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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-04-10] British Columbia. Supreme Court Apr 10, 1989

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 14154  1 10 April 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia; Vancouver, this Monday, April 10, 1989.  In  6 the matter of Delgamuukw versus Her Majesty the Queen  7 at bar, my lord.  8 THE COURT:  Mr. Goldie.  9 MR. GOLDIE:  My lord, I had mentioned that I would be  10 corresponding with my friends with respect to the  11 schedule which Mr. Rush announced having regard to the  12 difficulties that we saw with that, including the  13 hearing in the Supreme Court of Canada which I am  14 engaged in the week of May 15.  What I proposed to Mr.  15 Rush was that the May schedule looked like this:  The  16 week of May 1st is an off week and that would  17 continue.  18 THE COURT:  Yes.  19 MR. GOLDIE:  The week of May 8 is Mrs. Marsden.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  I propose the week of the 15th off; the week of May  22 22, which is a four-day week, would be Mr. Galois; and  23 the week of May 29 would be Dr. Lane.  Now, I invited  24 my friend to inform us of the week of June 5, but Mr.  25 Rush isn't able to do that.  There are two reasons for  26 what I am proposing.  27 THE COURT:  Let me get that again, Mr. Goldie.  You are  28 suggesting that we, on May 8 --  29 MR. GOLDIE:  May 8 which is, as proposed, Mrs. Marsden.  30 THE COURT:  As proposed.  31 MR. GOLDIE:  I am suggesting the week of May 15 be an off week.  32 The week of May 22, which is a four-day week, would be  33 Mr. Galois.  34 THE COURT:  Yes.  35 MR. GOLDIE:  And the week of May 29 is Dr. Lane.  And that's as  36 far as the schedule can go at this point.  37 THE COURT:  Yes.  38 MR. GOLDIE:  I said there were two reasons for proposing that.  39 Firstly, is the one that I have already referred to  40 with respect to the hearing in the Supreme Court of  41 Canada, and the second is the fact that we are quite  42 certain that Dr. Lane could not be disposed of in a  43 four-day week.  44 THE COURT:  Can she be done in five or six?  45 MR. GOLDIE:  Our present view is that, subject to timely  46 production of documents and assuming that her evidence  47 doesn't depart overly much from her report, that it 14155  1 could be done.  It will require some overtime but  2 that's now become common.  3 THE COURT:  You are personally involved in the case with respect  4 to Dr. Galois, are you?  5 MR. GOLDIE:  No.  I think that will be Mr. Willms' but — we  6 would have been proposing that switch anyway, that as  7 originally proposed, Dr. Lane had only a four-day  8 week.  9 THE COURT:  Yes.  Well, do I take it from that that the Supreme  10 Court of Canada case isn't a matter that is urgent in  11 connection with our schedule if you are not going to  12 be here?  13 MR. GOLDIE:  That's why I am proposing the week of May 15 be  14 off.  That's the week in which the Supreme Court of  15 Canada --  16 THE COURT:  That's the week we have Dr. Galois scheduled as I  17 see it.  I have --  18 MR. GOLDIE:  If we didn't have the week of May 15 off, Mr.  19 Willms would have to take Mrs. Marsden and Dr. Galois  20 one after another.  21 THE COURT:  I see.  You were going to take Dr. Galois.  22 MR. GOLDIE:  Yes.  23 THE COURT:  I see, all right.  24 MR. GOLDIE:  I said when we first -- originally that's what I  25 was going to be doing.  2 6 THE COURT:  All right.  Well, what do your friends say?  27 MR. GOLDIE:  Mr. Rush has advised me that he is — he has no  28 objection to that providing he has the assurance that  29 I gave your lordship, that subject to timely  30 production of documents and the assumption that the  31 evidence in chief will not depart too far from the  32 reports, that these two witnesses will be completed in  33 the time allotted.  34 THE COURT:  Yes, all right.  Anything, Mr. Macaulay?  35 MR. MACAULAY:  I will be cross-examining Dr. Galois and all I  36 can say about the four-day week is that we should  37 prepare ourselves to sit in some evenings that week.  38 THE COURT:  All right.  3 9 MR. MACAULAY:  And we ought to be able to manage it perhaps  40 then.  So far as Dr. Lane is concerned, all we will  41 have to say is we will do our best.  42 THE COURT:  The four-day week is on the — I see it is on the  43 Monday so we would start on the -- actually it would  44 be the 23rd we would start with Dr. Galois and we  45 could, if necessary, sit on Saturday the 27th.  All  46 right.  Well, if counsel are agreed, that's fine with  4 7 me. 1 MR.  2  3  4  5  6  7  8 THE  9 MR.  10  11  12  13  14  15  16  17  18  19  20  21  22 THE  23  24  25  26  2 7 MR.  28  29  30  31 THE  32  33 MR.  34  35  36  37  38  39  40  41  42  43  44  45  46  47  14156  GRANT:  Yes, my lord.  Mr. Rush has canvassed this with the  witness and we have made the necessary arrangements  subject to your lordship's change.  I just note I  might -- I have expressed this to Mr. Rush that a  few -- oh, sometime ago, you had indicated to myself  that you were unavailable on the week of May 29.  I  presume that that's --  COURT:  That's — oh, I am sorry.  GRANT:  You had raised that yourself to counsel, and I  had -- that's one reason why we had noted that and, as  you know, Mr. Rush had raised it right now that we  are -- and the reason why Mr. Rush was concerned about  Dr. Lane going in the last week and as strong an  assurance as possible from Mr. Goldie, subject to  delivery of documents, was that as you know we are  unable to schedule into June but with those provisos  and the factor that Mr. Goldie has given that  assurance, I'd only -- I only raised that concern that  I don't -- didn't want us to be scheduling and then  your lordship to raise this matter of the 28th because  you did raise it sometime ago.  COURT:  Yes, I am not available that week.  