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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-02-23] British Columbia. Supreme Court Feb 23, 1989

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 12085  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  Vancouver, B. C.  February 23, 1989.  THE REGISTRAR:  In the Supreme Court of British Columbia,  Vancouver, Thursday, February 23, 1989.  Calling  Delgamuukw versus Her Majesty the Queen.  THE COURT:  Mr. Grant?  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  EXAMINATION IN CHIEF BY MR. GRANT:   (Continued)  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  A  I believe we were at about page 249.  Sorry, 249?  249 of the report.   With respect to your suggestion  about this evening, I would like to see how it goes  before the break and speak with co-counsel at the time  of the break and consider it.  All right.  Dr. Daly, I was referring you to the quote at page  249, at the top, I would like to go to the bottom of  that page, in which you state:  "While centralized  social systems view the question of directing and  managing this energy transformation as a process where  human beings subordinate, transform and dominate  nature, societies without highly centralized  structures look on this relationship as one of dynamic  reciprocal interaction between two relative equal  actors - an ongoing cycle of death and rebirth, of  killing, making peace, consuming and giving birth to  new life and energy.  In consuming from nature the  people produce their way of life and ensure a future  for their children, which entails the taking of life,  the causing of death so that human society may  flourish."  That second sentence at the top of page 250, does  that apply only to decentralized societies or does  that apply to all societies?  It applies mostly to decentralized societies.  On the other side of the ledger --  There are pockets of this, of this sort of  phenonomenon within centralized societies but they are  generally a historic carry-over from a society which  is dominated by these reciprocal relations.  "On the other side of the ledger, nature exacts its  price.  We humans are subject to its implacable laws  of birth and death."  Is that statement, that opinion that you were 12086  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 describing in what I have just read, is that what you  2 were explaining by the reciprocal relationship?  3 A   It is, yes.  And this is expressed in the ceremonial  4 and methophoric whole body of meanings that inform the  5 social and ceremonial life in the general region in  6 the northwest coast.  7 Q   And within the field of anthropology, is there a  8 reason, is there a -- an explanation for why this  9 phenomena occurs in decentralized societies and not in  10 centralized societies?  11 A   Some people simply correlate the two factors, they  12 seem to go together.  Others suggest that it is --  13 others suggest that the -- I am sorry -- that the type  14 of social relations in which people are living reflect  15 their relationship to nature and their relations to  16 nature reflected their type of social organization.  17 This is a truism in the way anthropologists examine  18 all societies.  So if you have a hierarchical  19 devolution of authority in one society, you can expect  20 the same sort of attitude towards the nature and what  21 we call the natural resources.  Whereas in the hunting  22 societies, which stress that all your relations are  23 like family, your relations to nature are like family  24 too, so they don't like -- they think it's an  25 injustice to call and ungulate that you are going to  26 hunt as a resource, it's one of your brothers, there  27 is this family tie to it.  So there is a reflection in  28 the thought processes and system of meaning in the  29 culture of the social relations that exist within that  30 society.  31 Q   I would like you to turn to page 251.  Now, first of  32 all, you quote at 250 from Art Mathews Jr. interview  33 notes and then you -- is this -- is this also  34 reflected in the evidence of Art Mathews from your  35 recollection?  36 A   I believe it is, yes.  37 Q   And then you say:  "The Gitksan philosophy of  38 conservation is based upon active pursuit and harvest  39 of the useful species. Without pursuing them regularly  40 and with sustained intensity the Gitksan and  41 Wet'suwet'en say that a species will either abandon an  42 area, or its numbers will fall to such an extent that  43 the remaining population will not remain viable if any  44 hunting were to be carried out."  45 And this is a synopsis of your review and your  46 research, both your review of evidence and your  47 research and interviews; is that right? 12087  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  A  2  Q  3  A  4  Q  5  6  7  8  9  10  11  12  13  14  15  THE COURT  16  MR. GRANT  17  18  Q  19  20  21  A  22  23  24  25  26  Q  27  28  29  30  A  31  Q  32  33  A  34  35  Q  36  A  37  Q  38  A  39  40  Q  41  42  A  43  Q  44  45  46  47  A  Yes.  So it's a fact that you are relying on?  Yes.  Now then you go into the next paragraph, and you say:  "The hunting peoples conduct their harvests in  relation to their technology and their laws of respect  for other humans and other species; they adhere to the  give and take of reciprocity.  This conservation ethic  is based upon the maintenance of relationships between  many species - an imbalance which can be redressed: a  wide variety of species is harvested but within  quantities which allow for regeneration of all because  the human population requires the health of this whole  system to ensure its own dietary societies."  :  Survival.  : Yes, "dietary survival." I shouldn't start the day  speaking so fast.  You're stating here that you -- you are referring to  hunting peoples.  In your opinion, does this apply to  the Gitksan and Wet'suwet'en society, this statement?  Yes, I think it does.  In fact, I am sure it does,  even though they are quite different from a strictly  band society in their social structure, they are more  tribal and of more of a tribal integration.  This does  apply to their society.  Now, just to be clear, when you have talked about --  and you say the word hunting peoples, you have  explained to the court a distinction between bands and  tribes?  Yes.  And you have also explained -- which is a type of  social structure, I --  Yes, typology of social structures.  Hunting is an  economic activity.  And agriculture is an economic activity?  Yes.  So that's another distinction in a different category?  Yes.  Fishing and collecting things from the natural  world are usually subsumed under hunting.  And I think you said at one stage hunting/gathering is  how --  Foraging is another term.  Now, is this concept that you have talked about of --  you also explained how the many tribal societies are  agricultural, the Gitksan, in your opinion, you have  described as a hunting/gathering tribal society?  Yes. 120?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Q   And Marshall Sahlins has also referred to for the  2 northwest coast.  Is this aspect, this relationship to  3 nature, is that something that is typical of tribes,  4 whether they be agricultural or hunting, or is it  5 typical of hunting societies whether they be bands or  6 tribes?  7 A   I am sorry?  8 Q   Don't apologize, it's my -- this concept you have just  9 been explaining about the reciprocal relationship with  10 nature and hierarchical --  11 A   That's applicable to both, by and large.  12 Q   To both?  13 A   Both band societies and tribal societies.  14 Q   Is it applicable to agricultural societies and hunting  15 societies?  16 A   Yes, but more so to hunting societies.  17 Q   Thank you.  I would like to take you to the bottom of  18 that page.  I am sorry, did you --  19 A   No, it's okay.  20 Q   You stated:  In the past the house chief..."  21 And here you are referring to Gitksan and  22 Wet'suwet'en?  23 A   Yes.  24 Q   "...has indirectly managed and directed human  25 participation in the ecosystem.  He has made sure that  26 the hunting and trapping done on his her land is  27 carried out according to rules and procedures known  28 and followed throughout the region."  29 I will pause there.  When you are talking about the  30 region, what are you talking about?  31 A   The -- in general, the northwest coast area but  32 particularly the Skeena and Nass watershed and perhaps  33 the corner of southeast Alaska.  34 Q   And then you state:  "This is still a relevant feature  35 of territorial control and management today."  36 Why do you say this is still a relevant feature of  37 territorial control-- why did you conclude that this  38 is still a relevant feature of territorial control and  39 management today?  40 A   This is what I observed in the course of my field  41 work.  42 Q   Now, on page 252 at the top, you refer to, in more  43 detail -- to that in more detail, I believe, where you  44 say halfway down:  "Today the situation is changing  45 and in order to fight for the use and control of the  46 house territories in the face of considerable  47 competition from outsiders, young Gitksan and 12089  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Wet'suwet'en have found that they must also be  2 educated in contemporary technological and managerial  3 skills - such as those necessary to fish biology and  4 conservation, silviculture and product marketing - if  5 they are to manage and protect their territories  6 effectively."  7 Now, did you observe this yourself?  8 A   I observed this and, first of all, I went to talk to a  9 lot of elders to find out the attitude towards or to  10 find out, basically, the annual cycle of use of the  11 lands, hunting and fishing and gathering in the early  12 contact times, as far back as people could remember.  13 And in these explanations, they informed these  14 explanations with the laws and morality of how you  15 should go about treating the land, stories of respect  16 and the cautions of not over-harvesting and so on.  17 And then I look around and the house I was living in  18 in Hazelton also doubled as a classroom for a fish  19 technology programme, which had just concluded before  20 I arrived, but all their technical equipment was  21 there.  There is a number of young people working in  22 the area of traditional medicine and how to develop  23 concepts of traditional medicine and well-being for  24 public health within the regions in relation to the  25 chiefs' territories.  There is a forestry technology  26 programme going on now to deal with ecological control  27 and sustained yield harvesting and reforestation.  28 There is a -- there are programmes that young people  29 are involved in in terms of native education and  30 language and so on.  These things are all informed.  31 When you ask the participants why they are involved in  32 them, they are informed by the same morality as the  33 old people gave me about the nature of respect and  34 give and take between the human population and the  35 land that they are living on.  36 Q   And you observed some of these courses yourself, that  37 is, observed that they were going on while you were  38 present?  39 A   Yes, yes.  40 Q   Now, I believe you may be aware, but I can advise you  41 that adaawk's have been presented to the court, events  42 at Temlaxhamid, for example, I think one is referred  43 to as the great snowfall and dispersal at Temlaxhamid,  44 the salmon?  45 A   Yes.  46 Q   And you are aware of that and have read versions of it  47 as well as seeing it in transcripts? 12090  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 A   Yes.  2 Q   And the mountain goats at Temlaxhamid?  3 A   The revenge of the mountain goats and the Madiik.  4 Q   The Madiik.  Now, that's been presented in evidence  5 and you have reviewed all of those, you have read  6 versions of those adaawk and told about them by  7 elders?  8 A   Yes, and people refer to them in terms of this is what  9 had happened to our ancestors when our people got lax  10 and didn't show respect.  11 Q   Is there any connection between the referencing and  12 the utilization of those adaawk, and take those three  13 examples that we have just referred to, and what you  14 are talking about in terms of the relationship between  15 the people and the land?  16 A   I don't understand.  You mean how was the -- how does  17 the adaawk inform people's opinions and attitudes  18 today?  19 Q   Yes.  20 A   It's certainly in people's minds but I don't know  21 whether I actually saw the specific connection.  22 Q   All right.  Maybe I will rephrase my question.  23 You have talked about the relationship of the  24 Gitksan and Wet'suwet'en to the land as a reciprocal  25 relationship?  26 A   Yes.  27 Q   And you have described management of the land?  28 A   Yes.  29 Q   And respect for the land?  30 A   Yes.  31 Q   Do those adaawk, on review of those adaawk, assist you  32 in terms of development of your -- any conclusions you  33 have as to the development or that approach or  34 relationship to the land in terms of its --  35 A  Well, it's like when you are reading the adaawk, it's  36 very obvious what the stories are pointing out in  37 terms of their moral repercussions are the same things  38 that the elders told me in the course of my asking  39 them questions.  And the young people who are involved  40 in these modern technological ventures today, they are  41 familiar in broad terms with the -- those aspects of  42 the adaawk which have this component of -- that stress  43 the proper reciprocal moral attitude towards the land  44 as well.  And those who have been lucky enough to have  45 been raised on the land, it becomes that much more  46 immediate, because the events occurred in specific  47 places that they are familiar with. 12091  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  Q  2  3  4  A  5  Q  6  7  8  9  10  11  12  A  13  14  THE  COURT  15  16  17  18  MR.  GRANT  19  20  THE  COURT  21  MR.  GRANT  22  Q  23  24  25  26  27  28  THE  COURT  29  30  MR.  GRANT  31  Q  32  A  33  34  35  36  37  38  39  40  41  42  Q  43  A  44  45  46  47  Now, the next section of your report, under ownership,  is Sesatxw/Hahl'ala', S-E-S-A-T-X-W, H-A-H-L-A-L-A-H,  for the record, and --  Two words.  Those are two words, yes.  Now, you have put this as a  sub category under the section of your report on  stewardship and management.  Now, what I would like to  ask -- and there has been evidence presented by chiefs  about what you're referring to here.  This is a part  of a preparation, for example, in hunting and it's  part of a preparation of peoples spiritually?  Sometimes the chiefs just say it's a procedure you  undertake to be lucky in hunting.  :  Excuse me, Mr. Grant, it's a small thing, but when  we come to look for this evidence with our computers,  you spelled that second word endeing A-L-A-H and here  it's spelled A-L-A apostrophe.  :  I am sorry, I meant apostrophe. Maybe it can be  corrected --  :  Thank you.  Now, can you describe -- what I would like to ask you,  is why do you refer in this part of your report, where  you're dealing with your opinions relating to  management, stewardship and management, in the kinship  economy, why do you include this section on Sesatxw  and Hahl'ala'?  :  Again, Mr. Grant, it may be that I should know but I  don't recognize those two words.  What do they mean?  Could you explain what Sesatxw and Hahl'ala' refer to?  This concept is -- it's a whole body of practices and  an outlook on life and on your territory, which is an  essential part of the training of hunters.  And it  involves the question, the whole question of power,  which I mentioned before, which is partly your  technical ability, your knowledge of your -- your  knowledge of your trade, so to speak, your knowledge  of your terrain, but it also includes training to  visualize your whole territory and what grows on it  and what moves over it in migratory cycles and so on.  You say, just --  People treat it in a very pragmatic way.  It's part  of -- if you are going to be a decent hunter you have  to be trained into the way to respect the species on  your land and the way to visualize them and call them  up, so that when you have to go hunting, you have 12092  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 already almost telepathetically been in touch with  2 that species and you know where to go and to make  3 connection with it.  4 Q   This is something that Stanley Williams described in  5 his evidence, is it?  6 A   Yes, and I believe James Morrison.  I had quite a  7 long -- a couple of long discussions with James  8 Morrison on this and that's in my interview notes, and  9 with Alfred Joseph.  10 Q   And Johnny David described certain features of this?  11 A   He does, yes, in his commission.  12 Q   In his commission. I will just ask you to clarify on  13 page 253 and 254 where you synopsize what you are  14 discussing, at the top of page 253 you say:  "In  15 Gitksan this body of observances and practices is  16 called sesatxw; in Wet'suwet'en: hahl'ala'.  Properly  17 observed, sesatxw/hahl'ala' is said to empower the  18 hunter to succeed in his mission, especially in the  19 winter-long task of food-getting."  20 Going down to the bottom of that page, at 253, you  21 go on to say:  "These procedures viewed as practical  22 preparations for success in all major serious  23 endeavours are composed of both objective and  24 subjective practices.  The objective features,  25 technical skills, practical workmanship, knowledge of  26 the terrain, of the life cycles and habits of the  27 target species and a regimen of self-denial and  28 personal discipline considered essential for  29 successfully achieving a target.  Part of the  30 discipline involves sexual abstinence and the physical  31 cleansing of the body."  32 And in this -- for example, the use of devil's club  33 is one of the aspects of this?  34 A   Yes, and sweat baths.  35 Q   "The subjective features are equally involved with  36 sef1-discipline and knowledge of the terrain.  They  37 include the elimination of thoughts from the mind  38 which can divert attention and psychic focus from the  39 task at hand.  They may involve  excursions into  40 altered states of consciousness; journeys to that  41 portion  of the subconsciousness where the human and  42 natural life forces come closest to fusing with one  43 another.  By combining these objective and subjective  44 preparations the hunter consolidates his skill and  45 power and focuses his forces upon the target without  46 violating the basic principles of respect and sharing.  47 To the uninformed outsider the hahl'ala'/sesatxw 12093  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  A  13  Q  14  A  15  16  17  18  19  20  21  22  23  THE  COURT  24  25  26  A  27  28  29  THE  COURT  30  A  31  32  33  34  35  36  THE  COURT  37  38  A  39  40  41  42  43  44  45  46  THE  COURT  47  MR.  GRANT  regulations may appear to be 'magical and  superstitious', as nineteenth century missionaries and  administrators charged.  However, over the centuries,  the peoples' detaild knowledge of the movement of  animals across the territories became so finely honed  that good hunters developed the ability to divine the  whereabouts of the animals by combining experience,  mental deduction and meditation."  Now, up to that last paragraph on page 254, is the  synopsis that I have read, is that a fair synopsis of  what you have determined?  Yes, I have and it's --  From your research?  It's not easy to obtain the information because many  people don't want to speak about it, since it has been  labelled as something from the savage past by the  missionaries.  Also, it's internal house business,  it's considered to be techniques and property of the  house group, how they actually visualize and use their  land in this way.  So every grouping has their own  variations on how they get into this state of  directedness for the hunt.  :  Well, Dr. Daly, how does one square that with the  concept mentioned yesterday that they gamble away  their winter clothes and can't go hunting?  Well, that wasn't my assumption, that is what the  perceptions of the Hudson's Bay factor was in the  1820s.  :  Are you --  When someone is going hunting, whether they have been  gambling or not, then there is a whole procedure to be  prepared to have a respectful reciprocal attitude to  the land and undertake various procedures so that you  can you can be successful in your hunting and then  presumably you can get back to the gambling.  :  You talk here about regimen of self-denial and  personal discipline.  That's for the specific period that you are hunting.  This whole procedure is in the hunting season and in  the spring trapping, whenever you have to go out for a  specific purpose.  Sometimes when a large feast is  coming up, if a big chief has died, then this is the  time that the hunters prepare in this fashion or in a  retaliatory raid against invaders, the same procedures  are undertaken.  :  Thank you. 12094  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Q   How long can the preparation take for this?  2 A   From what the adaawks say, it can be up to a month, I  3 believe.  4 Q   Is this preparation still carried on today from what  5 you determined?  6 A   I don't know how extensive it is, but it certainly is  7 carried on, yes.  8 Q   Now —  9 A   I know of young trappers who have explained to me why  10 they didn't get animals because they hadn't followed  11 this procedure.  So -- and one or two I have asked  12 them and they won't tell me anything, because they say  13 "that's our internal business."  14 Q   Now, the last part of what I quoted to you, doctor, on  15 page 254, is how over the centuries the peoples'  16 detailed knowledge -- "However, over the centuries,  17 the peoples' detailed knowledge of the movement of  18 animals across a territory became so finally honed  19 that good hunters developed the ability to divine the  20 whereabouts of the animals byt combining experience,  21 mental deduction and meditation."  22 That's a conclusion that you have arrived at from  23 your research; is that right?  24 A   Yes.  25 Q   And do you rely, aside from your interviews and aside  26 from a review of transcripts of the trial, of living  27 witnesses, what else would you have relied on to come  28 to that conclusion?  2 9 A  Well, one example I have heard from two gentlemen in  30 the Kitsegukla and Kitwanga area about the amazing  31 powers of Stanley Williams in this general area and  32 that they have observed various activities that have  33 resulted in his being prepared in this area, to be  34 extremely effective in his connection with the  35 animals.  36 Q   And I believe he made some allusion to that in his  37 evidence?  38 A   Yes.  39 MR. WILLMS:  My lord, I rise here, there is that provocative  40 three words, "over the centuries" there and if the  41 witness could please say where he got that from?  42 THE COURT:  Where is that, please?  43 MR. WILLMS:  It's at page 254, "over the centuries the peoples'  44 knowledge of the movement of the animals", it's that  45 last line in the paragraph.  If he could say what his  46 source of information for that was.  47 MR. GRANT:  My friend underestimates me, I was just coming to 12095  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 that point.  2 Q   Yes, you do make that point of over the centuries and  3 you have given a contemporary example of Stanley  4 Williams, who is, of course, a chief who is still  5 alive, do you rely on, when you say that developed  6 over the centuries, what other sources other than  7 interviews and transcripts would you have referred to  8 for that?  9 A   There is the -- similar procedures have been noted and  10 observed among hunting peoples right across the  11 country, so cross-culturally there are similarities.  12 The peoples' word is the main thing I have used and I  13 assume that this is getting -- it's not something  14 that's just been created since the contact of the  15 white man.  And the people affirm that this is  16 always -- it's reflected in the adaawk histories too.  17 Q   And in the Kungax?  18 A   The adaawk narratives and it's very much part of the  19 Kungax and how these songs developed and peoples'  20 psychic attachment to specific places.  21 Q   If I go back to —  22 A   That example on -- from Australia is of a similar  23 nature, about the psychic trails of across the desert  24 from one side of the continent to the other that  25 specific bands would follow.  It's related to the same  2 6 body of phenomena.  27 Q   Just one moment, would you please?  I go back, there  28 is no necessity to open it but in the blue book at tab  29 2 the Fenton article at Exhibit 886, where at page 270  30 he talks about that statement about the adaawk, about  31 the Handsome Lake and the league, oral histories and  32 he says it's -- his conclusion is "it's loaded down  33 with two too much intellectual literary or ritualistic  34 baggage to be a recent production."  Is there any  35 analogy between that and what you have observed and  36 determined about how sesatxw and hahl'ala'  37 preparations have been described which suggests a time  38 depth?  39 A  Well, the way they are described fits in with the  40 whole mystique and the whole metaphoric and symbolic  41 nature of the art and the culture and the ceremonial  42 life of eating and being eaten and birth and death,  43 and the importance of mouths and so on, and the type  44 of spirits which are taken out of the wild and  45 civilized by an individual being  and the wild powers  46 used by that individual and it then gives him at  47 ability to be a better healer or hunter or what have 12096  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  A  MR.  THE  THE  MR.  MR.  MR.  THE  you, which is common throughout the area.  Doctor, as a scientist don't you need a control  group before you can draw this kind of conclusion?  We  have an example of the Baker Lake case where the  aboriginals were said to be starving and they had to  be brought into Baker Lake.  My old uncle went out  every fall, he always brought back a deer.  