends should need  16 two weeks after the close of your evidence; I would  17 think a week would be reasonable, probably take a week  18 anyway.  It would be — I am not sure that I want — I  19 can do justice to argument if I sat consecutively for  20 something in excess of even for three weeks or  21 something in excess of three weeks without a break, so  22 I would think that if the draft of the argument is in  23 the hands of the defendants two weeks before the  24 argument begins that they should be ready to proceed  25 one week after the completion of the plaintiff's  26 argument and I wouldn't see any reason for a gap  27 between the arguments of the two defendants but it may  28 be if the defendants take two weeks to argue or more,  29 I don't at this moment plan to limit anybody strictly.  30 We will be taking a week off anyway and they might  31 have that week but I don't think it should be  32 scheduled other than as down time for rest and  33 recreation, little of either probably in sight.  34 All right. Well then, I think we should plan that  35 we will start the arguments at about the 1st of March  36 while we can fix the time more precisely when we get a  37 1990 calendar, and we will proceed on that basis.  I  3 8 think that we should give some thought and speak again  3 9 to the question of the scheduling in about a month's  40 time to see if we are all with the same view but, in  41 the meantime, as I said a moment ago, I'd like to hear  42 from counsel about July and my present inclination is  43 that we should sit July unless the time estimates  44 change from what I have heard.  All right.  45 MR. RUSH: My lord, just like to throw into the mix for your  46 consideration that it would certainly be helpful to  47 the plaintiffs if there was some requirement of the 12839  Discussion Re: Scheduling  1 defendants to produce at least a draft of their  2 argument in advance of their commencing their argument  3 for the purposes of our reply. I certainly think that  4 would assist us in the preparation of that reply so it  5 is simply —  6 THE COURT:  I tend to think — well, I better hear what your  7 friends have to say.  Mr. Mackenzie, is that a  8 problem?  9 MR. MACKENZIE:  My friend is saying that —  10 THE COURT:  Equity loves equality.  11 MR. MACKENZIE: Well, my lord, my friend is saying that he will  12 be replying of course after our oral argument, he  13 wants our written argument or some outline of our  14 written arguments by the time he starts his reply?  15 THE COURT: No, he wants it before you start your argument.  16 MR. MACKENZIE:  Oh, before we start our argument or at least a  17 little time before the reply.  18 MR. RUSH:  Yes.  19 THE COURT: Yes, a week before you start your argument.  20 MR. MACKENZIE:  My lord, as far as I am not specifically  21 instructed on this point but I presently advise I  22 don't see a problem with an outline being provided to  23 my friends in advance of their reply.  24 THE COURT:  Ms. Koenigsberg?  25 MS. KOENIGSBERG:  I see no difficulty.  I would anticipate  26 before we begin our argument we would have provided  27 you with written argument and we would have had to  28 file it with my friends, so as a practical matter —  29 THE COURT:  My present thinking that Mr. Rush should have  30 whatever you are going to give me in paper which in  31 neither — with respect to neither party will be cast  32 in stone, one week before you begin argument.  All  33 right, thank you.  I am sorry, Mr. Rush, when will you  34 be able to speak to the scheduling for June?  35 MR. RUSH: Well, I would prefer to go in steps, my lord, if your  36 lordship pleases on this point.  I would be able to  37 speak to May by the end of this week.  As to June, I  38 will advise you at the end of this week if I may.  3 9 THE COURT:  Thank you.  40 MR. RUSH:  Thank you.  Now —  41 THE COURT:  Could I just be told what are the disciplines of  42 these witnesses? Brodie is —  43 MR. RUSH: Social anthropology.  Mr. George, cartography, and  44 Mr. Morrison is a historian.  45 THE COURT: That's not same James Morrison as that I heard  46 before?  47 MR. RUSH:  No. 12840  A. Mills (for Plaintiffs)  1 THE COURT:  All right, thank you.  2 MR. RUSH:  It is the plaintiff's intention now to call Dr.  3 Antonia Mills and we are going to ask her to be  4 qualified as an expert in the following area of  5 expertise:  She is being called to give evidence of  6 the social and cultural anthropology of the  7 Wet'suwet'en people and her area of expertise includes  8 the social, cultural and economic organization and  9 institutions of the Wet'suwet'en. And this will be  10 with reference to first, kinship; second, the nature  11 of the feast system; third, the relationship of the  12 Wet'suwet'en among themselves to their neighbours, to  13 the land and to the spiritual domain; fourth, the  14 relationship of the Wet'suwet'en institutions to the  15 land; fifth, the laws —  16 THE COURT:  I am sorry, just a moment, please.  The relationship  17 of the Wet'suwet'en institutions of land.  18 MR. RUSH:  Yes.  19 THE COURT:  Thank you.  20 MR. RUSH:  Fifth, laws of the Wet'suwet'en; and sixth, the  21 linkage of the oral tradition to the institutions and  22 territorial ownership of the Wet'suwet'en.  23. THE COURT:  I am sorry, the linkage of oral tradition —  24 MR. RUSH:  To the institutions and territorial ownership of the  25 Wet'suwet'en.  26 THE COURT:  Thank you.  27 MR. RUSH:  And I'd like now to call Dr. Antonia Mills to the  28 witness stand.  Dr. Mills, would you please come to  29 the witness stand here.  30 THE REGISTRAR:  Take the bible in your right hand, please.  31  3 2 ANTQNIA_MILLS, a witness called on  33 behalf of the Plaintiffs, having been  34 sworn, testifies as follows:  35  36 THE REGISTRAR: Would you state your name for the record,  37 please?  38 THE WITNESS:     Antonia  Mills.  39 THE REGISTRAR:     Thank you.    You may be  seated.  40 THE COURT:  A-n-t-o-n-i-a?  41 THE WITNESS:  That's right.  42 MR. RUSH:  I'd like to pass volume 1 of document books for the  43 evidence of Dr. Mills.  44 THE COURT: What's the position of the defence on the  45 qualification, Mr. Mackenzie and Ms. Koenigsberg?  46 MR. MACKENZIE:  My lord, we wish to restrict Dr. Mills'  47 qualifications to speak on some of the subjects in her 12841  A. Hills (for Plaintiffs)  In chief by Hr. Rush  on Qualifications  1 report but certainly don't deny that she has academic  2 training in social and cultural anthropology.  3 THE COURT:  Thank you.  4 MS. KOENIGSBERG:  It is our position that she is qualified as an  5 anthropologist and she is qualified to give expert  6 evidence on the general topics of that topic. We have  7 submissions on notice and things like that.  8 THE COURT: All right. Well, I don't know if that's any  9 assistance to you, Mr. Rush.  10 MR. RUSH: Not very much.  I will just proceed, my lord.  11 THE COURT:  I think you can take it you don't need to qualify  12 the witness academically or from an experience point  13 of view.  14 MR. RUSH: I have some guidance in that.  I wonder if you'd  15 please open this volume number 1 to tab number 1.  16 THE COURT:  Is this a report?  17  18 EXoBINATlON_jN_CHJ£E_BX_MBa_EB5fl.QM_QBoLIEIffAHQH5:  19 0 No, my lord.  This is a book of documents, and I'd ask  20 you if you will please to identify for the court that  21 the document at tab number 1 of this book of documents  22 is your curriculum vitae?  23 A That's correct.  24 0 And it sets out your educational background?  25 A Yes.  26 0 The honours and awards that you have obtained?  27 A Yes.  28 0 And on page 2, the fieldwork that you have done?  29 A Yes.  30 Q And your professional experience on page 2?  31 A That's correct.  3 2         0 And the publications and papers on page 3 which you  33 have authored?  34 A That'6 right.  5         C And you indicate that you have a Ph.D from Harvard  36 University obtained in 1982.  Was that in the field of  anthropology?  36         A That's right.  3 9         0 And was your undergraduate degree in anthropology?  4C         A Yes, it was.  4 1         C And among others, did you study with Dr. Richard Lee?  41           A Yes.  43 0 Dr. David Maberley Lewis?  44 A Ye*.  45 C Dr. Dubcis?  4^          A Yes.  4'         C And ay I correct in assuming that that is D-u-b-o-i-s?  i  i 12842  A. Mills (for Plaintiffs)  In chief by Mr. Rush  on Qualifications  1 A  That's right.  2 Q  And Dr. Whitey?  3 A  Yes.  4 Q  Thank you.  In your curriculum vitae you indicate that  5 you did fieldwork among the Beaver Indian people, this  6 is at page 2. It indicates that between the summer of  7 1964 and the summer of 1984, that you worked with the  8 Beaver Indians in the northwest part of British  9 Columbia. Is that so?  10 A  Yes.  11 THE COURT: You will forgive me of not knowing where the Beaver  12 Indians are located.  13 MR. RUSH:  14 Q  About to ask Dr. Mills. What part of British Columbia  15 is the place that the Beaver Indians inhabit?  16 A  The Beaver Indians are in northeastern British  17 Columbia, they are from the towns of Fort Saint John  18 to Fort Nelson, in that area. Some of the Beaver  19 Indians are also found in Alberta.  20 Q  Now, perhaps I could just ask you, the Beaver people,  21 are they associated with a particular language  22 grouping?  23 A  Yes. The Beaver Indians are Northern Athabaskan  24 speaking people.  25 Q  And in terms of the organization of Beaver society,  26 can you state for his lordship what the nature of the  27 organization of the Beavers is?  28 A  Yes, the Beaver Indians have bilateral bands.  They  29 are subarctic, they are considered exemplary of  30 subarctic peoples.  31 Q  And the tongue that is spoken among the Beaver?  32 A  It is called Beaver.  It is an Athabaskan language.  33 Q  And the neighbours of the Beaver people are who?  34 A  To the north are the Slavey, other Athapascans; to the  35 west are the Sekani, who are also Athapascans, to the  36 south are — there are some — a few Cree's place  37 there and then some Senacian speaking people.  3 8 Q  While you were working among the Beaver people, did  3 9 you use a technique of fieldwork known as participant  40 observation?  41 A  Yes, I did.  42 Q  what did that involve with the Beaver?  43 A  Participant observation refers to going to a people  44 and living among them and finding out what the nature  45 of their life is like and what categories they find  46 important.  So with the Beaver Indians, I went to the  47 Beaver Indians and lived with them for various periods 12843  A. Mills (for Plaintiffs)  In chief by Mr. Rush  on Qualifications  1 of time at different times and it involved going with  2 them to their hunting camps, they were initially quite  3 nomadic; moving camp with them, seeing what their  4 seasonal round was like, and participating in a life's  5 scene, what activities they carried out, what their  6 daily life was like — their seasonal round was like.  7 Q  Their seasonal round?  8 A  Yes.  9 Q  Now, in your C.V. it indicates from June of 1965 to  10 August of 1966, you were with the Beaver Indians of  11 B.C. Was it for that period of — appears to be  12 almost 14 months were you living and working among the  13 Beaver Indian people in the manner that you have  14 described?  15 A  That's correct.  It allowed me to see what a total  16 year's cycle looks like.  17 Q  And participant observation as a technique among  18 anthropologists, is it a common technique utilized by  19 anthropologists?  20 A  Yes.  It's become the hallmark of anthropology.  21 Previously people relied on accounts that came from  22 travellers or fur traders or missionaries in  23. non-Western peoples but then when anthropology emerged  24 from this period of armchair anthropology into a  25 period when people would go and observe carefully what  26 was happening among these native peoples, so  27 participant observation is indeed one of the criteria  28 of modern anthropology.  29 Q  And following the first time that you went to work and  30 live among the Beaver in the summer of 1964 to 1984,  31 can you advise his lordship some of the areas that you  32 studied during the course of your participant  33 observation?  3 4 A  I studied at a number of different features of the  35 Beaver Indians, their way of making a life, I studied  36 their hunting techniques and the ratio of success to  37 attempts at hunting, distribution of meat; I studied  3 8 their kinship system, gathering genealogies for these  39 people; I also recorded the oral tradition of these  40 people and became interested in their religion,  41 their — the prophet dance tradition and the  42 ceremonialism; the prophet dances which they continued  43 to practise and observed these.  I studied  44 child-rearing techniques among the Beaver Indians.  I  45 think that covers a lot of it.  46 q  Yes.  I neglected to ask you, but I will now, were you  47 specifically trained in your education as an 12844  A. Mills (for Plaintiffs)  In chief by Mr. Rush  on Qualifications  1 anthropologist in fieldwork techniques?  2 A  I was.  3 Q  And, as a result of the fieldwork that you did among  4 the Beaver people, did you commit to writing or  5 publish the results of your work?  6 A  Yes.  7 Q  Could you advise his lordship what it was that  8 resulted in your fieldwork?  9 A  Well, a number of different things have been  10 published. The — one of the first things was The  11 Inner Eye of Totemism and Shamanism which was a joint  12 publication with Robin Ridington.  13 Q  Who is Robin Ridington?  14 A  Robin Ridington is a fellow anthropologist, another  15 person who is an Athabaskan scholar; he is a professor  16 of anthropology at the University of British Columbia,  17 and with whom I conducted fieldwork among the Beaver  18 Indians from 1964 until 1972.  19 Q  Okay. And as an aside, it would appear that from your  20 C.V. that from 1972 you continued to do fieldwork  21 among the Beavers in '76 and '84?  22 A  That's correct.  23 Q  And are there other publications that have resulted  24 from your work among the Beaver people?  25 A  Yes.  I also wrote my Ph.D thesis on the Beaver Indian  26 people. That's not published in the formal sense but  27 all Ph.D theses form a part of the scholarly documents  28 available.  29 Q  Yes. And if you will just turn please to page 3 of  30 your C.V., can you identify for his lordship other  31 publications, either in print or about to be in print,  32 which have resulted from your fieldwork among the  33 Beaver?  34 A  The Meaningful Universe:  Intersectiong Forces in  35 Beaver Indian Cosmology and Causality.  36 THE COURT:  I am sorry. Dr. Mills, you're going to have to slow  37 down or you're going to wear our reporters out any  3 8 moment now.  In addition, I don't think counsel are  39 able to hear everything you are saying.  40 THE WITNESS  Are these microphones?  41 THE COURT:  I don't know if they work or not.  42 THE REGISTRAR:  They are on.  43 THE WITNESS:  I will speak up.  44 THE COURT: All right. Mr. Prelypshan way over there wants to  45 hear what you say, I am sure he does.  46 MR. RUSH:  47 q  if you could just turn to page 3, you mentioned The 12845  A. Hills (for Plaintiffs)  In chief by Mr. Rush  on Quellfleetions  1 Meaningful Universe: Intersecting Forces in Beaver  2 Indian Cosmology and Causality, and could you now  3 refer to other publications there that resulted from  4 your fieldwork?  5 A  Yes. The — A Preliminary Investigation of  € Reincarnation among the Beaver and Gitksan Indians is  7 in press with Anthroplogica.  8 0  Yes.  9 A  And a Comparison of Wet'suwet'en Cases of the  10 Reincarnation Type with Gitksan and Beaver is in press  11 with the Journal of Anthropological Research.  12 0  Any other publications?  13 A  The rest are just — remain as papers that were  14 delivered that have — I have not yet seen into  15 publication.  16 Q  Thank you. You have indicated that you were involved  17 in studying the oral traditions of the Beaver people.  18 Bow in fact did you as an anthropologist utilize the  19 oral tradition in your study of the Beaver?  20 A  Used them to assess something of the history of the  21 Beaver Indian people and of the categories that were  22 important to the Beaver Indian people and are  23 important to the Beaver Indian people largely.  24 0  Okay. Now, did you also evaluate the ethnography or  25 the histories of the Beaver people when you were  26 involved in your fieldwork?  27 A  Yes.  I reviewed all the written records about the  28 Beaver Indians which include the accounts of Sir  29 Alexander MacKenzie passing through the area and early  30 fur traders.  I also went to the archives at Victoria  31 to unearth the first records of missionaries, oblate  32 missionaries arriving with the Beaver Indians which  33 were in French, I translated them into English.  3 4 0  16 it common among anthropologists in studying people  35 to review the ethnography and history of the area end  36 of the people?  37 A  Yes, it is. And then the ethnography for the Beaver  36 Indian people included a study by Earl Pliny Goddard,  3 9 an early anthropologist who collected some of the oral  4C tradition of these people, and the only other person  41 who had done work with the Beaver Indians was a  42 physical anthropologist who went into the study of the  43 shapes of their scholi6ts.  44 Q  Did you have occasion to refer to the work of Diamond  4 5 Jenness as you studied the Beaver people?  46 A  Yes.  Diamond Jenness had studied the Sekani people  4" who are just to the west of the Beaver Indians, so I 12846  A. Mills (for Plaintiffs)  In chief by Mr. Rush  on Qualifications  1 referred to all of this material and also of course to  2 the ethnographic tradition of other surrounding  3 northern Athabaskan peoples, work of John Honigmann on  4 this, for example.  5 Q  With regard to the studies that you made of the oral  6 tradition of the Beaver, did you evaluate those oral  7 traditions to determine the reliability of the  8 information which was contained within them?  9 A  We were interested in learning about the oral  10 traditions and the ways that the oral traditions were  11 transmitted and were taught by the Beaver Indians  12 about the way that they learned their oral tradition,  13 and we recorded the oral tradition from numerous  14 different people on different Beaver Indian  15 communities. The Beaver Indians live in four  16 different communities and four different bands and so  17 we collected the oral tradition from these different  18 bands and compared them and learned that the  19 importance of the oral tradition to these people as  20 recording their history so that there were people in  21 each community who were validated by their community  22 as being the people authorized to tell the oral  23 tradition. The concept was that you do not tell the  24 oral tradition unless you have been well trained in  25 that tradition. You have listened to it as it is  26 spoken by people who themselves are authorized by  27 having learned it very carefully and only after you  28 have committed it to memory very perfectly do you —  29 are you authorized then to transmit it.  30 Q  Were there other ways that you, if I can use this  31 word, evaluated the reliability of the information  32 contained in the traditions that were given — were  33 spoken to you orally?  34 A  Well, some of the oral tradition of the Beaver  35 involves historical times when you can cross-reference  36 it to historical accounts but a great deal of the oral  37 tradition is involving a time period before that.  38 Q  All right. Now, in terms of the ethnographic and  3 9 historical literature that you examined when you did  40 your fieldwork with the Beaver, were there ways that  41 you evaluated the reliability of that material when  42 you studied it?  43 A  Certainly.  44 Q  And what were some of the ways that you evaluated  45 that?  46 A  One evaluates the material by seeing when it was  47 recorded, by whom it was recorded, and for what 12847  A. Hills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 purpose it was recorded. Por example, there is  2 usually no reason to suspect that the information  3 written down is not accurate, except in some cases  4 where you find very, very obvious value judgments  5 being made about the material. Por example, the first  6 missionaries to visit the Beaver Indians in some sense  7 record an absolutely invaluable record of what they  8 were doing at that time but they couch it with such —  9 in such terms with disapproval that one wonders what  10 else they may have seen that they didn't record and  11 whether it influenced their recording.  12 Q  Okay.  Now, in the course of your fieldwork and your  13 studies of the Beaver people from 1964 really through  14 to 1984, did you study the Wet'suwet'en people before  15 undertaking — or during the course of your research  16 with the Beaver?  17 A  I became very familiar with the literature on the  18 Wet'suwet'en people because my Ph.D thesis, I decided  19 to compare the Beaver Indian religion and philosophy  20 with that of ten other North American Indian tribes  21 and one of them was the Carrier.  22 Q  And in doing that comparison, what was it that you did  23 or what literature did you review?  24 A  I reviewed the literature on the Carrier Indians which  25 includes Jenness, Steward, Morice, Vern Ray, Goldman.  26 Those are the primary sources.  27 MR. RUSH:  Thank you.  My lord, I'd like to ask the C.V. be  28 marked as an exhibit and that Dr. Mills be qualified  29 as an expert in the field of expertise that I have so  30 described.  31 THE COURT:  Thank you.  Mr. Mackenzie?  32  33 CBQ55=KAMIN&tiqi?_qij_QB&LIEIC&TIQ1J5-B3L.ME*-MACEEHZIB:  34 Q  Dr. Mills, you characterize your discipline as  35 cultural anthropology; is that correct?  