I have to be in  the Yukon that week, the 29th.  And it's partly  ceremonial but it is a full weeks' work as well but I  feel obliged to attend there for the first sitting of  the court since I became the Chief Justice.  MACAULAY:  Well, my lord, it may be, and I hope that's the  case, that the plaintiffs will be in a position fairly  soon enough to address the schedule for June and  concerning Dr. Lane may resolve that way.  COURT:  She will forgive me for inquiring but is Dr. Lane a  local resident?  GRANT:  Dr. Lane resides in Victoria.  She has -- her  schedule is rather -- she resides in Victoria but  travels quite a bit, let me say that.  Her schedule is  quite tight but, as I said, the week of May 28 was  satisfactory with her.  I think your lordship's apprised of the concern I  have with respect to June and we are in no better  situation now than we were two weeks ago, I believe,  when Mr. Rush raised it with your lordship, and we  certainly wish to complete this group of witnesses,  these three witnesses, by the end of May.  But I want  to emphasize that I only raise that because I didn't  want us to go on one path and then switch forces  later.  But I do emphasize and I wish that, as Mr.  Goldie had said, Mr. Rush -- our witnesses were 14157  1 agreeable to that -- his proposal.  I am not opposing  2 his proposal.  3 MR. GOLDIE:  Well, if we are confronted with the immovable  4 object, et cetera, then probably we will have to sit  5 the week of May 15, but that will prove some hardship  6 for Mr. Willms but I can't give an assurance with  7 respect to Dr. Lane that we can complete in four days.  8 THE COURT:  Yes.  Well, I think my commitment is immovable.  I  9 feel obliged to be there.  That being so, I think we  10 should leave the schedule as it is and hopefully  11 arrangements will be made to schedule Dr. Lane in the  12 first week of June and, if that can be done, well,  13 that can be done any time.  We are a month and a half  14 away from that and perhaps good news will come our way  15 before then.  16 MR. GRANT:  When you say the schedule as it is, as Mr. Goldie  17 indicated, the schedule we had initially proposed  18 would be Susan Marsden in the week of May 8, Dr.  19 Galois in the week of May 15, and Dr. Lane in the week  20 of May 23.  21 THE COURT  22 MR. GRANT  2 3 THE COURT  Yes.  And I presume that's what you were referring to.  Yes, but if it is -- because it is a four-day week I  24 am quite happy to sit evenings and Saturday, too.  25 MR. GRANT:  And I understand what my friend's concern is as well  26 about the length of time for Dr. Lane.  27 THE COURT:  Yes.  Well, it may be that we will have to put in  28 some extra effort to get her done, but I don't think  29 at the moment I can accommodate your request, Mr.  30 Goldie.  I cannot move that --  31 MR. GOLDIE:  No.  32 THE COURT:  — problem in the Yukon.  33 MR. GOLDIE:  I appreciate that, my lord.  34 THE COURT:  Thank you.  All right.  Mr. Grant.  35 MR. GRANT:  Yes.  Mr. Jackson will be leading Mr. Brody.  36 MR. JACKSON:  My lord, the next witness which shall be tendered  37 is Mr. Hugh Brody, and I will be seeking to qualify  38 Mr. Brody as an expert in social and cultural  39 anthropology.  4 0 THE COURT:  Shouldn't we swear him?  41 THE REGISTRAR:  Stand and take the bible in your right hand,  42 please.  43 HUGH BRODY, a witness called on  44 behalf of the Plaintiffs, having  45 been duly sworn, testifies as  46 follows:  47 14158  1 THE REGISTRAR:  Please state your name for the record, please,  2 and spell your last name.  3 THE WITNESS:  Hugh Brody, B-r-o-d-y.  4 THE REGISTRAR:  Thank you.  You may be seated.  5 THE COURT:  All right.  What was it again?  6 MR. JACKSON:  An expert in social and cultural anthropology to  7 give opinion evidence on, and there are four  8 categories.  The first is the anthropology of social,  9 cultural and economic change in continuity.  10 THE COURT:  Sorry.  11 MR. JACKSON:  Social, cultural —  12 THE COURT:  Social, cultural and economic.  13 MR. JACKSON:  -- change in continuity with particular reference  14 to the Gitksan and Wet'suwet'en.  15 THE COURT:  Yes.  16 MR. JACKSON:  The second head, the nature of Gitksan and  17 Wet'suwet'en societies, institutions, and systems of  18 knowledge.  And the third head, the nature of  19 Euro-Canadian Society at the Northern Frontier.  And  20 the fourth head, the ways in which the Gitksan and  21 Wet'suwet'en have experienced, understood, and  22 responded to missionaries, settlement, the reserve  23 system, trapline registration, and new economic  24 circumstances.  I am handing up, my lord, two copies  25 of the first volume of a book of documents in relation  2 6 to Mr. Brody's evidence.  2 7 THE COURT:  Thank you.  28  29 EXAMINATION IN CHIEF BY MR. JACKSON ON QUALIFICATIONS:  30 Q   The first volume will be placed before the witness,  31 madam registrar.  32 Mr. Brody, would you turn to tab 1, the book of  33 documents.  Is that your curriculum vitae?  34 A   Yes, it is.  35 Q   Have you reviewed it and is it accurate in relation to  36 your education, teaching experience, research  37 experience, publications, reports, and films you have  38 authored?  39 A   I think it is, yes.  40 MR. GOLDIE:  Authored?  41 MR. JACKSON:  42 Q   Authored or made, or participated in?  43 A   Yes.  44 Q   Mr. Brody, in relation to your academic training in  45 1962 to 1965, you were at Oxford University and took a  46 B.A./M.A. honours degree in philosophy, politics and  47 economics at Trinity College, Oxford? 14159  1 A   That's right.  2 Q   And you did special papers in social theory and  3 political theory?  4 A   I think it should say sociological theory in fact but,  5 yes, that's correct.  6 Q   Is that regarded as an economic -- academic foundation  7 for a field anthropologist in England?  