Do you  have anything for comparison or as a scientist and  anthropologist, do you not need a control group for  the -- to draw the conclusion I think you are reaching  here?  How do you test the accuracy, the reliability  of this theory?  Well, it hasn't been my -- I haven't set myself that  task of testing the reliability.  Normally the  anthropologist is interested in finding out the logic  of these systems of belief and practice, customary  life, and to present -- to show how the whole thing  holds together and is a very viable way of life  itself.  But the actual testing of its scientific  efficacy and its frequency, is a different matter.  Sometimes this is undertaken, like the great hunt for  the Sasquatch, there is a lot of anthropological work  going on to try to verify those stories.  Well, I could -- I was following you and I could  understand what you were saying when you said you were  just investigating and recording this system of values  and beliefs, but when you put Stanley Williams into it  and then I say, well, are you saying as a scientist  that Stanley Williams' success as a hunter is fairly  to be attributed to this belief?  Practice, I believe.  Or his practice of this belief or what am I to take  from what you are telling me?  I know he practices this body of -- this training and  set of practices.  I don't think my old uncle did.  What am I to  conclude?  My lord, the witness and yourself may not recall,  Stanley Williams did describe this in his evidence, of  course he was a commission witness, you didn't see all  of his evidence, but he did describe on one hunt he  obtained 45 goats, after he had performed this --  WILLMS:  42.  With 42 bullets, my lord.  GRANT:  With 42 bullets, yes.  Thank you, Mr. Willms. In one  day.  COURT:  Well, that's the problem I have with this.  What am  I to draw from that?  I mean, I take what Mr. Williams  THE COURT  GRANT  COURT  A  COURT  GRANT 12097  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE COURT  A  THE COURT  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  A  THE COURT  A  says and assuming and taken at face value and not the  exageration with hunters that there is with fishermen  and discount it, still he had a remarkable catch.  But  as a scientist, I really want to find out from Dr.  Daly as a scientist what do you say or what  conclusions do you say could be drawn from this?  I find it's a very intriguing subject, and I would  like to just be able to say it's something under  investigation.  But in the Stanley Williams example,  the two people I talked to swore they were eye  witnesses to this whole procedure.  It's not just --  :  Let's accept that he shot the 42 goats with 42  bullets, what do you -- what conclusion do you draw  from that, that he wouldn't have gotten 42 if he  hadn't followed these practices?  If we just go on the basis of statistical probability,  it's highly unlikely.  But I would like to have more,  to spend more time gathering further data to further  assess the situation.  It's a question of finding the  correct modicum of translation between our two  cultures, I think, and establishing what we consider  to be a scientific basis for --  : Leaving my dear old uncle out of this, because there  is no evidence about it, we have heard stories of many  Indians who were starving.  :  Sorry, here?  :  Yes.  Not a lot of evidence, we have heard evidence  of Indians starving.  :  Among the Gitksan and Wet'suwet'en, my lord?  :  Yes.  Well, quite often the stories in the oral tradition of  people starving are the consequence of not having the  correct respect and focusing and not following the  procedure.  So it's explained, the disaster is  explained in terms of the logic of the system and the  component parts of the system.  :  That's where I come back to my question of a control  group, there isn't any control group, is there, that  can be used for comparative purposes?  Well, I am not sure I would even use a control group  because we have to set it in its historical context as  well.  Because a lot of the starvation that is  recorded, I know in the Baker Lake area, it's a  consequence of the economic and social conditions at a  specific period in their history, when the old  practices may not have been predominant or may have  been competing with other methods of hunting and so 1209?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 on.  2 THE COURT:  All right.  I am sorry.  I have interrupted you, Mr.  3 Grant.  4 MR. GRANT:  My lord, your interruptions are always welcome.  5 Q   Dr. Daly, you indicated that when we were talking  6 about this, for example of a young hunter, young  7 trapper who attributed poor luck to not practicing  8 this, did you interview or talk with that trapper in  9 the course of more than one season?  10 A   Yes, I did.  11 Q   Can you, just using that example, can you explain how  12 that was described to you?  13 MR. WILLMS:  My lord, perhaps since this is in the realm of  14 hearsay we could have the informant and see whether  15 it's grounded in any evidence.  16 MR. GRANT:  17 Q   This was Vince Jackson the son of Robert Jackson; is  18 that correct?  19 A   That's right.  The year following the -- the first  20 time I asked him how his season had been, he told me  21 it had been terrible but then said it was obvious,  22 because he hadn't followed the right practices and he  23 hadn't done sesatxw.  So, the next year I asked him  24 how his trapping was and he said it was a good season  25 and I said, "so you did everything right this time,  26 did you?"  And he said "yes, I did."  27 Q   All right.  Now, with respect to another aspect of  28 what his lordship has raised, with respect to your  29 observations of the Gitksan and the Wet'suwet'en  30 people generally, could you explain why -- in support  31 of your conclusion, do you have any comment as to the  32 continuation of that practice, and what I mean here  33 is, on the basis that as Stanley Williams has  34 indicated in evidence, and other people you have  35 interviewed, James Morrison and Johnny David, they  36 practised this and they practice it today, in light of  37 your view of generally how the Gitksan and  38 Wet'suwet'en operate, does the fact that they practice  39 it today influence your opinion?  40 A   Yes, the people are very practical, they don't do  41 something that isn't effective, that doesn't work or  42 have a reason for existence.  43 Q   Why do you say that?  44 A   Because if -- if some other method -- it's hard to  45 think of in terms of qualities of evidence and  46 everything else, but if something is more effective,  47 they will use it.  People want the shortcuts to 12099  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 success.  And this is the way people explain it, this  2 is an effective way of hunting and if something else  3 is more effective they will take that up.  4 Q   Now I'd like to go to page 255 at the top, this is  5 still on this section, and you say, and I am going to  6 go to 255 and 256 and ask you a question:  You say  7 "This power of divination was only possible for those  8 who divest themselves of all other pre-occupations and  9 flow with the currents of energy said to unite the  10 natural species one to the other through the seasons."  11 And then you describe the methods again, you  12 summarize them.  And going on to page 256, that middle  13 paragraph, you state:  "Above all, the hunter's mental  14 and spiritual forces must be focused on the target. As  15 the kungax and adaawk narratives reveal again and  16 again, the hunter preoccupied with love and family is  17 likely to suffer defeat as well as possibly lose his  18 life or even his soul to the forces of nature."  19 And then you refer to Emma Michell's commission  20 evidence and the otter woman kungax, in support of  21 that last comment.  In support of that first  22 statement, did yo -- were you on the land at any time  23 with any hunters and make observations relating to the  24 focus of the hunter's mental and spiritual forces?  25 A  Well hunters are --  26 Q   I am talking about Gitksan or Wet'suwet'en, of course.  27 A  My experience in commercial fishing, I know the way  28 the fishermen are alert to their trade and the  29 conditions of the water, the temperature, the colour  30 of the water, they are changing their gear and they  31 are on the go all the time and that same attitude is  32 very evident when one is out on the land with a  33 Gitksan or Wet'suwet'en hunter.  When I was up the  34 Kispiox Valley with David Blackwater, he -- I remember  35 he -- I said, well, there is a Grouse and he said  36 "That's the fifth one we have seen."  And I hadn't  37 seen any others at all.  He actually showed me a  38 marten, which was sitting looking down at us, and he  39 said "that marten is trying to eat that squirrel over  40 here."  It was quite a wet day and I said if we were  41 going to stay here, would it be possible to light a  42 fire, and he said, you could you take dry branches  43 from the bottom of that tree over there, that's the  44 best one around here, you could get a fire going.  So  45 he had sized up all the potentialities as a hunter/  46 trapper, with just walk walking in the underbrush  47 under the old trail where the telegraph line went. 12100  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Q   Did you -- I am sorry, that was on a walk, you were  2 walking with him?  3 A   Yes, that was on that first occasion I went into the  4 territories with David in April of '86.  5 Q   Now, what I would like to do is move to the next  6 section of your report, the next subsection, and this  7 is a section on conservation.  Now, on page 259 and  8 260 you state this with respect to conservation:  9 "Hunting societies have engaged in conservation  10 practices to alter the natural cycles of growth for  11 thousands of years, but these practices do not entail  12 the abandonment of a region by the human population so  13 as to allow animal species to regenerate.  Instead,  14 hunting peoples engage in a process of culling the  15 biological populations and actively studying the  16 habits of the animals.  They also work on the face of  17 the land to make the vegetational cycles more  18 bountiful and sustained for human use."  19 You then refer to the Gamble article which we have  20 already referred to with respect to the Aborigines.  21 Is this an opinion a cross-cultural opinion, that is  22 an opinion accepted with respect to the field of  23 anthropology with respect to hunting societies?  24 A   Yes, in the field of ecological anthropology, it's a  2 5 common finding.  26 Q   And does it, in your opinion, from your research with  27 respect to the Gitksan and the Wet'suwet'en, would it  2 8              apply to them?  29 A   Yes.  30 Q   Now, in support of that, you go on in this section to  31 refer to some key areas and you, for example, on page  32 260, you state:  "The Gitksan and Wet'suwet'en  33 frequently discuss how important burning was for  34 ensuring prolonged good berry yields."  And then you  35 refer to the evidence of Thomas Wright, Art Mathews  36 Jr. and Sybille Haeussler.  37 A   Yes.  38 Q   You then say -- and that's one aspect that you rely on  39 in support of the concept of conservation?  40 A   Yes.  41 Q   You then go on, on page 261, it's a second aspect to  42 deal withe the rules of respect.  You say:  "The  43 chiefly management of ecological relations in the  44 territories was a function of the rules of respect  45 which the chiefs and elders instilled in house members  46 toward the biological species upon which the people  47 relied materially." 12101  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 And you came to that conclusion based on evidence  2 and you rely, as an example, on the first salmon  3 ceremony among both the Wet'suwet'en and the Gitksan?  4 A   Yes.  5 Q   And can you -- his lordship, I believe, has heard  6 about the first salmon ceremony so there is no need to  7 describe it.  8 A   It's a prevalent ceremony all over the general region  9 from northern Washington State right up to Alaska.  I  10 got very graphic descriptions about how you are  11 welcoming the salmon and all the procedures that are  12 undertaken, an it must be put on a clean, fresh bed of  13 leaves and all these procedures.  14 Q   I don't want to -- I may have mis-directed your focus  15 because I don't want to really focus on the first  16 salmon ceremony itself.  But in this statement you  17 say:  "The chiefly management of ecological relations  18 in the territories was a function of the rules of  19 respect which the chiefs and elders instilled in the  20 house members."  21 A   Yes.  22 Q   Can you just explain that?  23 A  Well, part of the training that house members get from  24 their elders, is how to do things in the proper way  25 without messing around with the species.  You're  26 taught generally by the grandparents as a child not to  27 mess around with the salmon when they are spawning,  28 not to play in the spawning beds, not to poke the fish  29 with sticks, the fish have a -- have their -- we  30 should treat them with dignity and respect because we  31 live off them, they give us a lot of our life, they  32 they give birth to you in a sense because we eat them  33 and so on.  I have been informed that the treatment  34 with which the berry fields are controlled by the  35 chiefs as well, that children are not supposed to run  36 up into the hills into the berry patches and pick  37 willy-nilly.  There is a set time when everyone goes  38 to pick the berries when they are all -- the maximum  39 number of them are ripe.  They even send people in or  40 in the past, when they were still able to burn their  41 patches and keep them in a plantation-like condition,  42 they would send someone up to test the ripeness and  43 estimate when was the time for people to actually go  44 there and harvest them.  45 Q   And you refer to that actually on page 262 where you  46 talk --  47 A  And all sorts of rules and regulations which people 12102  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 informed me.  I learned a lot of them in terms of  2 fishing, sitting at the fish camp of Art Mathews'  3 mother and she explained how you keep things neat and  4 tidy and you don't waste anything.  She said these  5 days we waste the innards, we used to dry everything  6 for the dogs in the past.  She felt bad about  7 returning the fish guts to the river, where in the  8 past everything was saved and used.   But then she did  9 say, maybe this will be food for the bears and the  10 whole cycle will complete itself.  And sometimes they  11 would actually bring in a net full of humpback salmon,  12 which they don't like processing because they are very  13 soft in the flesh, and just leave them on the shore to  14 feed the bears.  15 Q   And you observed that?  16 A   I didn't observe it but --  17 Q   They described this to you?  18 A   They described it and I asked them when they had last  19 done it and that it was '85, a bad year for --  20 after -- anyway --  21 Q   Just hold on a moment, doctor.  22 Regarding the question of sustained yield, which  23 you refer to at page 262, you state:  "The harvesting  24 of various species is carried out under the chief's  25 direction according to a sustained yield policy."  And  26 you then refer to the written record.  I will come  27 back to that, that historical allusion of William  28 Brown shortly.  But you then talk about an incident  29 regarding Big Seymour, the former Chief Gyolugyet.  30 This was the chief who controlled an area around where  31 Smithers presently is located; is that right?  32 A   Yes.  33 Q   And he was the grantfather of Pat Namox?  34 A   That's right.  35 Q   Now, you have been informed -- this example informed  36 you with respect to -- it was an example of sustained  37 policy, sustained yield policy?  38 A   Yes.  39 Q   Can you just describe it the -- what happened?  40 A   Pat Namox's father, Alfred, had gotten permission or  41 had been invited, I can't remember which, to use, to  42 go trapping on the territory of Gyolugyet, with one or  43 two other people.  And they were instructed before  44 they went by Big Seymour to only set their traps once  45 and then take your animals, take the traps and remove  46 them.  Because that's all that that area can stand.  47 You can only trap it, I think it was every two years. 12103  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 So they set their traps and they got something in  2 virtually every trap.  So they baited their traps or  3 set their traps up again and then took their furs back  4 and he asked them, "Where are your traps?"  5 Q   This was Gyolugyet, Big Seymour?  6 A   Gyolugyet, Big Seymour, asked them, "Where are your  7 traps?"  And they said, "Trapping was so good that we  8 put them back again."  He said, "You young people you  9 just don't listen.  I told you to bring your traps  10 back.  There is no more animals in there.  There is  11 just a few.  There is enough there to breed again but  12 we won't go in that area for another two years."  And  13 they went back to pick up the traps and they got one  14 beaver on the second set.  15 Q   Now on page 264 you state, you refer to Yerbury, and  16 then you state, the bottom of the middle paragraph, my  17 lord:  "Undoubtedly in many other Athapaskan areas the  18 fur trade caused a devastation of the fauna due to  19 competition for pelts, but among the Wet'suwet'en it  20 appears that the chiefs resisted the over-harvesting  21 of the animals, husbanded and conserved them for both  22 cash and feast food."  Can you tell me why you make  23 that distinction between the Wet'suwet'en and other  24 Athapaskan areas?  25 A   Basically, from my reading about the nature of the  26 early contact period -- it's somewhat different --  27 between the coastal peoples and the people in the --  28 living on the coast range of mountains, compared to  29 what I know about the fur trade in eastern Canada.  30 The settled forts and establishment of a whole way of  31 commercial trapping, somewhat different.  The sea  32 otter trade along the coast, the merchant ships came  33 in after Capt. Cook in the late 1780s and for almost  34 40 years, 35 years or so, they were taking sea otter  35 pelts for trade in China.  They trade all sorts of  36 different commodities to trade with the people and  37 they only wanted certain things which would fit into  38 their feasting system.  39 Q   That is the northwest coast --  40 A   The northwest coastal people.  And we find the same  41 sort of evidence among the Hudson's Bay records, among  42 the carrier peoples, including what they call the  43 Babine Carrier and some of them are called the Babine  44 Carrier of Simpson's River, and Simpson's River is the  45 Skeena.  So we consider it's probably the  46 Wet'suwet'en -- in fact it's very clear it's the  47 Wet'suwet'en when you read the passages. 12104  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  Q  2  A  3  4  5  6  7  8  Q  9  10  11  A  12  13  14  15  Q  16  17  18  19  THE  COURT  20  MR.  GRANT  21  Q  22  23  A  24  25  26  27  Q  28  THE  COURT  29  A  30  THE  COURT  31  MR.  GRANT  32  THE  COURT  33  A  34  THE  COURT  35  MR.  GRANT  36  Q  37  38  A  39  40  THE  COURT  41  A  42  43  THE  COURT  44  MR.  GRANT  45  46  47  Could I just take you to volume two of --  So anyway, there was a system of resource use that  fitted with the social structure and the changing  economic possibilities in the early period of contact,  during the fur trade period it seems to me, didn't  really alter because people selected what they wanted  which would fit into the present ongoing system.  Could you look at tab 87 just in respect to these  comments that you have made.  Maybe you could just  advise the court what that is?  That's one of the Hudson Bay documents.  I believe  it's an annual report to the Hudson Bay authorities by  the factor at Fort Kilmaurs on Babine Lake, Mr.  William Brown.  Now, there is many comments in here but, first of all,  can you go to page -- the sixth page in, there is a  penned-in number, my lord, and then on the left-hand  side and it starts out the Babines of Simpson's River.  :  Yes.  Is that a reference to the Wet'suwet'en or the Gitksan  or --  It's a reference to the Wet'suwet'en and where --  somewhere in there it mentions the Ahtna, which is a  term used to refer to the people we know as the  Gitksan.  Turn to the next page and you will --  :  He said Simpson's River is the Skeena?  Yes.  And something about Ahtna?  A-T-N-A.  And what does Ahtna mean?  Ahtna is Gitksan.  Thank you.  I would like to turn to the next page, which has the  typed-in name the number 5 on it.  I believe he was a little -- may have been confused at  seeing the Bulkley as part of the Skeena.  Yes.  But anyway they speak about the Simpson's River  running all the way down to the sea.  Do you want to go back to page five?  Well, it's one page further on, my lord.  And about  the fifth line down you have that name,  S-M-U-G-G-E-L-H-E-M, in capitals, and do you know who  that's referring to? 12105  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  A  COURT  GRANT  COURT  MR. GRANT  THE  MS.  THE  MR.  THE  THE  MR.  how do you spell the  I think it's G-L-E-  COURT  KOENIGSBERG  this .  COURT  GRANT  A  COURT  A  COURT  GRANT  Q  A  Q  A  Smogelgem.  S-M-U-G —  G-L-E-H-U-M.  And Smogelgem  I am sorry, Mr. -- I don't -  last part of it?  G-E-T —  M-U-G-G — can you help there?  H-U-M.  Well, if you say so.  Is think this is Mr. Grant's translation of  I don't read it that way.  It's fine as long as  we are clear that what we have now is Mr. Grant's  translation of the letters.  Yes.  It's my spelling --  Well, it's rather unclear in the copy.  You see, it looks like somebody has dotted an I  somewhere, if you spell it that way.  I think that's just an accent mark.  An accent for  that syllable of the word.  H-E-E acute M?  You have read this as part of your ethnohistorical  work?  Yes.  And do you know who that's referring to or have you  got a conclusion as to who it's referring to?  I conclude that it refers to one of the Wet'suwet'en  chiefs, who was head chief of the Lax Samshu Clan.  Smogelgem.  And there are so many spellings the  chiefly names in the adaawk and in the early  ethnohistorical records, you have to make various  assumptions and try to back them up with cross-  referencing and so on.  And this is -- I am not  familiar with the name at the bottom, but maat or moot  is a name in the -- among the existing chiefs of the  Wet'suwet'en as well on the following page.  The  spelling is not exactly the same.  But it's the whole  problem of rendering the oral into written standards.  Now, just to assist in determining the role of  Smogelgem, I would like you to go down from the name  there, and I will -- I am talking about this name that  we have just spelled, the tenth line down the word at  the end of the line is expensive and it says:  "He may  collect between 20 and 30 skins in the course of a  season but no reliance can be placed on his coming  regularly to the fort as he trades with the Athnas,  A-T-H-N-A-S, the Indians from the sea coast or any 12106  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  A  Q  A  Q  THE COURT  MR. GRANT  A  Q  A  Q  A  A  Q  other it may suit his convenience."  If you go over one page over, the next page,  doctor, the three lines from the bottom there is a  reference there to a chief C-H-O-L-I-D-S-E-P,  and I  concur that that's my rendition of that spelling and  if my friends differ I am got going --  :  How are you spelling it?  C-H-0 --  :  L-I-D-S-E-P, would you agree with that spelling?  I think it's L-E-D.  L-E-D —  S-E-P.  All right.  :  Where does it say the tenth chief?  :  "The tenth chief according to seniority.  This man  appears to be a guide --"  "A quiet study, peaceable disposition."  Thank you.  I will go to what I want to say and I  think I can get that right.  "He generally trades at the fort."  This is the  third line from the bottom, my lord.   "What he kills  himself and receives from his followers commonly  amounts to between 20 and 30 skins in the course of a  year."  Now that's compareable to what the other one is  under Smogelgem; is that right?  Yes.  Now, when you have reviewed this, are there other  chiefs who it refers to who catch less than that?  He goes through the major chiefs and assesses them in  categories of fur potential and the high chiefs are --  potentially can render him 20 to 30 skins a year and  the lesser chiefs, ten to 20 and other individuals,  less than ten in general.  And he does make reference  to the fact that these chiefs and their adherents, I  think is the word, can bring in this amount of furs.  But whether he gets them or not is always the  question.  They may be put to other uses other than  the trading with him.  Or trading with others.  Okay.  The only question I have out of this point, is  that when you review the entire transcript or report,  and the reference to the number of skins that this  person on page five gets, did that inform you or  assist in your conclusion that that's a reference to  Smogelgem?  Yes, I consider that Smogelgem.  Now -- I am sorry, my lord, I have -- is there a  reference in this, Dr. Daly, that you recall, that 12107  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  illuminates on your opinion relating to the chiefs  resisted over-harvesting of the animals?  I am only  using this report as an example, I know there is more  ethnohistory, historical documents.  A  Well, in his diary, which this report is based on,  there are examples about -- of his complaints about  people not allowing their fellows to go into  territories and maximize the taking of beaver pelts,  because they are used massively in funeral feasts and  in this document he describes their use, the death  customs and the use of the beavers in the funeral  feasts .  MR. GRANT:  Now just if I can — I will just refer you to that.  I believe it's on page 17, if I recall rightly, my  lord.  I had it marked.  I will refer to it after the  break, my lord.  Q   Now, with respect to possibly that -- possibly, this  is one of the documents, an example of documents you  referred to for your ethnohistorical work?  A   Yes.  MR. GRANT:  Can that document be marked as the next Exhibit?  THE COURT:  8 95?  