36 A  That's right.  3 7 q  And can you agree that that's — that is considered in  38 academic circles to be a discipline separate from  3 9 ethnology?  40 A  No. The distinction is not at all clear. The two are  41 completely overlapping.  4 2 q  Okay.  The task of ethnology is to classify people on  43 the basis of their racial and cultural characteristics  44 and then to explain their distribution at the present  45 time or past times; is that correct?  46 A  That's not the usual use of the term ethnology. May I  4" point out that the Canadian Ethnology Society is the 12848  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 equivalent of the American Anthropological  2 Association. The term ethnology used particularly  3 in — by the French in a specific sense but ethnology  4 is the study of non-Western peoples and, though it  5 does indeed involve their distribution, it also  6 includes their culture.  7 Q  But you could agree with me that although ethnology  8 and cultural anthropology make their studies largely  9 among the same range of peoples, they have very  10 different purposes?  11 A  No. I wouldn't agree to that.  12 Q  I am handing to you an article entitled — an article  13 or chapter from a book entitled Social Anthropology by  14 Professor Evans Pritchard. Can you agree that  15 Professor Evans Pritchard is an eminent authority in  16 this area?  17 A  He is — yes, he is an exemplary of the British  18 school.  19 MR. MACKENZIE: And referring to page 4 of that article, in this  20 article Professor Evans Pritchard is discussing the  21 scope of social anthropology and, on page 4, he shows  22 the difference between social anthropology and  23 ethnology, and the second full paragraph, he says:  24  25 "It is important to appreciate, however, that  26 though ethnology and social anthropology make  27 their studies very largely among the same range of  28 peoples they make them with very different  29 purposes."  30  31 Does your lordship have that reference?  32 THE COURT:  Yes.  33 MR. MACKENZIE:  34 Q  Dr. Mills, did you see that reference?  35 A  I see it.  36 Q  Do you disagree with that?  3 7 A  Well, I don't know what different purposes he is going  3 8 to explicate.  3 9 Q  Well, further on in that paragraph he says:  40  41 "The task of ethnology is to classify peoples on  42 the basis of their racial and cultural  43 characteristics and then to explain their  44 distribution at the present time, or in past  45 times, by the movement and mixture of peoples and  46 the diffusion of cultures."  47 12849  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 Do you agree with that?  2 A  I agree that that's what he says.  3 Q  Do you agree that that's different from the task of  4 the social or cultural anthropologist?  5 A  Social and cultural anthropologists are not always  6 exclusively concerned with the past diffusion and  7 mixtures of people, but it is one of their concerns as  8 well, definitely.  9 Q  Well, you will agree with me that Diamond Jenness1 —  10 Diamond Jenness' work on the Carrier — both the  11 Carrier Indians is considered to be a work of  12 ethnology?  13 A  It's considered cultural anthropology and social  14 anthropology equally.  15 Q  Okay. Over the years of your fieldwork and your  16 writing that you have described, your research  17 interests really have been primarily focused on  18 psychology, symbolism and the religion of North  19 American Indians; is that fair to say?  20 A  Largely, though I would —  21 THE COURT: What were the three, again?  22 THE WITNESS:  Pardon?  23 THE COURT: What were the three again?  24 MR.   MACKENZIE:  25 Q  Psychology, symbolism and religion of North American  26 Indians?  27 A  I would like to qualify that by pointing out that I  28 have done a study of the material culture of the  29 Beaver Indians as is referenced in my curriculum  30 vitae, and that the paper on Sex Roles in a North  31 American Indian Hunter-Gatherer Band:  The Economics  32 of Being a Beaver Indian Woman also involves economics  33 and other elements less than psychology, et cetera.  34 Q  But to the academic community, you describe your  35 research interests as primarily psychology, symbolism  36 and religion of Indians; is that correct?  37 A  That's correct.  3 8 Q  And you have mentioned in your comments that your  3 9 fieldwork up to 1984 was primarily with Beaver  40 Indians?  41 A  Yes, not exclusively, but primarily.  42 q  That's a period of 20 years in which you spent a  43 considerable amount of time with the Beaver Indians?  44 A  That's correct.  4 5 Q  And for much of that time you were working with Robin  46 Ridington?  47 A  That's correct. 12850  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1  Q  2  A  3  Q  4  5  6  7  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  A  16  Q  17  18  19  A  20  Q  21  A  22  23  Q  24  A  25  Q  26  27  28  29  A  30  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  43  44  A  45  Q  46  47  He was your husband for most of that time?  Yes.  The writing that you and Robin Ridington did related  to the Beaver Indians, is it fair to say, falls within  those categories that I mentioned a minute ago,  psychology, symbolism and religion of the Beaver  Indians?  Largely, not exclusively.  And most of your writing, is it fair to say, most of  your writing deals with reincarnation?  Some of it does.  Can you agree with me that most of it does?  It doesn't form a part of my Ph.D thesis, for example.  Okay.  Which is, I consider, a major piece of my work.  But most of the writing is set out on page 3 of your  curriculum vitae relates to reincarnation, doesn't it?  Is that fair to say?  Let's see.  Well, let me just —  I will take a — if I look at — I would say about  perhaps two-thirds.  Two-thirds. Yes?  Mm—hrom.  If the first and most recent work that you have done,  the first work listed on page 3 and the most recent  work you have done was in India and that dealt with  cases of reincarnation there; correct?  It was a study of children who are said to be  reincarnated, yes.  That was 1988, correct, just last year?  That's correct.  And the second article you mentioned is a comparison  of Wet'suwet'en, Gitksan and Beaver cases of  reincarnation; correct?  That's correct.  And the third article that is mentioned is a  preliminary investigation of reincarnation among the  Beaver and Gitksan; right?  That's correct.  And you speak about reincarnation as one of the  subjects in the report you have done for this case,  haven't you?  Yes, I do.  Yes. And as a matter of fact, you were employed by  the tribal council between about 1985 and 1987; is  that correct? 12851  A. Hills  (for Plaintiffs)  Cross-exam by Hr. Mackenzie  on Qualifications  A  That's correct.  Q  And during that time you also had a postdoctoral  fellowship at the University of British Columbia in  the Anthropology Department; correct?  A  It was administered through the University of British  Columbia.  Q  That appears on page 1 of your curriculum vitae?  A  Yes, it does.  Q  That's the Social Sciences and Humanities Research  Council of Canada Fellowship?  A  That's correct.  Q  And that fellowship was related to the studies of  reincarnation among the Wet'suwet'en people; correct?  A  Among the Wet'suwet'en, Beaver and Gitksan people.  Q  And you mentioned that on page 2 of your curriculum  vitae that during that period you did research in the  field on Gitksan and Wet'suwet'en reincarnation;  correct?  A  I did.  Q  And you conducted 44 interviews during that time  related to reincarnation?  A  With the Wet'suwet'en you mean?  Q  Yes.  A  Yes.  Q  And none of those interviews appear in the field notes  that have been made available to us through your  counsel.  Are you aware of that?  A  I am aware of that.  I had asked my counsel if  that's — about that before I came from Virginia and  at that time we hadn't perceived that it might be  useful to submit those.  After arriving here we  thought that perhaps we should and have sent away so  that that material is going to be couriered to us but,  to my knowledge, it hasn't arrived.  0  Is that a substantial amount of material?  6 A  It is a substantial amount of material.  7 Q  And your present research interests at the University  8 of Virginia relate primarily to reincarnation; is that  9 fair to say?  C A  Not entirely, but in part.  My position there is a  1 joint position with the Division of Personality  2 Studies in the Department of Anthropology.  My  3 curriculum vitae doesn't express that perhaps very  4 clearly.  I teach for the Anthropology Department and  - I conduct research for the Division of Personality  i Studies.  C  What do you teach? 12852  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1  A  2  3  Q  4  A  5  6  7  Q  8  9  10  A  11  Q  12  A  13  Q  14  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  25  26  27  28  Q  29  30  31  A  32  33  34  35  Q  36  37  A  38  Q  39  40  41  42  A  43  Q  44  A  45  Q  46  47  A  I am teaching a course called the Cross-Cultural Study  of Reincarnation.  And what are your research subjects?  The research subjects are, I am studying a comparison  of North American and Indian cases in which a person  is identified as someone reborn.  Continuing down page 3 in your curriculum vitae, the  next publication is Eagle Down is our Law. That's the  report that you prepared for this litigation; correct?  That's right.  And you have completed that in February 1987?  That's correct.  The next paper is The Meaningful Universe, and that  deals with Beaver Indian symbolism and religion; is  that fair to say?  Yes.  And, as you mentioned, you did a report on the Beaver  Indian Material Culture for the National Museum?  That's correct.  And that's — that was one — that was the first study  that you had done in the Material Culture up to that  time; wasn't it?  It's the first compendium that's collected like that.  When I did my fieldwork with the Beaver Indians  previously, prior to making that study on that  subject, I had equally gathered material on that  subject.  You were — and in fact in your report you mentioned  that you were surprised at how much of the material  was new to you. Didn't you say that in your report?  Yes.  It shows that I hadn't — yes, that there was a  great deal more to be learned.  I had previously  concentrated on hide working more than the other  elements.  Now, you had been working with the Beavers for about  20 years by the time you wrote this report; correct?  Yes.  And you said in your report that in the past you have  studied a number of different aspects of the culture,  particularly, the psychology, mythology and  traditional religion; is that fair to say?  Yes.  You were speaking about the Beaver Indians?  That's correct.  Yes. And by the way, in that report you also said  that you were not a linguist; is that correct?  That's very correct. 12853  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 Q  And you do not consider yourself to have an expertise  2 in archaeology?  3 A  That's correct.  4 Q  Now, the next publication on your list, page 3,  5 relates to North American Indian philosophy and that  6 really deals with the prophet dance and other types —  7 prophet dance could be called a type of Indian  8 religion; couldn't it?  9 A  Yes.  10 Q  Yes. And that was the subject of your Ph.D thesis?  11 A  That's right.  12 Q  Yes, and as is indicated on your curriculum vitae. So  13 I am going to suggest to you that your research over  14 the years with the Beaver Indians was concerned  15 primarily with their spiritual culture. Can you agree  16 with that?  17 A  It is very true that it was. I would like to put on  18 the record that I made extensive genealogies of all  19 the Beaver Indians.  I, with Robin Ridington, worked  20 out the kinship structure of the Beaver Indians which  21 hadn't been fully understood previously.  I took  22 copious notes on the hunting practise of the Beaver  23 Indians, particularly as regards to the — as I  24 already said, the ratio of attempts at getting game  25 to — getting game.  Prior to doing the study of the  26 material cultural, I had participated and been  27 interested in the women's trapping practises, the  28 small traplines for small game.  I don't think that  29 the fact that I — indeed much of my work involves the  30 religion should be used to obscure the fact that I had  31 done substantial work on these other aspects of the  32 Beaver Indians as well.  33 Q  Yes. But your publications deal primarily with  34 religion and spirituality?  35 A  True.  36 Q  Yes. And can you also agree that during your  37 fieldwork with the Beaver Indians, you and your  3 8 husband and later fellow anthropologist Robin  39 Ridington consciously and deliberately attempted to  40 suspend your western thought processes in order to  41 understand the Beavers* religious views?  42 A  Sometimes consciously; sometimes what one would do  43 basically is try to understand what the Beaver Indians  44 were meaning when they said various and sundry things  45 and often that required repeated questioning, asking,  46 attempts to understand what they were thinking, yes.  47 And I would like to say also that it is very important 12854  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 for anthropologists to perceive that what is being  2 said by a non-Western people is not always obvious to  3 them, that it is useful to see what assumptions the  4 anthropologists themselves is making in evaluating  5 this material, and then attempting to find out what  6 is the assumptions that the native people are making  7 so that you can understand it and it is not an easy  8 process and this interface between a way of thinking  9 that's familiar to us and a way of thinking that's not  10 familiar to us, and the role of anthropology to a  11 large extent is to exemplify this so that people from  12 our own culture can understand the meaning of  13 non-Western people.  14 Q  You and Robin Ridington in your work and in your  15 writings attempted to show how the Beaver mythic  16 reality, the myths lie within the reality of their  17 everyday experience?  18 A  That's right.  19 Q  The myths are regarded as real?  20 A  That's correct.  21 Q  The supernatural is part of the Indians' life and this  22 is what you show in your writing?  23 A  That's correct.  24 Q  You and Robin Ridington were aware of the inevitable  25 misunderstandings or inaccuracies that, as  26 anthropologists, you had in your observations about  27 the Indians?  28 A  We tried to be aware.  It is a never-ending process.  29 It is not as if one arrives at a point of perfect  30 understanding of the non-Western culture. Are  31 constantly attempting to understand it more  3 2 completely.  33 Q  And your interview — when you were interviewing the  34 Beaver Indians, you were aware that they were part of  35 the Treaty Eight area?  36 A  I was.  37 Q  And your interviews and your work with the Beaver  38 Indians was not done to support any land claims by the  3 9            Beaver Indians, was it?  40 A  No.  41 Q  No.  You were not preparing material during your time  42 with the Beaver Indians that was related to any court  43 work or litigation, were you?  44 A  That's correct.  45 Q  Yes.  Now, about the Beaver Indians, you didn't speak  46 the language, did you?  47 A  No, I never became fluent. 12855  A. Hills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 Q No.    And you don't speak Wet'suwet'en?  2 A No.  3 Q And all your interviews with the Wet'suwet'en people  4 were with interpreters or based on English  5 transcripts?  6 A That's right.  7 0 And you attended ten feasts during your time with the  8 Wet'suwet'en?  9 A More than that.  10 MR. RUSH:  My lord, this really doesn't go to qualifications,  11 does it?  12 MR. MACKENZIE:  It is directly related to qualifications.  13 THE COURT:  I think that it might.  14 MR. RUSH: All right.  15 MR.   MACKENZIE:  16 Q You were with the Wet'suwet'en for 15 months?  17 A Longer than that.  18 Q Just in your report on page 29?  19 A Oh, yes.  I was there after I had written my report as  20 well.  21 Q Just going to — and you made notes of some of the  22 feasts that you were present at during that time?  23 A I did.  24 Q But you didn't understand the speeches that were given  25 in Wet'suwet'en during the feasts?  26 A I don't understand Wet'suwet'en. The pronunciation is  27 Wet'suwet'en.  28 Q Wet'suwet'en, yes.  29 A However, people often translated for me the speeches  30 that were made in Wet'suwet'en.  31 0 Many of your field notes simply say, "Speech in  32 Wet'suwet'en, contained no details"?  33 A That's right.  3 4 Q Now, the Beaver Indians, you will agree with me that  35 they are highly nomadic?  36 A Yes.  37 q They can be characterized as typical hunter-gatherers?  38 A More or less.  That's a very broad category.  If  3 9 you — one said North American subarctic  40 hunter-gatherer6.  41 0 I an just quoting from your thesis.  42 A All right.  43 0 And you will agree with me they lack lineages and  44 clans?  45 A I certainly would.  46 q And you will agree with me that they have an  4" impoverished, material, and ceremonial life? 12856  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  on Qualifications  1 A  No.  2 Q  That's what you say in your thesis. Let's look at  3 that. You don't agree with that?  4 A  No, I don't.  5 MR. MACKENZIE:  You say that —  6 MR. RUSH: Well, I think if my friend is going to put the  7 passage, he should first show it to me and then put it  8 to the witness.  9 MR. MACKENZIE:  10 Q  I will deal with that later.  11 And you will agree that the Beaver Indians have  12 been relatively isolated and that's the reason that  13 you chose them as a group to study?  14 A  In part, yes.  15 Q  And you will agree that there have been drastic  16 changes in the Beaver Indian society from the mid  17 seventeen hundreds onward as a result of the fur  18 trade?  19 A  Drastic? I would say perhaps the construction of the  20 Alaska Highway was more drastic than the coming of the  21 fur trade.  22 Q  You say in your thesis:  23  24 "It is impossible to over-emphasize how drastic  25 these changes were to a people whose lifestyle  26 have been carefully adducted to a stable  27 environment over an immensely long period of  28 time."  29  30 Do you recall saying that?  31 A  You also —  32 MR. RUSH: Excuse me, excuse me.  I wonder if the passage can be  33 shown to me first, my lord, and then it's obviously  34 made reference to something that is said earlier in  35 the passage and I think if it does, it should — all  36 of it should be put to the witness if I can see it  37 first.  3 8 THE COURT: Yes.  I didn't know from that quotation, Mr.  39 Mackenzie, whether the drastic changes that can't be  40 over-emphasized are the fur trade or the construction  41 of the Alaska Highway.  42 THE WITNESS: Or "these", there is a "these" to it.  43 THE COURT:  It may be both.  44 THE WITNESS: There is a reference there that we need to  45 clarify.  46 THE COURT: Perhaps while you are looking —  47 MR. MACKENZIE:  It says, "Historical changes in the rise of the 12857  A. Hills (for Plaintiffs)  Cross-exam by Hr. Mackenzie  on Qualifications  1 prophets".  2 MR. RUSH:  My lord —  3 THE COURT: While you gentlemen are reviewing the doctoral  4 thesis, we will go and review the judges at rest.  5 THE REGISTRAR: Order in court. This court is in recess.  6  7 (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein, transcribed to the  12 best of my skill and ability.  13  14  15  16  17  IS DEFOE,  18 TANNIS DEFOE, Official Reporter  19 United Reporting Service Ltd.  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 12858  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1 (Proceedings resumed following short recess)  2 THE COURT:  I regret to have to announce, Mr. Justice Robertson,  3 formerly a judge of this court,  died yesterday, which  4 is a great regret to us all.  I have to advise counsel  5 that I am informed that the funeral will be at 11  6 o'clock on Wednesday morning, in which event we will  7 have to adjourn early and try and make up the time  8 somewhere else.  I think I should say no more at the  9 moment until the arrangements have been finalized in  10 that regard.  But that possibility is looming large at  11 the moment.  Thank you.  12 MR. RUSH:  Just before my friend starts, my lord, I believe I  13 only had the privilege of appearing before Mr. Justice  14 Robertson on one occasion but I would like to express  15 on my behalf and on behalf of my colleagues our deep  16 regret at his passing.  17 THE COURT:  Thank you Mr. Rush.  I had the pleasure of appearing  18 before him several times and associated with him in  19 the practise of law for a short time and his loss is  20 deeply felt by us all.  21 MR. MACKENZIE:  My lord, we have had a very, very close  22 relationship with Mr. Justice Robertson and words just  23 cannot express the loss from the people in our law  24 firm.  25 THE COURT:  I am sure that's so, Mr. Mackenzie.  Thank you.  26  27   CROSS-EXAMINATION BY MR. MACKENZIE: (Continued)  28  29 MR. MACKENZIE:  30 Q  Dr. Mills, I have the more precise reference on the  31 point I was asking you about before the break.  32 Perhaps I could just ask you this:  Can you agree with  33 me that Beaver Indian ceremonial life was necessarily  34 less elaborated than that of the more populous North  35 American tribes to their south and west?  36 a  Less elaborated was your words?  37 Q  Yes.  38 a  Perhaps.  39 q  Can you agree with me that the very poverty of their  40 material and ceremonial life had the advantages of  41 making the underlying philosophy of their religion  42 stand out in relief?  