8 A   There is no degree in anthropology at Oxford or there  9 wasn't when I was there, I believe there is now in  10 fact, and it is widely regarded as a degree that  11 provides a good foundation for any social/scientific  12 work or any career in the social sciences and  13 therefore would be regarded widely as a fairly sound  14 foundation for a career in anthropology.  15 Q   Following your degree, you did graduate work in Oxford  16 and, between 1966 and 1969, you undertook your first  17 piece of social anthropological field study.  Could  18 you briefly describe the nature of that?  19 A   Yes.  I began a study of the sociology of religion  20 with special reference to rural Ireland.  I was very  21 concerned in questions about the place of religious  22 institutions in society; I had done work on the theory  23 of this, especially classical 19th century theory of  24 religion and society, and I was eager to extend my  25 theoretical work to a field, and I chose the west of  26 Ireland as a good place to look at the effects of  27 history of consequences of the Roman Catholic Church  28 in a peasant society.  I therefore went and worked in  29 the west of Ireland as a participant observer in a  30 number of remote villages looking at first, at the  31 Catholic Church.  I soon came to the conclusion,  32 however, that to look at the place of the Catholic  33 Church in rural Ireland I needed to know about the  34 whole sociology of rural Ireland and I therefore  35 shifted my research away from a central focus on the  36 place of the church towards a more general social  37 anthropology of the west of Ireland.  38 Q   Could you indicate the methodology, I think you have  39 given us some indication that you did participant  40 observation.  Were there other heads of methodological  41 process which you undertook in your work in Ireland?  42 A   Yes.  As I said, I did carry out extensive participant  43 observation.  I worked as a barman, a farm fisherman  44 and so on, but I also conducted extensive interviews  45 with people in the community that would be as it were  46 a second front on which the research was carried  47 forwards.  A third front might be said to be archival 14160  1 work, this searching the documents.  In the case of  2 rural Ireland there were parish records, books in the  3 archives of Dublin and so on which provide an  4 important background information, sometimes  5 historical, sometimes what might be called  6 confirmatory, that is to say they will provide  7 glimpses of life that were confirmed by -- or  8 disconfirmed by what people in the communities were  9 telling me.  So a third front is documents in archive.  10 The fourth front in rural Ireland was the, what you  11 might call the language of the people, and in rural  12 Ireland I was very concerned with the literature that  13 the culture had produced and the oral tradition of the  14 people as recorded in literature as well as  15 discoverable in the field, that's another front on  16 which the researchers always has to keep advancing.  17 And then in rural Ireland there is a body of  18 literature about rural Ireland in -- the  19 anthropological literature about rural Ireland and  20 quite a body of theoretical work relevant to rural  21 Ireland, and I of course had to keep working in those  22 literatures that would be, I suppose, a distinct front  23 on which the research proceeded.  24 Q   Would you also looked at writing in related  25 disciplines apart from anthropological writings?  26 A   Yes.  And there is certain disciplines that are  27 special referenced to every anthropological field.  28 Anthropologists are always driven to what might be  29 called subsidiary expertise and, in the case of rural  30 Ireland, I had to learn a lot about farming, a lot  31 about herring fishing, the nature of the lobster  32 fisheries, so I had to keep bringing myself or making  33 myself conversant with the science of related  34 subj ects.  35 Q   Are these fronts you have talked about, are they  36 cumulative, are they -- how does one inter-relate the  37 one to the other?  38 A   They are cumulative in an obvious way in that -- in  39 the case of the social anthropology of a community and  40 inevitably therefore the anthropology of its history,  41 you are all the time feeding bits of information from  42 the different areas of inquiry into a central text.  I  43 mentioned a moment ago that there is a way in which  44 aspects of a research method can be confirming of one  45 another, disconfirming of one another, so there is  46 those two kinds of relationship anyway.  47 Q   Your work in Ireland, did it result in two 14161  1 publications which are set out on page 3 of your  2 bibliography, the first -- and this is listed, my  3 lord, under the heading Publications, 1969, the F.H.A.  4 Aalen, and that's double A-l-e-n, Gola:  The Life and  5 Last Days of an Island Community, and a second  6 publication -- two publications now, my lord,  7 Inishkillane, Change and Decline in the West of  8 Ireland?  9 A   Yes.  10 Q   And has Inishkillane become a standard work in its  11 field?  12 A   Yes, I would say so.  It is used extensively on  13 courses for undergraduates and graduates who do work  14 in that or related fields.  It is remained in print I  15 think since then to today.  That's perhaps the  16 simplest test.  17 Q   Mr. Brody, when did you first do anthropological field  18 work in Canada and could you explain what it was?  19 A   1969 was the year.  I at that time had conceived as a  20 result in fact of my general readings of ethnography  21 and part of ethnography, I conceived a great desire to  22 go to Northern Canada.  I had the idea that there were  23 certain aspects of the work in which I had become  24 particularly interested, social change, small  25 community, isolated community which could well be  26 seen, well be examined in Northern Canada, and I  27 sought funding for work there.  