THE REGISTRAR:  595, that's tab 87,  (EXHIBIT 8 95: COPY OF REPORT TO HUDSON'S BAY COMPANY  BY WILLIAM BROWN)  MR. WILLMS:  My lord, this one can go in for the truth of the  contents.  MR. GRANT:  I am not putting it in for the truth of the  contents.  MS. KOENIGSBERG:  Well, maybe it would be helpful then on what  basis it was going in?  Just that this witness relied  on it?  MR. WILLMS:  If the witness -- if it's not relied on as being  truthful, it's not of much use.  But if it's relied on  as being truthful it is of course useful and should be  marked.  THE COURT:  I have never had this situation before, where you  are tendering something for a limited purpose, and  disclaiming an offer to put it in for the truth.  Am I  to take it that you don't want it relied on for the  truth?  MR. GRANT:  I am going to put certain parts of it to the witness  and to those parts, yes, but the question is, is  whether --  THE COURT:  I don't think you need to worry.  I am not going to 1210?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  MR.  GRANT  4  5  THE  COURT  6  7  8  9  MR.  GRANT  10  11  THE  COURT  12  13  14  15  MR.  GRANT  16  17  18  19  THE  COURT  20  MR.  GRANT  21  Q  22  23  24  25  26  27  28  A  29  Q  30  31  32  33  34  A  35  Q  36  A  37  Q  38  39  A  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  45  46  47  deprive myself of the opportunity of having a unique  situation.  :  I would like to reserve on my friend's courtesy,  that's what I would like.  :  Yes.  Your friend's offer.  All right.  All right.  It's admissible for the purpose of informing the  witness's knowledge of the matters contain therein but  not the truth of it.  :  And I may, I may speak to that further later, my  lord.  :  All right.  If I remember it was Mr. Scott, the  great magistrate, who always allowed an accused to be  acquitted if he had a novel defence.  So I am happy to  take advantage of making a novel ruling.  :  Well, it I think in this case there may be a  distinction not a historical record and the Indian  records and I am sure my friends will see that  distinction over and over again.  :  I am sure they will.  Now, just to conclude this section, doctor -- at page  266 -- at page 265, you state:  "The Gitksan and  Wet'suwet'en have many accounts of conservation  procedures pertaining to the salmon."  You then give  some examples.  And you have determined that from your  interviews as well as from the transcripts of  evidence?  Yes.  And on page 266 you state:  "Conservation is closely  linked to respect and reciprocal interaction between  the people and the animal world."  And that is based  on interviews, transcripts and also on the adaawk, for  example, the mountain goat adaawk?  Yes.  Those opinions.  Yes.  And those form your opinions with respect to  conservation?  Yes.  :  I would like to go to the next section, which is  Organizing the Production Process.  :   Perhaps if you are starting a new section --  :  That may be an appropriate time to break, my lord.  (PROCEEDINGS ADJOURNED FOR SHORT RECESS) 12109  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 12110  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECOMMENCED AFTER BRIEF RECESS)  THE  THE  MR.  THE  MR.  REGISTRAR:  COURT: Mr  GRANT  COURT  GRANT  Order in court.  Grant?  Yes.  Just with respect to scheduling, My Lord.  I  think, given what I have accomplished in my  anticipated estimates, as best I can determine now,  that if we sat for an extra hour, as we did last  night.  Yes.  And I anticipate I would probably need some time on  Saturday, if you didn't wish to go into next week.  No, I don't wish to do that.  I can't sit late  tomorrow either.  I understand that.  But based on my organization of  the evidence, I think that -- I am optomistic that  that might deal with it.  All right.  Well, then, what you suggest is we sit  until 5:00 tonight and then we complete the matter on  Saturday?  GRANT:  Yes.  COURT:  Okay.  WILLMS:  My Lord, I am not available because of some other  personal commitments tonight, but Ms. Sigurdson will  be here.  And I am not available tomorrow, but Ms.  Sigurdson will be here.  COURT:  Not at all tomorrow?  WILLMS:  Not at all tomorrow.  Well, that's between you and your client.  Thank you, My Lord.  Yes.  Thank you.  THE COURT  MR. GRANT  THE COURT  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  WILLMS  COURT:  GRANT:  Q  I would just like to refer back briefly.  I am going  to deal with Tab 87, Exhibit 895 in more detail later,  but, Dr. Daly, I would just like to refer you back to  page 6, this other reference I was looking for.  With  respect to informing your view as to the nature of the  system, and particularly in this chapter of ownership  by the Wet'suwet'en and the Gitksan, could you look to  page 6 -- and that's a page numbered on the left-hand  side, My Lord, where it starts:  "The Babines of Simpson's River"  At the top.  And I would ask you to look -- do you  have that doctor? 12111  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  A  2  Q  3  4  5  6  7  THE  COURT  8  MR.  GRANT  9  10  Q  11  12  A  13  Q  14  15  16  17  18  THE  COURT  19  MR.  GRANT  20  Q  21  22  23  24  25  26  27  28  THE  COURT  29  THE  WITNE  30  MR.  GRANT  31  Q  32  A  33  Q  34  35  36  THE  COURT  37  MR.  GRANT  38  39  40  41  Q  42  43  44  45  A  46  47  Page 6 I have is numbered at the right-hand side.  Yes.  Just a moment, I will get it for you.  There is  two numbers of page 6.  There is another one as well.  Right here.  Its got a number, handwritten number.  And it's the line with the first word "hunting".  That's the end of the previous sentence.  :  Under what line?  :  It's about the tenth line down, My Lord.  This is  with reference to the Babine villages.  This is what you were describing earlier as the  Wet'suwet'en villages, is that right, doctor?  Yes.  And Mr. Brown states:  "They reckon 20 chiefs of different  gradations ..."  :  Just a minute.  I see, yes.  Thank you.  "... and 67 married men whom they denominate  respectable as being heads of families and  possessers of lands.  The following are the  most noted amongst the chiefs and those with  whom we have had the most dealings."  And then the list starts, which includes that  second one, Smogelgem.  :  What's the first one?  O-O-S?  3S:  O-S-S.  Oss .  Probably, I assume, that would be Woos.  Woos.  I may advise My Lord that Dr. Daly has, of  course, referred to this.  He is not going to be the  only witness --  :  No.  :  -- of the plaintiffs dealing with this, and these  other names, I think, will be dealt with by one of the  other witnesses for the plaintiffs in more detail,  although Dr. Daly knows some of them.  Did that statement that I have just read to you, did  that assist you in your -- in terms of your analysis  of the ethnohistory in determining the question of  the —  Well, when you are looking at traders' reports, you  have to realize that the trader is writing about what  is germane to his interests, and it seems my reading 12112  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 of this is that he's getting a lay of the land  2 socially, so-to-speak, to find out who are the people  3 or what is the avenue to the furs, given the social  4 structure.  There are 67 heads of families who are  5 possessers of lands.  From his understanding of how  6 the Carrier system in general works, is a good way to  7 get at the furs, which people you are going to focus  8 on, and they in turn will obtain the furs through the  9 traditional devolution of authority.  So I -- it's --  10 you know, these documents have to be seen through the  11 filter of the fact that there are two cultures that  12 play that of the writer and that of the people he is  13 observing, and there is an interplay between them in  14 the -- on the pages of what they are writing and why  15 they are selecting to write certain things.  16 Q   And is that one reason why ethnohistory doesn't just  17 take at face value what is said, but analyzes --  18 A   Yes, you try to contextualize it in terms of the --  19 make an assumption or make a determination on what the  20 interests are of the people, the person who is  21 speaking or recording.  22 Q   I would like to now turn you -- you can give it back  23 to Madam Registrar.  I would like to turn now to page  24 266 -- 267, I'm sorry, the next section, "Organizing  25 the production process."  And you state at the top:  26  27 "The chiefs, in consultation with the senior  28 ladies or matrons, and the counsellors  29 organized the whole production calender,  30 season by season.  I have heard and read  31 many accounts of this management of the  32 seasonal round of subsistence activities on  33 House land.  (This is indeed the subject of  34 chapter V)."  35  36 Now, are you here referring to the Wet'suwet'en  37 and the Gitksan?  38 A   Yes.  39 Q   And that is your opinion with respect to -- that they  40 do organize the production process?  41 A   Yes.  42 Q   Okay.  Now, can you explain -- once again, this isn't  43 the chapter that you are dealing with ownership within  44 the Gitksan-Wet'suwet'en system.  Why have you  45 included this section, organization of the production  46 process, as part of your explanation of the ownership  47 system? 12113  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 A  Well, I conceived of the kinship owning group, the  2 House, in a sense as an enterprise.  An enterprise has  3 management -- management is an integral part of  4 control and ownership of property and the system of  5 land tenure.  6 Q   Does the question of organization of the production  7 process interconnect with the head chief's authority  8 over the land?  9 A   Yes, it's an integral part of it.  When the economy  10 centered on -- solely on the seasonal round, before  11 the cash economy, the chief or one or two elders  12 within the House group would, in effect, be  13 determining the deployment of people and in relation  14 to the resources through the seasons.  It's -- it's  15 the -- it's essential for the very management.  And if  16 the chief whose doing this is not -- is not a good  17 organizer, this reflects on his standing and his  18 authority as well.  And you see the results of it when  19 he is called upon to keep up his name or the name of  20 his House in terms of the feasting complex.  21 Q   Can I turn you to page 268, 269, starting at the  22 bottom of 268.  First of all there is a paragraph at  23 the top there that you say:  24  25 "For the summer season the chief made bent  26 wood boxes for cooking, and drying racks,  27 called skexsan, and the ladies made  28 baskets."  29  30 Then you go on for a further description.  These  31 are facts upon which you have relied based on the  32 evidence, the transcripts that you read and in some  33 cases the interviews?  34 A  Well, I've -- this reference here is specifically to  35 an interview with Martha Brown, but it's -- I got the  36 same information from Richard Benson and other people.  37 It was consistent, one interview after another.  38 Q   And that's the Martha Brown interview that you  39 referred to yesterday?  It's in the interview  40 material?  41 A   I think it's the last one.  42 Q   Thank you.  Now, going down to the next paragraph:  43  44 "The chief, or the senior man alloted to use  45 a section of House land in Wet'suwet'en  46 territory directed the harvesting of animals  47 on a sustained yield basis.  The same 12114  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 practice was also followed by people on  2 adjacent territories among the Gitksan as  3 well.  People of different territories might  4 hunt and trap together, basing their harvest  5 on the game trails and cyclical movement of  6 furbearers from one territory to the next.  7 This was of considerable importance for the  8 ongoing marriage relationships between  9 persons with rights to adjacent house  10 territories."  11  12 Now that's -- and then you go on to explain about  13 two or more -- persons of two or more territories who  14 hunted or trapped together, and that was your  15 reference that you described yesterday about a  16 distinction between a Wet'suwet'en and a Gitksan and  17 in that regard?  18 A   Yes.  19 Q   But that first statement I made, that is your opinion?  20 Sorry doctor.  21 A   Yes, that's my opinion.  22 Q   Yes.  And I would like to refer you to page 264.  I'm  23 sorry, 263.  This was a section that I held back,  24 because I think it fits here.  The bottom of page 262  25 you refer to, in terms of the written record,  26  27 "Disconcern for close husbandry of fur  28 bearing animals and the policy of sustained  29 yield harvesting dates back at least to the  30 earliest days of contact with Europeans when  31 collective control of resources and labour  32 and their use to validate the authority to  33 House group was described by the trading  34 Post factor William Brown."  35  36 That's the same William Brown who referred to  37 Exhibit 88 —  38 THE REGISTRAR: 895 of Tab 87.  3 9    MR. GRANT:  40 Q   895 of '87.  That's the same way in Brown?  41 A   Yes.  42 Q   Now, then you quote:  43  44 "Brown wrote that chiefs and men of  45 property among the Babine-Carrier, the  46 Bulkley-Carrier, the Wet'suwet'en and the  47 Gitksan strictly controlled their people's 12115  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 access to beaver harvesting.  He noted from  2 the perspective of his own partisan  3 interests that the chiefs allowed only 20 or  4 30 beavers to be taken each year, and that  5 these would frequently be husbanded for  6 gambling gift-giving and feast  7 consumption."  8  9 Is that right?  10 A   Yes.  11 Q   And that quote "chiefs and men of property", comes out  12 of his diaries, which are the basis for the report  13 which is Exhibit 895?  14 A   Yes.  15 Q   And in the course of the preparation of providing the  16 documents to me, you were unable to locate your copy  17 of that -- the diary itself that had the report?  18 A   These documents, I had access to them in the library  19 of the Gitksan-Wet'suwet'en Tribal Council, and when I  20 went back to review them before this process, I  21 couldn't locate the specific diary.  I don't know if  22 someone else has it or what.  23 Q   Yes.  And the citation -- just to be clear, that  24 citation on the bottom, "H.B.C. 1822", do you recall,  25 is that a citation to Exhibit 895, the report, or is  26 it a citation to the diary?  27 A   No, I don't recall now.  28 Q   Okay.  29 A   Look at all of them to make sure.  30 Q   Now, going back to page 269, you state in the second  31 paragraph:  32  33 "But in the Gitksan and Wet'suwet'en  34 instances this concern with close husbandry  35 of furbearing animals, and the policy of  36 sustained yield harvesting, dates back to  37 pre-contact times."  38  39 And here you refer back to the quote of William  4 0 Brown?  41 A   Yes.  42 Q   And that is one of the references upon which you rely  43 in forming that conclusion?  44 A   Yes.  Well, there are similar instances in other  45 cultural areas too.  46 Q   Okay.  47 A   Frank Speck, who wrote extensively about the hunters 12116  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  of northern Ontario and did some work with the  Iroquois, that's how I am familiar with his work.  Q   What was -- who was he?  Is he an anthropologist?  A   He is an anthropologist now deceased.  He noted this  phenomenon and defended it as pre-contact.  Well,  other people suggested that it was a post-contact  response to the fur trade.  He was marshalling facts  for about 40 years on the husbanding of resources in  the trapping and hunting areas, some of which were in  the region of the lake -- Bear Lake and Temagami  region.  How are you spelling Speck please?  S-p-e-c-k.  I'm sorry, S-p-e-c?  Yes.  S-p-e-c-k.  S-p-e-c-k.  Like a speck of dust.  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MR. GRANT:  THE WITNESS  MR. GRANT:  Q   Now, you state at page -- on the production process  section, you conclude at page 270 that:  "As the Gitksan and Wet'suwet'en  participated increasingly in market  relations devolving around furs, the  authority of the chief over harvesting  methods appears (from all oral accounts by  the people) not to have been overrun by the  entrepreneurial spirit of trappers, but  rather intensified as the continuing  survival on the land depended on this close  husbandry of marketable and food species."  And you refer, for example, to James Morrison in  his evidence in court here.  And you reviewed that  transcript?  A   Yes.  Q   Now, when you review to oral accounts by the people,  do you also rely on the research process that you  undertook among the Gitksan and Wet'suwet'en?  A   Yes, I do.  Q   And do you rely on the evidence of other witnesses and  adaawk?  A   Yes.  Q   Thank you.  When I say adaawk, I mean the Jenness  reference included, which would probably be more  properly referred to as Kungax descriptions.  A   The oral narratives. 12117  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 Q   Oral histories.  I would like to now refer you to the  2 next section, which is "feeding others, resource  3 management and feasting".  And you set out in your  4 opinion at the bottom of page 270:  5  6 "A significant part of House management  7 involves the calculation of goods and  8 services potentially available to the House  9 if, through the person of its high chief, it  10 is to fulfill its obligation to host or  11 contribute to the hosting of a major feast.  12 Planning and accounting-keeping for feast  13 make up a significant part of a chief's  14 managerial duties in the annual round of  15 economic activities of harvest calculations.  16 Until quite recently the chief had it to  17 know what each senior matron has put by for  18 the winter in storage pits, root cellars and  19 meat caches."  20  21 Now, what I would like to ask you is you say on --  22 you modify the last statement "until quite recently".  23 Can you explain what the recent change is if the --  24 A   The winter caches of food until, as I have been  25 informed, up into the 1930's were a basis for the  26 whole -- was your whole larder for your winter supply,  27 and this had to -- part of the housekeeping was to  28 guarantee that there would be sufficient foodstuffs  29 available, if called upon to participate in a feast,  30 if someone died suddenly for example.  31 Nowadays the foods that are highly prized for  32 feasting, the foods from the land, are not -- there  33 aren't as many of them, and there is -- we know there  34 is the pressure on the land and so on from the  35 outside.  So people go out with the target of the  36 feast, to get those foods to use in the feast.  37 Nowadays they also -- because it's a significant part  38 of the chiefly authority and the expression of respect  39 to your guests and so on, but the large part of the  40 values exchanged in feasting are in the form of cash.  41 So these days the assessment of what's in the larder  42 includes what's in the bank accounts and what -- it is  43 possible to mobilize from various sources, including  44 sometimes pension cheques to be able to put on a feast  45 which will keep up the name and the standing of the  46 hosts.  47 Q   Going onto the next page, doctor, page 271.  You 1211?  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 describe both the past and the present and you state:  2  3 "In the pits they stored boxes of oolichan  4 grease, cooking oil rendered from salmon  5 heads and game animals, berry cakes, hemlock  6 sap cakes, berries preserved in oil, bulbs  7 and nuts.  In raised cache houses they kept  8 most of the smoke-dried strips of salmon,  9 steelheadand game.  In both types of storage  10 the items of top quality were piled on one  11 side for feast use, and the items for  12 everyday use were piled on the other side."  13  14 And this is based on your research including  15 interviews and reviews of the evidence?  16 A   It is mostly based on my interviews, and I was told  17 that you save the best for the feasts, and there was  18 always a clear division in your storage of foodstuffs,  19 so that the highest of quality, which would reflect  20 best on the hard work and the quality of the land of  21 that chief, would be saved for those feasting  22 occasions.  23 Q "Today, when the medium of exchange is cash,  24 and is no longer limited to tanned hides,  25 salmon strips and berry cakes, many houses  26 in Gitksan and Wet'suwet'en villages have at  27 least a wall, if not several chests or a  28 whole room."  29  30 This is what you described the other day?  31 A   Yes.  32 Q   And then you say:  33  34 "The chief has..."  35  36 I'm sorry.  37  38 "The chief has to assess these piles of  39 commodities in the homes of his or her House  40 members and know the general state of the  41 domestic economy and the bank balances of  42 House members so as to be able to assess the  43 House's ability to acquit itself well, when  44 called upon to support a relative's feast."  45  46 And that last statement is a conclusion you have  47 reached based on your research with respect to the 12119  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 Gitksan's --  2 A   That's not just -- that's observation as well as  3 asking questions.  4 Q   You observed that yourself?  5 A   I observed that.  6 Q   Now, going to page 272, you say the chief -- you  7 described or make allusion to Mary McKenzie's evidence  8 as an example, and then you say:  9  10 "The chief must also oversee the storage of  11 gifts and payments which he has received,  12 such as those received for allowing others  13 to borrow a net or a fishing site.  Most  14 of such items would be expended later in the  15 course of feasting.  In the course of  16 managing the economic round, the chief has  17 to bear in mind the need to attract and hold  18 as large and hardworking a group of people  19 as possible, whose day to day endeavours  20 will eventually contribute to the House's  21 ability ot engage in feasting, and thereby  22 pay for its ownership rights in society.  At  23 the same time, he must settle its business  24 and pay its debts to other Houses in the  25 community."  26  27 And this is a conclusion you have reached  28 basically in -- which, in terms of your analysis in  29 research regarding the economic round, the utilization  30 of the chief's resources, including the labour members  31 of the House?  32 A   Yes.  33 Q   And does that opinion you hold, does that apply today?  34 A   It applies today.  35 Q   Yes, okay.  36 A   I mean, not -- there is various degrees of  37 fulfillment.  These are the expected responsibilities  38 that a chief must fulfill, and they do if they are  39 going to do a good job.  And we are all human and  40 everybody does it at a different level of  41 completeness.  42 Q   Now, going to the top of page 274 of your report.  You  43 state:  44  45 "The guiding ethic of management ..."  46  47 The second line. 12120  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  2 "The guiding ethic of management, as well as  3 with most other social pursuits, is the  4 ability to feed others."  5  6 Now, is this a feature that is common to either  7 tribes or hunting societies?  8 A   Yes, it is.  It is certainly common all over the  9 northwest coast culture area.  10 Q   Okay.  Now, you then go on to say:  11  12 "The question of industriouness continues to  13 concern the Gitksan and Wet'suwet'en chiefs  14 today when they, and the members of their  15 Houses, must confront massive unemployment,  16 lack of development capital, and  17 considerable pressure against the  18 self-reliant, longterm development of House  19 territories - a complex of factors which in  20 the modern setting add up to the social  21 stereotype of the North American 'lazy  22 Indian'."  23  24 And that's basically your opinion based on your  25 observations and research?  26 A   Yes.  27 Q   And skipping a line down, you talk about:  28  29 "This enthusiasm, and the high evaluation  30 that the cultures place upon  31 industriousness, are an integral part of the  32 laws of reciprocity which governs relations  33 between Houses.  The House whose members are  34 not producing in the economy - however mixed  35 that economy is - is a receiver House when  36 the balance sheet of public opionion is  37 computed.  A House which receives, feast  38 after feast, and in every day life, without  39 reciprocating, lives in shame because its  40 members are never in a position to pay off  41 their debts in the proper manner."  42  43 A   That's not quite right.  44 Q   Can you clarify what you --  45 A   I think the beginning of the last line -- for some  46 reason it says:  "A House which receives feast after  47 feast".  It should be "a family within a House." 12121  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 Q   Okay.  2 A   The situation -- there is a variation of participation  3 in feasting, but all Houses participate in feasting,  4 but within the House grouping there are some families  5 that are very poor and due to the force of  6 circumstances they are a net receiver.  They always  7 receive when they go to feasts and they are never in a  8 position to give, but they are members of Houses, so  9 their obligations are covered for them by other  10 members of their House.  11 Q   Now, just to be clear.  This second last sentence I  12 read was:  13  14 "The House whose members are not producing  15 ..."  16  17 Would you change that as well?  18 A   That should be qualified in the same way, yes.  19 Q   So it would be "the family within a House"?  20 A   Yes, I would say any family within a House.  21 Q   Okay.  22 MR. WILLMS:  I am not clear on what family means.  23 MR. GRANT:  I will ask the witness that in a moment.  24 Q   Maybe what you could do is just amend on the exhibit  25 copy to reflect what you mean.  So I take it that, to  26 make the sentence make sense, it would be:  27  28 "Any family within a House whose members are  2 9 not producing in the economy, however mix  30 that economy is - is a receiver."  31  32 And take out the word "House".  33  34 "When the balance sheet of public opinion is  35 computed."  36 A   Yes.  37 Q   And then:  38  39 "This family which receives, feast after  40 feast, and in every day life without  41 reciprocating lives in shame because its  42 members are never in a position to pay off  43 their debts in the proper manner."  