43 A  Can you repeat that?  44 q  The very poverty of their material and ceremonial life  4 5 has the advantages of making the underlying philosophy  46 of their religion stand out in relief?  47 A  I would concur with myself about the relief, that the 12659  A. Mills (Por Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1 philosophy stands out because there is not a great  2 deal as much elaboration in some domains. However, I  3 would not like that passage to be interpreted that  4 their material or ceremonial life was entirely  5 impoverished.  That would be a misrepresentation of  6 what that passage means.  7 Q  Would you agree that that passage was in your thesis?  8 A  I don't recognize it but it probably was.  9 Q  Well, we will give it to you to —  10 MR. RUSH:  I think the passage should be placed before the  11 witness.  It might be of assistance to her.  12 MR. MACKENZIE:  13 Q  This is page 17 of your thesis, just placing it there  14 before you.  You are just describing the Beaver  15 Indians at that point. And I read to you some  16 passages from that paragraph there.  I just want you  17 to confirm that those passages are what you wrote in  18 your thesis?  19 A  Yes, it is what I wrote in my thesis, and if one read  20 the whole paragraph, the sense of it would be much  21 more clear than just reading the sentences in  22 isolation.  Should I read the whole paragraph  23 therefore?  24 Q  No, I think you have qualified your answer.  25 A  All right.  26 Q  Now, in your thesis also you speak about the  27 historical changes created by the fur trade and the  28 arrival of the Hudson Bay Company, I am just referring  29 you to page 44 of your thesis and you're speaking  30 about the indirect influence, the Cree Indians coming  31 with trade goods?  32 A  I do, indeed, speak about that.  33 Q  And then you talk about the Beaver Indians having been  34 spatially dislocated?  35 A  I agree.  36 Q  And they also shifted the base of their subsistence  37 economy from traditional hunter/gatherer to ones based  38 on trading furs and meat?  39 A  Yes, there was a shift though, in general, the  4 0 anthropological understanding is that the coming of  41 the fur trade did not drastically disrupt the  4 2 subsistence base of subarctic peoples, it was  43 something that they could incorporate within their  44 aboriginal subsistence pattern.  4 5 q  Yes.  And then later, just the next sentence, you say,  46 "it is impossible to over-emphasize how drastic these  47 changes were to a people whose lifestyle had been 12860  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1 carefully adapted to a stable environment over an  2 immensely long period of time"; is that correct?  3 Sorry, perhaps I should say, that's what you wrote in  4 your thesis?  5 A  I see the sentence there, yes.  6 Q  And have your views changed since you wrote the  7 thesis?  8 A  I stand corrected by a number of scholars such as  9 Michael Ashe and Beverly Gartrell that much of the  10 change came after the fur trade to subarctic peoples,  11 that, as I just stated, hunter/gathering peoples were  12 able to accomodate the fur trade within their previous  13 way of making a living and more drastic changes came  14 after that.  15 Q  And can you agree with me that the Beaver Indians had  16 no contact with the northwest coast culture?  17 A  Basically, they had almost none except through the  18 interface of perhaps of the Sekani, but very little.  19 Q  And the Beaver Indian of course did not have the  20 salmon resource upon which to base its subsistence?  21 A  That's correct.  22 Q  Your experience with the Beaver Indians was, of  23 course, can you say — can you agree that it was with  24 an aculturated people by the time you got to them?  25 A  Aculturated?  Obviously they were not living as they  26 had before white man reached North America, their  27 culture had changed in some ways, but one of the  28 elements that my research has been germane to is the  29 perseverence of older religious forms in their present  30 day life.  31 Q  And you were dealing with groups that could be  32 characterized as remnant bands?  33 A  Whose word is remnant?  34 Q  Well, would you agree with that characterization of  35 the Beaver Indians with whom you dealt?  36 A  No, I wouldn't say they were remnant.  They are bands,  37 yes.  The Beaver Indians definitely have a band level  38 organization, not to be confused with district, the  39 DIA band conception.  40 q  And the Wet'suwet'en, as you say, were in a stable  41 situation with their culture intact, as you say, in  42 the same place, since time immemorial, that's your  43 view?  4 4 a  That the Wet'suwet'en have been in place in — where  45 they live now is where they have lived, yes.  4 6 q  And the Wet'suwet'en society is village-based,  47 primarily, or has some village-based aspect to it? 12861  A. Mills (Por Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1  A  2  Q  3  4  A  5  6  7  8  9  10  11  Q  12  13  A  14  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  24  25  A  26  0  27  A  28  29  Q  30  31  32  A  33  34  35  36  Q  37  38  39  40  A  41  42  43  44  45  Q  46  47  A  It does.  And it has many — it has borrowed many attributes and  institutions from the northwest coast system?  That's a statement one would have to make with  qualifications in a certain sense. There has been  borrowing back and forth, the Wet'suwet'en culture has  been formed, as my opinion report says, by interaction  with the other people who are characterized as  northwest coast, but it's not a simple borrowing or a  one-way borrowing.  And the Wet'suwet'en economy is based in large part on  the salmon resource?  The salmon resource is an important part of the  Wet'suwet'en subsistence.  And as a result of that, there is a much larger  population than other interior nomadic people?  That's correct.  And as you say, also they have territories, discreet  territories, the Wet'suwet'en?  That's correct.  Now, can you agree with me that although an  anthropologist might have general knowledge of many  ethnographic regions, he can be an authority in only  one or two of those regions?  Are you speaking of geographic regions?  Ethnographic regions and sociological disciplines?  There are many excellent anthropologists who can  address a wide sphere of domains.  Can you agree with me that as in all fields of  learning as knowledge increases there takes place  specialization in social anthropology?  There sometimes is specialization, but again I would  like to point out that some of the very best  anthropologists are specialized in a very broad — are  experts in a very broad number of fields.  And can you agree with me that the anthropologist,  besides restricting his research to certain regions,  have to devote himself primarily to one or two topics  if he is to master them?  Not necessarily.  David Aberle stands as an example of  an anthropologist who has written on a wide variety of  fields and has the highest reputation in all those  fields.  There are a number of anthropologists like  this.  I am reading from doctor — Professor  Evans-Pritchard*s chapter at page 14 --  Is this part of what you have given me? 12862  A. Mills (Por Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1 Q  Yes.  2 A  What page?  3 Q  Page 14, please.  4 A  I see.  5 Q  And the first full paragraph on page 14, just about  6 halfway down, Professor Evans-Pritchard says:  "It  7 stands to reason..." Do you have that paragraph?  8 A  I do.  9 Q  "It stands to reason that though an anthropologist may  10 have a general knowledge of all these different  11 ethnographic regions and sociological disciplines, he  12 can be an authority in only one or two of each.  13 Consequently, as in all fields of learning, as  14 knowledge increases there takes place specialization."  15 Do you agree with that or disagree with that?  16 A  There are a number — I would like to know exactly  17 what these regions are.  Looking down in the  18 paragraph, he seems to be talking in part about  19 geographic regions.  It's true that many  20 anthropologists are specialized in a particular  21 geographic region but typically they are well-trained  22 in other areas of the world and often take on another  23 geographic area of the world as well.  My particular  24 expertise, what I was examined on, was North American  25 can Indians, however now I am also broadening my field  26 work to India, but this is following the lead of many  27 anthropologists, for example, Cora Dubois was an  28 eminent anthropologist with whom I studied,  who also  29 specialized in North American Indians and then also  30 included later on in her career, studying making  31 detailed studies in Southeast Asia and India as well.  32 Perhaps you are not referring to geographic areas and  33 in you are, you may specify so.  34 Q  The commonality, if I may call it that, between your  35 North American Indian expertise and your research in  36 India on this reincarnation business?  37 a  That's the topic that I have been studying in India,  38 yes.  39 Q  And page 15 of Dr. Evans-Pritchard, about eight lines  40 down, he says — do you have that?  "Also the  41 anthropologists..."  do you have that?  42 A  Yes, I do.  4 3 Q  "Also, the anthropologist, besides restricting his  44 researches just to certain regions has to devote  45 himself primarily to one or two topics if he is to be  46 master of them and not a jack of all trades."  47 Would you agree with that? 12863  A. Mills (Por Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1 A  Again, I would like to qualify that there are a number  2 of — most anthropologists qualify themselves rather  3 broadly. And a number have done research in a variety  4 of fields.  5 Q  And then he, Professor Evans-Pritchard carries on:  6 "One cannot adequately make a comparative study of  7 primitive legal systems without a good background of  8 general law and jurisprudence."  9 Do you agree with that?  10 A  He is saying then that to understand primitive law you  11 need to know western law, I would take it.  12 Q  Well, however you interpret it, can you agree with  13 that or disagree with it?  14 A  Well, it would certainly be useful to be able to  15 address both how legal systems are dealt with and  16 thought of in western culture before approaching them  17 in non-western culture.  18 Q  Have you had any training in law?  19 A  No, not other than studying law as it applies to  20 anthropology.  For example, Hubble's Primitive Law.  21 No, I am not a lawyer.  22 Q  Yes. Very fortunate in that respect.  23 THE COURT:  Oh, yes.  Unheard of these days.  24 MR. MACKENZIE:  25 Q  I take it — is it fair to say that you don't have a  26 general — you don't have a background in general law  27 and jurisprudence?  28 A  I just said I am not a lawyer.  I am aware of the  29 legal system in my own culture and, as I say, I have  30 read the literature on the study of law in non-western  31 peoples, not only regarding North America but the  32 South Pacific as well.  3 3 Q  You have a chapter in your report on Wet'suwet'en law,  34 don't you?  35 A  I do.  36 Q  Now, finally I want to ask you, at — is it true that  37 despite numerous years of field work with the Beaver  38 Indians you were not aware of the numerous specific  39 cases of reincarnation until you concentrated on  40 inquiring about that subject?  41 A  That's correct.  4 2 Q  So, the point is that — and you were with the Beaver  4 3 Indians, as you said, for long periods of time over 20  44 years?  4 5 A  That's correct.  46 q  so that is it fair to take from that generalization  4 7 that your observations as a participant observer, the 12864  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  On Qualifications  1 results of your observations, really, flow from the  2 questions you're asking, the subjects you're studying?  3 A  In the course of numerous years of field work with the  4 Beaver Indians, the fact that reincarnation was an  5 important category to them, had been made manifest to  6 me by the Beaver Indians. The paper that I gave at  7 the Canadian Ethnology Society meetings that's  8 described on page 3 of my curriculum vitae, Towards an  9 understanding of North American Indian philosophy:  A  10 fresh look at the Beaver Indian prophet dance and  11 related movements among North American Indians shows  12 my attempt to understand whether the Beaver Indian  13 conception of reincarnation, which they had made  14 apparent to me, typified any other North American  15 Indians and I found that the reportage on the topic  16 was sporadic but that belief in reincarnation of  17 animals was reported by my sample of ten societies  18 representative of the ten culture areas in North  19 America. But indeed I did not learn as much about the  20 subject of reincarnation among the Beaver Indians  21 until I specifically asked about the topic.  22 MR. MACKENZIE:  No further questions.  Thank you, Dr. Mills.  23 THE COURT:  Thank you.  Ms. Koenigsberg?  24 MS. KOENIGSBERG:  I just have a couple of questions. I think I  25 can ask them from here.  26  27    CROSS-EXAMINATION ON QUALIFICATIONS BY MS. KOENIGSBERG:  28  29 Q  Ms. Mills, your research, the result of which is  30 incorporated into your reports before this court on  31 the Wet'suwet'en, was conducted from when in 1985?  32 A  I began doing library research about the Wet'suwet'en,  33 a review of the literature, in March, 1985.  34 Q  And you have conducted among the Wet'suwet'en what you  3 5 have described as participant observation from when?  36 A  I arrived in July, first of July, 1985, and continued  37 after the writing of this opinion report.  38 Q  So through 1987?  39 A  Yes.  4 0 q  And you attended with Wet'suwet'en people some of the  41 court proceedings, discoveries and commission  4 2 evidence?  43 A  Yes.  4 4 q  And you participated by way of some interpretation for  4 5 them in the the giving of their evidence?  46 A   Interpretation?  47 Q   or spelling? 12865  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  On Qualifications  1 A  Yes, I was asked to assist the court reporter with the  2 spelling of Wet'suwet'en words in some of the  3 commission evidence that took place.  4 Q  And did you have — did you play any part in the  5 preparation of the witnesses for the giving of their  6 evidence?  7 A  In some times I sat with them to help them understand  8 what the lawyers' questions were as an interface, yes.  9 Q  And you did that from July of '85?  10 A  There was no activity regarding legal ramifications  11 until the commission evidence began.  12 Q  Where did you live when you were conducting this  13 occupation?  14 A  I was living — in a cabin about 14 km from Smithers  15 and about 25 from Moricetown.  16 Q  Were you living on a reserve?  17 A  No, I wasn't.  18 MS. KOENIGSBERG:  Those are all my questions.  Thank you.  19 THE COURT:  All right.  Thank you.  Do you have any  20 re-examination?  21 MR. RUSH:  Yes, just a couple of questions.  22  23 RE-EXAMINATION ON QUALIFICATIONS BY MR. RUSH:  24  25 MR. MACKENZIE:  Before my friend starts, my lord, perhaps we  26 could mark that article that I was referring to as an  27 exhibit, the first exhibit.  28 THE COURT:  All right.  29 MR. RUSH:  Well, perhaps it should be the second exhibit.  I  30 thought that I had asked but perhaps I didn't —  31 THE COURT:  I was wondering whether this should be given a  32 reserved number.  Are you going to be having a book of  33 your material, Mr. Mackenzie, during the cross-  34 examination?  35 MR. MACKENZIE:  Yes, I will be handing up a binder to put those  36 in as Mr. Willms —  37 THE COURT:  I would like to suggest we leave that until then and  38 mark it as one of that collection.  It will be so much  39 easier to find it then if I have these things grouped  40 together in some way.  All right.  Mr. Rush? You want  41 first the CV to be marked, I take it?  42 MR. RUSH:  I had asked for it to be marked, I think.  43 THE COURT:  Surely no objection to that?  It will be the next  44 exhibit.  4 5 MR. MACKENZIE:  No, my lord.  46 MS. KOENIGSBERG:  No, my lord.  47 1264>4  A. Mills (Por Plaintiffs)  Re-exe* by Mr. Rush  On Qualifications  (EXHIBIT 903:  CURRICULUM VITAE OP ANTONIA MILLS)  MR. RUSH:  Q  Dr. Mills, you agreed with Mr. Mackenzie that most of  the writing that you had done dealt with  reincarnation, and my question to you is:  As a social  and cultural anthropologist, can you study  reincarnation separate from the social and cultural  institutions of the people under study?  A  No, it's integral to the social and cultural study of  the people.  Q  You also advised or agreed with Mr. Mackenzie that you  were not a linguistic and you are not an expert in  archeology.  My question to you is:  Are linguistics a  part of what you would take into account or study as a  social and cultural anthropologist?  A  Yes, they are, and in fact I did receive training in  linguistic field methods which I used both with the  Beaver Indians and with the Wet'suwet'en.  Q  Did you acquire some facility in respect of both the  Beaver tongue and the Wet'suwet'en tongue?  That  doesn't mean to say I am suggesting you were a fluent  speaker.  A   I did become somewhat conversant in both languages;  more so in Beaver.  £  And so far as archeology goes, is that a discipline or  a component of what a social anthropologist would  study or take into account in the course of his or her  investigations and field work?  A   Yes, it is.  And I did also have some training in  archeology.  I have never participated in an  archeological dig but I have taken courses in the  subject and like most cultural and social  anthropologists, an in a position to read and  understand the material moreso than a  non-anthropologist.  £   Did you dc that with respect to your field work among  trie Beaver, that is to say, take into account the  arcneclogical literature or findings that were  relevant to the Beaver?  A   Yes.  At the time that I began the work with the  Beaver Indians, there had been no relevant archeology  in their particular area but since then there has  beer..  £   And yo- indicated to Mr. Mackenzie that you had  investigated and written upon the material culture of  the beaver '*o:le? 12867  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  On Qualifications  1 A  That is correct.  2 Q  And I wonder if you would explain for his lordship  3 what you meant by the material culture?  4 A  The material culture involves the objects and  5 artifacts that are used by a people that exist on a  6 material level that can be gathered, collected, looked  7 at and produced, and I made a studyh, this study for  8 the Museum Of Man in Ottawa and I also gathered  9 materials for the Museum of Anthropology at the  10 University of British Columbia.  I have done that  11 twice for them, in '76 and then again in '84.  12 Q  All right.  You agreed with Mr. Mackenzie that your  13 publications dealt with religion and spirituality?  14 A  Many of them do.  15 Q  And I would ask you if it's possible, as a cultural  16 and social anthropologist, to study the religion and  17 spirituality of a people, in this case, the Beaver,  18 without also studying the social and cultural  19 institutions and perhaps the laws of those people?  20 A  They are integral.  21 Q  You agreed with Mr. McKenzie that one of the  22 reasons — I should say you agred in part with Mr.  23 Mackenzie that one of the reasons that the Beaver  24 people were chosen by you for study was because of  25 their isolation.  And I wonder if you had another  26 reason or other reasons for undertaking the study of  27 the Beaver people because of the use of your qualifier  28 in part?  29 A  One of the reasons that the Beaver Indians were chosen  30 as a people with whom to do field work was that also  31 this was an area that had not been largely studied  32 previously, so it seemed that it would be useful to  33 fill in the ethnographic record with these people who  34 had not been well studied.  That was one of the  35 criteria that —  36 Q  And were there other reasons that were in your mind at  37 the time of embarking upon your field work with the  38 Beaver?  39 A  I was interested in North American Indian group, this  4 0 was a group that had not been well studied.  41 Q  You were referred to an article entitled Social  42 Anthropology by Professor Evans-Pritchard, a 1951  43 monograph, and in particular to page 14, where a  4 4 passage was read to you and you asked Mr. Mackenzie  4 5 whether or not the passage was intended to encompass a  46 geographic reference to the area of specialization  4 7 contemplated by the reference.  What was not read to 12868  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  On Qualifications  1 you was the next following portion of page 14,  2 beginning halfway through the major paragraph in the  3 middle of the page and I quote:  "The anthropologist  4 becomes a specialist in African studies, in Melanesian  5 studies, in American Indian studies, and so forth.  He  6 then no longer attempts to master the detail of  7 regions other than those of his choice, except in so  8 far as it is embodied in monographs explicitly devoted  9 to general problems, perhaps religious or legal  10 institutions, in which he is particularly interested.  11 There is already a sufficiently abundant literature  12 on, for example, the American Indians or the African  13 Bantu for a scholar to devote himself exclusively to  14 one or the other." Does that help you in determining  15 what the reference points were for the learned author?  