In fact, I was offered  28 a contract by the Department of Indian Affairs in  29 northern development within what was then its northern  30 science research group to do a study of migrants who  31 were moving from rural areas, reserved communities, to  32 the cities of the prairies, and I centred a five-month  33 study on the skid row of Edmonton.  In fact, there was  34 a great deal of concern at the time in the Department  35 of Indian Affairs than probably elsewhere in the  36 Candaian government about the manifest problem of  37 Indians who were adrift in the cities of this country  38 and nobody at that time really knew much from a  39 sociological or anthropological point of view about  40 the origins of this problem or its general nature.  So  41 the Department pressed me to write I suppose what was  42 the first anthropology of migrant Indians on skid row  43 in this country.  44 Q   And that work, as you say, resulted in a publication  45 and is that set out under your publications?  46 A   Yes, it is in the second one down, 1971.  47 Q   Indians On Skid Row? 14162  1 A   Yes.  2 Q   That's published by the Department of Indian Affairs?  3 A   Yes.  4 Q   Northern Canada?  5 A   Yes.  6 Q   And to your knowledge is that work used in courses in  7 anthropology in Canadian universities?  8 A   I believe it is, yes.  I think it remains one of the  9 few books on a subject and it continues to exercise  10 concern in many quarters, so yes.  11 Q   What was your next piece of anthropological work in  12 Canada?  13 A   I was asked in 1970 by the Department of Indian  14 Affairs, again through its northern science research  15 group, if I'd be interested in doing extensive field  16 anthropology in the far north and I said I would once  17 I had finished writing the final draft of my Irish --  18 of the second Irish book, and I was offered the  19 remarkable opportunity of being able to choose any  20 field in the Eastern Arctic and conduct an  21 anthropological study there.  The only conditions, if  22 I remember correctly, that were imposed upon me were  23 first, that I should spend a minimum of one year in  24 the field; and secondly, that I should learn at least  25 one native language.  And in fact I went to the field  26 in 1971 -- I am afraid some of these dates -- '71 or  27 early '72, and spent first of all six weeks in an  28 intensive Inuktitut language course, that's  29 I-n-u-k-t-i-t-u-t, that's the Eskimo language, in an  30 Eskimo language course in Rankin Inlet and then went  31 from there to Pond Inlet in North Baffin Island where  32 I continued first the language work and then spread  33 that out into a fairly straightforward anthropological  34 inquiry.  I spent 20 month I think in the field on  35 that first trip and continued the work thereafter for  36 quite a while.  37 Q   You mentioned an anthropological inquiry.  What was  38 the nature of the anthropological inquiry you were  39 engaged in in the North Baffin work?  40 A   The Department of Indian Affairs was anxious to  41 provide a framework within which to look at the kinds  42 of changes that were affecting Inuit changes as the  43 result of economic development, the movement of new  44 resource activities into the area; they were  45 interested in seeing how early changes to do with the  46 fur trade bore upon these later changes, so it was  47 quite a general brief that I was given.  It was -- I 14163  1 was directed to see something about the nature of  2 change in the high arctic.  In fact, I carried out a  3 range of inquiries in order to provide a foundation on  4 which to build the necessary writings and reports and  5 these -- these inquiries included interviews of  6 informal and formal kind as well as a carefully  7 established set of participant observation activities.  8 Q   You said that you asked to undertake language  9 training.  Did you in fact learn one of the languages  10 of Inishkillane?  11 A   I learned two dialects of Inishkillane.  I learned the  12 dialect of North Baffin and the dialect of South  13 Hudson's Bay, what's usually known in the literature  14 as Ungava dialect, that's U-n-g-a-v-a.  15 Q   Did your work in the language inform your  16 anthropological understanding of the society?  17 A   Yes, in many different ways.  I could give some very  18 simple examples.  19 MR. GOLDIE:  I accept the answer to that question, my lord.  20 THE COURT:  All right, thank you.  21 MR. JACKSON:  It is, perhaps as Mr. Goldie has observed, perhaps  22 self evident.  Could you --  23 MR. GOLDIE:  The way you put the question, yes.  2 4 MR. JACKSON:  25 Q   -- put some examples of the nature of the increase in  26 understanding?  27 A   Yes.  I did a series of interviews with people about  28 what they felt about the white man, so the way --  29 people talked to me very extensively about the early  30 days of the fur trade, the missions, the early days of  31 the school programme, the administration.  I conducted  32 many interviews, probably 20 or 30 interviews, on  33 these topics, and I noticed a word kept appearing  34 again and again and again in these interviews.  This  35 is before I spoke the language, and I was using an  36 interpreter, and I didn't speak the language well  37 enough to carry out these interviews on my own and the  38 word was ilira, i-1-i-r-a.  A close study of this word  39 tells a tremendous amount about what that relationship  40 was between the Inuit and the white people.  That's  41 one example.  Another example, perhaps simpler  42 example, is that in understanding the language one  43 gets to appreciate the extraordinary meeting place  44 between the spiritual and the everyday in native  45 society so every example in the Ungava dialect, if  46 someone says, "What's the weather like", they ask what  47 translates as, "Is anything wrong with weather?"  as 14164  1 if weather were a person, and the answer would be  2 Silaquijuq, which is S-i-1-a-q-u-i-j-u-q, which  3 translates as weather is missing, is absent.  