44  45 "Such a family."  46  47 Would that be right? 12122  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 A   Or this family or such a family.  That would be fine.  2 And by family here, I mean basically a woman and her  3 children or a line of -- maybe a grandmother and her  4 daughter and the grandchildren.  5 Q   So this would be like one lineage?  6 A   It wouldn't be necessarily a full lineage, but an  7 extended family through the mother's line.  8 Q   Okay.  9 THE COURT:  You didn't intend to exclude the husband, did you,  10 or did you?  11 THE WITNESS:   Yes, I did, because he's not a member of the  12 House.  13 THE COURT:  We are talking about a family here?  14 THE WITNESS:  This is the sense I mean family, the section of  15 the lineage which is -- sometimes the House will have  16 just one lineage in it, sometimes there is more than  17 one.  So sometimes a backslider may just be an  18 individual.  19 MR. GRANT:  20 Q   When you talk about a family here, because you are  21 dealing with the family, this would be --  22 A   Family is a very ambiguous wording, but ambiguous word  23 because it means so many different things in so many  24 contexts.  25 Q   Okay.  Just a moment.  You would -- what you are  26 referring to here is the function of this group of  27 persons at a feast --  28 A   Yes.  29 Q   -- for example.  So their function, of course, would  30 exclude the function of the House, the husband,  31 because --  32 A   Yes.  33 Q   I see.  That's why you exclude him from that  34 definition of family right in this section?  35 A   So it's a matrilineal family or section of the family.  36 The matrilineal section of the family.  37 Q   Can you turn to page 276.  And here you refer to --  38 you have just referred to a reference by Art Matthews,  39 which -- in which he describes that at a feast -- and  40 he described in evidence at a feast that modern foods  41 presented to the guests are related symbolically to  42 the territories of the hosts.  And then you say:  43  44 "The primary importance of this relationship  45 between land, resources and House ownership,  46 as a pre-contact feature of both Gitksan and  47 Wet'suwet'en culture is documented in the 12123  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 journals of fur trader Daniel Harmon who, in  2 1811... "  3  4 And you are referring to the citation there.  5  6 "Says of a Fort Fraser Carrier chief who is  7 host of a feast ...  8 He takes up a whole bear, and with a raised  9 voice relates how and where he killed it,  10 that all present may know that it came from  11 his own land."  12  13 Now, how did that historical account assist you in  14 forming your conclusion that you have set out above?  15 A  Well, it just gave time depth to what I was told in  16 the course -- and what I observed and what I was told  17 in the course of doing my field-work, that the same --  18 here you have the chief actually bringing in the  19 animal, and it is announced which part of his  20 territory it came from.  It legitamizes his  21 participation in the feasting.  And this is a common  22 theme in the -- a number of the dances, the Gitksan  23 dances, the bringing in and announcing of the food and  24 what land it came from.  And this is one of the  25 earliest records in the region.  It's only a few years  26 after Simon Fraser first came into the area.  27 Q   Now, you say here he is referring to a Fort Fraser  28 Carrier chief.  Would this be what we -- would this be  29 a Wet'suwet'en or a Nootsenii, Nootsenii being a group  30 to the east?  31 A  Might be Nootsenii or people around Fort George today.  32 Q   How would you extrapolate from that to the situation  33 with the Wet'suwet'en or the Gitksan?  34 A  Well, today there is -- there is feasting that goes  35 right through that area.  It's quite different in the  36 way it is elaborated.  It's specifics.  But the same  37 general form is used when groups of people get  38 together, like if the Gitksan or Wet'suwet'en would go  39 there, they understand the familiar -- there is a  40 familiar set of rules that the feasting is conducted  41 according to.  They may not agree on the finer points,  42 but it reaches right through.  43 Q   Did you attend a feast put on by the Nootsenii when  44 you were at Burns Lake or part of that feast?  45 A  A part of the feast.  I was a rather poor guest.  It  46 was very late and I left about 2:00 o'clock in the  47 morning. 12124  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 Q   Now, I would like to just refer you to the next  2 section, the present and future.  And you state as  3 your opinion:  4  5 "In the eyes of the chiefs, the management  6 of resources today entails not only  7 protecting forest and river ecosystems but  8 also finding comtemporary ways of utilizing  9 them for subsistence needs of the  10 communities, even to developing market  11 possibilities in Canada and  12 internationally."  13  14 This is what I wish to emphasize:  15  16 "The authorities for these developments is  17 still given and reviewed in the feast."  18  19 Why do you -- just a moment.  Why do you conclude  20 that last statement, that the authorities for these  21 developments is given and reviewed in the feast?  22 Just a moment.  Okay.  I see my own note here.  I  23 would like to refer you in conjunction with that to  24 page 285 of your report.  You state:  25  26 "In the past two or three decades many  27 features of the ongoing House system and the  28 House way of life have been given new  29 vitality and new pride in the community.  30 This is possible only because the logic of  31 the House kinship form of organization has  32 remained consistently in place through the  33 past century of interaction with Canadian  34 society.  Throughout the upheavals of this  35 period the management of local affairs and  36 the stewardship of the land have continued  37 to be practiced in keeping with the system  38 of House organization and the concomitant  39 teachings of the elders."  40  41 Now, can you give some examples of the bases as to  42 why you form that conclusion set out in that  43 paragraph?  44 A  Well, I gave one example earlier in the day, when I  45 was discussing the attitude towards the land and the  46 question of respect which is taught by the elders  47 being translated by the younger generation into 12125  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 sophisticated understandings of ecological systems,  2 and ways of using old forms of social organization and  3 the territories of the chiefs for participating more  4 effectively in the modern economy.  5 Q   You have seen -- you have observed feasts, you have  6 described that -- described eight -- you have  7 described, I believe, nine feasts that you have  8 attended, and you have been present at those feasts.  9 Now, have you reviewed ethnographic literature with  10 respect to feasts that have occurred in earlier times?  11 A   Yes.  12 Q   Can you advise the court what you reviewed with  13 respect to that?  Give some examples.  14 A  Well, the sort of example we were talking about here  15 in among the traders of the Hudson Bay Company, this  16 sort of work has been gone over by historians in  17 reference to all the trading posts along the interior  18 Athabaskan interior belt and among all of the -- the  19 ships' logs from the merchant ships along the coast,  20 and there are many, many examples in there of the  21 social structure, the engagement in the trade with the  22 Europeans being done from the position of the native  23 people in the region and being fed into their system.  24 And the feasting and potlatching is mentioned again  25 and again and again, and the reciprocal exchange and  26 the concern for status and the authority of chiefs.  27 Q   And is that referred to, for example, in Exhibit 895,  28 the Brown report?  29 A   The Brown report is a typical example, and there is  30 quite a full summary of this in the -- that  31 introductory book of Druckers that I mentioned that  32 had the photographs from the Royal Ontario Museum that  33 I was familiar with, Drucker (1963).  34 Q   Okay.  Is it -- with respect to descriptions of  35 feasts, have you reviewed the Beynon description of  36 the 1945 feasts in Kitsegukla?  37 A   Yes, I have, and there are accounts of feasts by  38 Barbeau and a slightly earlier period.  39 Q   1920's?  40 A   Back in the twenties.  There is Jenness's observations  41 in the twenties written up in the forties.  There is  42 John Adams in the sixties and my experience at the  43 present time.  44 One thing that struck me is that everyone who has  45 recorded these feasts, apart from William Beynon,  46 predicted that this was the end of it, and that there  47 would never be any more feasts, that the feasting was 12126  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A  Q  a phenomenom that was something of the past.  Adams is  a little bit different.  He actually saw the ongoing  feasts.  But the earlier people, Jenness said there  would be no more feasts and no more totem poles and so  on, and so did Barbeau.  Now, did you compare the description by Beynon in  1940, for example, in the 1945 feasts, Barbeau's  descriptions and Jenness's descriptions and Adam's  descriptions 20 years ago or 20 to 25 years ago with  your own observations of the feasts?  Yes, I did.  And is that -- does that assist -- did that assist you  in formulating your opinion about the maintenance of  the management of local affairs, the stewardship of  the land and the system of the social structure and  authority?  Well, I -- my opinion was based a lot on what I  learned firsthand, but I found reflections of what  found firsthand in the literature and the accounts  feasting at earlier stages.  That's the way I  approached it.  And you compared the two?  Yes.  Okay.  Now, in page 285 you say that this  opinion that:  I  of  it's your  "The management of local affairs and  stewardship of land have continued to be  practiced in keeping with the system of  House organization and concomitant teachings  of the elders."  And then you state at page 277, the middle  paragraph:  "The actual tasks  ..."  THE COURT:  I'm sorry, where are you, Mr. Grant?  MR. GRANT:  277, My Lord.  "The actual tasks involved in contemporary  management are quite different from those  of the last century or from pre-contact  times."  Now, notwithstanding what you're saying, that the  actual task involved in contemporary management are 12127  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  different from those of the last century or from  pre-contact times, do you maintain that your opinion  with respect to management of local affairs and  stewardship of the land is still practised today?  A   Yes, it's still practised today, and it's practised as  part of the economic enterprise of the chief, which  has many strands, as I have mentioned before.  Without  that concern for the land, the chief doesn't have his  full legitmacy in the community.  Q   Going to page 278.  You say:  "A tradition of reciprocity, of give and  take between Houses is the basis for future  economic and social development, as it was  in the past, the pre-reservation past.  The  Gitksan and Wet'suwet'en Houses do not exist  in and of themselves.  They articulate, one  with another through everyday family  relations."  Now, why do you come to that conclusion that it's  the basis for future economic and social development?  And what I am saying here, based on what you observed  in the present, of course, and the reality of what  exists in the present.  MR. WILLMS:  My Lord, I object.  Anthropology, as far as I  understand it, has been the study of the way peoples  are today and the way they were in the past, but I  have never heard it advertised as crystal ball gazing,  and what this witness thinks might happen in the  future is interesting, but it's certainly not an  anthropological opinion.  THE COURT:  I'm not sure if that's right, Mr. Willms.  I don't  say that in any sense of contradicting, it's just that  I don't know.  I don't know whether predictions are  part of the discipline of anthropology.  Perhaps Mr.  Grant can --  I can elucidate it.  Explore that for me.  MR. GRANT  THE COURT  MR. GRANT  Q  THE COURT  Maybe in terms of your professional field of  anthropology in your qualifications, can you -- do  you -- do anthropologists look at the present state of  societies and make conclusions?  I wouldn't limit it to the present state.  What's  gone on in the past may be the basis for -- may be the  continuum is the basis for the prediction. 1212?  R. Daly (for Plaintiff)  In chief by Mr. Grant  1  MR.  GRANT  2  3  Q  4  5  6  A  7  8  9  10  11  12  13  14  Q  15  16  17  18  19  A  20  21  22  23  24  25  26  27  28  29  Q  30  31  A  32  33  Q  34  35  36  37  38  39  THE  COURT  40  41  42  MR.  GRANT  43  44  THE  COURT  45  MR.  GRANT  46  A  47  :  Since you have introduced the word -- reintroduced  it.  Do you -- on the basis of your expertise, does this  opinion that you give fall within the field of  anthropology?  I feel it does. There is a whole field of social and  cultural anthropology that deals with what is called  applied anthropology, and it's dealing with using the  forms of social structure and cultural assumptions to  meet the demands of changing social conditions, and  this may be instituted by the people themselves or by  government agencies, and anthropologists are involved  in this to a considerable extent.  And is this the kind of opinion that anthropologists  doing that kind of research would deal with?  I'm not  saying this exact opinion, of course, but the  consideration of how -- what the basis would be for,  say, economic and social development in the future?  It's always a possibility.  Whether the anthropologist  annunciates it or the people who are studied or the  government or an administrator, the question of  attempting to make use of cultural values and social  forms of a tradition in a new context, new wine in old  bottles, it's very much part in the discourse of  anthropology.  Whether the actual proposal comes  from -- sometimes comes from the anthropology,  sometimes from the government body or from the local  leaders.  Are you familiar with that kind of an applied  anthropology in the course of your training and work?  I have had courses in it, but I haven't been engaged  in applied anthropological projects.  What I would like to ask you is based on your research  of the past and present and your analysis of the  economic and social system of the Gitksan and the  Wet'suwet'en, can you explain for His Lordship why you  have stated this opinion, what you rely on in support  of that --  :  I'm sorry, Mr. Grant, by that opinion, I'm not sure  what you mean.  You mean the whole report, or you mean  different passages?  :  I'm sorry, I am referring to this particular  passage, My Lord, "A tradition of reciprocity ..."  :  Page 278?  :  Yes.  Those first two sentences on page 278.  Well, the tradition of reciprocity is very much a part  of the contact culture, the culture as described in 12129  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 the literature, and cross-culturally it's a feature of  2 tribal and band societies, the way people interact.  I  3 have observed that it's going on today and in forms  4 which are trying to take account of the mixed economy  5 and the nature of the two cultures, the culture of the  6 school system and the Canadian authorities and the  7 culture of the Gitksan and Wet'suwet'en.  People have  8 told me, and there -- I have -- I did some interview  9 work on plans for the future, but it seems to inform  10 the decisions that chiefs make -- or that the things  11 that chiefs talk about in meetings are all based on an  12 idea they have about their land and how -- we are not  13 going to be doing something -- we are going to be  14 doing it our way, not the white man way.  And our way  15 is somehow in connection with the give and take of  16 society and the feasting structure, which seems much  17 more meaningful and poignant and shows the authority  18 within their system.  It's perhaps a round about way  19 of answering it.  20 Q   Well, you've heard about in the course of your  21 research, for example, the devolution policy of the  22 Department of Indian Affairs?  23 A   Yes.  24 Q   Was that going on at the time you were doing your  25 research?  26 A   Yes.  27 Q   Did you make observations about how the chiefs and the  28 Gitksan and Wet'suwet'en people interacted with that  29 government policy?  30 A   Oh, yes.  In effect there is two responses to the  31 devolution.  Those who are participating in the  32 paradigm set up by the Department Indian Affairs, and  33 those who are trying to utilize some of the cultural  34 features of the system.  35 THE COURT:  How do you define paradigm?  I have heard it used  36 often, so --  37 THE WITNESS:   A model.  38 THE COURT:  Over the mountains, out of Ottawa, every act and  39 ethic is using it, and everybody is using it  40 differently.  What does it mean to you?  Surely there  41 is a better word, isn't there?  42 THE WITNESS:   There is a model, a model, for example, that —  43 it is suggested by the D.I.A. that the devolution  44 should follow the existing administrative structure of  45 regions and band councils and so on.  46 MS. KOENIGSBERG:  My Lord, we have just now hopped into another  47 problem area in which we are now going to hear 12130  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 evidence from this witness about a D.I.A. policy.  I  2 don't think he's been qualified to do it.  I don't  3 think it's relevant.  And if we're through this  4 evidence now trying to say that that is going to  5 buttress his ability to give an opinion about the  6 future for these people, I frankly think it doesn't  7 help very much, but that's just my point of view.  I  8 don't think he -- at this point I would submit that  9 there is -- has been shown no basis for him as an  10 anthropologist to give an opinion on what the future  11 prospects of -- again I concur with Mr. Willms, I  12 think it is interesting, but I don't think he is  13 qualified to do it, and I frankly don't think it's  14 relevant.  15 THE COURT:  Mr. Willms, have you —  16 MR. WILLMS:  My Lord, I just want to add on the relevance.  You  17 know, when you look at the Statement of Claim and then  18 listen to this evidence, you wonder whether you missed  19 something, like a whole other Statement of Claim.  I  20 just don't know where this fits within the plaintiffs'  21 case.  It is certainly not clear from the Statement of  22 Claim or any of the evidence of the other witnesses.  2 3    THE COURT:  Mr. Grant.  24 MR. GRANT:  Well, yes, My Lord.  Firstly this is not — it's not  25 something that I intended to or intend to spend a  26 great deal of time on with Dr. Daly.  Secondly, the  27 reason I raised, for example, the devolution by D.I.A.  28 was not to prove the reality or the truth of the  29 D.I.A.'s policy which Dr. Daly has explained to some  30 degree.  31 THE COURT:  I don't even know what the policy is, and I'm not  32 sure that very many people do.  33 MR. GRANT:  Even within my friend, the federal defendants, I'm  34 sure there is not many that do.  It's a very difficult  35 complex one.  And that's not the issue.  What I was  36 asking him, using that example, was -- is if that  37 occurred -- if he saw something going on while he was  38 doing his research, which was a contemporary thing, a  39 government interaction with the Gitksan and the  40 Wet'suwet'en, and if the tradition of reciprocity,  41 that is the social structure of the Gitksan, if it  42 interacted with that.  In other words, based on his  43 observations.  And it's no different than when he saw  44 David Blackwater doing certain things on the trail  45 when he was with him.  It's observations, and it  46 doesn't matter what the D.I.A.'s policy is, and I  47 concur with that, to agree with my friend.  That's not 12131  R. Daly (for Plaintiff)  In chief by Mr. Grant  1 the issue.  But as I say, I don't even have to ask any  2 further on this point, if that will assist both the  3 court and my friends.  I -- there are certain things  4 that I think are important to raise with the court and  5 to deal with in more detail, and I would rather deal  6 with that than to -- I would operate on the basis of  7 discretion, My Lord.  8 THE COURT:  I have difficulty seeing how a prediction,  9 assuming -- accepting that it falls within the  10 discipline of anthropology is legally helpful in the  11 determination of the plaintiffs' legal rights as of  12 the date when the summons was issued.  But having said  13 that, it seems to me that making a prediction might be  14 an indication of the confidence a trained observer or  15 a student has in a social structure that is relevant  16 to or may be relevant to the fundamental issue that I  17 just mentioned.  If the man says there will always be  18 Indian land, and is really making a prediction that  19 he's really expressing a degree of confidence in the  20 strata upon which the prediction is based.  21 I think that I'll allow you to pursue it, Mr.  22 Grant, subject to the objection, because firstly, as  23 Ms. Koenigsberg says, it is interesting, and secondly,  24 because it may have some relevance, dubious or tenuous  25 as it may be, but more importantly it's not going to  26 take long anyway.  I'll let you go into it briefly  27 when we resume a 2:00 o'clock.  28 THE REGISTRAR:  Order in court.  Court will adjourn 'til 2:00.  29  30  31 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  32  33 I HEREBY CERTIFY THE FOREGOING TO BE  34 A TRUE AND ACCURATE TRANSCRIPT OF THE  35 PROCEEDINGS HEREIN TO THE BEST OF MY  36 SKILL AND ABILITY.  37  3 8    3 9 LORI OXLEY  4 0 OFFICIAL REPORTER  41 UNITED REPORTING SERVICE LTD.  42  43  44  45  46  47 12132  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  THE COURT:  Yes, Mr. Grant?  MR. GRANT:  Thank you my lord.  EXAMINATION IN CHIEF BY MR. GRANT:  (Continued)  MR.  GRANT:  Q  A  Q  A  Maybe just to put us in the context of where we left  off before the lunch adjournment, Dr. Daly, I am going  to refer you again to page 278 at the top, in which  you state: "A tradition of reciprocity of give and  take between houses is the basis for future economic  and social development as it was in the past, the  pre-reservation past.  The Gitksan and Wet'suwet'en  houses do not exist in and of themselves."  And then you go on to reiterate the articulation or  the interaction through the mother's side the father's  side and that of the spouses.  And you recall the  exchange between myself and his lordship regarding  this issue.  And I would like to ask you this  question:  You have now, at this stage -- by this  stage of your report, dealt with certain, although not  all aspects, of the Gitksan and Wet'suwet'en economic  system and the social system, the inter-connection.  And my question to you is this:  Based on your  research and analysis of these systems in the past,  and the present, is it your opinion that the  distinctive Gitksan and Wet'suwet'en economic and  social systems shall continue into the future or not?  Yes, it is my opinion.  Will that -- those distinctive economic and social  systems continue into the future in any event, in your  opinion?  Well, there are conditions where I think it would come  to an end, probably, highly probable that if the -- if  there were no possibility of the Gitksan and  Wet'suwet'en possessing and using the land that they  are on or a land -- having a landed base.  There is a  lot of examples in North America when the culture and  society of aboriginal peoples -- it is unable to  maintain itself, if it is not linked to a place on the  face of the earth.  I don't mean a set of tenements in  the city, but land which has -- it has a specific  meaning, which is very old and very traditional and  familiar and customary to the people and, without  that, there is really no basis.  That's my opinion, 12133  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 there is no basis for the culture and the society to  2 continue.  Beyond a sort of -- like immigrants who  3 come to set up a new life and work in Canada, they  4 retain certain features of the cultures they come  5 from.  But these are -- in many instances they are  6 relegated to family events and so forth.  It's not the  7 major way of making the world meaningful and  8 interacting with one another, which it is in a small-  9 scale society that is using its lands.  10 Q   Now, I would like to refer you to the bottom of page  11 278 and you say there: "A reconnaissance study of  12 house territories and their ecological condition has  13 been implemented over the past two years in order to  14 begin the compilation of scientific data which can  15 provide an overview of the resources and the resource  16 potential in the Gitksan and Wet'suwet'en  17 territories."  18 Now, my question to you, Dr. Daly, can you -- and  19 then you go on to talk about different matters of what  20 the house chiefs are involved on the top of the next  21 page.  You refer to, "Just as government agencies  22 require information about certain matters such as soil  23 variation, climactic conditions and regional hydrology  24 to carry out their land use plans, the house chiefs  25 are now gathering information on fish biology in the  26 river systems and the lakes of the territories, the  27 microclimates, archeological, settlement and  28 technological data, paleo-ecological information on  29 climactic and vegetational change over time and other  30 ecologically-related data."  31 What I would just like to ask you is, can you  32 specify to what you are referring to there?  33 THE COURT:  Well, before you answer that, I won't understand the  34 answer if I don't know what a reconnaissance study is.  35 What's a reconnaissance study?  36 A  A study by specialists in their different fields of  37 natural and applied sciences to, in this case, to  38 ascertain the extent of the resources.  39 THE COURT:  You mean a multi-disciplinary study setting or is  40 there something special about reconnaissance study? I  41 don't understand it in this context.  