16 A  It does, and I would like to say that again  17 anthropologists, North American anthropologists, would  18 perhaps take exception to Evans-Pritchard in this  19 regard. There is one of the eminent American  20 anthropologists, George Peter Murdock, who has  21 compiled an ethnographic atlas of all the cultures in  22 all the areas of the world and some familiarity with  23 cultures in a broad perspective around the world is  24 part of the training of anthropologists on this  25 continent, at any rate.  Indeed, anthropologists could  26 perhaps specialize only, so that they only became  27 experts in one particular area, but that is not by and  28 large what is done.  For example, Richard Lee has done  29 a great deal of field work in Africa, but that has not  30 restricted him from broadening his areas to other  31 geographic areas and other problem areas as well.  And  32 that's typical of anthropologists.  My own mentors,  33 Dr. John and Beatrice Whiting, have been among a team  34 of people who have done cross-cultural research in six  35 cultures, specifically so that you can compare  36 different features in cultures in six widely dispersed  37 culture areas.  And that again is typical of  38 anthropology.  39 Q  And finally, on a point I would direct your attention  40 to, you indicated to Mr. Mackenzie that you had no  41 training in law, and I want to ask you if you consider  42 law among native people, in the case of the Beaver and  43 secondly, in the case of the Wet'suwet'en, to be an  44 institution of those people?  45 A  Yes, I do.  46 q  And is it common for anthropologists, social and  47 cultural anthropologists, to study institutions like 12869  Submission by Mr. Mackenzie  1 law as part of the study, the field of study of the  2 institutions of a people?  3 A  It is, and I have been trained in the study of law  4 from the anthropological perspective.  5 MR. RUSH:  Thank you.  6 THE COURT:  All right.  Thank you. Mr. Mackenzie?  7 MR. MACKENZIE:  My lord, as we have said before, we have no  8 dispute with Dr. Mills' academic training but it's my  9 submission that as apparently all anthropologists, she  10 has really limited herself to a specialization. Her  11 experience has been overwhelmingly, overwhelmingly  12 directed to a study, participant study of the Beaver  13 Indian culture, a culture and a group substantially  14 different from the Wet'suwet'en, from the Wet'suwet'en  15 people.  Not only has her experience been limited  16 primarily to the Beaver Indians, which are much  17 different than this Wet'suwet'en group, her  18 specialization within that has been restricted to  19 psychology, symbolism and religion, with the sole  20 exception of one paper she — one report she did or  21 one report she did at least published for the National  22- Museum on material culture.  In that report, as  23 indicated, she said that over the previous 20 years  24 she had not really looked into the subject of that  25 particular report.  So that she was surprised by some  26 of the things that were coming out.  But that shows —  27 and from Dr. Mills' later comments, is that 20 years  28 of experience is really limited to a specific area.  29 And that's really all that your expertise can be said  30 to be, based on your experience.  31 She, in my submission, she cannot give evidence,  32 expert evidence on the laws of the Wet'suwet'en, a  33 culture substantially different than the Beaver  34 Indians, and a substantially different situation, she  35 cannot comment on the feasts of the Wet'suwet'en, she  36 only attended ten of them, or nine of them, after  37 having been — in comparison to 20 years' experience  38 with the Beaver Indians, in which she has recognized  39 expertise.  40 Her former experience has really been participant  41 observation, without the overwhelming impact of land  42 claims and litigation.  She has been involved in  43 observations with a society in which she was actually  44 living and observing the natural seasonal round  45 without this other influence.  In my submission,  46 she — and furthermore, she agreed that she had no  47 expertise in archeology and linguistics. 12670  Submission by Mr. Mackenzie  1 Her expertise is dealing with comments on current  2 world views and spirituality of the Beaver Indians and  3 possibly of other North American Indians.  In my  4 submission, she cannot comment on the changes over the  5 years or the historicity and time depth of the  6 institutions as she does in her report.  She cannot  7 comment on the laws of the Wet'suwet'en in view of her  8 expertise, in my submission, and looking at the table  9 of contents of her report, in my submission, chapter  10 one say that lies within her expertise in the nature  11 of Wet'suwet'en society.  Chapter five — correction,  12 chapter six — chapter four Institutions Of The  13 Wet'suwet'en.  I say that she can give a description  14 of what she saw when she lived for those 15 months.  I  15 say that she can also speak about the Wet'suwet'en  16 interface with the world, which deals primarily with  17 the religious and spiritual aspects of Wet'suwet'en  18 beliefs and has several passages on reincarnation.  19 I say that she has not the expertise as a result of  20 her experience to comment on the genesis of the  21 Wet'suwet'en, on the archeological-historical accounts  22 and history of the Wet'suwet'en and I say that she  23 cannot speak from, on the basis of her expertise, on  24 chapter five, Wet'suwet'en law.  25 THE COURT:  Thank you.  Ms. Koenigsberg?  26 MS. KOENIGSBERG:  My objection, my lord, is of a different  27 nature than my friend, Mr. Mackenzie's, and it goes to  28 a matter which was canvassed rather broadly with the  29 previous witness.  And it goes to the admissibility  30 and not the qualifications of this witness.  31 We have, again, the matter of participant  32 observation being the basis of the opinions which are  33 to be advanced and that participant observation has  34 taken place during this litigation and in fact  35 involving participation in this litigation.  For the  36 very reason that such participation has taken place  3 7 and is not available for replication, but in addition  38 involves again the duplication of evidence and  39 involves the issue of the lack of objectivity and the  40 taking into account of the land claims process, and in  41 my submission that renders her opinion to the extent  4 2 that it rests upon participant observation,  43 inadmissible.  4 4 In addition, there are numerous facts upon which  4 5 the opinion would appear to be based which have either  46 been disclosed as of 9 o'clock this morning or have  4" not been disclosed yet.  We can deal with those as the 12671  Submission by Ms. Koenigsberg  statter comes up, I suppose, but I raise it at this  time because it would appear that it is going to be  substantial disclosure. We have had some disclosure  of approximately a month ago of notes of this witness.  The previous disclosure was of material upon which  this witness relied but which weren't her actual  notes. And there is an undetermined amount of  material which is — the authorship of which appears  to be this witness which has not yet been disclosed,  and I am not speaking of, I think there were 44  interviews with Wet'suwet'en people, but interviews  which it has become apparent this witness has relied  upon and which have not been disclosed but which were  part of a report by Ms. Murdock.  And, in addition, we received about a three  quarters of an inch of material this morning at 9  o'clock and have not had a chance to go through it.  But it is obviously interviews and genealogical-type  of information, and it is the notes of this witness.  So we will be objecting as we, I guess, go through  the opinion, about admissibility based on those.  THE COURT:  All right.  Thank you.  I don't need to here you Mr.  Rush.  I think that the general area is one which  qualifies for opinion evidence.  I am alive to the  distinction to be drawn between a case like this and  7 one where someone is being advanced to explain  8 something anyone of ordinary common sense should be  9 able to understand.  That's not this case.  This is  C quite a different situation.  I think that there may  1 be areas where her expertise does not qualify her to  2 give opinions.  She may not be able to give opinions  ? on the operation or interpretation of Wet'suwet'en law  4 but that's a matter I will have to deal with as it  - arises.  I think that there is another area and that  6 is that the law as an institution is a matter upon  which she as an anthropologist may be able to give an  E opinion, and I will have to await the unfolding of the  *• evidence before I can rule more fully on that.  The other objections that have been made to her  qualifications, both by Mr. Mackenzie and Ms.  1 Koenigsberg, in my view, go to the question of weight  3 rather than admissibility and for that reason I am  4 going to rule that she is qualified to give opinion  evidence on the areas generally described by Mr. Rush  at the cor-T>encement of today's proceedings.  And I  will hear counsel if they have specific parts of her 12872  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  2Z  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  evidence as they are adduced.  Mr. Rush?  Well, Mr. McKenzie, I have been thinking that I  don't think there is any great risk of marking this  exhibit now, in case we forget.  This is the Social  Anthropology by Evans-Pritchard, and we can just put  it in the collection when it starts to be assembled.  If we remember to do that.  But rather than forget, I  doubt that, but you can correct me if I am in error on  this, Mr. Rush, there is no magic in these numbers, in  that your next exhibit number will be 904 or anything  like that?  There is no magic in that.  There is a matter of  facility of marking, you might want to mark by volume,  but it might be that I will want it to marked.  (EXHIBIT 904:SOCIAL ANTHROPOLOGY ARTICLE - E. E.  EVANS-PRITCHARD)  THE COURT:  And then it can be put in Mr. Mackenzie's collection  and serve the two purposes.  First, we won't forget  and second I will know where to find it.  Thank you,  Mr. Rush.  EXAMINATION IN CHIEF BY MR. RUSH:  MR. RUSH:  MR.  RUSH:  Q  A  Q  A  Q  A  Q  You were asked to perform work on behalf of the  Gitksan-Wet'suwet'en Tribal Council in March of 1985;  is that right?  That's correct.  And what form of work were you asked to perform at  that time?  I was asked to do two different things:  I was asked  to review the literature on the Wet'suwet'en and to  assist the lawyers in understanding that literature.  I was also asked to do research with the Wet'suwet'en  to prepare me to write an opinion report for this  court case.  And did you enter into a contract with regard to  your — the work asked of you to be performed?  I did.  And is that at tab 2?  Yes.  It's not signed by you, but is that one that you did  sign and entered into at some later date?  Yes. 12873  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 Q  And how did you first become involved in —  2 THE COURT:  Do you want to mark it, Mr. Rush?  3 MR. RUSH:  Yes.  4 THE COURT:  905.  5  6 (EXHIBIT 905:  TAB 2 - CONTRACT)  7  8 MR. RUSH:  9 Q  How did you first become involved in performing  10 research on behalf of the Gitksan-Wet'suwet'en Tribal  11 Council?  12 A  I am not sure what you mean by that.  13 Q  When did you first become connected with or were  14 called or how did you become involved?  15 A  I see.  I was contacted by the Tribal Council and  16 asked if I would be interested in performing some  17 research for them.  18 Q  Who contacted you?  19 A  Don Ryan.  20 Q  And you actually embarked upon that research in March  21 of '85?  22' A  That's right.  23 Q      What did you first do when you started that task?  24 A  I began by doing a search of the literature,  25 refreshing myself, reading the material on the  26 Wet'suwet'en and the Carrier, surrounding peoples.  27 Q  And what literature did you refresh your mind with?  28 A  Harmon, Morice, Jenness, Stewart, Goldman, John Adams  29 on the Gitksan, I read some more of the surrounding  30 peoples of the Tsesaut and Tahltan, Emmons on the  31 Tahltan.  That kind of literature.  32 Q  And that's ethnographic literature?  33 A  Yes, it is.  34 Q  And did you then, having reviewed that ethnographic  35 literature, did you then review any other material  36 that you had available to you?  37 A  I went to the Oblate archives in Ottawa to see what  38 they had on Morice, to see if any field notes existed  39 from his time with the Carrier Indians, I read the  4 0 letters, unpublished letters that are in the Oblate  41 archives of Morice and also his predecessors, Father  42 LeJacq and Father Nobili.  43 THE COURT:  What was the second name?  44 A  LeJacq and Nobili.  45 THE COURT:  And did you say that this was at the Oblate  46 archives?  4 7 A   Yes, in Ottawa. 12874  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 MR. RUSH:  2 Q  Did you also go to the Museum Of man while you were in  3 Ottawa?  4 A  Yes, I did.  I was desirous of finding out if there  5 were any field notes extant from Diamond Jenness field  6 work with the Bulkley River Carrier so I went to the  7 Museum of Man and learned that they didn't have any.  8 They put me in contact with his son, having heard that  9 the son had found some hitherto unpublished works of  10 the father, and unfortunately any previous field notes  11 of Jenness were not among these.  I also —  12 Q  Before you pass on, why was it important to you to  13 determine if there were field notes of Diamond  14 Jenness's?  15 A  I was particularly interested in finding out if there  16 were any additional pieces of information about the  17 Bulkley River Carrier, in particular, because in his  18 publication of the oral tradition, The Myths of the  19 Carrier Indians, he does not cite who his informants  20 were or name, in many instances, villages which are  21 referred to and I thought if perhaps I could find his  22 original material it would be more specific than the  23 published material.   I also —  24 Q  Just a moment, please.  Did your investigations end at  25 the Museum of Man with regard to these field notes or  26 absence of them?  27 A  I missed the question.  28 Q  Where did you do your investigations with regard to  29 the field notes?  30 A  At the Museum of Man in Ottawa, and also at the  31 Smithsonian Institution in Washington, D. C, since  32 his monograph on the Bulkley River Carrier was  33 published by the Smithsonian, I thought perhaps they  34 had additional notes that accompanied the original  35 manuscript but they did not.  36 Q  You have been referring to the Bulkley River Carrier,  37 who do you mean?  38 A  I mean the Wet'suwet'en.  I refer to the Bulkley River  39 Carrier only because Jenness does it in his monograph  40 of 1943.  41 Q  Did you conduct any other investigations at any other  42 institutions in Ottawa while you were looking at the  43 Oblate archives?  44 A  I also went and viewed their Carrier or Wet'suwet'en  45 collection of material items, that they have in the  46 museum archives, which are not on public display.  47 q  And by material items, what do you mean? 12875  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 A  Included feast blankets, some of them that are  2 pictured in Jenness were gone on the Wet'suwet'en, ~  3 formed part of the collection of the Museum of Man.  4 So I viewed those.  5 THE COURT:  These feasts blankets are at the Museum of Man, not  6 the Smithsonian?  7 A  At the Museum of Man, yes.  8 MR. RUSH:  9 Q  While at the Museum of Man, did you have occasion to  10 talk to Dr. George MacDonald?  11 A  Yes, I did.  He is the director of the Museum of Man  12 and I went and saw him.  I was particularly interested  13 in seeing the drafts that he was working on of maps  14 showing the trade routes between the Wet'suwet'en and  15 Carrier and the other northwest coast peoples,  16 including the Gitksan and Tsimsian, which he was  17 preparing for publication in the new atlas of Canada.  18 So Dr. MacDonald showed me these maps and I viewed  19 them.  And he also showed me some material that he  20 had.  21 THE COURT:  Is it convenient to adjourn, Mr. Rush?  22 MR. RUSH:  Yes, it is.  23  24 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING LUNCH BREAK)  25  26  27  28  29 I hereby certify the foregoing to be  30 a true and accurate transcript of the  31 proceedings herein to the best of my  32 skill and ability.  33  36 .LUX/W-  38 Wilf Roy  39 Official Reporter  40  41  42  43  44  45  46  47 12876  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  6 Q  Thank you. Dr. Mills, you told Ms. Koenigsberg that  7 you moved to a cabin and resided in a cabin some  8 distance away from Smithers in the summer of 1985. Is  9 that so?  10 A  That's correct.  11 Q  And whereabouts was the cabin located?  12 A  It was on Driftwood Road which is about 14 kilometres  13 from Smithers and about 24 from Moricetown by the  14 Telkwa high road to Moricetown.  15 Q  And what was the month that you moved there?  16 A  July.  17 Q  And throughout the period of time that you were  18 undertaking your investigations with the Wet'suwet'en,  19 were you living at this cabin?  20 A  Yes, I was.  21 Q  All right. And can you tell his lordship what amount  22 of time that you spent at Moricetown and Hagwilget?  23 A  The month of July I spent almost exclusively at  24 Moricetown; in fact, I didn't begin occupying the  25 cabin at that day so I spent the first month of July  26 in Moricetown per se. Then after my children joined  27 me in August I began occupying the cabin and  28 thereafter I would go to Moricetown daily, and I was  29 there usually from 8:30 until four o'clock in the  30 afternoon when I went back when my children got off  31 the school bus. And I also of course went to all the  32 potlatches or the feasts which took place in  33 Moricetown which were typically weekends.  34 Q  All right. When did you move from your cabin on  35 Driftwood Road?  36 A  In July '87.  37 MR. RUSH:  Okay.  3 8 THE  COURT:     You moved out  of  the cabin?  39 THE WITNESS:     I moved out of  the cabin.  40 MR. RUSH:  41 Q  From there where did you move?  42 A  No, I am sorry, that was last year, July '88.  43 Q  July '88, and from there you moved to?  44 A  To Virginia, University of Virginia.  45 Q  is that when you took up a teaching position at the  46 University of Virginia?  47 A  That's right. 12877  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 Q  Now, you indicated that you attended at Moricetown and  2 as well at Hagwilget in respect of a number of feasts?  3 A  Yes.  4 Q  And do you recall the number of feasts that you  5 attended?  6 A  Oh, it was over 15 feasts. They were at Moricetown,  7 one at Gitanmaax, one at Kitwanga, one at Kispiox.  8 The Hagwilget feasts tend to take place in Moricetown.  9 Q  What was the importance, if any, to you of attending  10 these feasts?  11 A  I really wanted to document and learn how feasts take  12 place and what they are, what is done at a feast and  13 to see the variety, by looking at not just a single  14 feast or a few, but the whole range of feasts that  15 took place while I was there.  16 Q  And did you make observations while you were at these  17 feasts?  18 A  I certainly did.  19 Q  And did you record what occurred at these feasts?  20 A  I did.  21 Q  You indicated that some of what you learned at the  22 feast was translated to you in that you were not a  23 fluent Wet'suwet'en speaker?  24 A  That's right. Some of the proceedings were in English  25 and some were in Wet'suwet'en and, when it was in  26 Wet'suwet'en, I often had someone to translate for me  27 but there were other times when I did not. There were  28 sometimes when I could only ask after the fact what  29 had been said.  30 Q  And apart from attending at feasts at Moricetown, did  31 you attend feasts at other locations in the community?  32 A  Well, as I mentioned, I attended the feast at  33 Kitwanga.  That was the — a pole-raising feast of a  34 chief.  35 Q  It was a Gitksan feast?  36 A  That's right.  37 Q  Were there members of the Wet'suwet'en community in  38 attendance there?  3 9 A  Yes. Perhaps you are referring to — I also attended  40 a feast at Burns Lake, a funeral feast, and I also  41 attended the All-Clans feast at Burns Lake.  42 Q  Did you attend any other Gitksan feasts apart from the  43 one at Kitwanga which you have just mentioned?  44 A  Yes, I attended the funeral feast of Albert Tait,  45 Chief Delgamuukw, at Kispiox.  46 MS. KOENIGSBERG:  I am sorry, I am not being able to hear.  47 MR. RUSH: 12878  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  Q  2  3  4  A  5  6  7  8  9  Q  10  11  A  12  Q  13  14  A  15  16  Q  17  18  19  A  20  Q  21  22  23  A  24  Q  25  26  27  A  28  29  30  31  32  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  A  41  42  43  44  45  Q  46  47  A  I wonder, Dr. Mills, if you could try to raise your  voice a bit and perhaps repeat your last answer,  please?  Yes. I attended the funeral feast of Albert Tait,  Chief Delgamuukw at Kispiox, and I also attended two  feasts at Burns Lake. Was that part of that last  answer? One was a funeral feast and one was an  All-Clans feast.  Thank you. And did you record the feasts which you  attended at Moricetown of the Wet'suwet'en?  Yes, I did.  Did you record these in a handwritten form and in a  typescript form?  I wrote handwritten notes at the time and many of them  I put into the word processor later.  Now, your opinion here was submitted in February 1987.  After that time did you also attend at feasts in the  Moricetown area?  Yes, I did.  And from February 1987 through to the time that you  gave up your cabin in the summer of 1988 and moved to  Virginia, did you attend feasts at Moricetown?  I did.  Apart from your attendance at feasts, what else did  you do by way of obtaining information and data about  the Wet'suwet'en?  