The  4 explanation for this rather surprising translation is  5 that weather in fact is the spirit who is controlling  6 the air and the atmosphere.  So in this very simple  7 example one can see how spirituality and everyday life  8 are intertwined for the people.  That would be an  9 example.  10 Q   Are there any other examples which would relate to  11 relationships between people and people?  12 A   Yes.  If you ask somebody their name, if you say,  13 "What is your name?" you would say "Kinamik  14 atiqarpit", and this means whom do you have as an  15 atiq, a-t-i-q.  Now atiq, once we look at it, doesn't  16 mean name; it means the essential characteral spirit  17 of somebody else and it turns out that in Inuit  18 culture a child is given the spirit of a recently dead  19 ancestor when it is born and is that ancestor.  So  20 people will not address the child by its name, they  21 will address it by its relationship to the ancestor.  22 So here you see again an intertwining of generations  23 just in the way of simple names used.  24 Q   Your work in the high Arctic resulted in a series of  25 reports which are set out in your -- on page 3 of your  26 C.V. under Reports and Presentations, 1973 to 1974; is  27 that correct, report on social conditions in the  28 Eastern Arctic, the Department of Indian and Northern  29 Affairs, and report on the possibility of a hunters  30 and trappers support programme in the Northwest  31 Territories?  32 A   Yes.  33 Q   Did it also result in a further publication which is  34 set out under your publications 1975, The People's  35 Land?  36 A   Yes.  37 Q   What was the nature of the anthropological issue you  38 addressed in The People's Land?  39 A   It's an examination of relations between Inuit and  40 whites at that frontier, that is generally.  41 Q   Did you also participate in the making of a film,  42 which is set out at page 4 of your curriculum vitae  43 under the same title, The People's Land?  44 A   Yes.  45 Q   Could you briefly explain the circumstances under  4 6 which you came to be involved in the making of that  47 film? 14165  1 A   In 1973, I was approached by Granada Television in  2 London and asked if I would allow my work to be used  3 for the making of one of the films in their series  4 Disappearing World, which at that time was being put  5 together.  I have to say that my first response to  6 this approach was negative.  I said I didn't want my  7 work to be used for this series.  I didn't really like  8 the idea of what was by that time two or three years  9 of extensive work being boiled down into a one-hour  10 television documentary.  I felt that I would not be  11 able to secure the kinds of fidelity to truth,  12 fidelity to the authenticity of people's voices and so  13 on that I would regard as necessary.  I was in  14 negotiation one way or another with Granada Television  15 for I suppose about 18 months, and then they proposed  16 that I work with a director called Michael Grigsby and  17 they showed me some of his films, and when I saw his  18 films I was struck by the possibility of making good  19 television and still being true to one's  20 anthropological purposes because of Grigsby's film  21 star which I could go into if you want, but anyway  22 thus reassured, I did agree to work on the film and we  23 began it in -- we began filming in June '75.  24 Q   The next work you did in Canada was as a contributor  25 between the years 1975, 1976 to the Inuit Land Use  26 and Occupancy Project.  Could you briefly explain what  27 that project was and also indicate the nature of the  28 work you undertook?  29 A   The Inuit Land Use and Occupancy Project was an  30 attempt to describe all Inuit land use in the entire  31 Northwest Territories.  It was based on a very  32 innovative but simple research device which was to go  33 and map each hunter's lifetime use of the land and to  34 generate what we will call map biographies and then  35 compound these map biographies to produce a detailed  36 account of all the people's land use.  On top of the  37 map biography work was led, cultural information also  38 done on maps, ecological information from the people's  39 point of view, that is, also done on maps, historical  40 information done on maps, and a series of essays about  41 the land use in each region of the Canadian Arctic.  42 Finally, the Inuit Land Use and Occupancy Project  43 included an attempt to convey what the people had to  44 say about their land use and their history.  In each  45 village interviews were done with elders about their  46 lives and these interviews were then translated and  47 transcribed, and I had the job -- one of the jobs I 14166  1 had on this project was to amalgamate these interviews  2 into a single voice as it was, sort of a geography of  3 the people's voice.  4 Q   And the work you did on that project is listed on your  5 publications at the bottom of page 3, 'North Baffin  6 Land Use and Occupancy' and 'Land Occupancy: Inuit  7 Perceptions'?  8 A   Yes.  I should have said my task was to oversee the  9 Northeast Baffin regions.  I had four villages where I  10 did the mapping and the interviewing and so on.  11 Q   On your C.V. it indicates that your next piece of work  12 was as a contributor to the Labrador Land Use and  13 Occupancy Study.  Could you just again briefly  14 indicates what distinctive features of that work were  15 differentiated from the work you had previously done  16 on the North Baffin Land Use and Occupancy study?  17 A   Yes.  I did -- I played a smaller part in the Labrador  18 study than I did in the Northwest Territories study.  19 I spent a short period working with the mappers and  20 interviewers in Labrador and visited some of the  21 communities on the Labrador coast but for a short  22 time, and had the task really of assembling the  23 geography of what I call the geography of the people's  24 voice.  