Is it multi-  42 disciplinary?  4 3    THE COURT:  44 A   In a sense it is, yes, and it stems, as I see it, from  45 a lot of research that pertains to this present  46 action.  But it seems to be going beyond this, that  47 house chiefs are now taking up and expanding this work 12134  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9    ]  MR. GRANT  10  Q  11  12  13  14  15  A  16  Q  17  A  18  19  Q  20  A  21  22  23  24  25  26  Q  27  A  28  Q  29  30  31  32  A  33  Q  34  35  A  36  37  38  39  Q  40  41  A  42  Q  43  44  A  45  46  47  Q  to look more closely into the potentials of their  specific lands and how they can be managed in what we  would call a scientific manner in tune with modern  understanding of ecological systems.  And this is very  much in the minds of -- certain house groups are  having their young people trained in the -- in these  technological programmes.  Not just from the Gitksan  and Wet'suwet'en areas but from the whole region.  If you can just stop for a moment.  That's what I  wanted to get to, specifically you said, for example,  being trained in these areas, what are you referring  to specifically here?  What kinds of studies or  programmes or both?  I am referring, for example --  Maybe it will assist his lordship in understanding.  I am referring to the Morrell report on the fish  management study.  That was the one done in 1985?  I believe it was done in 1985 or '86.  And there is a  more recent one, the Herb Hammond report on the  ecological cycles as they pertain to forestry and  forest techniques which are in use in the region now  and what can be done to manage it in an ecologically  more sensitive fashion.  Yes.  I believe that was commissioned by a group of chiefs.  Now, what about -- what programmes, if any, are you  referring to?  Those are all the studies you are  referring to right now that you are referring to here,  first of all?  Those are the main ones.  Okay.  Are there any others, when you say those are  the main ones, that you are aware of?  Aspects of the work that has been done in such as Dave  Hatler's report, features of the ecological cycles of  animal populations and so on that's being developed in  the local regions by some of the chiefs.  That was his sort of macro report on the entire  territory?  Yes.  Now, what programmes, if any, are you referring to  here?  Well, I have already, I think, mentioned the fish  technology and forestry technology programmes, in  conjunction with Northwest Community College.  Any other training programmes that you are referring 12135  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 to here?  2 A  Well, there is Wilps sesaxw house of purification down  3 in Kitwanga, dealing with the use of traditional  4 medicines and herbal plants and considering how they  5 can be maintained and guarded and harvested and  6 marketed for the future uses.  7 Q   I would like to refer you to page 280, and on page 280  8 you refer in fact to Silva Ecosystem Consultants  9 Limited recommendations, which are found in Appendix C  10 of your report.  11 A   That's what I referred to as the Hammond report.  12 Q   That's H-A-M-M-O-N-D  13 And the second, just before the quote you state:  14  15 "The report makes the following statement about Gitksan  16 and Wet'suwet'en land utilization."  And then colon,  17 sub indent, quote:  'The alternative philosophy is  18 that we are part of the land.  This statement implies  19 that the people are not bigger than nature and do not  20 control the universe.'"  21  22 Now my question to you -- I am sorry, I will go to  23 page 281, you then say at the bottom of page 281:  24 "Following this philosophy statement..." which you  25 quoted above, "...the report presents a set of  26 policies to deal with actual alternative forest use in  27 its many aspects: decision-making, planning,  28 operations, transportation, harvest, silviculture,  29 manufacture, site degradation, water retention and  30 public participation of local residents in the making  31 of decisions that pertain to these policies."  32 My question to you is this: You obviously saw this  33 report, the Hammond report, before you did -- you  34 prepared this report here, because you have quoted  35 from it, you agree with me?  36 A   I saw it as I was -- it was pretty late in the  37 process, but I was quite pleased to see that what you  38 just cited there, the alternative philosophy, I have  39 never talked to Mr. Hammond, I didn't know of his  40 existence when I started this work.  But what he is  41 saying there is what the chiefs have been telling me  42 since I started my work.  So it's a reflection of  43 the -- what I have learned.  44 Q   Okay.  But did you have any input into what Mr.  45 Hammond put in his report?  46 A   Not as far as I know.  I had never spoken to him.  47 Q   And did you come to your conclusions about the 12136  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  relationship of the chiefs to the land before you saw  Mr. Hammond's report?  Yes.  So, when you were quoted here you were only referring  to it as something that someone else found  independently of yourself; that's what you're  referring to?  Yes.  MR. WILLMS:  Well, I object to that, my lord, because how does  this witness know whether the same chiefs that talked  to this witness to get his philosophy straight also  talked to the forest management people?  That's not  independent.  How can the witness answer that  question?  THE COURT:  I assumed he has read the Hammond report.  It's  Appendix C to his report.  MR. WILLMS:  I accept that, my lord.  But my friend asks,  "independently", well it could be that the joining is  at the informant level, the chiefs, they talked to  this forestry company, they talked to the witness.  The witness bases his conclusion based on what the  chiefs tell him, so does the forestry company.  Now,  that's not independent, my lord.  So I object to the  witness -- the witness can't answer that.  It's an  improper question.  He doesn't know who this forestry  company talked to before they came to conclusions. If  they talked to the chiefs, then it's not independent,  it's dependent.  He just can't answer it.  THE COURT:  Without knowing who the other consultant was.  MR. WILLMS:  Without knowing who the consultants talked to.  MR. GRANT:  Well, my lord, first of all it's not a forestry  company, it's a consultant about forest management.  Secondly, is that yes, he may have talked to the same  people, he may not have.  The point is that this  person in that field --  THE COURT:  Which person?  MR. GRANT:  Mr. Hammond, forest consultant, he did research and  he came to a similar conclusion in his field relating  to a philosophical approach, as Dr. Daly did, and they  did that independently.  And, yes, they may have  talked to some of the same people, they may not have.  So what?  It's the conclusions that these two people  have come to coalesce that's all.  THE COURT: I think your friend's objection is in this sense that  the pejorative adjective, independent.  I think that's  the problem.  Mr. Willms says that if they got their  information from the same source, he can hardly say 12137  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  THE  MR.  COURT  GRANT  COURT  MR.  THE  MR. FREY  GRANT  A  COURT  that they are independently-reached conclusions.  They  use the same information.  MR. GRANT:  It's independent -- Dr. Hammond's report is  independent of Dr. Daly and Dr. Daly's report is  independent of Dr. Hammond.  That's all, my lord, it's  not a big issue.  That's all I am saying.  I am sure it's --  It's a bigger issue with my friends than I.  It's partly semantical, partly a matter of  definition.  I think I understand Mr. Willms'  objection and I think that it has a logical  foundation, if it's aimed at the use of the adjective  independent.  That's as far as we can carry the  matter.  Except I want to ask this:  Is Silva Ecosystem the  same firm that Ms. Haeussler worked for?  No, I don't believe so.  I don't know.  I seem to have seen that name somewhere before,  Silva Ecosystem.  Mr. Frey says it's not the same.  It's not the name of the firm that I recall, my  lord.  That's fine.  Don't worry about it.  Maybe I should just ask you, Dr. Daly, do you know who  the -- what informants, if any, that Mr. Hammond  relied on?  I don't know anything about the collection of data for  the report at all.  Okay.  Thank you.  I would like to refer you to page 283, you state:  "It is my opinion that just as there are Native  artists of stature in the Hazelton area who regularly  combine the aesthetic tradition of their ancestors and  the techniques and technology of the contemporary fine  arts, there are fishermen, hunters and forest workers  who are supplementing their ancient family-based  technical expertise with knowledge of the latest  forestry and biological research and planning  techniques.  As well, Native health care workers are  being trained in both the medicinal and spiritual  tradition of the elders and that of the modern  hospital."  Now, Dr. Daly, you are talking about this is with  respect to the Gitksan, Gitksan and Wet'suwet'en?  A   Yes.  Q   And here this opinion is based on what you observed as  COURT  GRANT  Q  A  Q 1213?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 to people's participation in these programmes that you  2 have already described?  3 A   Yes.  4 Q   I would like to go to page 284, the bottom of that  5 page, you state:  The maintenance and development of  6 Gitksan and Wet'suwet'en culture are very important to  7 the collective interests of the house groups."  8 If I may pause there, the paragraph preceding that,  9 which I would just make note for your lordship, you  10 have described that training processes occur including  11 what you call "fun feasts" to teach the children about  12 the institutions.  13 A   Yes.  14 Q   You learned that and observed that through the course  15 of your research which you set out and describe in the  16 preceding paragraphs?  17 A   Yes, I attended one or two of those fun feasts.  18 Q   And then, "The maintenance and development of Gitksan  19 and Wet'suwet'en culture are very important to the  20 collective interests of the house groups - for these  21 interests, along with the rules and implementing  22 decisions and conducting social affairs, are as Colden  23 said about the Iroquois, an affair of the mind.  That  24 is, the minds of the Gitksan and Wet'suwet'en are  25 blueprinted from birth with the modus operandi of  26 decentralized management and government of local  27 affairs.  The minds of each generation are seeded by  28 their predecessors and reinforced by a practical life  29 experience on the land and in the society where they  30 live."  31 Firstly, that, of course, is your opinion that you  32 have set out there?  33 A   Yes.  34 Q   I would like to just go to certain parts of it.  When  35 you talk about Colden, you say that it is an affair of  36 the mind, what are you referring to there?  37 A  Well, Colden and William Fenton, who I mentioned I  38 think on the first day, who is one of the present day  39 main scholars on the Iroquois, refer to the Iroquois  40 society as being a marvelous edifice of the affairs of  41 the mind, that is, it's a society which systematizes  42 and re-combines as the historical conditions change,  43 using features of the new society, the new conditions  44 and old forms of organization and systems of meaning.  45 And, of course, the tradition is non-literate, it is  46 not a written-down culture.  So this is kept alive  47 within the minds of the people in various ways. 12139  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 That's an integral part of the social relations.  And  2 I have the feeling that this is the -- this is very  3 much part of the ongoing interweave of modern  4 technology and old decentralized relationships between  5 houses and between the house groups and the land.  6 Q   With respect to the Gitksan and the Wet'suwet'en?  7 A   That's right.  8 Q   I believe I have already referred to the opinion at  9 the middle paragraph of page 285, my lord, and I won't  10 repeat it.  11 I would like to just briefly go to the next  12 section, and this is the last section in this chapter,  13 my lord, and I don't intend to spend much time on this  14 at all.  I think it's all self-explanatory.  15 Dr. Daly, this section is entitled Proprietory  16 Rights And The Reserve System, and in this section you  17 review -- you did review the transcripts of the  18 McKenna-McBride Commission as part of your research;  19 is that right?  2 0 A   I did.  21 Q   And you review, review and summerize certain  22 statements or you actually quote certain statements  23 from McKenna-McBride in this section, right?  24 A   Yes.  25 Q   And you investigated the creation of the reserves?  26 A   Yes, I did.  27 Q   Now, this section you have entitled Proprietory Rights  28 And The Reserve System.  You have already explained to  29 his lordship that, in your opinion, mobile property,  30 including what in Canadian legal tradition wouldn't be  31 mobile property, that is, a house on a reserve, can  32 pass personally, and you deal with that in this  33 section of your report?  34 A   Hm-hmm.  35 Q   Now, my only question to you out of this section is  36 this:  As a result of your investigation of the -- of  37 all of the things you have thusfar described, and your  38 investigation of the creation of the reserve system  39 what effect, in your opinion, what effect, if any, has  40 the creation of the reserve system had on the  41 proprietary rights, that is to say, by that I mean,  42 what you have been describing as Gitksan and  43 Wet'suwet'en ownership?  44 A  What I have been describing as Gitksan and  45 Wet'suwet'en ownership, in my estimation, has  46 prevailed and persisted and is at the heart of the  47 deliberations and the interactions of the Gitksan and 12140  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 Wet'suwet'en today.  There are -- there is another  2 system of ownership that impinges on their lives and  3 they engage in it and they fit it in within their own  4 categories of property inheritance and the transfer of  5 property.  Similarly, they have changed the penalties,  6 as I mentioned before, for things like trespass,  7 because the climate of opinion in the world is  8 somewhat different today, in much of the world at  9 least, that the punishment for trespassing is not  10 necessarily direct action in taking someone's life.  11 There is a tradition and a set of rules for the  12 passing on of what's considered moveable or individual  13 property.  And people tend to regard property on the  14 reserve in that light:  they don't see it in the  15 same -- as part of the same system as the relations  16 regarding the hunting territories and the fishing  17 sites.  18 Q   Doctor, before going to the next chapter, there is  19 just two or three points I would like to deal with out  20 of chapter three.  A couple of them were raised this  21 morning.  You talked about he sestxw and hahl'ala',  22 his lordship asked you about that with respect to the  23 efficacy of that practice for hunting skill.  Now,  24 where you describe sestxw and hahl'ala', what is your  25 opinion -- is your opinion related to the efficacy of  26 that particular practice for hunting or is it  27 something else?  28 A   No, this whole chapter wasn't on the -- on hunting  29 techniques, this was on various aspects of ownership  30 and control and management of property.  And I was  31 expressing it in those terms in relation to the logic  32 of the law of the Gitksan and Wet'suwet'en system.  So  33 the practices of sesatxw and hahl'ala' are -- I see  34 them as part of that logic and that system of beliefs  35 and practices which the people use for sorting out  36 their relations with each other and with the land.  37 Q   And you're not giving an opinion as an anthropologist  38 on whether or not sesatxw or hahl'ala' are good  39 hunting practices or not?  40 A   No, I am not.  41 Q   Now, arising out of that, I gave you a hypothetical,  42 which has been given in evidence, and that  43 hypothetical was that Stanley Williams went out with a  44 number of other hunters -- and you can assume this for  45 the purposes of your answer -- and he went up to one  46 hunting area and in one day Mr. Williams was able to  47 kill 42 goats with 42 bullets.  Now, you described in 12141  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  this report, in this section, the practice of  conservation and respect.  Can you, from your  understanding of -- is there any explanation -- you  know Mr. Williams?  A   I do.  Q   And he is an active participant in the Gitksan system,  you would agree, and a high chief?  A   Yes, I agree.  Q   Can you explain how you would -- would that fact that  I have just described to you, affect your opinion or  change your opinion about the practice of conservation  by the Gitksan?  MR. WILLMS:  I object, my lord.  There has already been evidence  led by another witness called by the plaintiffs that  this isn't a good conservation practice and just so  that we are clear, you know, that was a wildlife  biologist, who is dealing with making sure that the  wildlife are around from year to year.  If the witness  is going to talk about a different kind of  conservation than that, then that's fine.  He can  define that different kind of conservation, and then  say that it's a good or it's a bad conservation  practice.  But if he is going to define conservation  in the wildlife biology aspect, number one, a  qualified witness has already given evidence about  that and, secondly, so that they are impeaching their  own witness, but secondly it's far beyond anything  that an anthropologist can give evidence on.  That's  why they called the wildlife biologist.  THE COURT:  I can't believe that Mr. Williams shooting goats is  going to have anything to do with the outcome of this  case.  Do we have to spend any more time on it?  Surely there are issues of importance that --  MR. GRANT:  I can rest with that comment of the court now.  I  don't think I need pursue it any further.  THE COURT:  I may have mentioned this before, it reminds me of  shooting sparrows on the ground when there are eagles  in the sky.  You are fooling around with all sorts of  trivia here when you are faced with enormously  important issues.  I won't pursue it any more.  Thank you.  MR.  THE  MR.  GRANT  COURT  GRANT  Q  I would like to refer you just for a correction that I  have reviewed and you directed me to, Dr. Daly, to  page 173 of your report.  This is just clarification  on this.  And to tab 15 of volume one -- tab 10, I am 12142  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  A  7  Q  8  9  10  11  THE  COURT  12  MR.  GRANT  13  Q  14  A  15  THE  COURT  16  17  MR.  GRANT  18  19  20  21  Q  22  23  A  24  Q  25  THE  COURT  26  A  27  28  THE  COURT  29  A  30  31  32  THE  COURT  33  34  MR.  GRANT  35  THE  COURT  36  37  MR.  GRANT  38  Q  39  A  40  41  THE  COURT  42  MR.  GRANT  43  MR.  GRANT  44  45  A  46  47  sorry, of volume one of the blue document book.  Now,  page five.  Now, upon a review of this, what's in  quotes from Arthur Brown, did it come to your  attention that the second paragraph was in fact not a  quote but a paraphrase?  That's right.  And the reference starting -- you can see, my lord, it  says, the eighth line up from the bottom, it says,  "set your net", that's the end of the previous  paragraph in tab ten I am referring to.  On page one?  Page five.  I am sorry, my lord.  Do you have that reference?  Yes.  We have been over all this already.  I have got it  all underlined.  Well, it's just there was one point.  The point  starting from "Billy Williams" going right up to the  top of the next page, which is "it any more", in tab  10, that should --  Do you agree, Dr. Daly, that that should replace  what's in that second paragraph?  That's right.  Now, can you just explain --  What second paragraph?  The second paragraph in the citation which starts "by  marrying into our house."  Yes.  When we went over this yesterday, I realized that  that's not what it said in my original notes.  This is  a paraphrase.  So we cross out that paragraph "by marrying into",  do we?  Yes.  And substitute the last eight lines of page five,  tab 10, and the top one line on page six?  That's right.  And this was an editing oversight; is that right?  Yes, when I was putting it into the computer I didn't  have my notes right in front of me.  Where does the quote start?  "Billy Williams".  "Always used to ask Kliiyem lax haa and he always  got permission."  So I paraphrased it when I was setting this section  out.  I went back and checked the actual field notes  and tried to -- the interviews, and tried to put in 12143  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  MR.  GRANT  5  THE  COURT  6  MR.  GRANT  7  8  THE  COURT  9  10  11  12  13  14  15  A  16  17  18  19  20  21  22  THE  COURT  23  24  25  26  A  27  28  29  30  THE  COURT  31  A  32  THE  COURT  33  34  35  36  MR.  GRANT  37  THE  COURT  38  39  MR.  GRANT  40  THE  COURT  41  42  43  44  A  45  46  47  the actual text and I must have overlooked and part of  the paraphrase remained and part of the actual  interview were combined.  That's fine.  I have made that change.  Thank you, my lord.  I would like to go to chapter  four of your report.  Before you go on, I noticed that in -- you seem to  take serious issue with Section 48 of the Indian Act,  such as on page 292. This is generally regarded as a  remedial provision in most of the Canadian provinces.  It's in the law of every province as a way to protect  women and children. You seem to regard it as a  serious harassment.  This flies in the face of the matrilineal inheritance,  principle.  The people say we know how to look after  the women and children through our house system, so if  the husband dies then the wife's brother is  responsible for the upkeep of the children. And she  has to make payments of that nature in terms of his  funeral feast and it makes a very difficult situation.  You, as an anthropologist, you would criticize that  type of a provision, regardless of the fact that in  individual cases its absence could work serious  hardship?  Well, I think it should be -- there should be more  flexibility so that it takes into account the  matrilineal succession as well as patrilineal  succession.  That could only hurt the widow.  I don't know all the implications of that.  Seems to me that it could only hurt the widow.  All  I want to make sure is you intend it to be a part of  your report and you intend it to be -- this to be a  critical review of that provision.  Which section are you referring to, my lord?  Section 48 of the, used to be called the Wives'  Protection Act and now called the Wills Variation Act.  Section 42 or 48?  It says 48 on page 292.  I haven't compared it.  I  haven't heard anyone suggest that that was an  oppressive section before, but I have never dealt with  it in this context.  Well, I know that the local officials in the  Department of Indian Affairs have a lot of difficulty  with it in that region, matrilineal region, in  northwestern British Columbia.  Because there is so 12144  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  THE  COURT  3  4  5  6  7  8  9  A  10  THE  COURT  11  MR.  GRANT  12  Q  13  14  THE  COURT  15  A  16  MR.  GRANT  17  A  18  19  20  21  22  23  24  25  MR.  GRANT  26  Q  27  28  29  30  31  A  32  Q  33  A  34  Q  35  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  A  44  Q  45  46  47  A  much friction with the community on the question.  :  Well, there is a lot of husbands certainly think  it's a terrible provision but most wives think it's an  excellent one and I was just curious why it should  receive such prominence.  You have four pages here on  it.  But I just want to make sure that it was  considered part of your opinion and you wanted it to  be included?  Yes.  :  All right.  Well, your concern there is not with the principle of  providing for a spouse, is it?  :  Giving evidence, Mr. Grant?  It's not a question of --  :  I was paraphrasing the report.  I am speaking as an anthropologist, not as someone  involved in the law or the caring profession, social  work sphere, and as an anthropologist I think there is  a place within the existing system for the protection  of the children and the wife within the house system.  And that's a whole matter under debate in the  community there to -- as to how to re-implement that  type of arrangement.  Can I go to chapter four, my lord?  Now, Dr. Daly, in this chapter you deal with the  natural environment, just looking at the heading, and  in regard to that you rely on the reports of Dr.  Sybille Haeussler?  Yes.  And the report of Dr. Hatler; is that correct?  Yes, that's right.  And you make reference to parts of the reports here  and where you make reference to their opinions here,  you are assuming those opinions to be correct?  That's right.  You also deal with nutrition in this chapter?  Yes.  And you rely on Dr. Richard Lee; is that right?  Yes.  And Dr. Kuhnlein, I believe it is?  Harriet Kuhnlein,  K-U-H-N-L-E-I-N.  And with respect to where you quote from Dr. Harriet  Kuhnlein you adopt her opinion -- you assume her  opinions to be correct?  That's right. 12145  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  MR.  MR.  THE  MR.  THE  MR.  Q   And she is a nutritionist?  A   She is a nutritionist.  Q   And Dr. Richard Lee as an anthropologist?  A   Yes. Dr. Kuhnlein has worked for a number of years  analyzing  traditional foods in the Bella Coola area.  She is presently a professor of nutrition at MacDonald  College, McGill University.  Q   You state on page 294 that it is your opinion "That  given the technological and environmental conditions  faced by the human populations of the region, the  production strategy adopted in what today are the  Gitksan and Wet'suwet'en areas, made effective use of  the available resources.  I have stressed that this  form of production strategy was broadly adopted across  the northwest coast culture area and as well it  certainly had parallels in the material development of  societies in post-glacial northern Europe."  And that is your opinion with respect to these  areas?  