I went to the Wet'suwet'en, when I first arrived in  July 1985, I went and introduced myself to the head  chiefs of the houses and told them that I would be  conducting research, and I went out with various  chiefs to their territories.  I observed the fishing  that was ongoing at Moricetown.  Just if you can pause there.  Is that the fishing that  occurs in the canyon, are you referring now?  Yes, I am.  Is this the summer inland fishery that you are now  referring to?  Yes, correct.  Go ahead, please?  I interviewed a number of chiefs in their homes and I  reviewed the transcripts of interviews that had  already been made, in some cases ask the chiefs  questions or further — for further information about  what they had said.  Are these transcripts of interviews with Wet'suwet'en  chiefs that you are referring to?  That's correct. 12879  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  16  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  4"  THE  MR.  A  Q  Did you travel at all in your fieldwork with the  Wet'suwet'en?  I travelled to territories with the — with some of  the chiefs. I also went with the chiefs when they  went to Burns Lake and Topley Landing to invite people  to the Wet'suwet'en All-Clan feast of April 1986.  Did you attend at that All-Clans feast in April 6,  1986?  I did.  And did you obtain information with regard to the  genealogies of Wet'suwet'en people?  Yes, I did.  I asked for genealogical information from  a number — a large number of Wet'suwet'en people.  that you asked for genealogical  can you expand on that? What do you mean  When you say  information,  by that?  I asked them to explain to me how — how their  relatives and how they were related to different  people and to explain their descendants and their  ancestors, and I recorded this information. There was  genealogical work which had already been done when I  arrived.  Much of it had been done by Heather Harris,  but there — since there was a tremendous amount of  genealogical work to be done, I was one of the people  who participated in that and conducted some of this  genealogical research.  Were there other people who did that as well?  Yes, there were.  Who was that?  Victor Jim, Chief Misalos.  That's a Wet'suwet'en person?  Wet'suwet'en, conducted —  I am sorry?  Victor Jim, and his name is given, Misalos,  M-i-s-a-1-o-s.  Thank you.  THE WITNESS: And Alfred Joseph I believe has conducted some,  and Chief Gisdaywa and Dora Wilson Kenny, chief  Yaga'lahl.  COURT:  Now, I am sorry, but every time you use one of those  we have got to have a spelling.  there a number?  there is, but the reporter can't stop to do all  Q  A  Q  A  Q  A  COURT:  RUSR:  THE COURT:  THE  THE  THE  names,  WITNESS:      Is  COURT:      Yes,  that.  THE WITNESS:     Yes,   I   am   sorry.  MR.   RUSR:     If  you will   just  pause  there while  I  do  that.  THE  COURT:     Madam  reporter  will   know  some  of  them but  she  can't 12880  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 be expected to keep all of them in mind.  2 MR. ROSS:  3 0      Yes,  417  is the number  there.    And Yaga'Lahl   is 260,  4 and that's on the Wet'suwet'en list, my lord.  5 I am going to hand up two further binders, my  8 lord,  volumes 2 and 3.    Would you please show Dr.  7 Hills volume 2?    Now,  you indicated that you wanted to  6 say something further in one of — in response to one  9 of my questions?  10 A  Yes. Por the record, I'd like to say also that I  11 attended a feast in Gitanmaax that was of a resident  12 of Hagwilget and this was — this is referred to in my  13 report and is part of the feast notes.  I had failed  14 to mention that.  15 0      All   right.    Was that a Wet'suwet'en or a Gitksan  16 feast?  17 A      The person  is Yaga'Lahl,  Dora Wilson Kenny,   someone  18 who fits one Gitksan house  but  is also considered  19 Wet'suwet'en.  20 Q  Now, would you please turn now to volume 2 of this  21 document book. Just ask you, if you would please, to  22 look at tabs 1 through 15 and would you just kindly  23 review each one of those quickly? Now, firstly, are  24 you the author of these notes which appear in tabs 1  25 through 15?  26 A  I am.  27 0  And some of these are typescripts. Were you the  28 person that typescripted the notes?  29 A  Yes.  3C 0  And the notes that appear in handwriting, are they  31 notes taken in your handwriting?  32 A  Yes.  33 Q  And just to refer you to tab 4, it is not readily  34 apparent froir the photocopy which regrettably is a  3 5 poor copy; nonetheless, is this a copy of notes which  3* you took of the funeral feast for David Kenny on  3" Decetber — in December of 1986?  3f A  That's correct.  3^ C  All right.  And tab 6, if you will just refer to that,  4: that appears to be notes at a funeral feast which you  4". took or. March 1, 1987, at the feast of Jim George?  4 1 A       That's   correct.  43 0       That  would  be  after   the  report  was  completed,  after  44 your   cpir.ior.   report  was  completed?  4' A       That's   correct.     You  may  note  also  that   I   did  not   take  4' notes   at   the  Gitksan  feast   that   I  attended  because   I  4^ had   not   beer,   authorized by   the Gitksan  chiefs  to  do  so 12681  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 but although I had been invited to attend those  2 feasts.  3 MR. RUSH: Now, these notes are the notes — I am sorry.  4 MR. MACKENZIE:  Is Dr. Mills the author of number 1?  5 MR. RUSH:  6 Q  Would you please refer to the first tab? Mr.  7 Mackenzie inquires if you were the author or at least  8 the — did you firstly transcribe these notes?  9 A  I did.  10 Q  Okay. And did you take notes at the feast?  11 A  I did.  In some instances my son helped me transcribe,  12 my elder son.  13 Q  What do you mean helped you? Did he do the typing?  14 A  Re typed, took the transcript.  15 Q  Do you verify these as notes that you took at the  16 feast?  17 A  Yes, I do.  18 Q  The notes, were they taken on the dates that are  19 indicated on the transcriptions or the handwriting of  20 the notes?  21 A  That's right, that's right.  22 Q  And you have reviewed these notes, have you?  23 A  Yes.  24 Q  Do they reflect so to your understanding the  25 occurrences, the observations, and the events which  26 transpired at the feasts that are recorded in these  27 tabs 1 to 15?  28 A  Yes, they do.  29 Q  Now, some of the recordings that you made here, do  30 they result from observations which you made at the  31 feast?  32 A  Yes, they do.  33 Q  And some of these recordings, are they of what was  34 said at the feast?  35 A  That's correct.  36 Q  If you look please to tab 1, there are a number of  37 amounts or apparent amounts beside certain names.  3 8           What does that represent?  39 A  That represents money that was contributed at the  40 feast.  41 THE COURT: What do I take from the third one?  42 MR. RUSH:  The third page, my lord?  43 THE COURT:  No, third item, Rusty's contribution.  44 THE WITNESS:  Five dollars.  45 THE COURT:  Five dollars?  46 THE WITNESS: There is a decimal point.  I don't know why there  47 is so many decimal periods afterwards but the decimal 12882  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  points indicates the amount.  THE COURT: So those are decimal points and not commas?  THE WITNESS: They are not commas, yes.  MR. RUSH:  Q  In the case to the reference of Taljoe, that's a $50  amount; is that right?  A  That's right.  Q  All right, thank you. In a number of places there are  names which appear to be Wet'suwet'en names and I  direct you, for example, to page 6 of tab 1. At the  bottom of the page under the title Distributed to the  following as Negaldezut's, that's N-e-g-a-1-d-a-z-u-t,  there are names such as Noostel and Wigetemskol. Are  these your renderings of the Wet'suwet'en names for  certain individuals?  A  That's right. Their names were called out in the  feast hall in this form.  Q  Okay, and Noostel is N-o-o-s-t-e-1 and Wigetemskol is  W-i-g-e-t-e-m-s-k-o-1.  At the feasts that you attended, did you also make  observations and render, in the form of a recording,  recording your observations the seating of the people  at the feast?  A  I did.  Q  And why was that important to you if it was?  A  Well, the Wet'suwet'en had informed me that the  seating order was very important at the feast and  therefore it was — it seemed important to record how  the seating took place and the number of particular  instances so that one was not only getting the perfect  or idealized form but many examples of specific  seating at specific feasts as a way of assessing  whether the — an idealized form conformed to the  actual seating, and also to assess how it had changed  if it had changed, since Jenness had recorded how the  seating was done at feasts.  Q  Now, Jenness had recorded this at sometime, had he?  A  In 1924, '25.  Q  Now, Dr. Mills, in terms of the methodology that you  have used and references to the various investigations  and interviews and participant observation that you  took as a result of that, did you then prepare your  opinion in respect of this — of the subject matter  for which you have now been qualified?  A  Yes.  MR. RUSH: All right.  My lord, I am going to tender two copies  of Dr. Mill's opinion. 12883  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 THE COURT:  Thank you.  2 MR. RUSH: And if I could just — just ask Dr. Mills if she  3 would look at the document that I handed up to your  4 lordship.  5 MR. MACKENZIE: My lord, before my friend goes on, Mr. Rush  6 hasn't asked to have it marked as an exhibit yet  7 obviously because Dr. Mills is examining it but we are  8 going to be objecting to the admission of this report.  9 THE COURT:  Thank you.  10 MR. RUSH:  11 Q  I'd like your lordship to reserve a number for this  12 report in the event that my learned friend's  13 objections are not sustained.  14 Dr. Mills, if you look at the document that's been  15 placed in front of you entitled The Feasts,  16 Institutions and Laws of the Wet'suwet'en, is this the  17 opinion report that you prepared and identify it as  18 such?  19 A  Yes, it is.  20 Q  Thank you.  I'd like you to, if you will please, to  21 turn to page 56 of this document and this document at  22 page 56 has as Chapter 3 the title Genesis of the  23 Wet'suwet'en and, Dr. Mills, can you say for his  24 lordship how the Wet'suwet'en perceive their genesis,  25 please?  26 A  The Wet'suwet'en see themselves as having been in the  27 topography —  28 THE COURT:  I am sorry, I didn't —  29 THE WITNESS: The Wet'suwet'en perceive themselves as having  30 been in situ in the location where they are found now  31 since the very earliest times.  3 2 THE COURT: What do you understand that to mean? What do you  33 understand them to understand that means?  3 4 THE WITNESS:  I understand them to mean that they have been  35 there for such a very long period of time that this is  36 basically their homeland. This is their homeland.  37 MR. RUSH:  3 8        Q  And is there a village to which the Wet'suwet'en  39 people trace their origins?  40 A  Yes, there is. They call it Dizkle.  It is called  41 Dizkle.  42 MR. MACKENZIE:  Excuse me.  My lord, we are going to be  43 objecting to all this evidence.  It's — my friend is  44 bringing out this evidence referring to the report,  45 but it's — and the objection to the report is  46 partially based on the objection to the contents of  47 the report so if my friend is proceeding as apparently 12884  A. Mills (for Plaintiffs)  Submissions by Mr. Mackenzie  1 was done in other — with other witnesses in going  2 through the report and eliciting the opinion evidence  3 from the witness, then perhaps it would be convenient  4 for your lordship to hear an argument insofar as the  5 evidence is concerned, prior to embarking on this line  6 of questioning.  7 THE COURT: Any objection to that, Mr. Rush?  8 MR. RUSH: No, not if my friend wants to make his argument.  9 THE COURT: All right. Thank you. Mr. Mackenzie, is your  10 argument different from the one that was advanced by  11 Mr. Willms with respect to Dr. Daly's report?  12 MR. MACKENZIE: My lord, to answer your question, generally it  13 follows the same line of — I would say that generally  14 it follows the same line of argument that Mr. Willms  15 mentioned and, if your lordship wishes, I will —  16 that's a direct answer. There may be some slight  17 difference but, other than those, it will follow that  18 generally.  19 THE COURT: All right. Well, you must anticipate that I am  20 going to make the same ruling absent any reason to the  21 contrary.  22 MR. MACKENZIE: Yes, I understand that, my lord, and in that  23 . light perhaps I could just summarize the headings of  24 objections that have been raised already to the  25 admission of these types of reports and the objections  26 that we raise with respect to this report.  27 My lord, the first point that will be made with  28 respect to the report itself is that under — with  29 respect to the report and the expert evidence is that  30 under Section 11 of the Eyi^gD£§_A£t, the facts upon  31 which the report has been based, the evidence is  32 based — have not — all the facts have not been  33 produced in our submission in this case prior to the  34 evidence being given. The second submission is that  35 not all the facts — since not all the facts were  36 produced beforehand and since, in our submission, not  37 all the facts were recorded, it is impossible to  3 8 duplicate this exercise or this study or — and  39 therefore to test it. Third heading is that the  40 report is interwoven with a mixture of argument,  41 statements of inadmissible hearsay, findings of fact,  42 non-expert inferences from certain observations, and  43 it's inadmissible for that purpose — for that reason.  44 The fourth general objection is that this evidence and  45 this report clearly relies very heavily upon the oral  46 traditions of the Wet'suwet'en and has already been  47 argued to your lordship. That's a subject — that's a 12885  A. Mills (for Plaintiffs)  Submissions by Mr. Mackenzie  basis defence says is not reliable and a ruling will  be aade later on by your lordship on that. The fifth  point is the point about participant observation which  Ms. Koenigsberg referred to. This purports to be  participant observation but it's clearly been  conducted after the commencement of the litigation and  is based upon documents prepared in contemplation of  litigation, and is characterized as being in  contemplation of land claims advocacy and, as a  result, from participation in feasts and other events  whose sole purpose is land claims advocacy and  resolution.  Second sub point of that under  participant observation is, because of this situation,  it is impossible to duplicate or to test the evidence.  Sixth point is one that I understand hasn't really —  wasn't really made by Mr. Willms and that is that  insofar as this report contains a simple recitation of  chief's evidence, that that's already been heard by  your lordship and your lordship is in a position to  assess that evidence and draw inferences from it.  THE COURT:  That argument was made before.  MR. MACKENZIE:  Yes.  I didn't see it directly in this — on  this subject on a previous time when this argument was  made.  THE COURT:  Ms. Koenigsberg argued it.  MR. MACKENZIE:  Oh, yes, thank you.  And —  THE COURT:  That's six points.  Have you got more?  MR. MACKENZIE:  One more point, my lord, yes.  Your lordship has  heard all these things before. This point your  lordship may not have heard in this context.  Your  lordship has refused to hear evidence about events  after 1984, refused to permit the elicitation of  testimony regarding events after 1984.  It is my  submission that the same reasoning applies to the  evidence that is being given in this report and the  6 evidence which is based upon Dr. Mill's studies, for  " example, the All-Clans feast, it is based explicitly  6 and for the sole purpose of litigation and after 1984,  9 and therefore is not — cannot be relied upon as  0 disclosing a situation untainted, if I can say it that  1 way, by the litigation or unaffected by the litigation  2 is probably a better way of putting it.  And that  3 concludes my comments.  4 THE COURT:  Well, Mr. Mackenzie, I am not going to allow you to  5 make all these arguments.  I ruled on almost all of  6 them.  I will hear you on the one, I think it was your  second one, the notice.  If you have a problem with 12886  A. Mills (for Plaintiffs)  Submissions by Mr. Mackenzie  1 notice, then I think that is a matter that is specific  2 to this report and I will permit further submission in  3 connection with this.  I will be glad to hear you on  4 your submission on the question of notice but we have  5 got a week set aside for this witness and I am not  6 going to spend any more of it than I can be on hearing  7 arguments, but I think I am obliged to — or where the  8 result is clearly visibly already ruled the same  9 before. What's the problem with notice?  10 MR. MACKENZIE:  My lord, it is a little difficult to — let me  11 just summarize.  The problem with notice is that a  12 body of information which we now perceive to have been  13 consulted by the expert has not been produced or  14 disclosed by the plaintiffs and without asking the  15 witness questions about that body of information, it  16 is a little difficult to make the facts — to make the  17 submission specifically. And the other point, as Dr.  18 Mills indicated quite candidly this morning, her  19 interviews with these Wet'suwet'en people on — in her  20 reincarnation project relating specifically to a  21 subject which is detailed in her report have not been  22 produced and apparently are being sent from Virginia  23 . and, my lord —  24 THE COURT:  I didn't understand from what she said this morning  25 that these interviews relate to the — what you have  26 just described as the reincarnation project.  Is that  27 something different than the preparation of this  28 report?  29 MR. MACKENZIE:  Yes, my lord.  30 THE COURT: When were these interviews, that is the  31 reincarnation interviews, undertaken, do you know?  32 MR. MACKENZIE:  They were undertaken during the same time.  33 THE COURT:  During the same period?  34 MR. MACKENZIE:  Yes. And, my lord, if I can assist your  35 lordship, the other category of information that I was  36 referring to is a collection of interviews with the  37 Wet'suwet'en chiefs that was conducted during July and  3 8 August 1984 with the very chiefs which are the subject  39 whose words are repeated and who are the informants in  40 this report, and it is those 20 interviews with notes  41 and summaries that have not been disclosed by the  42 plaintiffs or produced in the case here.  43 THE COURT:  All right, thank you.  44 MS. KOENIGSBERG:  I don't know if I can add to this area but I,  45 my lord, have concerns about whether there has been  46 disclosure of matters which were in fact relied upon  47 by this witness in the preparation of her report and 12887  A. Mills (for Plaintiffs)  Submissions by Ms. Koenigsberg  1 specifically they are in the area of genealogies. We  2 received, as I told your lordship this morning, some  3 material that contains what looks to me on first  4 glance to be of a genealogical nature.  I don't know  5 if that is all of the genealogical work which this  € witness has done. Albeit, I perceive that her report  7 does rest in some part, though it is not clear exactly  8 how, on the genealogical research that she did. When  9 I say it is not clear exactly how, it is not — there  10 are no specific references to genealogical work,  11 however, conclusions which are drawn would appear to  12 derive in part from genealogical research.  I don't  13 know if we have production of all of the genealogical  14 material which this witness in fact collected and upon  15 which she relied. We will have to review that.  16 Albeit, this morning production of that material would  17 not constitute even close to adequate notice for this  18 witness.  That's one area.  19 The second area has to do with land claims  20 interviews. We have had produced — my friend sent us  21 by letter a list of some 21 interviews that this  22 witness relied on and I believe that they fall into  23 that general category of land claims interviews.  24 However, in a document which was produced on Friday to  25 us being the draft — a draft of this final report,  26 there are many references to interviews which formed  27 part of the draft and which I assume have subsequently  28 been incorporated into the final — although I haven't  29 had a chance to do a complete check, and there are a  30 number of land claims tapes referred to and quoted  31 from and I have no record of having received at least  32 a few of the ones that I have come across.  So I don't  33 believe that we have in fact received all of the land  34 claims interviews which this witness has both relied  35 upon and in fact at least in the draft quoted from.  36 The third area is one in which — in the draft  37 which again was produced to us on Friday.  Upon  38 quickly going through it there is reference made to a  3 9 person by the name of Ruth Murdock and interviews and  4C reference i6 made to materials collected by Miss  41 Murdock.  From the draft it would appear that that  42 material was relied upon by Miss Mills.  In the final  43 report there i6 no mention of Miss Murdock, however,  44 it is clear from the Murdock material that there are a  45 number of interviews, 19 or 20, with the Wet'suwet'en  46 chiefs which were relied upon by this witness and  4" which have not been produced. 