Now, in Labrador that's a rather distinctive  25 problem because in Labrador the voice is not only  26 Inuit, there are settlers in Labrador who are  27 Europeans who in fact become, as it were, native  28 people and their voice is part of the geography of the  29 area.  Also in Labrador there is a long history of  30 dealings with the Moravan Missions and the Moravans  31 kept reports so I had the task of searching these  32 reports going back into the late 18th century for  33 glimpses of Inuit and then later settler life in the  34 Labrador coast.  35 Q   And the work you did on that is reflected in your  36 curriculum vitae on the top of page 4 under the essay  37 'Continuity and Change:  Settlers and Inuit of  38 Labrador'?  39 A   Yes, that's right.  40 Q   The next piece of work you indicate that you undertook  41 on page 2 of your curriculum vitae is as a contributor  42 to the Berger Inquiry process.  That's the Mackenzie  43 Valley Pipeline Inquiry?  44 A   Yes.  45 MR. JACKSON:  Headed by Mr. Justice Berger as he then was, an  46 inquiry in which both Mr. Goldie and myself, my lord,  47 participated. 14167  1 MR. GOLDIE:  I played a very small part, my lord.  Mr. Jackson  2 played the leading part.  3 MR. JACKSON:  Mr. Goldie's too self-effacing, I think, my lord.  4 THE COURT:  Well, I am sorry to find you both otherwise engaged  5 because they are starting up again today I believe.  6 We should all be there.  7 MR. JACKSON:  8 Q   Could you indicate what the nature of your work in the  9 Mackenzie Valley Pipeline Inquiry was?  10 A   I was asked by the inquiry team itself, I am not sure  11 what the term is.  12 Q   Commission Council?  13 A   The Commission Council.  I was asked by the Commission  14 Council to prepare submissions to the hearings, and I  15 prepared an opinion on the nature of northern history,  16 kind of an overview of the history of the north, and I  17 prepared a submission on the nature of industrial  18 impact in the north.  I also prepared on request from  19 the Committee of Aboriginal Peoples Entitlement a  20 submission on the alcohol problem among Canadian  21 Native people, and I prepared finally a submission  22 again at the request of Commission Council a  23 submission on the circumstances affecting Native  24 languages in Northern Canada.  And I prepared for that  25 analogue evidence on the circumstances of Eskimo in  26 Greenland and Native languages in Siberia.  27 Q   And after you had made those submissions, were you  28 subsequently retained as a consultant to Mr. Justice  29 Berger with the task of reviewing the socio-economic  30 evidence as it had been presented at the proceedings  31 of the inquiry?  32 A   Yes, I was.  33 Q   In 1978, your next piece of work was as a collaborator  34 in a socio-economic study of the effects of mercury  35 poisoning in Northwest Ontario, with special focus on  36 the communities of Whitedog and Grassy Narrows.  Could  37 you just indicate the nature of the anthropological  38 inquiry which you engaged in there?  39 A   Yes.  I had the job of looking at possible links  40 between violence and violent death on the one hand,  41 and the loss of the Grassy Narrows and Whitedog  42 Fisheries on the other hand.  In seeking to assess  43 this possible connection, I had to put together a  44 profile of violence and violent death in those two  45 communities, to which end I searched various records  46 and was given the benefit of various welfare workers'  47 statistics, and I also interviewed people of Grassy 14168  1 Narrows and Whitedog, and officials with special  2 responsibility for problems directly relatable to  3 violence, like court workers, social workers, in one  4 case a judge who had heard many cases involving the  5 people of the area and who were being charged for  6 violent crimes.  An additional dimension to that  7 study, and I shouldn't -- it wasn't a very long study  8 but an additional dimension to it was the use of a  9 control group.  We found a community that had not lost  10 its fishery, exercise both the domestic and the  11 commercial fishery, profiled its, as it were, social  12 pathologies, its violence and violent crimes, and  13 compared the results among three communities in order  14 to establish basic correlations.  15 Q   And the result of your work is indicated under the  16 heading of Reports and Publications (sic) 1980 'Social  17 Impacts of the loss of the fishery'?  18 A   Yes.  19 Q   In a work assessment of the impact of mercury  20 pollution on Whitedog and Grassy Narrows.  21 The next piece of work which is indicated is from  22 1978 to 1981 as a contributor to and then co-ordinator  23 of the Dunne-za and Cree communities of Northeast  24 British Columbia.  Could you indicate the nature of  25 that work and how you approached it?  26 A   The need for this work was made felt by virtue of the  27 prospect of the Alaska Highway Pipeline.  The Indians  28 of the area were anxious about what might happen if a  29 pipeline were built through the northeast corner of  30 the province.  The Department of Indian Affairs, I  31 think in its regional office, was likewise concerned  32 that there should be impact assessment done, at least  33 prospectively, and as result a study was designed that  34 would prescribe socio-economic and cultural conditions  35 along that corridor and therefore, throughout the  36 whole Treaty 8 part of Northeast British Columbia.  37 The work included map biographies in the tradition of  38 the Land Use and Occupancy Projects I had worked on  39 before.  We got every hunter, fisherman, trapper, and  40 every woman we possibly could to describe all their  41 land use and tried to identify insofar as possible all  42 their relationships to their land.  