A   Yes.  Q   And you stated on page 299, that in your opinion, "In  my opinion..."  you state at the bottom, "...there is  little doubt that the economic pursuits of the Gitksan  and Wet'suwet'en prior to the contact and proto-  contact periods were contiguous with the economic life  of the two peoples in the contact period."  Is that your opinion?  WILLMS:  I object, my lord.  There is no foundation for that  opinion anywhere.  COURT:  I haven't found that passage yet.  It's page 295?  GRANT:  Page 299, second paragraph.  WILLMS:  It's the historic foundation, my lord, that I  object to.  GRANT:  My lord, I intend to deal with that.  COURT:  I am sorry.  Just a moment.  I am trying to see what  it says.  I don't understand it.  GRANT:  That's why I quoted, I am going to have the witness  explain.  All right.  I don't really understand it the way it stands.  COURT  A  GRANT  Q  A  what you meant  would be much  Could you explain what is meant  there?  I think where it says "were contiguous'  better "were consistent with the economic life."  Possibly you can make that change on the exhibit.  Okay.  Now I would like to ask you is:  Why did you 12146  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE COURT  MR. GRANT  THE  THE  MR.  COURT  A  COURT  GRANT  Q  come to this conclusion?  I came to this conclusion as the result of reading  about the nature of the cultures and the changes that  they have undergone in the last 150 years.  And the  nature of the societies as postulated by archeological  records, by references in the oral traditions of the  people themselves, by what people have told me what  the style of life was in their grandparents' and great  grandparents' time, and -- I can argue about it, but  those are the general bases on which I have drawn this  opinion.  :  I am sorry, I don't understand it still.  It says,  "The economic pursuits of these people before contact  were consistent with the economic life of these people  before contact."  :  No, in contact, my lord.  "There is little doubt  that the economic pursuits of the Gitksan and  Wet'suwet'en prior to the contact and proto-contact  periods were consistent with the economic life of the  two peoples in the contact period."  :  I see.  You're saying that whatever went on before  continued up to the time of contact?  It was in -- it was functioning at the time, in the  early days of contact.  :  All right.  THE  MR.  MR.  THE  MR.  THE  MR.  And with respect to contact period, when you say that  at the end, what are you referring to?  What period,  with respect to the Gitksan and Wet'suwet'en?  A  With respect to the Gitksan and Wet'suwet'en, I  imagine roughly the first 40 years of the 19th century  for the contact period.  Q   Now, I would like to refer to you once again to your  blue document book, at tab 45.  COURT:  Before you do that, I have to deal with Mr. Willms'  obj ection.  GRANT:  Yes, my lord.  WILLMS:  Well, my lord, if that's -- if my friend is content  with that foundation, then I will deal with it a  different way later.  COURT:  All right.  Thank you.  GRANT:  Well, I am not content with that foundation.  I am  going into the details of the foundation now.  COURT: What do you want me to look at now, please?  GRANT:  Tab 45, volume one, Exhibit 887.  Q   Now, do these references to activities and uses that  you have listed here with respect to these several 12147  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 adaawks, and how many adaawks would you have looked at  2 to do this listing?  3 A   Somewhere between 350 and 400.  4 Q   Are this is part of what you would rely on to form  5 that opinion?  6 A   I mean, they don't all refer specifically to Gitksan  7 and Wet'suwet'en territory but the whole body of  8 material is 350 to 400.  9 Q   Yes.  And you refer to the location of the events  10 under location in this categorization?  11 A   Yes.  12 Q   Is your analysis of the adaawk as reflected in Exhibit  13 887 is part of what you have relied on to form that  14 opinion?  15 A   That's one part of it.  16 Q   Yes.  Now, I would like to refer you to page 344, 343,  17 I am coming back through this chapter in some regards,  18 my lord.  19 Now you state that, on the bottom, "First, the  20 British Columbia archeological record provides  21 corroboration for the proposition that the  22 predecessors of the modern Gitksan and Wet'suwet'en  23 possessed a wide variety of techniques based upon a  24 stone and bone antler technology which enabled them to  25 fashion part of their material needs from the forest  26 vegetation and the rest from the fish, fowl and game  27 that made up the changing post-glacial ecological  28 system."  29 So you a rely in part on the archeological record  30 for the foundation of your opinion?  31 A   Yes.  32 Q   And is that part of social and cultural anthropology  33 to review the archeological record?  34 A   Yes, it is.  It's a necessary part when you are trying  35 to go into the time depth of institutions and  36 practices and customs and so on.  37 Q   And then you said, "Secondly, the fish biologists,  38 mammologists and nutritionists have found that the  39 species available to this technology, combined with  40 this flexible toolkit, enabled the people to harvest a  41 sufficient balance of foodstuffs, primarily protein  42 and fats, to satisfy their nutritional requirements  43 and to do so as the archeological sites at  44 Morricetown, Hagwilget and Kitselas suggest, with a  45 stable consistency that lasted for many centuries if  46 not longer."  47 This is another foundation for your opinion? 1214?  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 A   Yes.  2 Q   And you rely on the opinions of -- with respect to  3 fish biologists, Mike Morrell?  4 A   Yes.  5 Q   And mammologists you are referring to Dr. Hatler?  6 A   Yes.  7 Q   And nutritionists, you are referring to Dr. Kuhnlein?  8 A   Yes.  9 Q   And you are assuming that their opinions are accurate  10 and rely on those opinions?  11 A   Yes.  12 Q   Third, you state:  "The culture which the first  13 Europeans encountered in this area indicated a  14 continuity back into pre-contact times.  Certainly the  15 people themselves are from the continuity of the  16 institutions of that economy as does their oral  17 history."  18 And here you are referring to the contemporary  19 interview process as well as the oral histories or  2 0 adaawk or Kungax?  21 A   That's right.  22 Q   I presume as well the ethnographies you have reviewed?  23 A   Yes.  24 Q   "In general, 19th century technology, diet, settlement  25 and pattern, and the contours of the social structure  26 involving the preparation and storage of sufficient  27 foodstuffs to last the winter, the harvesting of  28 diverse species, the semi-permanent communities and  29 crest group rights to hunting territories appear to be  30 markedly similar to the social structure in societies  31 in post-glacial Europe."  32 That is an opinion that you have formed based on a  33 comparative analysis of European hunting societies and  34 your readings?  35 A   That's right.  36 Q   And then you refer once again to the archeological  37 record, and you state:  "Finally, the archeological  38 record indicates that at least 3,000 before present  39 the human population in the Gitksan-Wet'suwet'en and  40 downstream territories had settled at quite permanent  41 locations along the river, locations where these  42 people were living at the time of contact."  43 There you are assuming the accuracy of the  44 archeological record?  45 A   Yes.  46 Q   And you are relying on the opinions of Dr. George  47 MacDonald? 12149  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1 A   Yes.  2 Q   Sylvia Albright?  3 A   Yes.  4 Q   Ames?  5 A   Yes.  6 Q   Coupland?  7 A   That's right.  And Allaire.  8 Q   And Allaire.  Thank you, doctor.  Just a moment.  9 Now I would like to refer you -- I am sorry, 295, if  10 you can refer to.  You refer at the bottom not only to  11 those I have indicated but you also refer to MacDonald  12 or to Inglis, that's MacDonald and Inglis, one report?  13 A   Yes.  It's actually -- they have edited a volume on  14 the pre-history of the Skeena together.  15 Q   I see.  And Turnbull?  16 A   Yes.  17 Q   You also rely on Turnbull?  18 A   Yes.  19 Q   Now, on page 296, you commence by referring to the  20 archeological record and then go back to the oral  21 history and you state: "The distribution of obsidian  22 from a few known sources, often over great distances,  23 attests to inter-regional trade.  The existence of  24 rows of multi-domestic unit dwellings in Kitselas  25 Canyon date back at least 3,000 years (Coupland 1966)  26 and suggest a social structure similar to that of  27 early contact Tsimshian society, (MacDonald 1986) . It  28 appears, then, that one may assume the main contours  29 of the kinship organization used to combine land and  30 labour at the time of European contact had a long  31 tradition in the region."  32 Now, is that -- let me go on.  "This assumption is  33 reinforced by the oral history of the Gitksan insofar  34 as the ada'oxs narate the harvesting, preparation and  35 exchange of many  products in ancient times, products  36 which continued to make up the main production  37 activities of the Gitksan and Wet'suwet'en, and their  38 neighbours, during the post-contact nineteenth  39 century.  The ada'oxs, although told to Beynon in  40 abbreviated form, abound with references to the  41 produce of fishing, hunting, gathering and exchange."  42 And then you refer to the fact that you have  43 selected as an example the adaawk as one of the four  44 Gitksan clans, the Lax Se'el or Ganeda.  Now, your  45 terminology there at the bottom of that previous  46 paragraph is that "one may assume."  I am going to ask  47 you this:  Is it your opinion that the main contours 12150  R. Daly (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  of the kinship organization used to combine land and  labour at the time of European contact had a long  tradition in the region?  A   Yes.  Q   That's based on your research and both archeology and  the oral history?  A   Yes, well I have had to assume the validity of the  findings of a number of other people who are  specialists in their area.  But that material has  informed my opinion.  Where is that passage from which you just framed  your leading question, Mr. Grant?  MR. GRANT:  Page 296.  THE COURT:  Yes, all right.  I am sorry.  You have gone back to  that.  MR. GRANT:  Yes, I went back that point, my lord.  Because Dr.  Daly used the word "assume" and I think that --  A  Well —  MR. GRANT:  I think that may mean something different in terms  of the litigation.  A  Assumption, I don't know about the courts, but in  anthropology you usually set out your assumptions when  you are beginning to present a hypothesis, where --  your starting point, that's how we use it.  Q   That's why you have set it out there, but you then  refer to the oral history and done the research and  that's an opinion that you have formed, after your  research?  A   Form the opinion at the end, yes, after you have  reviewed all of available data in all the relevant  fields.  MR. GRANT: My lord, it may be an appropriate point to break  because I am going to be referring to some documents.  THE COURT:  All right.  Thank you.  (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 12151  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  (PROCEEDINGS RECOMMENCED AFTER RECESS)  REGISTRAR:  Order in court.  GRANT:  Yes, My Lord, I will be referring here to volume  one, tab 45, and that's the blue book, and volume two.  COURT:  Can I put volume one away?  GRANT:  I am going to refer to both, but volume two is the  principle one -- oh, I see.  I'm sorry, no.  No.  I'm  sorry, I am looking at my document books.  Please  don't put volume one away yet.  I meant volume one,  the blue book of documents at tab 45.  COURT:  I don't think that's volume one, is it?  It's just  the blue book.  GRANT:  It's the blue book — well, I labelled it as the  first document book of Dr. Daly, as I have two.  Yes.  COURT  GRANT  Q  A  Q  A  Q  A  COURT  GRANT  COURT  GRANT  A  Q  A  A  Q  Now, Dr. Daly, we are referring with respect to the  report to page 297, and at page 297 you refer to a  large series of adaawk in the second paragraph?  Yes.  And if you look at the table of contents in the green  binder, tabs 46 through to 86 are those adaawk; is  that right?  Yes.  That are listed there?  Yes.  Sorry, what are the numbers?  Tabs 46 through to 86.  Yes.  And you can see by reference, My Lord, that they are  not -- of course they refer to by numbers.  Now, can you just explain, these adaawk here are  excerpts, or some of the adaawk from Barbeau Beynon's  Frog/Raven Clan Outlaws on the North Pacific Coast; is  that right?  Yes.  And that is -- that is a collection prepared by  Barbeau of adaawk relating to the Frog Clan?  Adaawk that he and William Beynon and a few others  have collected over the course of the years, and he  compiled them clan by clan.  Okay.  So this is one of the clans that he referred  to?  Yes.  And this is one portion of what you referred to in 12152  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  MR.  preparing Exhibit 887?  A   Yes.  COURT:  Why do you call them outlaws?  WITNESS:  I have to ask him.  COURT  GRANT  Q  A  You don't have him here to ask.  THE  THE  THE  THE  THE  MR.  THE  MR.  Do you know what reference that is?  He refers to one aspect of the migration patterns, and  how they were treated as outlaws in relation to other  people.  It's not -- I don't think it's a very  accurate title.  COURT:  He meant dissenters, did he?  WITNESS:  Yes, a bit like pilgram fathers coming to a new  land.  COURT:  All right.  WITNESS:  With their righteous indignation on their lips.  COURT:  Yes.  GRANT:  Q   Now, what I would like to do -- well, what I would  like to do is first refer you, just to explain to the  court, to let us take the reference in Exhibit 887 to  oolichan, and you refer to --  COURT:  I'm sorry, you say 88 — oh, Exhibit 887.  GRANT:  Oolichan, which is the fourth one down on the first  page.  Q   Now, this is your index -- first index is the one with  respect to the Raven Clan adaawks that Barbeau  collected for that clan?  A   Yes.  Q   Okay.  And it refers to adaawks that are in at tabs 46  through 86?  A   Yes.  Q   Now, it refers, amongst others, to adaawk number 28,  which is at exhibit -- or is at tab 57 of the green  book as one of your references.  Now, can you show His  Lordship by reference to exhibit or to tab 57 what  reference you are making there to oolichans, just so  His Lordship can understand what that Exhibit 887, how  it was created.  A   It's on the bottom of the first paragraph:  "When they arrived at their village they  invited Khlawak, and when these came,  the successor of the Larhkibu (Wolf)  Kadownae gave them all oolichan grease from  a wooden dish.  This was to incite them to  raid the Nisgha." 12153  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  Q  3  A  4  5  6  7  8  9  10  11  Q  12  13  14  15  16  17  A  18  Q  19  20  A  21  Q  22  A  23  24  25  26  27  28  29  30  31  Q  32  33  34  A  35  Q  36  A  37  Q  38  39  40  41  42  43  44  45  46  THE COURT  47  MR. GRANT  And what did you take out of that for your purposes?  From that example, and I believe there are one or two  other similar examples, I took the conclusion that  first of all the oolichan oil and oolichan grease was  used in a time before becoming -- let's see, when was  this.  Before the time of the coming of the white man,  and that it was -- it was a significant highly valued  or well appreciated commodity and product of one of  the regions within the overall area of study.  Now, at the top of that you see it says:  "Informant Frank Bolton, Git'iks,  an eagle chief of the lower Nass, narrative  recorded by William Beynon in 1927."  Yes.  Is this how most of these adaawks that are recorded by  Beynon or Barbeau, they have this information on them?  Yes, they do.  As to -- now, does that assist in terms of evaluating?  It does.  I haven't done a detailed evaluation, but it  is possible to -- by studying who actually told the  adaawk to the recorder, you can get information about,  first of all, whether it was their own adaawk or one  that they learned in the feast, or one that they  learned from their father's side.  The whole area,  whether it's the people of the Nass or the lower  Skeena or the Gitksan, used the same kinship system  and the same feasting system.  Okay.  One of the things is there is a number 28 above  the heading -- in front of the heading.  Now, if you  looked at the volume of the Raven Clan adaawk.  There is an index at the front.  Okay.  Is that -- is there a sequential numbering?  Yes, there is.  Okay.  I would like to make -- ask you about one other  reference, and that is at tab 68, page one.  Now, this  is a -- entitled Lutrhaisu Naeqt, L-u-t-r-h-a-i-s-u,  N-a-e-q-t.  At this point it is spelled that way, her  son.  Now, if you look at the same time, Dr. Daly,  your reference to spring salmon in your Exhibit 887,  your index -- I'm sorry, if you can -- yes, you can  see it on page 4, My Lord.  There is a reference to  salmon, and that's --  :  There is one on page three too?  :  Yes. 12154  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   What you did was you listed these references with  2 respect to each adaawk in a sequential order; is that  3 right?  4 A   I listed them as I came to them, and then wherever  5 possible I would add to -- I would add the adaawk  6 number when I came to the same product again in  7 another adaawk, but sometimes I listed them  8 separately.  9 Q   Okay.  The third from the bottom --  10 A   Here you see the different species of salmon on page  11 four are listed separately.  12 Q   Okay.  13 A   On page three it's just a general generic salmon.  14 Q   Okay.  Now, what we are referring to here at tab 68 is  15 adaawk number 46, which presumably refers to the  16 different species.  The third item from the top "hump  17 back, winter salmon, sockeye and spring", and then  18 there is an activity reference to fishing.  Now, can  19 you refer to that adaawk and indicate what you relied  20 on?  21 A   It's in -- on page one of adaawk number 46.  22 Q   Tab 68?  23 A   Tab 68, second half of the second paragraph:  24  25 "He asked Yae'l, 'When you murder somebody,  26 where do you go and hide?'  He replied, 'I  27 have found a good place, where the willows  28 hang right over the water.  There are plenty  29 of fish there - humpback, winter salmon,  30 sockeye or summer salmon and spring salmon.  31 That is what I have lived on.  When I murder  32 somebody, that is where I go, to  33 Sparhyaaorh, hiding-place-ashore or, a  34 place-of-hiding.  The present name of  35 Kispayaks, is derived from that."  36  37 Q   Then the bottom two lines.  Did you rely on those?  38 A   Yes, right down -- well, it carries on onto the next  39 page.  It talks about building a fish trap -- a fish  40 fence.  41  42 "They said, 'Let us build a tin, ' that is,  43 dam the river with a fish fence.  So they  44 did."  45  46 The pieces in brackets are added to the original  47 text by Barbeau when he was editing. 12155  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  Q   And then the sixth line down there is a reference to:  "Tinemelit (trap of spring salmon)."  A  Also it says:  "There were forty fish basket or traps  placed across the stream (where the  Kispayaks bridge is now)"  Place is called Tinemlit.  THE COURT:  T-i-n-e-m-1-i-t.  THE WITNESS:  "(Trap of spring salmon)"  MR. GRANT:  Q   Then at the bottom of the paragraph starting:  "Everything went on very nicely, while they  were getting fish from both rivers, the meat  and the berries were also plentiful, my  grandfather said, 'Let us start off and go  to the Nass River.'"  A   Yes.  Q   And then the next sentence down:  "After they arrived at Kitrhatin"  THE COURT:  MR. GRANT:  K-i-t-r-h-a-t-i-n.  H-a-t-i-n?  H-a-t-i-n.  A  Q  A  "They began to dry the oolichan and to make  oolichan grease.  But their sister was not  working.  They were taking very good care of  her, because she was their only sister.  While they were boiling a fish, they saw ten  canoes coming."  That's interesting.  It shows -- it mentions the  boiling of the oolichan to make the oolichan grease.  And what significance does that have?  Well, it shows the technology and the processing of  produce which was recorded by the early Europeans in  the area, and the people such as engineers and  surveyors in the second half of the 19th century, and 12156  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  the oolichan on the lower Nass is still boiled  somewhat in similar technology today in an annual  basis every spring.  Q   Okay.  Go to page 8, could you, Dr. Daly.  THE COURT:  Page 8 of this tab?  MR. GRANT:  Of this tab, My Lord, yes.  Q   This is part of the adaawk of Naeqt, isn't it?  A   Yes.  Q   And then the middle paragraph, I think this may refer  to Naeqt, you say -- he says:  "(He began his career of murder)"  And that's in brackets.  "And every time he killed anybody he ran  away to hide.  He would hide at Git'anraet."  How would you pronounce that?  Git'anraet.  And it's G-i-t apostrophe, a-n-r-a-e-t.  Now,  Git'anraet, I believe for the record has been spelled  differently, G-i-t-a-n-g-a-a-t.  I'm not a linguist, but I understand there are no "R"  sounds in the Gitksan language.  Okay.  "Where he found plenty of fish until the  affair would blow over and he would return.  The name of the river where he hid was  Git'anrhun, a place where I eat salmon."  Now, was that of any significance to you in your  review of that particular passage?  Well, the name of Git'anrhun is a fishing site, and  the people today in a section of the river refer to it  as an old village site.  I know that much about it.  Okay.  And it's also a -- there's been some archaelogical  work done in that area.  Okay.  But there is a reference in this adaawk to the  use of fish there.  Is that -- would you have recorded  that in your indexing?  Sometimes I record it, generic terms like fish, but  other times I would -- I would leave that until it was  much more specific, but generally I would try to catch  it, yes.  A  Q  A  A  Q  A  A 12157  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  3  4  5  A  6  Q  7  8  9  THE  COURT  10  MR.  GRANT  11  THE  COURT  12  MR.  GRANT  13  THE  COURT  14  15  MR.  GRANT  16  THE  COURT  17  MR.  GRANT  18  THE  COURT  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  Yes.  Now -- so these adaawk here at tabs 46 to 86,  you reviewed them as well as many, many others, in  terms of this analysis that you referred to in Exhibit  887?  Yes.  I would ask that those be marked as an exhibit, and I  propose that they go in as one exhibit with subsequent  numbing, one number.  What numbers are you proposing?  Well, it would be Exhibit 896.  Yes.  In tabs, what numbers?  Tabs 46 to 86.  I thought you said you were asking for a number of  them to be marked now.  I'm sorry, I said tabs 46 through to 86.  46 to 86.  Yes, all right.  Yes.  Well, I haven't heard from your friends, but I have  a difficulty, and it's perhaps terminologically, but I  am not convinced that these are all adaawks in the  sense that they have been used in this case up to this  present time.  If you look at Exhibit 68, where they  are talking about a good place to go and fish and hide  when there is a murder, and how you are going to trap  salmon, is borderline at best so far as qualifying for  the adaawk is concerned.  I don't think there is any  difficulty, subject to what your friends say, in  having these marked, but at the moment I wouldn't want  them to be taken as more than evidence of references  to which the witness has referred.  You recall that we  had a lot of discussion earlier about the  admissibility of adaawk, and I drew a distinction,  based upon the evidence of Mrs. McKenzie, between true  historical information and story telling, and the  adaawks that I made my ruling on were those that were  verified by the people themselves as being what their  grandmothers, et cetera, told them.  I don't think my  previous ruling goes so far to say that anything that  anybody has ever written down and labelled an adaawk  is for that purpose admissible as proof of the truth  of the facts contained in it, and I think we may have  to have some argument on that portion.  All I want to do at this time is to really raise  the question.  As I say, I see no reason why they  can't be marked for the limited purpose I have  mentioned, but I will want to have some assistance  from counsel before I would take these exhibits as 1215?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR.  THE  THE  GRANT  COURT  being admissible for the broader purpose that I  approved in one of my earlier rulings.  :  Well, I appreciate you raising it, My Lord.  I would  ask that they be marked for that purpose, in any  event, now.  These, of course, are certain of the oral  histories recorded by Barbeau and Beynon.  :  Well, that might qualify them as historical  material.  I don't want to get into that 'til I have  had the assistance of counsel and considered  submissions, and I see no difficulty with them as  source material that Dr. Daly has relied upon.  I just  want to put a caveat on the broader admissibility of  them for purposes of being considered adaawks.  I  don't know if they are admissible adaawks or not.  All  right.  :  And I anticipate, My Lord, that ultimately this  series, at least those that are relevant, the series  of the 350 to 400 or those that are relevant will be  tendered by the plaintiffs.  So I don't want to imply  to Your Lordship that this would be all that we would  apply.  I think it's appropriate that at that time --  some of them may well -- in fact I anticipate that  probably certain features of all of them would come  within the scope of the ruling you have already made,  but that may not mean -- there may be other features  that don't come within the scope.  :  Some of these are not adaawks of the Gitksan or the  Wet'suwet'en.  :  That may be true as well.  :  All right.  REGISTRAR:  Exhibits 896-46 to 896-  96-46 - 896-86 - WITNESS BOOK  LIMITED USE AS EVIDENCE OF  MR.  (EXHIBIT NO.  