12888  A. Mills (for Plaintiffs)  Ruling by the Court  1 So that as we go through the final report, it is  2 my belief that we are going to come across  3 considerable amount of opinion upon which we don't  4 have the facts and I think I mentioned before that in  5 my submission that certainly goes to the  6 admissibility. What we are faced with here is of  7 course a question of time and how quickly we can  8 assimilate this material and see if it impacts  9 directly on our cross-examination is of some  10 difficulty since I anticipate we have got  11 approximately two days.  12 THE COURT: Mr. Rush? Mr. Rush, I am not sure I need to hear  13 from you.  14 MR. RUSH:  I would like to make a reply.  15 THE COURT: You may want to say something after you hear what I  16 am going to say.  I will be glad to give you the  17 chance.  I think that we are in a position where we  18 cannot allow the procedural problems which counsel  19 have mentioned, even though they may bear directly on  20 the question of fairness, to stand in the way of the  21 progress of this case.  I think at the end of the day  22 I am going to have to make a determination of how much  23 reliance, if any, I can have on this material if it  24 hasn't been properly supported by the timely  25 furnishing of the underlying facts. But I don't think  26 in view of the discussion we had regarding our  27 schedule this morning that I can allow the kind of  28 problems that counsel have just described to me to  29 stand in the way.  It may at the end of the day lead  30 to a ruling that some of this material is not  31 admissible and it may lead to the ruling that it is  32 not entitled to the weight; in other words, it has not  33 been properly supported by timely disclosure but I do  34 not propose to stop the trial while we — in order to  35 give counsel an opportunity to pursue other matters  36 that in fairness they may think they should  37 investigate.  3 8 I will review the matter when Mr. Rush is finished  39 his examination and if at that time counsel aren't  40 ready to cross-examine, we do have the luxury of  41 having next week and I am sure that counsel would, but  42 this has got to take priority, and it may be that we  43 will have to stand the witness down but I don't think  44 we will have to stand her down at this point.  I think  45 we should carry on with the evidence and deal with  46 these other matters as they proceed.  47 It is totally irrelevant or almost irrelevant what 12889  A. Hills (for Plaintiffs)  Ruling by the Court  Reply by Mr. Rush  1 I am going to say but counsel may be aware when I was  2 in Smithers I was reading a book about the Agent  3 QlAD9fi case of the United States. I just learned this  4 weekend some remarkable rulings by the trial judge in  5 the proceedings of this case that surprised me  6 greatly. The Court of Appeal for the second circuit  7 upheld everything that happened, upheld the settlement  8 and disposed of litigation and the United States  9 Supreme Court declined to review it, so I think that  10 the learned judge in that case was somewhat in the  11 same position that I am in. We have to get on with  12 the problem and, if there is some bruising along the  13 way, I think that's just one of the risks that have to  14 be incurred. Fortunately, it is an adversarial  15 procedure and people expect to be bruised once in a  16 while.  So with that little comment, I think I will  17 ask you to get on with your case, Mr. Rush, although I  18 won't deny you the wish to make a reply if you wish.  19 MR. RUSH:  I do wish to make a reply, my lord. The dealings  20 first with the material that was referred to during  21 the examination of Dr. Mills regarding the interviews  22 which were done concerning the reincarnation paper.  23 It was not evident at the time that Dr. Mills, who was  24 communicating to me from Charlottesville, Virginia,  25 that there was a separate body of interviews and that  26 they would be needed for the support of the facts  27 which underly Dr. Mill's opinion. When we met  28 face-to-face it was evident that these were necessary  29 and we have asked that they be couriered to us. Dr.  30 Mills has indicated that and we will hope that we can  31 get a timely disclosure.  I should point out to your  32 lordship that with reference to that there are two  33 sentences in the report that pertain to that  34 particular — those particular notes, and albeit I —  3 5 there are those two sentences and should we wish to  36 lead evidence on that, then I think we have to produce  37 that evidence and I think we will do so.  3 8 Secondly, with regard to the genealogical notes  3 9 that my friend is concerned about, the notes that  40 are — that have been taken are disclosed in the  41 material and there have been two substantial  42 disclosures and, regrettably, I say that one of them  43 was this morning but nonetheless those are the  44 disclosures that are available with respect to the  45 genealogical material.  That'6 — those are the notes,  46 the underlying facts upon which Dr. Mills relies so  4" far be those opinions pertain. 12890  A. Mills (for Plaintiffs)  Reply by Mr. Rush  1 So far as the land claims interview transcripts  2 go, so far as I am aware and I have no reason to doubt  3 otherwise, every interview done with a hereditary  4 chief which was initially taken by way of a tape, for  5 those that have been transcribed, and my learned  6 friends well know that not all of the ones that were  7 taken in Gitksan and Wet'suwet'en have been  8 transcribed and there are untranscribed, a few I  9 think, untranscribed Gitksan and Wet'suwet'en tapes,  10 but those ones that have been translated and  11 transcribed have been disclosed, and there were full  12 disclosures on that.  In fact, my learned friend wrote  13 to me asking if I could elucidate references made by  14 Dr. Mills in her report to those disclosures which  15 were made last November and that was done.  16 So far as the references to Ruth Murdock goes, my  17 information is, although it is not precise on this,  18 that the report of — or at least the — a draft  19 document written by Ruth Murdock was disclosed in the  20 spring of 1987, and in that document the references  21 are made to certain interviews that were undertaken by  22 persons under the direction of Miss Murdock and those  23 were not requested of me until last night, and I have  24 made efforts to try and ascertain if these interviews  25 are around, and so far as I am aware I have no  26 knowledge if they are available but, so far as this  27 witness is concerned, this witness made reference to  28 the report and, so far as I understand her evidence to  29 be, she made no reference to the interviews and they  30 don't in any way found a factual basis for the report.  31 So that having been stated I think that if there are  32 specific issues with regard to what I take from Ms.  33 Koenigsberg to be a supposition that there may be a  34 translated and transcribed hereditary chief interview  35 available that she knows of that hasn't been  36 disclosed, then I would like to hear about it.  I  37 would like to know what she means by it. And if there  38 is a specific reference to an interview and a date, I  3 9 will do what I can to try and explain that or to get  40 it for her but I think that — I think that my friends  41 should have available this information and I am doing  42 what we can to get this information for them but I  43 think I would be well assisted if this — if these  44 requests had come to me and the kind of specifics that  45 would help me determine them.  46 Now, my learned friend Mr. Mackenzie asked for me  47 to produce these interview notes which apparently were 12891  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1 made in reference to the Murdock report. Be did so  2 yesterday and I made my efforts this morning — or  3 last night actually and further this morning to try  4 and get those to him, but I do think that if — my  5 friend at least identified for me, though not what I  6 considered to be in a fully timely way, those portions  7 of Miss Murdock's report that he wanted and, fair  8 enough, I will try my best to get them for him.  9 THE COURT: You haven't persuaded me to change my ruling.  10 MR. RUSH:  It wasn't intended to change your ruling, my lord.  I  11 was simply trying to state for the record where we  12 stand on this, and that my friends may have left you  13 with an erroneous impression that efforts weren't  14 being made to meet these issues and I fully concur  15 with your lordship that, at the end of the day, the  16 question of fairness in terms of document and fact  17 disclosures will be weighed up, and I want my friends  18 to be satisfied that this information is available, if  19 they can ever be satisfied, and that may be a  20 tremendously big supposition on my part. Having said  21 that, my lord, and perhaps taking too many minutes of  22 the court's time, I am prepared to proceed if your  23■ lordship wishes.  24 THE COURT:  Yes, thank you.  25 MR. RUSH:  26 Q  Thank you.  27 Now, Dr. Mills, referring you back to the document  28 which is before you and again you were ground to a  29 halt on page 56. You had indicated that it was the  30 perception of the Wet'suwet'en people that their early  31 origins were to a village known as Dizkle; is that so?  32 A  That's correct.  33 Q  And is there a tradition which is found in the oral  34 tradition or in the Kungax, K-u-n-g-a-x, regarding the  35 residents or habitation of the village of Dizkle?  36 A  Yes, there is. There is — in fact there are more  37 than one references to this as the origin of the  38 Wet'suwet'en.  3 9 Q  In — what's the form that the oral tradition takes  40 among Wet'suwet'en?  41 A  The oral tradition of the Wet'suwet'en is called  42 Kungax.  It is — there are stories which are recited  43 by people who are considered validated to recite them.  44 Kungax also has other meanings, however.  It brakes  45 down into several words. The kun means spirit or  46 spirit power.  47 Q  That's k-u-n,%is it? 12892  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  A  2  3  4  5  6  Q  7  A  8  9  10  11  Q  12  13  A  14  15  16  17  18  Q  19  20  21  A  22  Q  23  24  25  A  26  Q  27  28  A  29  30  31  Q  32  A  33  34  35  36  Q  37  A  38  Q  39  A  40  Q  41  42  A  43  44  45  46  47  Q  Yes, the first part, and the gax added on means also  the trail of song or trail of power, so there are  several senses in which the word is used.  It also  refers to the enactment of crests or — by the  Wet'suwet'en.  And by enactment you mean?  The dramatization of power typically associated with  hereditary title. There is also a corpus of songs  which are sung which are different from the recitation  of a Kungax but same terminology is used for both.  All right.  And the song, how does that relate to the  recitation of the Kungax, if it does?  A song may be used almost as the validation for a  crest in place of an oral recitation by the  Wet'suwet'en and often in the feast hall.  Rather than  an account being recounted, instead you have the  enactment of a crest and the singing of a song.  In the sense that you have described the singing of a  song or the kun, have you heard songs sung in that  context at a feast?  Yes, I have.  And in terms of a dramatization of the Kungax in the  sense that the word is used there, have you seen such  dramatizations?  Yes.  And what would be one example of such a dramatization  which you had observed?  The dramatization we already have in the court record  of Alfred Joseph describing Wahtahkeg'ht and his  enactment with the hook.  What did you observe?  This was at the feast that was taken where  Wahtahkeg'ht took his name, I did not observe that  one.  I observed the dances, for example, when Chief  Sowis took her name.  S-o-w-i-s?  That's right.  And was that at the Mat Michell funeral feast?  That's correct.  What, if you can say, is the subject matter of the  Kungax or oral tradition of the Wet'suwet'en?  The Kungax of the Wet'suwet'en portray their  perception of their history and of their acquisition  of crests and titles, their relations with other  people, their wars and events that took place with  other peoples.  Okay. And have the Kungax been recorded in a 12893  A. Mills (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  MR.  THE  THE  THE  MR.  systematic way by any ethnographers?  A  Yes. Jenness did a very systematic recording of the  oral tradition of the Carrier which he published in  1934.  Q  And among those oral traditions, were there traditions  that related to the Wet'suwet'en?  A  Yes. The corpus of myths which Jenness recorded —  COURT:  I am sorry, the corpus?  WITNESS: The corpus of myths which Jenness recorded, what  he calls myths of the Carrier Indians, include 51 of  the Wet'suwet'en and 31 of the Eastern Carrier  approximately.  RUSH:  Q  Is there — you indicated that his recording was  systematic. Were there any deficiencies in his  recording of the Kungax that you observed?  A  Jenness is remiss in not having described in this  monograph the circumstances under which he was told  these — the oral traditions, or the person who told  him the oral traditions. We don't know whether the  person told them in their native tongue and that was  translated by someone, or whether that was told in  English, for example. Other points of omission in the  record that we have are that there are a number of  places, rivers, villages, lakes, et cetera, which  occur in the Kungax, and we don't — Jenness does not  provide us with a place name so that it is impossible  to identify exactly where this — these events took  place.  In some instances, he — the place is  recorded; in others, it is not.  RUSH: Okay.  COURT:  Excuse me, Mr. Rush.  I am going to adjourn for a  moment, but before I do, I wasn't sure that I got the  word you used in relation to the crests. Did you say  acquisition of crests or apposition of crests?  WITNESS:  Acquisition.  COURT: Acquisition, all right. We will take the afternoon  adjournment.  RUSH: Yes, thank you. 12894  Proceedings  1   THE REGISTRAR: Order in court.  Court will recess.  2  3 (PROCEEDINGS ADJOURNED AT 3:02 p.m.)  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein, transcribed to the  6 best of my skill and ability.  9  10  11 ^/ 'ñ†/) y  13  I/ _M^C^\   14 TANNIS iJEFOB, Official Reporter  15 United Reporting Service Ltd.  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 12895  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  2  3 ANTONIO MILLS, Resumed:  4  5 EXAMINATION IN CHIEF BY MR. RUSH:  (Continued)  6  7 MR. RUSH:  8 Q  My lord, I wonder if we could reserve the next exhibit  9 number, 906, for the document that has been tendered  10 but not exhibited?  11 THE COURT:  Yes.  12 MR. RUSH: Thank you.  I one wonder now, madam registrar, volume  13 three.  14 Q  Please turn to tab 25, Dr. Mills.  Can you identify  15 the article that's located at that tab?  16 A  Yes, I can.  17 Q  What's that, please?  18 A  This is Diamond Jenness monograph, Myths of the  19 Carrier Indians of British Columbia, published in  20 1934.  21 Q  Did you rely on the contents of this document in the  22 formulation of your opinion?  23 A  I did.  24 MR. RUSH:  Can that be an exhibit, please?  25 THE COURT:  Yes, 907.  26  27 (EXHIBIT 907:  ARTICLE MYTHS OF THE CARRIER INDIANS OF  28 BRITISH COLUMBIA BY DIAMOND JENNESS, 19347  29  30 MR. RUSH:  31 Q  And when Diamond Jenness refers in the title of this  32 monograph to Myths of the Carrier Indians of British  33 Columbia, what do you understand he means by the term  34 myths?  35 A  I think he means oral traditions.  36 Q  Are these the Kungax to which you have referred?  37 A  Yes, the same as the Kungax.  38 Q  And Diamond Jenness, can you tell his lordship who was  39 Diamond Jenness, what time he did his work, please?  40 A  Diamond Jenness was a geographer from New Zealand who  41 came to Canada on an expedition to do some work, and  42 began doing ethnographic work, became one of the chief  4 3 ethnologists of the Museum of Man.  He is also the  44 author of a book, Indians of Canada.  He himself did  45 considerable field work with North American Indians  4 6 amongst the Wet'suwet'en and the Sekani.  4 7 THE COURT:  Actually, his monograph, myths, he calls them tales. 12896  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  MR. RUSH:  2  Q  3  4  5  6  7  8  A  9  10  11  12  13  14  15  16  17  Q  18  19  20  A  21  Q  22  A  23  24  25  Q  26  27  28  A  29  THE COURT  30  A  31  THE COURT  32  A  33  34  MR. RUSH:  35  Q  36  37  A  38  Q  39  40  A  41  42  43  44  45  Q  46  47  He refers to them as well, Dr. Mills, in the first  paragraph, "These tales were collected in the winter  of 1924-'25 at Hagwilget." He refers to them both as  tales and myths.  Is there any significance in your  mind as to what the difference in those two words, so  far as you understand, what these recordings list?  This is, unfortunately, all we are given about this  corpus of oral tradition. He doesn't say what he  means by tales or myths, all he does — or anything  about the informants who told him these myths or  tales, or how he is defining the term or under what  circumstances this corpus was collected and under what  circumstances they were told.  So, this, today, a  ethnographer collecting an oral tradition would record  these features.  This — the number of entries with regard to the  Wet'suwet'en people are identified here under the  reference name of Hagwilget?  That's correct.  And how many did you say there were?  There were — there are 51 that were gathered at  Hagwilget and 31 that were gathered among the Eastern  Carrier, either at Fort Fraser or I think Stony Creek.  And for the purposes of your study, you — did you  analyze the ones that were in reference to the  Wet'suwet'en?  That's correct.  Are they the only ones you used or referred to?  I used the ones at Hagwilget for the Wet'suwet'en.  :  Only?  Yes.  I read the others but I didn't include them as  speaking to the Wet'suwet'en.  Now, are you aware from your reading of Jenness how  Jenness accumulated this data?  No, he doesn't give us any indication.  Are you aware over what period of time he collected  this?  Well, we know that he collected this corpus at the  same time that he was doing field work with the  Bulkley River Carrier, who I will henceforth just call  Wet'suwet'en, and that was for four months in  1924-'25.  Was — to your knowledge was that the only time that  Diamond Jenness undertook a recording of the oral  tradition of the Wet'suwet'en? 12897  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  A  2  Q  3  4  5  6  7  A  8  9  Q  10  11  12  A  13  Q  14  A  15  Q  16  17  A  18  19  20  Q  21  22  A  23  24  25  26  27  28  29  30  Q  31  32  33  34  35  36  A  37  Q  38  39  A  40  41  42  43  Q  44  45  46  47  It's the only time that he came to the area, yes.  In respect of — you mentioned that Mr. Jenness did  not have or at least today there are not retained any  field notes with reference to the field trip that he  took in 1924 to '25, did your comments apply as well  to the collection that's found in this volume?  That's correct.  There is no original handwritten  notes available.  Now, Jenness recorded these oral traditions in 1924 to  1925, to your knowledge had there been any recordings  of Wet'suwet'en traditions prior to that time?  Morice had gathered a few prior to Jenness's arrival.  This is Father Morice, is it?  That's correct.  And are you able to put a date to the time that he did  that?  He arrived in 1885 and it was sometime during the  period between 1885 and 1906 that he recorded some of  the oral tradition but he did not record a great deal.  And by some, are you able to put a number to the  quantity?  He has one article in which he describes three myths  of the Carrier, for example, and I think that there  may be interspersed in his voluminous writing  references to a few more.  In other words, Morice did  not undertake a systematic collection of the oral  tradition of the Carrier. Most of his work pertains  to the Eastern Carrier, who are quite distinct from  the Wet'suwet'en.  All right.  Now, I will ask you, if you will, please,  turn to page 240 of this exhibit to an entry under  number 60, called Origin of the Tribes.  I would ask  you if you made reference to this when you drew your  conclusions about the Wet'suwet'en perception of their  early origins at Dizkle?  This was one of the sources that I used, indeed.  And would you refer his lordship perhaps on page 241  to what it was that you noted?  In entry 60, there is a — there are three versions,  A, B and C, — D, there are four versions of the  origins of tribes as told by Jenness at Hagwilget.  And I have referred to these.  I refer you on 241 to item C, and this refers to there  being, "Long ago there were two villages, Dizkle or  Mosquito Flat 12 miles above Hagwilget on the Bulkley  River, inhabited by Carrier Indians, and Temlaham four  miles below Hazelton on the Skeena River, inhabited by 12898  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Gitksan Indians."  Is this the reference that you made, among others,  to the sourcing of the original homeland of the — or  village of the Wet'suwet'en?  A  Yes.  Q  Now, are there other similar references?  A  Yes, the version C, B, and D all refer to Dizkle as  the origin of the Wet'suwet'en.  In addition to this,  Morice refers to it too, to Dizkle as the original  village in his collection of information from the  Carrier as well.  Q  All right.  THE COURT:  Where did you say there are other references to  Dizkle? In D there is a reference to Mosquito Flat.  C  we have looked at.  Where is the other one?  A  Sorry, it's not B.  C, Mosquito Flat is — it's C and  D here, you're right.  Just C and D?  That's right.  