We tried to assess  43 the harvests, the extent to which they did and did not  44 depend on wild meat and berries and so on, and we  45 also, and this was a departure from previous studies,  46 put together an analysis of, I think analysis to  47 overstate it, a description of white use of the area, 14169  1 logging, ranching, and the oil and gas industry.  So  2 we had a double study really, a study of the Indian  3 land use occupancy and a study of the white or  4 frontier land use and occupancy.  I did, in the course  5 of that work, describe the obvious points of collision  6 in the history of the region, ranching on Indian  7 hunting grounds, traplines being registered, and  8 sports hunting in Indian territories, and so on.  9 Q   Did you do work on what has been referred to in the  10 evidence of Dr. Daly as the mixed economy?  11 A   Yes.  We did a very comprehensive account of the mixed  12 economy in Northeast B.C., based on an assessment of  13 Indian peoples' reliance on the bush, meat and  14 berries, reliance on wage labour, in that area;  15 occasional workers, cowboys, guides to hunters in the  16 mountains, white labour sources, and welfare, and we  17 tried to profile the nature of the mix and I did quite  18 a bit of work on trying to understand what a mixed  19 economy is or isn't.  20 Q   Did you also in the course of Northeast British  21 Columbia study do archival and historical research in  22 the area of trapline registration?  23 A   Yes.  I looked at trapline documents for the early  24 days of registration and of course looked at documents  25 for earlier periods as well as insofar as we could  2 6 find any.  27 Q   What was the nature of the anthropological question  28 you were seeking to answer in conducting that archival  29 and historical research?  30 A   The anthropological task always is to find out how the  31 people, when studying, see the world.  And if part of  32 what they are seeing is somebody else's world, then  33 anywhere, any source that takes us into accounts of or  34 insights into how they see the other world or how the  35 other world sees them are extremely welcome so, for  36 example, trapline documents include rules for trappers  37 but also include many comments on what the Indians are  38 and aren't doing on their territories or on traplines  39 and by looking at these kinds of descriptions you  40 begin to see how the cultures view one another and the  41 anthropological question starts to get part of its  42 answer.  43 Q   Did you, as a result of your work on the  44 socio-economic study, make submissions to the Alaska  45 Highway Pipeline Inquiry --  46 A   Yes.  47 Q   -- in Fort Saint John?  As a result of your work in 14170  1 Northeast British Columbia, did you also author a book  2 which appears near the bottom of page 3 -- sorry,  3 appears on page 4 of your curriculum vitae, Maps And  4 Dreams?  5 A   Yes.  6 Q   And that book has been published in Canada and the  7 United States and in the United Kingdom?  8 A   Yes.  9 Q   And, in 1981, did that book receive the Eaton's Book  10 Prize as the book of the year?  11 A   Yes.  12 Q   Did, in 1982, your work Maps And Dreams receive a  13 certificate of merit from the Canadian Historical  14 Association in the area of regional geography as  15 making a significant contribution to the understanding  16 and development of regional history?  17 A   I think regional history --  18 Q   Regional history?  19 A   Yes.  20 Q   And did, as a result of your work in Northeast British  21 Columbia, you participate in the making of a film  22 which is the second film under the heading Films at  23 page 4 of your curriculum vitae, Treating 8 Country?  24 A   Yes.  25 Q   Could you indicate the nature of that film?  26 A  While I was working on the study of Northeast B.C. and  27 preparing for the Maps And Dreams book, the people in  28 the area who had heard that I worked on a film before  29 kept telling me that there was no point in my writing  30 reports and books, as far as they were concerned what  31 I ought to do is a film since none of them could read  32 or very few of them could read, and so when we  33 finished all the research we put together just enough  34 funds to make a film essentially for the community up  35 there presenting a picture of some of their hunting  36 and going into the nature of their treaty rights.  I  37 should also say the people were very concerned about  38 the fact that they were Treaty Indians, a thing of  39 which they appeared to be proud but yet told me over  40 and over they had no idea what it really meant, what  41 the treaty meant, so they were keen that the film  42 should include a fairly clear account of what their  43 treaty meant.  44 Q   Now, from 1983 to 1987, you were engaged, among other  45 things, on work which has led to the opinion you have  46 prepared in relation to these proceedings.  I want to  47 just as it were leap-frog over that for a moment, my 14171  1 lord.  At page 4 of your bibliography, there is a  2 publication, the Living Arctic.  Could you explain  3 your role in the production of that book and --  4 A   Yes.  In 1986, I think, I was approached on -- from  5 two sides coincidentally, Jonathon King, who is a  6 curator of the American section of the British  7 Museums' Ethnology Department, approached me saying  8 they thought the British Museum was thinking it ought  9 to put on an exhibition that was about some aspect of  10 the Canadian North, and would I be interested in  11 providing suggestions for that exhibition or helping  12 design it and I said yes, and we had many discussions  13 about an exhibition, what it might and might not be.  14 At about the same time an organization called  15 Indigenous Survival approached me saying that they  16 were very anxious to increase attention to or generate  17 more concern over the whole question of trappers and  18 aboriginal rights in Canada because the fur trade, the  19 anti-fur trade lobby seemed to be creating so much  20 embarrassment for the trapper they wanted to do one of  21 these Canadian/European tours to try and mobilize  22 attention around their concerns, the trapper's  23 concerns, and they asked me if I had any thoughts  24 about how this might be done.  