II - ADAAWKS  REFERENCE)  GRANT:  Q Now, I would just like to -- you now explained the  process, and I would just like to refer you to the  next page.  Page 297 and 298 where you state:  "The cited Frog/Raven ada'oxs ..."  And that would be the ones that you referred to  above and that are now exhibits 896, right?  A   Yes.  Q " ...refer to oolichan fishing and social  interaction concerning oolichan grease.  We 12159  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 learn that oolichan grease was exchanged,  2 was cached on the Nass and, along with  3 caribou and moose hide moccasins, was used  4 to pay warriors to join a raiding party."  5  6 And you extrapolated that from these selected  7 adaawk that we referred to?  8 A   Yes.  9 Q "We learned a multitude of uses for red and  10 yellow cedar on the Nass and Skeena; that  11 mountain goats were hunted along the Skeena  12 and in the Stewart area; that mountain goat  13 horn was used for weapon points, along with  14 a special hard, blue clam shell obtained on  15 the coast; goat hides and robes where feast  16 gifts; and that goat hunts were conducted at  17 Kitwancool, the upper Nass and Kisgagas  18 areas.  We learned that marten pelts were  19 made into robes on the upper Nass and were  20 trade items in Kispiox (along with  21 ground-hog, caribou and moose).  22 We find out that clubs were made of stone,  23 that eagle feathers and abalone shell were  24 valued items; that spruce gum was collected  25 and used in weapon-making, that shells were  26 used for knife blades and arrow points.  In  27 the Kitsumkalem-Kitselas area the Frog clan  28 hunted mountain sheep, ground-hog, caribou  29 and grouse; hemlock bark was used for string  30 and rope; fireweed fibre was spun into  31 string; beaver was hunted for the making of  32 robes at Meziaden and along the Skeena and  33 upper Nass.  We learn that the fishing of  34 humpback, sockeye, spring salmon and  35 steelhead was carried out in Kispiox and  36 Temlaxam; that fishing was done by pronged  37 spear and fish weir with basket traps  38 attached ."  39  40 Now, that's -- all of what I just read you have  41 extrapolated from the adaawks that are now Exhibit  42 896?  43 A   No, it carries on the next page too.  44 Q   Okay.  You state:  45  46 "Berry-picking occurred in the autumn after  47 the salmon season and while the men were 12160  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 taking ground-hog and mountain goat around  2 Kisgagas and Bear Lake, as well as around  3 Kitwancool.  Berry-picking is mentioned in  4 many other regions as well.  Feast gifts at  5 Kitwanga and the upper Nass included grizzly  6 and mountain goat hides.  Cedar houses, log  7 defenses and bridges are described in the  8 Kitwanga and Kisgagas areas.  In the Stewart  9 area and on the upper Nass it is said that  10 ground-hog territories were extremely  11 important because the marmot pelts were a  12 highly valued trade item.  K'soo, a  13 favorite sweet springtime food was prepared  14 from the inner bark of the hemlock.  There  15 is mention of devil's club medicine, caribou  16 hunting, a chief's headdress decorated with  17 dentalia, abalone and copper shields, the  18 harvest of cranberries, huckleberries,  19 beaver, black bear, grizzlies, mink and crab  20 apples.  Finally, containers were made from  21 birchbark and drums from bentwood boxes."  22  23 Now, that description that I have just read, have  24 you been able to obtain all of that information from  25 the selected adaawks which are Exhibit 896?  26 A   Yes, those are the -- all that information is from the  27 Genada or Lax Se'el, Frog/Raven Clan adaawks.  You get  28 a similar but not the same set of information from  29 each of the other clan adaawks.  30 Q   Now, I would like to turn to "Subsistence Strategies  31 and Nutrition".  Now, at this point, doctor, I would  32 like to ask you, can you explain for the court why as  33 an anthropologist you analyzed and considered  34 nutrition as an aspect of your consideration in  35 investigating the socio-economic structures of the  36 Gitksan and Wet'suwet'en?  37 A  Well, it is a -- it is a common preoccupation, when  38 you are dealing with the economic aspect of a tribal  39 or band society, to find out what people were eating  40 and what the food value of it is, and there is a  41 branch of anthropology which focuses on ecological  42 relations where this is quite a common procedure,  43 where a social anthropologist or a cultural  44 anthropologist or ethnologist, as I explained they are  45 all relatively the same names for our discipline, rely  46 on the expertise of nutritionalists is to obtain  47 caloric food charts and ways of establishing the 12161  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 relative flows of energy within the process of  2 gathering the food and consuming and distributing it.  3 My professor Richard Lee was one such person who did a  4 lot of pioneer work on this among hunting band peoples  5 in Southern Africa.  6 Q   Okay.  And —  7 A   I did -- would you like me to go on?  8 Q   Go ahead.  Yes.  9 A   One thing that struck me, I was trying to understand  10 why in this region of the Skeena River drainage  11 system, the whole Skeena and its tributaries, there  12 was a -- hunting and gathering was -- has been a way  13 of life for -- it looks like for a very long time.  It  14 is still a major preoccupation with people in the  15 area.  At the same time it's quite obvious they have  16 had large -- relatively large villages and fairly  17 settled life due to the annual salmon runs.  So if the  18 salmon can support a large village, why do the people  19 require and demand ownership and control over these  20 large hunting territories.  Why can't they exist on  21 the available salmon and perhaps a few other items  22 they can get around their villages and through trade.  23 So I looked into diet to try to get some answer to  24 that question.  25 Q   Now, you mentioned -- you have mentioned Dr. Lee, and  26 on page 300 of your report you state that:  27  28 "Anthropologists who study human ecology and  29 nutrition maintain that in any society good  30 health requires a modicum of proteins,  31 carbohydrates, fats, vitamins, and minerals  32 to provide essential nutrients (the carbon  33 compounds and minerals that biological  34 organisms must obtain pre-formed from the  35 environment so as to form and maintain  36 tissues and maintain the life sustaining  37 metabolic processes), and the compounds  38 whose energy potential is measured in  39 calories."  40  41 And you refer there to Lee, and that's Dr. Richard  42 Lee?  43 A   Yes.  44 Q   Wirsing, who is Wirsing?  45 A   He's an anthropologist.  46 Q   And Stefansson?  47 A   Stefansson was an anthropologist and an explorer in 12162  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 northern Canada and Alaska.  2 Q   And then you state:  3  4 "The ways of obtaining a necessary  5 nutritional intake and balance over time  6 depend upon the type of technology and  7 knowhow of the population, the food  8 resources available to that technology, and  9 the cultural values and traditions of that  10                        population."  11  12 And that's your opinion?  13 A   Yes, that's my opinion.  14 Q   And is that an opinion that's -- is that an opinion  15 generally accepted in the field of anthropology, or is  16 it --  17 A   It is certainly in the field of ecological  18 anthropology, and it's the common thinking of Richard  19 Lee, who was -- I worked with when I was in Toronto.  20 Q   He's the person that you wrote an article with?  21 A   Yes, that's right.  22 Q   And is Richard Lee's writing on the -- this aspect  23 with respect to the bush tribes of Africa --  24 A   His main book, "Men, Women and Work".  25 Q   Yes.  26 A   Came out in, I believe, in '79, the Cambridge  27 University Press, is a classic study of this type of  28 analysis of diet and the flow of energy measured out  29 in caloric counts of foodstuffs.  And he actually went  30 around with his research team checking into all the  31 items that the men and women and children in this  32 hunting band collected in the course of a week, and he  33 got -- he weighed it all and worked out the food  34 values, and then showed how -- how much energy people  35 expended in the collection of the food and how much  36 time -- how many man hours were involved in satisfying  37 the needs, given that level of technology.  And he  38 found that they needed to only work four hours a day  39 in order to live fairly well.  40 Q   Now, did you consult with Dr. Lee in -- when you were  41 dealing with this aspect of the Gitksan and the  42 Wet'suwet'en as to how to approach the issue?  43 A   I discussed this question with him, yes.  44 Q   Okay.  And did you do any research in this area  45 yourself with respect to the Gitksan and the  46 Wet'suwet'en?  47 A   I didn't do anything of detail, such as his mess of 12163  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 work, which is based on several years of collection of  2 materials.  3 Q   Right.  4 A   But I relied on the work of Harriet Kuhnlein, the  5 nutritionalist, and made a few calculations myself,  6 and tried to understand it in a cross-cultural context  7 as well.  8 THE COURT:  Can I have the spelling for that last name please?  9 MR. GRANT:  K-u-h-n-1-e-i-n.  10 THE COURT:  Thank you.  11 MR. GRANT:  12 Q   On page 301 you refer to Stefansson, and then you  13 halfway down that paragraph or 10 lines from the  14 bottom you state that -- I'm sorry, I should go up to  15 the beginning of the sentence, My Lord.  About halfway  16 down the paragraph:  17  18 "The peasant-type, grain/vegetable diet  19 satisfies the body's caloric needs by  20 combining different types of protein foods  21 with carbohydrates.  Hunting diets, on the  22 other hand, are based largely on the  23 consumption of flesh and are relatively high  24 in protein, (Lappe, Dr. Harriet  25 Kuhnlein, McGill University nutritionalist,  26 specializing in British Columbia Native  27 diets - personal communication), yet they  28 tend to require supplementary sources of  29 calories, especially in times of prolonged  30 physical activity and climatic extremes."  31  32 And you refer to the Lappe book after discussing  33 it with Dr. Kuhnlein; is that right?  34 A   Yes.  The Lappe's book is a popular account of -- it's  35 written with a cause in mind of trying to educate the  36 American public not to eat so much meat and cause the  37 destruction of forests, but in the process of that she  38 sets out various equations of what makes a balanced  39 diet, the various combinations which tribal societies  40 have employed in different parts of the world.  41 Q   Okay.  42 A  And she suggested that I look at that popular account  43 for that -- a listing of the various standard  44 combinations of a balanced diet.  45 Q   So your communication with Dr. Kuhnlein, she gave you  46 the reference to Lappe?  47 A   Yes. 12164  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  3  4  5  6  7  8  9  10  11  12  A  13  Q  14  A  15  Q  16  MR.  WILLMS  17  18  19  20  21  22  23  24  25  26  THE  COURT:  27  MR.  GRANT:  28  29  THE  COURT:  30  MR.  GRANT:  31  Q  32  33  A  34  35  36  Q  37  A  38  Q  39  A  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  Then you state:  "In northern areas such as the Gitksan and  Wet'suwet'en territories, where until the  last century technology and climate  precluded the cultivation of carbohydrate  sources of calories - excluding berries -  this supplement was provided by oils and  fats extracted from fish and grain."  Now --  Fish and game.  I'm sorry?  Fish and game.  Grain would be a carboyhydrate.  Sorry.  :  My Lord, I rise here.  I don't know whether that's  based on this personal communication from Dr. Harriet  Kuhnlein, who allegedly is the expert in British  Columbian native diets, or whether this is something  that the witness discovered himself through the  research that he described just a moment ago, dating  back into the last century.  If it's based on Dr.  Kuhnlein, I object, but if it's based on his own  research, which he already described, then that's, I  suppose, his opinion.  Well, the first thing we need to do is find out.  Well, that's where I was just going.  My friend is  just trying to jump one step ahead of me.  That's fine.  This information here, is this an assumption you make  based on the writings of Dr. Kuhnlein?  This is -- this is my assertion.  Dr. Kuhnlein hasn't  worked in the area of the Gitksan and the  Wet'suwet'en.  She worked in the Bella Coola region.  Okay.  So that's your opinion?  That's my opinion.  Based on your research?  Uh-huh.  And did you make analogy -- did you refer to the Lappe  analogies of different types of protein supplements --  Yes, I did.  -- in forming that opinion?  Yes.  And is there any comparison with what you did in  referring to the Lappe charts, or the Lappe charts of  carbohydrates and fat and protein, and what Dr. Lee 12165  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  A  3  Q  4  5  A  6  7  MR.  WILLMS  8  9  10  THE  COURT:  11  MR.  GRANT:  12  Q  13  14  15  A  16  Q  17  18  A  19  20  21  22  23  24  Q  25  A  26  27  28  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  MR.  WILLMS  37  38  39  40  41  42  MR.  GRANT:  43  44  THE  COURT:  45  MR.  GRANT:  46  47  MR.  WILLMS  did when he was doing his analysis?  Yes, there is.  Can you explain -- expand that -- explain that  comparison?  Well, I discussed this with Dr. Lee.  I said, well, I  haven't actually --  :  I object, My Lord.  It doesn't matter what the  witness told Dr. Lee or what Dr. Lee told the witness.  In my submission what the witness did was relevant.  That's true, isn't it, Mr. Grant?  Yes.  Now, what -- okay.  What I would like to ask you, Dr.  Daly, is this:  What is -- you know what Dr. Lee did  in his research?  Yes.  Now, can you explain what he did that is analogous to  what you did with respect to Lappe?  He got in touch with a nutritionalist and obtained a  food, caloric food equivalent chart for virtually all  the species that were known at that time.  In the  course of his research a lot of other species were  recorded that weren't in the botanical lexicon at that  time.  Yes.  And he relied on the analysis that they did of the  caloric value of certain -- of quantities of each of  these foodstuffs, and that was the basis on which he  did his work and his calculations.  And that is similar to what you did with respect to  the oolichan, for example?  Yes.  Okay.  And is that an accepted methodology in the  field of anthropology?  I would say so, yes.  Okay.  :  My Lord, I hesitate to rise, but I thought the  witness referred to caloric calculations that he did,  and I must say that I don't recall seeing anything  like that in the materials delivered by my friend.  I  wonder if the witness could identify these caloric  calculations that he is talking about.  These are caloric calculations of Dr. Richard Lee,  My Lord.  He said he did some of his own.  Yes, and they are in the appendix, one of the  appendices to the report.  I'll come back to it.  :  Is that it, just the oolichan grease? 12166  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT:  I will deal with it, and you can raise your  objection then, when I get to it, Mr. Willms.  My Lord, I just wonder, do you, as yesterday, do you  intend a brief break?  THE COURT:  Yes, I think an hour of this is — at a time or  thereabouts, particularly at this time of day, is all  one should endure without a break. I think we should  take not more than 10 minutes.  THE REGISTRAR:  Order in court.  (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  (PROCEEDINGS RECONVENED)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Grant.  MR. GRANT:  Thank you.  Q   I would like to refer you to the bottom of page 302,  doctor.  You state there that:  "In hunting and fishing economies there have  been two general strategies for obtaining an  annual nutritional balance.  On the one  hand, some societies such as the coastal and  Inuit have long relied upon a stable supply  of a very limited number of species in their  respective ecosystems.  Many of the coastal  Inuit still rely upon seals and whales to  supply a large part of the material needs  for most of year.  The inland Inuit within  the last few decades have continued to rely  similarly upon the barren land caribou to  satisfy many of their material needs."  And here you have referred to Draper and  Stefansson?  A   Uh-huh.  Q   And then you state -- that leads to the area we are  talking about, because you go on to state:  "While the coastal Inuit and post-glacial  populations on the middle and northern  portions of the British Columbian coast have  solved this nutritional equation largely  with sea mammals, other hunting people, such  as the Gitksan and Wet'suwet'en, have solved  the same problem through the pursuit and  storage of a diverse number of food 12167  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 sources."  2  3 That is your opinion and conclusion based on your  4 research?  5 A   Yes.  6 Q "In nutritional terms it is possible to view  7 the basic subsistence preoccupations of the  8 Gitksan and Wet'suwet'en as centered on the  9 pursuit of a diversity of sources of high  10 energy foods which successfully combine the  11 protein of lean meat and fish, and the  12 carbohydrate of berries, sap bark and root  13 produce, with various sources of fat.  The  14 cornerstone of this diet was fat and protein  15 obtained from the combination of fish and  16 game."  17  18 Once again, is this part of your opinion and  19 conclusion based on your research?  20 A   Yes, it is.  21 Q   And relying on all of the sources that you have  22 previously -- several of the sources you previously  23 referred to?  24 A   Yes.  25 Q "In the indigenous Gitksan and Wet'suwet'en  26 economy, this dietary balance was normally  27 achieved in the course of fishing, hunting,  28 plant harvesting and trade."  29  30 Once again, that is your opinion; is that right?  31 A   Yes.  32 Q   Now, you state that:  33  34 "The produce could be combined in a  35 sustaining manner over the course of the  36 annual economic cycle, by means of highly  37 efficient drying and storage skills, as well  38 as the well-developed network of exchange  39 and trade attested to by the system of  40 trails linking the settlements of peoples  41 over the general region."  42  43 And here you rely upon the trading trails that you  44 have referred to in exhibit -- in tab 89, as well as  45 the -- as well as the map of the drying index and your  46 own research as to the preferred drying areas within  47 the region? 1216?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 A   Yes.  2 Q   And when I refer to the drying index, I am referring  3 to the map of doctor -- or the map of Rod Shelton that  4 has been tendered and his report, and also Sybille  5 Haeussler's map.  6 A   Yes.  7 Q   Now, I would like to emphasize this next section where  8 you state:  9  10 "The factor which is most distinctive of the  11 subsistence strategy ..."  12  13 MS. KOENIGSBERG:  Excuse me, My Lord.  With respect, we are  14 sitting on Saturday in order to finish this witness.  15 I wonder if -- Mr. Grant has read substantially word  16 for word almost two pages, if not more, and then  17 simply asked for -- stated to the witness what his  18 sources were.  I just wonder if there is not a  19 possibly shorter way we can do this, and what is the  20 propriety of simply reading word for word, page after  21 page of this report in.  It is going to take an  22 awfully long time.  23 THE COURT:  You will recall I made that suggestion two days ago,  24 but in fairness, I found that the witness needed to  25 have a chance to read it, in order to focus his  26 concentration on what he was being asked about, and in  27 fairness to him, I am not sure that it can be done  28 anyway except the way that it's being done.  29 MS. KOENIGSBERG:  I know.  I certainly don't want to be put in a  30 position of suggesting shorter ways, but now we are  31 not just reading a paragraph and asking him what his  32 opinion is -- which I can understand how that does  33 turn out to be shorter -- we are not asking his  34 opinion, we are just reading it.  35 THE COURT:  Well, there's a school of thought that says it  36 shouldn't be done at all, that the report should be  37 left to stand for itself, and there is another school  38 of thought that when we are supposed to be pursuing  39 that, the witness is going to highlight or explain  40 parts of it.  And as I said, I made the suggestion,  41 Mr. Grant tried to comply, but in fairness to the  42 witness, it wasn't fair to him to ask him what did you  43 base the second paragraph on page 200 at, until he had  44 had a chance to read it himself, and so we really sit  45 here while he reads, or Mr. Grant would read it, which  46 we all know is a way of providing a certain  47 concentration or bringing a certain concentration to 12169  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 the subject.  So I would welcome the observance of  2 your suggestion, but I have to leave it to Mr. Grant  3 to do it the way he thinks it must best be done.  4 If you can do it the way Ms. Koenigsberg suggests,  5 Mr. Grant, we will all be grateful.  6 MR. GRANT:  Well, My Lord, I do agree that — with respect to  7 this last -- what I have just done is I have referred  8 to certain parts because I am leading up to an area of  9 questioning, and the easiest way to deal with that is  10 to refer to these specific sections.  I am cognizant  11 of my endeavour to complete the direct examination in  12 a timely manner, and I am look at editing and  13 everything else to do that.  14 THE COURT:  I am not going to enforce Ms. Koenigsberg's  15 suggestion, nor is she implying that I should.  We  16 will leave it to you to take such guidance and advice  17 and advantage of our remarks as may be possible in the  18 circumstances.  19 MR. GRANT:  I will, My Lord.  20 Q   Now, then you state on page 304:  21  22 "The factor which is most distinctive of the  23 subsistence strategy of the Gitksan and  24 Wet'suwet'en is not merely the diversity of  25 species harvested, but rather the  26 conjunction of bountiful and regular salmon  27 runs with a wide range of other edible and  28 otherwise usable flora and fauna in the  29 varied biotic zones of the territories'  30 valleys, mid-elevations and alpine regions.  31 This local diversity has long been  32 supplemented with the welcome addition of  33 coast foods obtained by means of exchange."  34  35 Now, Dr. Daly, with respect to that whole sector  36 of your opinion which I have just read to you, and if  37 you have covered this, that's all right, but if there  38 is anything further you have to say, I would like you  39 to expand on it.  Why did you focus on this -- this  40 analysis of the relationship between the salmon and  41 the other flora and fauna within the region?  42 A   Because the salmon is the anchor of the cultures all  43 over the Pacific northwest, and the thing which  44 distinguishes them -- these peoples and their cultures  45 from hunting bands to the interior to the east and to  46 the north of them.  47 Q   Yes. 12170  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 A   It's this regular phenomenally regular large salmon  2 runs which have been a major factor in the economy and  3 social life of these peoples, and yet that is not  4 enough to satisfy the needs of the -- dietary needs of  5 the people is my argument.  6 Q   Now, on page 305 you state in the middle paragraph:  7  8 "An essential ingredient in both the Gitksan  9 and Wet'suwet'en diet until the 1940s, and  10 for some families until the present time, is  11 the dried smoked salmon."  12  13 Is there any modification you would like to make  14 to that statement?  15 A   It should be "most families"  16 Q   Instead of some?  17 A   Yes.  18 Q   Could you amend that on your copy of the exhibit.  19 THE COURT:  Where is that please?  20 THE WITNESS:   It's the second line of the big paragraph on the  21 page.  22 THE COURT: "Some families"?  23 THE WITNESS:  It should be "many families".  2 4 THE COURT:  Thank you.  2 5 MR. GRANT:  2 6 Q   And then you say:  27  28 "This protein-rich foodstuff also contains  29 an amount of fat, and is supplemented with  30 additional fatty foods such as the rendered  31 fat of oolichan, salmon, ground hog or  32 beaver."  33  34 Now, this is a conclusion that you have reached as  35 a result of your research?  36 A   Yes, and I have experienced it personally too, the  37 combination of the dipping of the dried salmon in one  38 form of oil or another.  39 Q   I see.  So to clarify what is done, is it's literally  40 eaten together is what you are saying, the dried  41 salmon together with the --  42 A   Yes.  And some species of berries are preserved in  43 oolichan grease, and the combination is preferred by  44 people.  The Tenimgyet, Art Matthews' people have a  45 feast every fall called the Wolf Feast, where the  46 specialty is what they call Indian ice-cream.  It's  47 combining soap berries and snow and oolichan grease 12171  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 all beaten up together, to welcome the winter season  2 and honour the Wolf.  3 Q   Now, you refer on page 306 to "the marmot/ground hog",  4 and you state that:  5  6 "The marmot/ground hog of the Alpine Tundra  7 biogeoclimatic zone is especially noted for  8 its luxuriant autumn fat.  Gitksan hunters  9 describe both its stripes of lean and fat  10 flesh, and its taste as bacon-like.  The  11 mountain goat too is a fat game animal, its  12 head, neck, and backbone yield fat that can  13 be melted into oil.  The fat encasing the  14 kidneys is rich and sweet."  15  16 And you refer later to the Genada adaawk of Haimas  17 and Harry Johnson and David Blackwater.  And they were  18 informants who advised you of this; is that right?  19 A   Yes.  20 Q   And I was going to ask if there was any other  21 references.  22 A   This was confirmed to me personally by Dave Hatler as  23 well.  24 Q   Okay.  That's Dr. Hatler who prepared the maps of  2 5 mammals?  26 A   Yes.  He has eaten these animals out in the field.  