B is another —  THE COURT  A  MR. RUSH:  Q  Now, I wonder if you would please turn to page 234.  And I would ask you if during the course of your  review of the Kungax you made reference to the entry  at number 51, under the origins of the crests of  Guxlet and Kanoots?  A  I did.  Q  And can you just direct his lordship's attention to  this particular Kungax as it relates to the origins of  the Village of Dizkle?  A  This — this A, version A, under number 51, isn't  talking specifically about the origin of Dizkle, but  is talking about a renewal of Dizkle. Mosquito Flat,  as you will see, is referred to as the same as Dizkle.  This is talking about the origin of a chief, a chief's  name which is still extant among the Wet'suwet'en.  He  is talking about the origin of Chief Goohlaht, and the  story recounts how at Dizkle there were people living,  and there was a war, enemies came, and all the people  were killed with the exception of one woman, and this  woman wandering in the wood unearthed a suppine figure  under the ground.  THE COURT:  I have read this, if that's what you're repeating.  A  All right.  And from this, from this resurrection of  the man began the — was the origin of the chief  Goohlaht, and at this time the village was  re-populated.  They erected a totem pole at Dizkle and  in the versions — there are several versions 12899  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 described here, people — there are wars with other  2 people, and in one of the versions the enemies who  3 Goohlaht does war with, he eventually invites to feast  4 with him and makes peace and that — and with this  5 feasting, these people come and settle with him at  6 Dizkle.  7 Q  Does Jenness himself comment on this particular oral  8 tradition?  9 A  Jenness comments on this in his 1943 monograph.  10 MR. RUSH:  Could I ask you, madam registrar, to place before Dr.  11 Mills volume one — excuse me, volume two.  12 Q  Please look at tab 24, can you identify the article  13 that's at that tab, please?  14 A  Yes, I can. This is Diamond Jenness's monograph, the  15 Carrier Indians of the Bulkley River, their social and  16 religious life.  17 Q  Did you rely upon this in the — in the research that  18 you did, in the formation of your opinion?  19 A  I did.  20 Q  And the Carrier Indians of the Bulkley River, to whom  21 is Mr. Jenness referring?  22 A  He is referring to the Wet'suwet'en.  23 Q  And do you know on what information this monograph was  24 published, upon which it was based?  25 A  It was based on Jenness's field work in 1924-'25 for  26 four months with the Wet'suwet'en at Hagwilget and  27 Moricetown.  28 MR. RUSH:  I would like that to be the next exhibit.  29  30 (EXHIBIT 908:JENNESS ARTICLE - THE CARRIER INDIANS OF  31 THE BULKLEY RIVER THEIR SOCIAL AND RELIGIOUS LIFE)  32  33 Q  if you could just turn, please, Dr. Mills, to page  34 476, over to page 477.  If you would just review that  35 passage, please.  And is it that to which you have  36 made reference with regard to Jenness's evaluation of  37 the oral record?  38 A  Yes.  39 q  And to what is he referring when he makes reference to  4 0 the Guxlet, the residents of Guxlet at the bottom of  41 page 4 76 and 4 77, is that the same Kungax, oral  42 tradition, that you have just referred us to, his  43 lordship to?  44 A   Yes.  45 Q  Now, in terms of the early origins of the Village of  46 Dizkle, are there other accounts that you recorded or  47 referred to to determine the origin of that village? 12900  A. Mills (Por Plaintiffs)  In Chief by Mr. Rush  1 A  I have mentioned that Morice mentions Dizkle, Barbeau  2 does as well. And there are contemporary accounts by  3 the Wet'suwet'en people.  The Wet'suwet'en people  4 continue today to cite Dizkle as the origin of  5 themselves, the first village in which they lived.  6 Q  All right. Now, I just want to refer you, if you  7 will, please, to tab 17, if you still have the second  8 volume in front of you.  I think —  9 A  This one?  10 Q  Yes.  Tab 17 contains a transcription of an interview  11 by Alfred Joseph of Mary George on April 23rd, 1981.  12 Did you refer or at least, review this?  13 A  Yes, I both reviewed it and I referred to it in my  14 report.  She also describes Dizkle as the origin of  15 the Wet'suwet'en people.  16 Q  Let me ask you if you also referred to the interview  17 with Mary George at tab 16?  18 THE COURT:  Sorry, where is the reference to Dizkle at tab 17?  19 A  If you will turn to the third page, there are no page  20 numbers here, but the third page and the first full  21 paragraph.  22 THE COURT:  Yes, I see that.  And tab 16?  Do you want to mark  23 that?  24 MR. RUSH:  Yes, I am referring the witness now to tab 16.  25 THE COURT:  I am sorry, do you want to mark tab 17?  26 MR. RUSH:  Well, it could be convenient to do that.  I can do it  27 now.  Thank you.  May that be the next exhibit,  28 please?  29 THE COURT:  Yes, tab 16.  30  31 (EXHIBIT 909: INTERVIEW BY ALFRED JOSEPH OF MARY  32 GEORGE DATED APRIL 23, 1981 )  33  3 4 MR. RUSH:  3 5 c.  And tab 16, Dr. Mills, did you also refer to the  36 interview by Leonard George of Mary George and Gloria  3"* George — I should say by Leonard George and Alfred  3fc Joseph of Mary George and Gloria George, dated August  26, 1981?  4^ A   I believe I did.  4 1 Q  All right.  Thank you.  And I would ask you if you  41 would, please, to look at tab — excuse me, page 13,  4 3 and if you made reference to this portion of the  44 interview?  4'. THE COURT:  Fourth line from the bottom?  4 i .H~ .    P U S H :  <~ 1   Yes, is your attention directed to page 13?  i 12901  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  A  2  Q  3  A  4  Q  5  6  7  A  8  Q  9  10  A  11  12  Q  13  14  A  15  MR. RUSH:  16  17  18  19  20  MR. RUSH:  21  Q  22  23  24  A  25  Q  26  27  28  29  A  30  Q  31  A  32  33  Q  34  35  36  37  A  38  39  40  41  Q  42  A  43  44  45  46  THE COURT  47  A  Yes, it is.  Tab 16?  Yes.  And I would ask if you would look at the M. G.  reference, which is about a quarter of -- well, a  third of the distance from the bottom.  Yes.  It refers to "Duz dleh", do you have an opinion what's  being referred to?  I would agree that that's Dizkle is being referred to  there.  My question is, did you review this transcript in the  course of the preparation of your opinion?  Yes, I did.  May that be the next exhibit?  (EXHIBIT 910: INTERVIEW OF MARY GEORGE AND GLORIA  GEORGE BY GEORGE AND ALFRED JOSEPH DATED AUGUST 26,  1981)  And Mary George, the evidence has been in this court  case that her name was Tsibasaa, had she passed on at  the time that you were doing your work at Moricetown?  That's correct.  Okay.  Now, in terms of other references to the  original Village of Dizkle, did you encounter  contemporary hereditary chiefs or Wet'suwet'en people  who made reference to that?  Yes.  Who might they be?  Johnny David, Madeline Alfred, Peter Alfred, the late  Peter Alfred, Bazil Michell, Emma Michell.  Okay.  Now, I moved away from the monograph of  Jenness's, which is at tab 24, but in perhaps a  synoptic, could you tell his lordship what the subject  matter of that monograph is that he did in 1943?  The 19 43 monograph by Diamond Jenness describes, as he  says, the social and religious life of the Bulkley  River Carrier, who are now identified as the  Wet'suwet'en.  What aspects of the social life does he cover?  He covers the clan system, the houses, the crests,  feasting, the religion, including medicine men, he has  some appendices in which he delineates hunting  territories.  I am sorry, what kind of territories?  Hunting territories, what he calls hunting 12902  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 territories.  I am looking at the table of contents.  2 But he did not travel out to these territories, he  3 just identified them from descriptions that were given  4 to him.  5 THE COURT:  He is deceased now, is he?  6 A  Yes, he is.  7 MR. RUSH:  6        Q  Now, Dr. Mills, in your evaluation of the oral  9 traditions as recorded by Diamond Jenness and your  10 evaluation of the Kungax and oral traditions as told  11 to you by contemporary speakers and what you have  12 read, can you tell his lordship how you as an  13 anthropologist read these oral traditions in order to  14 determine what, if any, their significance is?  15 A  Yes.  16 Q  How would you approach it?  17 A  The oral traditions serve as a recording of the  18 history of these people, as they perceive it, as well  19 as of the events in the past which are — which were  20 important to them.  21 Q  And what do you look for when you examine a reference  22 to the oral tradition to evaluate it in terms of what  23 you have just indicated?  24 A  An anthropologist going through a body of oral  25 tradition like this notes the events that take place,  26 what is considered important, place names, people's  27 names in this instance, chiefs' names, crest names and  28 crests that occur in the context of the oral  29 tradition.  30 Q  If you will, again, refer back to the origins of the  31 crests of Goohlaht and Kanoots, which you have already  32 made reference to at page 234 of volume two which is  33 at tab 23.  If you will just —  34 THE COURT:  I am sorry?  35 MR. RUSH:  Volume three, my lord, page 234 of the first  36 tabulation.  37 THE COURT:  All right.  I am sorry, I am lost, volume three?  38 MR. RUSH:  Yes, it's volume three.  3 9 THE COURT:  Tab?  40 MR. RUSH:  25 at page 234.  41 THE COURT:  I see.  4 2 MR. RUSH:  43 q  Now, in terms of what an anthropologist, as you have  44 indicated, would look for in the oral tradition, if  45 you would look at this particular oral recording and  46 can you identify for his lordship the significance of  47 this Kungax or oral tradition? 12903  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 A  This oral tradition tells us a number of things.  It  2 tells us that the Wet'suwet'en placed their beginnings  3 at a place on the Bulkley River, a village, where  4 people lived in cedar houses, that was shared and  5 occupied by other people as well.  And it is in this  6 context that there are sometimes raids, the village is  7 decimated and grows up again, and the people make  8 peace with surrounding peoples and reconstitute the  9 village.  One of the significant features is that  10 there is a chief name identified in this Kungax, there  11 is also —  12 Q  Who is that?  13 A  This is Chief Goohlaht.  It's a chief's name which  14 continues to be used today. And this is considered  15 the origin of Chief Goohlaht.  It's the original time  16 that Chief Goohlaht emerges as a chief of the  17 Wet'suwet'en.  18 Q  Who holds the name of Goohlaht today?  19 A  Lucy Namox today holds that title.  20 Q  And in this — on page 235, Goohlaht is spelled  21 G-U-X-L-E-T, and is that the spelling that you would  22 give to the name today?  23 A  It's not, no.  24 Q  How would you spell it?  25 A  I don't know how it's been spelled in the transcripts  26 so far, but it is sometimes rendered, G-O-O-H-L-A-H-T.  27 Q  Now, there is the name of a party of girls called  28 Kanoots in the paragraph, looks to be fourth from the  29 bottom on page 235, do you see that?  30 A  Yes.  31 Q  Is there any significance to you in use of the word  32 Kanoots?  33 A  Yes, Kanoots is the name of a chief in Madiik's house,  34 it's a name that's still held and used among the  35 Wet'suwet'en today, and this is cited as the origin of  36 that title.  37 Q  In looking at this Kungax, is there anything else that  38 you draw from it of significance?  39 A  The raven which is placed on top of the totem pole, is  40 a crest that's used by the Gitdumden or Wolf Clan of  41 the Wet'suwet'en.  42 Q  All right.  43 THE COURT:  Raven is the crest of the Wolf Clan?  44 A  Yes.  A crest.  45 MR. RUSH:  4 6 q  Now, is there anything else in this that you draw  47 significance from? 12904  A. Mills (Por Plaintiffs)  In Chief by Mr. Rush  A  I draw significance from the fact that the warring  nature of the Wet'suwet'en, as they perceive  themselves, and the neighbouring peoples, is changed  by inviting the people who have been there adversaries  to a feast, and the feast then succeeds in making  peace with these people, who then settle down with  them at this village.  Q  And there is reference in the last line "after the  feast they settled down beside his house and built a  village"?  A  Yes, that's right.  Q  Is that the reference to having a feast?  A   Yes.  THE COURT:  Where do I find that?  MR. RUSH:  On page 236, my lord, very last line.  THE COURT:  Yes.  Thank you.  MR. RUSH:  Q  Now, is there any reference here to territory that you  find significant or not?  A  Jenness identifies that the territory surrounding  Dizkle was considered the unique hunting preserve of  Chief Goohlaht upon which no other people could  encroach without permission.  So this then is linking  this chief at a particular village with territory and  the control or exclusive rights to that territory.  26 It's also — shall I add?  27 0  Yes, go ahead, please.  28 A  Jenness also says that the house founded by Chief  29 Goohlaht is the house, the thin house, and that  30 remains today the name of the house of Chief Goohlaht.  31 It's a different title but he identified it as being  32 the chief of Tsam'dek'.  33 0   In this particular —  34 A  No, that's in the '43, in the 1943 monograph. Not what  3 5 we have before us, not at this tab.  36 0  Maybe I can just back up.  He, Jenness, identifies  37 Tsam'dek' as meaning what?  36 A  Tsam'dek' is the village, it's one — the house, a  3^ house occupied by Goohlaht at Dizkle.  4C q  Now, Dr. Mills, if you will just refer to your opinion  41 at page 66, from page 66 through to 68, you there set  4? out your description and opinion with regard to the  4 3 Kungax that you have just referred his lordship to?  44 A   I do.  4l THE COURT:  That's of Goohlaht?  4t A   That's right.  4^ V.J- . RUSH:   Yes. 12905  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 Q  Now, Dr. Mills, in assessing this Kungax that Jenness  2 has recorded and you have made reference to, given the  3 significance that you have indicated, what in — from  4 your standpoint as an anthropologist, assists you to  5 determine the reliability of the information that you  6 see recorded in this Kungax?  7 A  The fact that there are several versions of this  8 Kungax, as recorded by Jenness, shows that it's an  9 important Kungax and it shows that it's a Kungax which  10 is told by different people.  In the Wet'suwet'en  11 tradition, a person is authorized to tell a Kungax if  12 it relates to them and only in those circumstances is  13 a person entitled to recount the story. But since  14 this story relates to more than one people, it is  15 origin of the Kanoots, which is a chief within the  16 Wolf or Gitdumden Clan, as well as to Goohlaht, there  17 are different versions extant of this Kungax, that  18 itself bespeaks of the importance to these people and  19 the importance of maintaining these separate  20 traditions.  21 Q  Is there anything else that you would point to that  22 would assist in your determination of the reliability  23 of the information that's contained there in this  24 Kungax?  25 A  The fact that it's recorded by a number of different  26 sources, this is recorded by Jenness, it's recorded by  27 Morice, it's recorded by Barbeau, it's extant among  28 contemporary Wet'suwet'en, all of this accumulation of  29 different people who have recorded the same Kungax at  30 different times among different, among slightly  31 different peoples, indicates that this is an essential  32 Kungax to the Wet'suwet'en.  33 Q  is there any significance to you of the mentioning of  34 a chief's name in the Kungax here and the present day  3 5 existence of a holder of that same name?  36 A  Yes, this Kungax is taken as the origin of that chief.  37 And the fact that that chief exists today bespeaks to  38 the antiquity of the chiefly system among the  39 Wet'suwet'en.  This Kungax depicts the Wet'suwet'en  40 living in villages with cedar houses and territory  41 adjacent controlled by chiefs who are the heads of  42 houses at these locations on salmon streams.  43 q  Now, if we can leave the Village of Dizkle for the  44 moment, in your review of the Kungax and your present  45 day interviews with hereditary chiefs, are there also  46 traditions speaking of the origin of other villages of  47 the Wet'suwet'en? 12906  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 A  Yes, there is mention of Moricetown as well. The  2 Kungax that relates to Moricetown tells first of all  3 about the dispersal of people from Dizkle, people had  4 been living at Dizkle, dispersed from there to found  5 other villages such as Moricetown. And at Moricetown  6 certain other events take place such as the marriage  7 of a chief's daughter to a frog, which is said to be  8 the origin of the frog crest of two clans.  9 Q  Right.  If I may just ask you please to look at page  10 220 at tab 25, again Mr. Jenness is reporting of the  11 oral traditions of the Wet'suwet'en.  12 THE COURT:  Page, please?  13 MR. RUSH:  It's page 220.  And it's entry number 44 entitled  14 "Origin of the crest Kaigyet", K-A-I-G-Y-E-T.  15 Now is mention made here of the Village of  16 Moricetown?  17 A  Yes, Moricetown is referred to in this Kungax, in this  18 Kungax, which as you see is placed in the first days  19 we are talking of the sky-god created for each species  20 a boss that was more monstrous than other animals of  21 its kind. Anthropologists seeing a text like this,  22 infer that it is referring to in ancient time, it is  23 not talking about a recent time.  And this Kungax goes  24 on to relate how people were hunting in the vicinity  25 of Moricetown in autumn, and then if goes on to talk  26 about how this monstrous creature Utakke arrived and  27 was subdued and became a crest for these people.  28 Q  The word Moricetown is used, I presume for the  29 village, could you explain why a word which is  30 apparently of a recent derivation would appear in the  31 text like that?  32 A  This is where we would like to know what the original  33 person who recounted the story used in telling the  34 Kungax to Jenness.  We don't know if they used the  35 word Moricetown or if they used a word Kaigyet, is the  36 Wet'suwet'en word for Moricetown, or if they simply  37 referred to it as a village.  This we can't say  38 because this is all we have.  But we can presume that  39 since this is placed in very early times, that — and  4 0 Moricetown is referred to, that it's a village in or  41 at the vicinity of Moricetown.  4 2 Q  Of the present day Village of Moricetown, is that what  43 you're saying?  44 A  That's correct.  4 5   THE COURT:  Well, as a scientist, when you come across a story  46 such as this, which with your scientific training  4 7 requires to doubt, and keeping in mind that we have to 12907  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  3C  31  31  3 3  34  3 5  36  3 -  3fr  3 c-  4C  4 1  42  4 3  44  4^  4'  4 "  THE COURT  look at these through the eyes of the person telling  it, but does it not lead you to inquire whether there  is any substance to it at all? And by that I mean, if  it's an improbable story by the values that one grows  up to accept, does it not lead you to say, well  somebody made it up at some time and therefore it  doesn't have much validity?  The way that an anthropologist approaches stories like  this is by, for one thing, becoming familiar with a  large corpus of stories and this is not in North  American Indian oral tradition, an unusual story.  The  stories of North American Indians typically involve  the concept that there were — the creatures that were  created to be in charge of each species of animals,  and in this case Kaigyet, this entity that's created  to be in charge of mankind.  When you have a large  number of peoples recounting these kinds of Kungax or  oral traditions, then you say to yourself, these are  categories that are important to the people, that it  is significant that they view things in this way and  then anthropologists typically ask the people what  they mean by having these kinds of betrayals.  But  when you have a story that's talking about the first  days and these early times when their concept of the  cosmology is being established and you have in that  context the placement of a particular place, this is  seen by anthropologists as being significant because  it grounds the two together.  Well, I can understand why an anthropologist would  find significance in a story of some antiquity, that  is that it's been told over and over again, if you  know that is so, because it at least places people in  locations to tell the story.  But when you have a  story that starts with a woman hiding in the ground  and digging down and finding, sitting or upright, a  paralyzed person, still alive, that she digs him up  and brings him back to life and he becomes a powerful  chief, I recognize the significance of the story being  told over and over again, but does it really help you  to determine anything more than the fact that the  people have been there for a long time?  Or are you  trying to do anything more than that?  At the moment, in talking about the genesis of the  Wet'suwet'en that's what I am intent on doing.  It  does also talk about their concepts of how things can  happen and in that world view, this person who is  rouried under the ground is significant but that's not 12908  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 ^ what I am dealing with just now.  2 THE COURT:  But if it's an improbable story, doesn't it mean  3 that either it was made up at one point, then the  4 inquiry is when, or it has been distorted in the  5 telling and you are not hearing the original story?  6 A  No, it can mean that it's talking about another kind  7 of event or reality that is important to these people.  8 For example, this man who is buried in the ground and  9 is then exhumed and comes back to life, this becomes a  10 metaphor for somebody who has very great powers,  11 anyone who obviously cannot or can be buried under the  12 ground and can then be alive, be brought back to life,  13 is not an ordinary human being. And that's one of the  14 statements it's making.  This may — this seems very  15 strange to someone who is not used to it, but the oral  16 traditions of most peoples, indeed, link these peoples  17 to a kind of reality that is outside of what we  18 consider ordinary reality and rather than that meaning  19 that it is — should be discounted, to them it's  20 making an important message, it's saying this man is  21 very special, he is extraordinary, he is not like the  22 ordinary person who could not be buried in the ground  23 and survive.  24 THE COURT:  I don't find it strange at all, I don't find it  25 strange because I think you will find the same thing  26 in every culture.  27 A  That's true.  28 THE COURT:  But what I am trying to just get a handle on is what  29 is — what are the areas of significance that it has?  30 A  Well —  31 THE COURT: What inferences should we draw from it?  32 MR. RUSH:  I think your lordship should know that I am going to  33 direct the witness back to the Kungax in respect of a  34 number of different features and the witness has  35 referred to the purpose of the — of her present  36 review of this Kungax in terms of its antiquity and I  37 intend to refer her to the fact of the mention of  3 8 crest names and as well clan and house names.  39 THE COURT:  Well, I shouldn't be anticipating the direction.  I  40 am sure there is going to be much more of it and there  41 is much more to it than I am seeing, but I am trying  4 2 to get a context in which I should be viewing this  4 3 evidence, because I am not exactly sure what the  44 witness is telling me is the significance of this.  45 And maybe she is not telling me that yet.  4 6 Mr. Rush, it's 4 o'clock. We haven't had a very  47 long day, do you want to go on for a while or do you 12909  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 want to adjourn?  2 MR. RUSH:  I am happy to go on, my lord.  3 THE COURT: Mr. Reporter, can you go on for a while?  4 THE REPORTER:  Yes, my lord.  5 THE COURT:  If we are going to go to five I think we should have  6 a break.  If we are going to go to 4:30, we should  7 carry on.  8 MR. RUSH:  I was going to suggest we go to 4:30.  9 THE COURT:  Let's carry on the way we are then if that's all  10 right.  11 MR. RUSH:  I think one of our numbers will be excused.  12 THE COURT:  She is excused.  13 MR. RUSH:  14 Q  In terms of the references that you have directed his  15 lordship to in the Kungax regarding the early origins  16 of the Village of Dizkle and Moricetown, can you  17 explain to his lordship about the linkage between the  18 Kungax and the age or the antiquity of the references  19 that are contained therein, how you determine that?  20 A  Yes.  One thing that may assist my lordship is to  21 understand that the very — perhaps one could say  22 improbable events that are recounted, the more  23 mythical events, are often noted by anthropologists to  24 refer to the times longest ago, to the times of  25 greatest antiquity.  So perhaps this is one way of  26 tying in the qualities of these stories with the  27 antiquity of the places that are being mentioned.  28 Q  Just on that count, is there a way that — apart from  29 that evaluation, is there a way of determining just  30 what the antiquity of the Kungax is, given the two  31 things you have drawn here?  32 A  They are relating to time in the very far distant  33 past, way before contact, is that what you're  34 referring to?  3 5 Q  Well, just how — what are the signposts, if I can put  36 it that way, that assist you in determining its  37 antiquity?  38 A  They are things like saying, in the first days and  39 then words like in the beginning of time, when those  4 0 kinds of phrases are used, they bespeak antiquity.  41        Q  Now, are there oral traditions or Kungax which mention  4 2 Wet'suwet'en chiefs or crests and neighbouring  43 peoples?  44 A  Yes, there are.  4 5 q  And are the neighbouring peoples the Gitksan?  4 6 A  In some cases.  Even in this Dizkle story they  4 7 depicted as being both Sekani, by Jenness, and people 12910  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  A  Q  down river, who are not specified.  Once again we  would like to know if the person who recounted the  story had identified them or if they were not  identified.  There are other Kungax in which other  chiefs are mentioned, and relating to other peoples  down river, Chief Woos, for example.  Is that Woos, W-O-O-S?  Yes.  Woos is the protagonist in another Kungax  recorded by Jenness, relating to events that take  place down river involving whales, which bespeaks of  coastal area.  All right.  Does Barbeau make mention of Wet'suwet'en  chiefs in the recording of the adaawk?  Yes, he does.  I wonder if you look at tab 34 of your volume, ask you  if you can identify this extract.  It's an extract  entitled Totem Poles of the Gitksan, Upper Skeena,  British Columbia.  And I believe certain portions of  this have been tendered in evidence already.  But I am  directing the witness to a new passage.  Can you  identify this as a publication to which you made  reference?  Yes, I can.  Can that be an exhibit, my lord?  Yes.  911.  (EXHIBIT 911: BULLETIN NO. 61 - TOTEM POLES OF THE  GITKSAN, UPPER SKEENA RIVER, BRITISH COLUMBIA)  Q  If you will look at page 129 under the Poles of  Arhteeh —  THE COURT:  I am sorry, the page number?  MR. RUSH:  129 is the first page, my lord.  I in fact reversed  the order of the pages, probably to confuse everyone,  including myself.  Q  I ask you, if you will, please, to turn to the bottom  of page 129.  And if there you have reviewed the  Barbeau publication a reference to a Wet'suwet'en  chief.  A  Yes.  Woos appears in this account by Barbeau, he is  talking about the relationship of Wolf families at --  under Arhteeh at Kitwanga, and talks about connections  with Woos as a chief of the Wet'suwet'en.  I think he  uses the word Carrier.  Q  Is there, to your knowledge, a present day holder of  the name of Woos?  A  Yes, there is.  A  MR. RUSH:  THE COURT: 12911  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 Q  And is that name of the present day holder, is that in  2 your evaluation, connected to the reference that's  3 made here by Barbeau to a Woos that is spelled  4 W-A-W-S?  5 A  Yes, it is the same.  It's the same chief's name.  6 Q  And in terms of the significance of this reference,  7 Dr. Mills, can you explain what do you draw from the  8 mention of the name Woos here?  9 A  Well, this indicates also that the chiefs among the  10 Wet'suwet'en were recognized equally by the Gitksan as  11 their chiefs and, indeed, they see some linkage to  12 them.  13 Q  And in other Kungax are there references to peoples  14 other than the Wet'suwet'en? You have mentioned in  15 the Goohlaht reference that there was, I believe, a  16 comment about the Sekani people?  17 A  That's right.  18 Q  And is there a — are there other references to other  19 peoples in the Kungax that you can refer to? You  20 mentioned the down river people?  21 A  That's right.  In some accounts the people who are  22 living at Dizkle are described as the Gitksan, the  23 Tahltan, the Carrier and the Sekani.  It varies in  24 different accounts but those peoples occur in one  25 account or another, all of those people.  26 Q  And I just want to refer you for the moment to page  27 141 at tab 25, this is entry number eight, entitled  28 "The Flood", do you see that?  29 A  Is that the other volume?  30 Q  This is volume number —  31 A   25?  32 Q  Yes.  33 A  I see.  I am sorry, what page number?  34 MR. RUSH:  This is 141.  35 THE COURT:  Are you in volume three?  36 MR. RUSH:  Yes, I am.  Tab 25 at 141.  3 7 A  Hm-hmm.  38 Q  in reviewing this Kungax, are there references here  39 that you would glean from this text with respect to  4 0 other peoples, other than the Wet'suwet'en?  41 A  Well —  4 2 q  And by figures that you recognize?  43 A  This Kungax of the flood, there are several versions  4 4 but the — talks about people going down to the coast  45 and meeting a person named Satsan and Satsan is one of  46 the chief's names in Samooh's house.  It's a name that  4 7 is — that continues in existence today among the 12912  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 Wet'suwet'en.  And once again accounts that involve  2 flood are taken to be accounts of events that are very  3 ancient.  4 Q  Why is that?  5 A  Because the flooding of the — because we think that a  6 major flood that inundated took place a very long time  7 ago.  That's one of the reasons.  Similar accounts are  8 found in the oral traditions of most people, including  9 in the Judeo-Christian tradition, the flood there is  10 taken as a very early event.  The same analogy.  11 Q  Now, in terms of clans as portrayed in the Kungax at  12 page 74 of the opinion, you state, and I am quoting:  13 "The Wet'suwet'en Kungax do not recount migrations of  14 these different people to Dizkle.  The clan appear as  15 a given in the Wet'suwet'en Kungax depicting the  16 earliest times."  17 Can you explain to his lordship what you mean by  18 that?  19 A  Some peoples have oral traditions that recount the  20 beginning of a clan in a particular event, natural or  21 supernatural.  The Wet'suwet'en Kungax are noteworthy  22 for always assuming that clans exist.  23 Q  What's noteworthy about that?  24 A  That means that the clans were the very elemental,  25 earliest features in the social organization of these  26 people.  Shall I give an example?  27 Q  Just a moment, please.  Yes, go ahead.  28 A  For example, in some Kungax, after a major event is  29 described, it's said that this person the protagonist  30 in the Kungax, was of the Laksamshu Clan, for example,  31 took this particular object as a crest or it became a  32 crest of the Laksamshu Clan because this person, the  33 protagonist in the Kungax was Laksamshu.  34 Q  I wonder if you would please turn to page 240 of tab  35 25 again.  This is the recording by Jenness of the  36 oral traditions.  And I am here directing your  37 attention to the portrayal of clans.  Now, I'd ask if  38 you had reviewed the entries at 59 and 60 with respect  39 to the origins of the crest porcupine and the origin  40 of tribes in your evaluation of the recitation of  41 clans or references to clans in the Kungax?  42 A  Yes.  4 3 Q  And, in particular, what would you direct his  44 lordship's attention to in entry number 59?  45 A  This is a case where a chief is mentioned, Kweese, who  46 is a — described here as a chief of the Tsayu or  4 7 Beaver phratry, Jenness uses phratry as we use the 12913  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 clan.  2 Q  So we are to equate the word phratry with clan?  3 A  Yes.  There is an account where the head chief of the  4 Tsayu or Beaver phratry, one Kweese, bestows a crest  5 on another person with a particular anecdote that  6 marks the beginning of this crest as a crest which is  7 held henceforth — I am expanding from this ~ by in  8 individual who is in Kweese's house.  9 Q  In terms of the entry at 60, I ask you to look at the  10 top of page 241, and is there anything that you would  11 point his lordship to there that would assist in  12 determining the clan references?  13 A  This is just — in this passage Jenness is noting that  14 the Wet'suwet'en people equate neighbouring peoples  15 with a particular crest or totemic animal. For  16 example, they are saying in this passage that the  17 Sekani came from a wolf, the Fraser Lake Indians from  18 a mink, et cetera. And this tendency to label other  19 peoples by a totemic kind of name is typical of many  20 North American Indian peoples, including the  21 Wet'suwet'en.  22 Q  When you use the expression totemic name, what does  23 that mean?  24 A  Often people will be identified by an animal name, but  25 it's not — there is — it's used not only as a way of  26 describing the qualities of the people as being like  27 the animal wolf, but it often then becomes assumed to  28 be used as a title for these people.  So then you have  29 the different clans associated with different animals  30 in some context.  31 Q  You made reference earlier to the Gitdumden as being  32 associated with the wolf?  33 A  That's right.  34 Q  is that an example?  35 A  Yes, it is.  36 q  All right.  Would you please direct your attention to  37 page 214 of tab 25.  And it's under entry 41, Origin  38 of the clan-name, Ginerhlaiya, G-I-N-E-R-H-L-A-I-Y-A  39 and the crest Kaigyet, K-A-I-G-Y-E-T.  4 0 A  Hm-hmm.  In ~  41 Q  Now, is there reference here to the depiction of the  42 clan as you referred to in your opinion?  4 3 A  Ginerhlaiya becomes a clan name, here again we need to  44 make this little bridge between Jenness's use of these  4 5 names.  When Jenness says clan, he is meaning what we  46 call house.  So this is then the origin of a house  4 7 name, Ginerhlaiya.  And Ginerhlaiya, this tells about 12914  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the origin of this title for a Wet'suwet'en house.  It  also mentions the equivalent name among the Gitksan  language, but Ginerhlaiya is a Wet'suwet'en word, and  so this is then the sort of origin story that's  associated with this particular house, which is still  in existence among the Wet'suwet'en.  It's recognized  as one of the Wet'suwet'en houses.  Q  And at the bottom of page 214, in that entry it says,  and I am quoting:  "One of the clans in the Laksilyu  phratry now bears the name Ginerhlaiya.  In front of  its chief's house at Hagwilget there was formerly an  image of Ginerhlai with human faces over its body and  limbs."  Now, this particular oral reference makes a  connection between the house as it's been identified  and referred by you to the Laksilyu phratry or clan?  A  That's right.  Q  What's your understanding about that connection today?  A  Well, these — this is a — the same relationship  exists today.  The house of Ginerhlaiya is still a  house within the Laksilyu Clan.  THE COURT:  What do you understand an image to be in that  context?  A  I think in that context it means a carving.  THE COURT:  Not a pole?  A  Pardon?  THE COURT:  Not a pole?  A  There are poles that have Ginerhlaiya on them but  since if says image, I am not sure that that's what —  I would have to assume that it's just meaning a  portrayal of some sort.  I wouldn't leap from image to  totem pole.  MR.  RUSH:  Q  On that count. Dr. Mills, are there references to  totem poles in the Kungax?  Yes, there are. And I think that you already have  submitted as evidence in this court the photographs of  the poles of Ginerhlaiya, in the commission evidence  of Johnny David.  Your answer was with reference to the poles of  Ginerhlaiya. My question was whether in reference to  whether in the Kungax there are recordings of totem  poles contained within the substance of those?  Yes, there are two references to totem poles in the  body of the Kungax.  The one is the totem pole that's  erected by Chief Goohlaht at Dizkle, and the second is  a totem pole that's erected in the village of the 12915  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  Q  3  4  A  5  Q  6  A  7  THE COURT:  8  MR. RUSH:  9  Q  10  A  11  Q  12  13  14  15  16  17  18  19  A  20  Q  21  22  A  23  Q  24  25  A  26  27  28  29  30  Q  31  32  A  33  Q  34  35  36  A  37  38  39  Q  40  41  42  43  44  45  46  A  47  Q  dead, which is again —  This is in entry number nine entitled the City of the  Dead?  It's found at page 14.  Of this one?  Yes, of Mr. Jenness, tab 25. Maybe it's 114.  I suspect so.  He seems to start at page 99.  I am sorry, I cut off the three.  Dr. Mills, it's page 143.  It was my error.  Yes.  And if you turn to page 144 — 145, ~ I am sorry.  I  am actually referring you to 147 which is the  following Kungax called Kaits, and I don't know if the  two are related, although it does begin at page 145 as  "A young man one winter travelled along the road that  leads to the land of the dead." But the reference I  would direct you to is on page 147 on the last full  paragraph.  Yes.  And is that the reference that you were directing to  his lordship?  Yes.  What do you take from that, what's the significance of  the reference there?  The significance is that the Wet'suwet'en saw totem  poles as being — well, they recognized the existence  of totem poles.  One wouldn't refer to a totem pole  without being familiar with totem poles.  It's a  category that's significant to them.  Now, are there references throughout the Kungax to  clan crests?  Yes, there are.  And I have directed you to some, but in others, in  your reading of the material, are there references  other than those to which I have directed you?  Yes, there are a number Kungax that describe the  origin of a particular crest that's taken by a  particular chief in a particular clan.  All right.  And at the bottom of page 79 of your  opinion you will see that it says at the bottom of the  second full paragraph, "In short clan crests serve as  markers of the identity of the clan whether the clan  is indigenous or adopted from deep association with  peoples from ancient times."  Does that articulate your opinion on clan crests?  Yes, it does.  Now, can you just say on what does that refer, to 12916  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  A  4  5  Q  6  7  A  8  Q  9  10  11  A  12  Q  13  A  14  Q  15  16  THE  COURT  17  MR.  RUSH:  18  19  THE  COURT  20  MR.  RUSH:  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  34  A  35  Q  36  37  A  38  Q  39  40  A  41  THE  COURT  42  MR.  RUSH:  43  44  THE  COURT  45  MR.  RUSH:  46  Q  47  which does that refer? Which clan crest, for example,  do you mean?  Clan crests such as the sun crest, bear crest, wolf  crest, beaver, frog crest.  The beaver and the eagle are associated, I think the  evidence has been, with Kweese and the Tsayu clan?  That's correct.  And there has been evidence with regard to a raid upon  the people of Kitimat by Kweese and her house and clan  members?  That's correct.  Is that recorded in the Kungax?  Yes, it is.  And just ask you, my lord, to turn to page 232, ask  you Dr. Mills if you will —  Of the report?  No, of tab 25, which is Jenness's recordings of the  oral traditions of the Wet'suwet'en.  Yes.  And is this the accounting of the war with the  Kitimat?  It is.  Have you heard this tradition, this Kungax told by  others?  I have.  By whom?  By Chief Kweese herself.  That is Florence Hall?  That's correct.  In the previous Kungax on page 232, reference is made  to a — to Madiik, do you see that in the last  sentence on page 232?  I do.  And it refers to a personal crest, that is to say, the  antler club, as claimed by Madiik?  Yes.  Do you understand that to be a chief's name held by a  Wet'suwet'en person today, currently?  Yes, I do.  I haven't found Madiik yet.  My lord, it's page 232, just above the entry 49, "War  with the Kitimat."  Yes.  I am sorry.  And the sun crest, Dr. Mills, again, if I may just  direct your attention to 218 of the Jenness monograph, 12917  A. Mills (For Plaintiffs)  In Chief by Mr. Rush  1 I would ask you if this is the reference at the bottom  2 of page 218 that you were directing us to as to the  3 crest that is depicted with reference to one of the  4 clans of the Wet'suwet'en?  5 A  Yes, and this is also the example, one of the examples  6 that I referred to in saying that a particular person,  7 after having a Kungax recounted about them is then  8 said to belong to a particular clan, in this case,  9 Laksamshu, and in this case she is taking a particular  10 crest, sun, sun or moon.  11 Q  Is that a clan that already exists?  12 A  Hm-hmm.  13 THE COURT:  All right.  Is it convenient to adjourn now?  14 MR. RUSH:  Yes, my lord.  15 THE COURT:  All right.  I find I have got myself somewhat  16 engaged after court hours this week.  I won't be able  17 to sit in the evening anyway but I can sit until 5  18 o'clock every night for the next three days at least.  19 MR. RUSH:  I think it might be advisable to do so tomorrow, my  20 lord.  And it may be advisable, given your  21 commitments, on Wednesday.  Those aren't firm yet but  22 we may not be able to sit for more than ->- well, if  23 the funeral is at 11 o'clock on Wednesday, I would be  24 prepared to start at nine and go to about 10:30, but I  25 don't know if counsel want to or can find some better  26 use for their time than to come here just for that  27 short time.  Although we will sit in the afternoon  28 anyway.  But I will be glad to discuss that with  29 counsel tomorrow.  But unless there is a change, I  30 think we should plan to sit until 5 o'clock and I  31 think counsel should give some thought to Saturday.  32 We won't make a decision on that now.  I am sure  33 everyone would like to be free of this for a short  34 time next week.  35 MR. RUSH:  I think some of us have commitments next week  36 pertaining to the case.  37 THE COURT:  I think I understand that, that's why I say we  38 should start looking at Saturday pretty soon.  39 (PROCEEDINGS ADJOURNED TO 10 O'CLOCK A. M., TUESDAY, MARCH  40 7, 1988)  41 I hereby certify the foregoing to be  4 2 a true and accurate transcript of the  4 3 proceedings herein to the best of my  44 skill and ability.  4 5 { ,i^l«G/VL<~m  4 6 Wilf Roy^  47 Official Reporter


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