27 Q   Okay.  Now, within the Gitksan and the Wet'suwet'en  28 economies, what is the significance -- what is your  29 conclusion as to the significance or level of degree  30 of importance of the groundhog and the -- of the  31 groundhog?  32 A   The groundhog as a cultural significance, very  33 important in the feasting.  The high born ladies of a  34 House would be clothed in groundhog robes when they  35 went into the feast hall.  36 Q   Uh-huh.  37 A   It was an item of exchange, a gift for the chiefs, and  38 the groundhog oil would sometimes be given in  39 ladles -- a ladle full of oil to each chief.  It was a  40 bit -- it was a hospitality, a sign of the richness of  41 the hosts, but it was also a little bit of competitive  42 rivalry that the host wanted to give a large ladle of  43 oil to the visiting chief to drink, and if he didn't  44 drink it, then he lost face.  That was the sort of  45 arrangement.  And also oil was thrown on the fires at  46 important parts of the ceremonial aspects of the  47 feasting, and this is reflected in the adaawks, and 12172  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 I've heard of this or Solomon Marsden gave me examples  2 of this when I interviewed him.  3 Q   Then you refer to the mountain goat as well as a fat  4 game animal, and I quoted that.  What is the  5 significance within the Gitksan and Wet'suwet'en  6 economies, and distinguish between the two if you so  7 desire, of the mountain goat?  8 A  Well, it's a highly -- today it's a highly prized  9 meat, and the skins are used for making drums.  The  10 fat was a special gift in the past for chiefs that the  11 kidney -- the fat that encased the kidneys.  The horns  12 were useful for making of carved horn spoons for  13 trade.  It was -- it had many uses and it has always  14 been a highly significant animal.  It also entails a  15 lot of bravery and daring to be a skilled mountain  16 goat hunter.  It's quite an undertaking.  You have to  17 have the same lack of fear of heights, no sense of  18 vertigo any more than the goat does.  So it was a  19 valorous food to be able to present lots of goat meat.  20 And of course the hair was used for weaving in some  21 areas.  22 Q   Okay.  23 A   I am not too sure.  It may have been an item of trade  24 from this region.  25 Q   Okay.  I don't want you to be repetitous, but because  26 you have described both its past significance and its  27 present significance in your present answer -- in your  28 answer, can you just summarize for the court the  29 present significance of the mountain goat, because if  30 you combine the two, I just wondered, you said it's  31 highly significant today, and then you --  32 A  Well, the mountain goat has always been significant,  33 as I understand it, and there's always been a local  34 specialist who specializes in obtaining the mountain  35 goat for the needs of the community, and it's not that  36 everybody goes, but someone will look after the  37 requirements for the whole community and all its needs  38 all at once.  39 Q   Is that -- does that occur today as well?  40 A   I know of instances where it occurs today as well,  41 yes.  42 Q   Now, I would like to go to page 307, doctor.  You  43 state that:  44  45 "The importance of high energy foods  ..."  46  47 This is the second -- I'm not going to refer to 12173  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A  THE COURT  MR. GRANT  Q  the grizzly and black bears, My Lord.  "The importance of high energy foods to the  diet and to the peoples' general prosperity,  was signaled culturally in the feast by the  lavish expenditure of these rich foods  towards the attainment of cultural and  social rather than nutritional goals."  This is your opinion.  It's your opinion, is that  correct doctor?  Yes.  And I would like to ask you why you came to that  conclusion.  From indications I got talking with people and reading  certain adaawk, I think there is a citation on the  next page from one example of a dazzling use of the  oil from these sources of -- from these species in the  context of feasting.  Uh-huh.  And showing off the riches and the power and authority  of the host to his guest.  Uh-huh.  Now, that, I believe, would be, just for  reference, My Lord, that would be Exhibit 896(46) .  You may want to refer to it.  I am not going to.  :  Thank you.  Now, I would like to refer you to the bottom of page  308 and the top of page 309.  Now, you talk about:  "In the early spring the Gitksan and some of  the Wet'suwet'en as well, journeyed to the  coast to obtain the oolichan grease and  smoked dried oolichan which, according to  Kuhnlein, is not only a fat-rich food but a  vitamin-rich substance for nutritional and  medicinal uses."  And you quote from Kuhnlein here:  "the saturated fats of ooligan oil are  similar to lard and higher than that present  in corn oil and corn oil margarine.  The  total unsaturated fat, that is the  combined monounsaturated and polyunsaturated  fats, of ooligan grease is similar to that  of corn oil.  There is no doubt about the 12174  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  A  Q  A  A  Q  A  Q  A  Q  superiority of ooligan grease in providing  vitamin A, E, K in comparison to the other  three fats."  :  That sounds like a television commercial.  :  My Lord, you have to have had the oolichan oil to  really appreciate what he said here.  :  Perhaps it's not a commercial.  :  I couldn't picture how they would show it on TV.  That's what I am saying.  In any event, that is -- when you had discussions with  Dr. Kuhnlein, did you discuss her findings that she's  published with her regarding the oolichan oil?  Yes, I did.  And you assumed that her opinion there as a  nutritionist is accurate with respect to oolichan oil?  Yes.  And she's of the opinion that the people would  be better nourished in the area she was studying if  they -- if they relied solely on oolichan oil rather  than other types of cooking oil today.  They do use  it, but they don't use it exclusively she said.  It is  a far better nutrient than any of the other oils.  You go on to say that:  "Ninety-nine percent of the content of  oolichan is composed of fats, of  approximately 33% are saturated, 56%  monounsaturated and 1%  polyunsaturated."  And again you are relying on Dr. Kuhnlein the  nutritionist?  Yes.  And is this where you, in the same way as Dr. Lee  relied on analyses by nutritionists of species or of  foods that he was looking at, you relied on Dr.  Kuhnlein as a nutritionist?  Yes, in the same manner.  Yes.  Okay.  Or I should say in a similar manner.  Yes, okay.  Now, can you go to page 310.  And you  stated there that:  "The Gitksan and Wet'suwet'en obtained and  continued to obtain special coast foods, in  addition to the oolichan, by expending their  stores of dried salmon strips and dried 12175  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 berries."  2  3 A   By exchanging their local produce.  4 Q   Okay.  5 A   For the produce of the coast in the form of oolichans,  6 and they would also make a payment.  If they didn't  7 have close relatives there, they would make a payment  8 of their own dried foods for the right to fish for  9 oolichan.  10 Q   And does that continue today?  11 A   Yes.  12 Q   Or are you talking past and present?  13 MS. KOENIGSBERG:  I just wonder if we are going to get to what  14 the source of that is.  I take it you are going to ask  15 if that's an opinion, and in which case it would be  16 nice to know on what he was relying.  17 MR. GRANT:  18 Q   Yes, I was in the middle of that.  I would like to  19 read the rest of the quote, and then I will get to  20 that.  I will proceed to just give you the rest of  21 quote, Dr. Daly.  22  23 "While enough salmon is taken annually to  24 supply most family needs, the quality and  25 quantity of berries fluctuates frequently.  26 Yet rather than eat all of these much loved  27 and sometimes scarce items themselves, the  28 Gitksan and Wet'suwet'en preferred to use at  29 least part of their annual supply, and  30 today, part of their cash, to obtain the  31 grease that cures all humanity - 'our  32 savior' - together with the piquant and  33 salty coast foods which add a different set  34 of vitamins and minerals to the diet.  No  35 doubt the element of dietary variety played  36 an important part in the decision to engage  37 in this exchange."  38  39 Now, does that set out your opinion in that  40 paragraph, Dr. Daly?  41 A   Yes, it does.  42 Q   And what do you rely in support -- what do you rely in  43 support of that opinion?  In other words, how did you  44 reach that conclusion?  45 A  Well, I have experienced it in people's kitchens.  46 I've passed people on the road to the Nass in the  47 season, which indicates to me continuity of this 12176  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 process.  Today a lot of the exchange in foods is,  2 however, mediated by cash.  If people have relatives  3 down in the Nass or long standing ties of friendship  4 and barter exchange in Kitimat or the Nass, they will  5 use those ties to obtain the goods.  Otherwise, people  6 from those areas send up or bring up the grease, and  7 people with dried fish and hide and buckskin products  8 may sell off their goods in return, sometimes directly  9 in return for the oil or through the medium of cash.  10 There will be a cash step, but it's perceived of as an  11 exchange of foodstuffs.  12 Q   So you have been informed about this, you have  13 observed it and seen this yourself?  14 A   Yes.  And I have even seen a fisherman coming up from  15 the coast with fresh produce, which is sold at the --  16 on the -- in the reserve villages around Hazelton.  17 And when I was down on the Nass during the oolichan  18 season, there were a number of Gitksan down there at  19 that time.  20 Q   Now, maybe I could just take you to volume two,  21 appendix E of your -- I'm sorry, not appendix E --  22 appendix D to your report.  It's the one at tab D, My  23 Lord.  Now, this appendix relates to the calculation  24 of oolichan consumption in the Gitksan and  25 Wet'suwet'en region, and is this your -- this is your  26 analysis or somebody elses that you put in the  27 appendix?  28 A   This is my analysis.  29 Q   Okay.  Now, maybe what you can do is just -- it's  30 quite brief, and I don't see, in line with Ms.  31 Koenigsberg's comments, I don't see any point in  32 reading it all out, but maybe what you could do is  33 explain to His Lordship what you did and what you  34 found.  35 A  Well, this is a procedure using caloric index for  36 determining the amount of oolichan grease that would  37 satisfy a certain percentage of the annual diet.  I  38 wanted to see if the -- if the amount of oolichan  39 grease -- the oolichan grease to my estimation was a  40 very important and is -- continues to be a very  41 important item culturally, but I didn't know how  42 important it was dietarily in the Gitksan-Wet'suwet'en  43 areas.  So the calculations which I followed here  44 indicate that in order to be a significant part of the  45 annual diet, there would need to be thousands and  46 thousands of boxes of oolichan grease carried in  47 inland.  So the cultural significance I concluded 12177  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 outweighs considerably the actual dietary  2 significance.  That's the general conclusion from  3 these calculations.  4 Q   You indicated that in order to provide -- to use the  5 analogy that Dr. Kuhnlein found at Bella Coola, that  6 there would be a requirement of a phenomenal 65,000  7 boxes of grease being packed up the trails from the  8 coast solely for local consumption among the Gitksan  9 and Wet'suwet'en in pre-European times?  10 A   Yes.  11 Q   And —  12 A   Now, there are accounts of crates and crates and  13 crates of oolichan oil in Kitwancool in the 1880's,  14 but I don't think it would be anything like the amount  15 that would be required for -- in my calculation.  16 Q   Okay.  Well then, what you did is went on:  17  18 "On the assumption of population of 10,000,  19 you determined that a family of five could  20 be supplied with the equivalent of five or  21 six gallons, and they would distribute  22 approximately the same amount by gift or  23 barter to the neighbours.  This would entail  24 something like 4,000 boxes of grease carried  25 inland from the Nass and barter by the  26 Gitksan and Wet'suwet'en annually, roughly  27 half of which would be trades and given as  28 gifts to easterly neighbours."  29  30 Now, the first point I wanted to ask you is how  31 did you calculate how many boxes it would take?  You  32 know -- in other words, how did you calculate how much  33 was -- each box would carry?  34 A   You have put me at a bit of a disadvantage, because I  35 haven't looked at this for a very long time.  36 Q   Well, I can leave that for tomorrow.  37 A   If I can review it --  38 Q   I don't want to --  39 A   Its about two years now since I made this calculation.  40 Q   Yes.  Okay, I will leave that entire section.  You can  41 review that for the morning.  I appreciate you  42 understood that that was going to come up later.  43 MS. KOENIGSBERG:  Perhaps an appropriate time to just wonder  44 aloud about whether Dr. Kuhnlein is going to be proved  45 in some way.  We had the -- or got over the difficulty  46 of relying on work of other persons through the usual  47 ways, that is, they are going to give evidence or they 1217?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  have given evidence which could be tested and --  THE COURT:  Or they have published.  MS. KOENIGSBERG:  Or they have published and the person is an  expert in the area and can tell us that it is within  the area of expertise.  Dr. Kuhnlein doesn't seem to  fall into that category of things, and I haven't heard  nor received any notice that Dr. Kuhnlein or a  nutritionist was going to be called.  To the extent  that this depends on Dr. Kuhnlein, I think we would be  arguing it wasn't admissible.  THE COURT:  Are you going to respond to that, Mr. Grant?  MR. GRANT:  Well, I was wondering whether I should, when my  friends are wondering aloud.  But let me say this, My  Lord, I ultimately will, but I take the position now  that Dr. Daly has indicated that this is within the  field of anthropology, the utilization of nutrition  scales, published scales, and what we are talking  about here is published works of Dr. Kuhnlein, are a  legitimate aspect for anthropologists to rely upon,  and Dr. Lee in the classic work that he referred to,  "Men, Work and Labour", did exactly that.  It's part  of the scope of anthropology, and that I say it's not  necessary to call Dr. Kuhnlein, unless we are engaged  in a process of -- of course the work is there.  It's  published.  Dr. Daly will be able to be cross-examined  on why he relies on these sources and --  THE COURT:  But he can't be cross-examined on the correctness of  the sources, just the reputation.  MR. GRANT:  He can be cross-examined on the reputation, and that  may well go to weight.  THE COURT:  Well, your friends have put you on notice, Mr.  Grant.  The whole report is being adduced subject to a  blanket type objection, and I think we should carry  on.  You know what your friends' position is, and they  know what your preliminary musings are.  MR. GRANT:  Thank you, My Lord.  Q   Now, you conclude that -- I would like to refer you to  the next section, "Environmental Conditions and  Resource Distribution".  Page 312.  I'm sorry, page?  312.  I have got the wrong book. Thank you.  I will go back to appendix D, My Lord.  Thank you.  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  Now, with respect to this subsection, the three major  biogeoclimatic zones that you summarize and describe, 12179  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  these are based on the report of Sybille Haeussler; is  that right?  A   That's right.  Q   And her map atlas or her map in the map atlas?  A   Her map in the map atlas.  Q   Okay.  Now -- and you assume that her opinions are  accurate for the purposes of this report?  A   Yes.  Q   Now, if you look at figure 1 just past 313, My Lord,  which is a map, approximate map of the area of the  Gitksan and the Wet'suwet'en, and then it's within a  larger map.  Can you just -- can you just -- this  refers to the fact that the Gitksan-Wet'suwet'en area  is at a point of convergence of three geoclimatic  zones; is that right?  A   This map was taken from Haeussler, and I found it  fascinating, because it shows the interconnection of  three major geoclimatic -- biogeoclimatic zones for  the whole continent of North America converging right  in the area where the Gitksan and Wet'suwet'en  territories are located.  You have the northern boreal  forest climate, you have the interior plateau climate,  and you have the north temperate coast climate, and  the respective vegetation and ecological systems all  converging through the valley system to the area under  consideration.  Q   Yes.  Maybe I could have the map atlas.  Referring you  to Exhibit 358.  It's map two.  :  Which number, Mr. Grant?  :  Map two.  Actually I am looking at the extended --  the extended legend of map two which is on the back of  map one.  :  Yes.  Now, the map in the upper left corner of that legend,  is this what you are referring to?  That's right.  The interior plateau zone, the west  coastal zone, and the northern boreal forest and  northern tundra zone up there.  Q   Now, what, from an anthropological perspective, is the  significance of a socio-economic group at the  convergence of more than one geoclimatic zone?  A  Well, it's very propitious conditions for engaging in  exchange and trade with peoples from -- who have the  resources of one or other of the converging zones, but  not all of them or not all of them in abundance.  Quite often a tribe will be limited to one general 12180  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  ecological and climatic set of conditions.  This is  a -- I know a few examples of such situations in other  parts of the world, and it's usually a situation which  is marked by barter or some sort of trade between the  specialties of the different regions.  Okay.  Now, can you -- so this opinion you are basing,  is on your training in the field of anthropology and  your knowledge of other similar situations?  Yes.  Can you give some examples of other situations where a  group, a society --  The Iroquois, who I worked with before, are in a high  hilly zone of the Adironack mountains, which is  between the Eastern Seaboard Coastal Plain and the  Great Lakes' watershed, and there are varieties of  species in one zone that are not available in the  other.  That combined with the fact that the area that  the Iroquois lived in was very propitious to the  cultivation of maize, beans and squash, the three  sisters of the gardening economy they had.  They put  them in a very good position to be brokers and  mediators and traders between the coastal regions and  the Great Lakes' region.  Another example I can think of is the -- I  mentioned before the Ashanti kingdoms and the Akan  speaking peoples in the middle of Ghana, who again  were between the Sierra and the coastal plain, and a  lot of trade up and down the Gold Coast, and  ultimately the slave trade was controlled in many ways  by the Ashanti people in the mountains and in between  the two ecological zones.  There was also gold in the  north and cattle and camel keeping and herding, meat  and tropical produce on the coast.  So they played a  broker role and were highly engaged in trade.  SIGURDSON:  It may be of assistance if my friend could  perhaps point out the references on the bibliography  for the opinion that being in a convergence zone as  conducive to trading.  Okay.  Can you refer to the blue book, tab 5.  This  is for convenience, My Lord, a copy of the  bibliography, so don't have to jump from one volume --  Tab 5 of the?  Of the blue book.  You have referred to the -- your opinion with respect  to the Iroquois.  Is this based on your own research  and your PhD thesis?  A   This is based on information I obtained while I was  MS.  MR. GRANT  THE COURT  MR. GRANT  Q 12181  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 doing my PhD research.  2 Q   Yes.  3 A   This was the opinion of Conrad Heidenreich, who was a  4 human geographer at York University and is engaged in  5 archaeological reconstructions in Ontario and  6 contributed to the historical atlas of Canada.  7 Q   Okay.  8 A  William Fenton, some of whose articles are listed in  9 here, refers to this inadvertently, and also, I think  10 it's quite specific in his article in the handbook of  11 the North American Indians, volume 15, edited by Bruce  12 Trigger, there is an article there in major features  13 of the Iroquois culture and their -- its historical  14 development.  15 Q   And with respect to the Ashanti --  16 A   There is no citations in here with respect to the  17 Ashanti.  18 Q   Maybe what I will do is have you give a -- this  19 bibliography, which is a copy of the one in your  20 report.  21 A   Uh-huh.  22 Q   Is that a bibliography of all sources that you have  23 ever referred to?  24 A   No, it isn't.  It's simply a bibliography of cited  25 works in the report.  26 Q   Okay.  Now, in the course of your years of work and  27 training, I gather such a bibliography of everything  28 you ever referred to would be voluminous?  29 A   Yes.  I wasn't under the impression -- I didn't know  30 that it would be an issue here.  I could have pulled  31 together a larger bibliography of the general works  32 cited, but the common procedure is to list those items  33 that you have referred to.  34 Q   Okay.  That's fine doctor.  35 A   In the writing of your report.  36 Q   Can you refer to those -- using the Ashanti example,  37 what works have you read applied to the Ashanti  38 example, or what authors?  39 MS. SIGURDSON:  My question is limited to pointing them out in  40 the bibliography, if that's possible.  41 MR. GRANT:  The witness has said he can't do that.  I am asking  42 what references he had.  43 A  Well, the classic work is by Rattray, R-a-t-t-r-a-y,  44 and I'd have to check my notes.  There is an  45 anthropologist in Victoria who has been doing recent  46 work, and I had a long discussion with him not too  47 long ago, but I would like to look into the -- he is 12182  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 working along these lines.  There were a lot of  2 parallels with what I had been doing with the Iroquois  3 in his work, in historical reconstruction in the Akan  4 states of Ghana.  5 Q   Now, one of the things I want to point out to you --  6 if I could just deal with this before we break, My  7 Lord.  When you look at the map that's Figure 1 or --  8 yes, Figure 1 for this chapter, it appears that the  9 Gitksan and Wet'suwet'en are predominantly in the  10 interior, if you see on that map, but you say that  11 they are at a convergence of these zones, which on the  12 map on the legend it shows they are more on the  13 convergence.  But I would like you to look at map two  14 or with reference to map two, the Haeussler map two.  15 A   Uh-huh.  16 Q   How do you say that they are in a convergence, when it  17 appears that they are much more in the interior than  18 anywhere else?  19 A   It's because of the topography of the region, the  20 highly indented mountainous region.  The temperate  21 climate of the coast goes up the valleys and moderates  22 what would otherwise be a classical interior  23 situation, and up here you would have a more direct  24 boreal forest conditions.  So in the low areas marked  25 here by the two apple green tones, you have conditions  2 6 which approximate in vegetation and animal and  27 ecological cycles the conditions on the coast.  At the  28 same time you have the vertical elevation, which gives  29 you climates right up to what you find in the far  30 north, the northern alpine climates above the tree  31 line, all readily accessible to the people who live in  32 that zone.  33 Q   Now, just one further reference.  34 A   By the way, another source of -- for this information  35 is a personal communication with Dr. George MacDonald.  36 He is in agreement with me on this, the fascinating  37 nature of this --  38 MS. SIGURDSON:  Well, excuse me, My Lord, let's not get into  39 hearsay.  40 THE COURT:  Does your reliance upon Dr. MacDonald extend to any  41 published work?  42 MR. GRANT:  43 Q   In other words, has Dr. McDonald published any work in  44 which he refers to this that you can recall?  45 A   I don't recall that he has.  46 THE COURT:  Okay.  I think counsel would prefer if they didn't  47 have to deal with whatever Dr. MacDonald told you in a 12183  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  private conversation.  THE WITNESS:   I have been living too long in an aural culture I  see.  THE COURT:  I think we all have.  Is it convenient to adjourn,  Mr. Grant?  If I could just make one reference.  I can open up my books again.  What page are you on?  MR.  THE  MR.  THE  THE  GRANT  COURT  GRANT  Q  There is a diagram,  Page 317, just following that,  schematic diagram, figure three.  A   Yes.  Q   That's this -- is that your diagram?  A   That's a diagram form of what I was just saying, which  I roughly drew out myself, yes.  Q   And in that diagram you refer to the three  biogeoclimatic zones based on the Haeussler report?  A   Yes, these are the zones that she outlines in her  report, the A, B, C, D and E, and I have -- the  triangles are the elevation microclimates within each  of these zones and what they are noted for in terms of  abundant and moderate and -- abundant and -- fairly  abundant resources from the different parts of these  territories.  Q   And that's based on her data and on --  A   It's based on her data and based on Dr. Hatler's and  the work that I -- all the things I have been reading  and all the chiefs that I have been talking to.  Q   Thank you, Dr. Daly.  I'll be coming back to that, My  Lord.  COURT:  Yes.  All right.  Thank you 10 o'clock tomorrow  morning.  REGISTRAR:  Order in court.  (PROCEEDINGS ADJOURNED AT 5:00 P.M.)  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.


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