And I said I didn't  25 really have any thoughts; it wasn't my department; I  26 didn't have contacts with the media and so on, but  27 coincidentally, I said, the British Museum had  28 approached me about this exhibition, maybe there was a  29 possibility of a marriage.  So I effected a marriage  30 between Survival International on the one hand with  31 its concern about hunting and trapping in the Canadian  32 North and the British Museum's wish to put on an  33 exhibition, and the marriage was on the whole a happy  34 one and it produced an infant which was the exhibition  35 at the British Museum which is I think still running.  36 It's been running for about 18 months which is an  37 exhibition entitled Living Arctic and is an attempt to  38 take the visitor on a quite large journey through the  39 cultures of the Canadian North.  At the same time the  40 British Museum asked me if I would write a catalogue  41 for the exhibition and I said, rather than write a  42 conventional catalogue, I'd be most interested in  43 writing a text that anticipated the kinds of questions  44 people would leave the exhibition with in their minds  45 so, rather than describe all the objects, I would as  46 it were fill in a background and Living Arctic is the  47 book that was published to go with the exhibition. 14172  1 Q   At page 1 of your curriculum vitae, you have under  2 your teaching experience that from 1976 until the  3 present time you give seminars for the diploma Master  4 of Arts course at the Scott Polar Research Institute,  5 the University of Cambridge.  Could you briefly  6 explain what is the Scott Polar Institute?  7 A   Scott Polar Research Institute is part of the  8 University of Cambridge; it is a separate research  9 unit with a very extensive library, and for searches  10 for interdisciplinary researches, essentially  11 post-graduate research, into polar regions.  It has a  12 course, a one-year course, M.A. course, it was a  13 diploma course for persons wishing to do a study of  14 polar regions, and I taught on that course.  15 Q   And do you have a membership or associateship in the  16 Scott Polar Institute?  17 A   Yes, in 1973 I was appointed honorary associate of the  18 institute.  19 Q   And is that a life-long appointment?  20 A   Yes.  21 Q   Now, if I may take you back, could you indicate when  22 you first became involved in work in the Gitksan and  23 Wet'suwet'en territories?  24 A  Well, when I was doing Indians On Skid Row in 1969,  25 although I spent most of my time on reserve -- on skid  26 row, I periodically would make journeys to the places  27 where people on skid row came from and, as a result, I  28 made journeys to Subarctic but I also made a journey  29 to Prince Rupert, down the Skeena Valley, and to Queen  30 Charlotte Islands.  That was my first experience with  31 Northwest Coast culture, a passing experience.  When I  32 was working on the Northeast B.C. study, I was aware  33 that there was a western boundary of my study area and  34 the other side of which was a Northwest Coast culture  35 and I was keen to make some acquaintance with that and  36 I went on three or four short trips in '78 and '79 to  37 Moricetown, Skeena Valley, Kispiox Valley, and so on,  38 but very superficial acquainting of myself on the  39 ground.  Also, of course, I was reading the literature  40 then.  In '81 — late 81, Neil Sterritt and Gary  41 Patsy, I believe, asked to meet with me in Vancouver  42 and proposed that I work in the Gitksan/Wet'suwet'en  43 area and I said as soon as I was free and they had  44 funds I would be most interested in doing so and in  45 fact I was asked in '83 formally to go and spend time  46 in the area and do a kind of background study of  47 Wet'suwet'en economic life because at that time there 14173  1 was some concern about the Kemano project and its  2 possible impacts.  3 Q   And during that time did you conduct some informal  4 interviewing?  5 A   Yes.  I conducted some informal interviews but mostly  6 I worked on two fronts.  I worked on the literature.  7 I realized that I need to acquaint myself extensively  8 with the literature and I spent many, many days in the  9 library at the tribal council's offices going through  10 all the documents and books that were there, or that I  11 could possibly manage to read, and the other front was  12 the Wet'suwet'en economy.  I was very interested in  13 the nature of the Wet'suwet'en economy and I tried to  14 put together a picture of the Wet'suwet'en seasonal  15 round.  A lot of my interviews at that time were  16 devoted to that one task, the seasonal round.  17 Q   In 1985, you returned to the Wet'suwet'en --  18 Gitksan/Wet'suwet'en area?  19 A   Yes.  20 Q   What was the nature of the work you undertook at that  21 time?  22 A  Well, I should have said when Neil Sterritt and Gary  23 Patsy first approached me to work there, the general  24 idea was that I should go and live in the area and see  25 what emerged.  When I said to them, as I recall it, I  26 said to them, well, what do you actually want to be  27 studied; they said perhaps you shouldn't think about  28 what you're going to study, be there and see what  29 emerges.  So when I went back in '85, although this  30 court case was underway, in fact -- I mean not this  31 court case wasn't underway of course, but the work,  32 the research as a background to this case, was  33 underway; although my work was understood to somehow  34 be a part of that background and I did say to Neil  35 Sterritt that I wanted to go back to the original  36 understanding and see what happened, and I wasn't sure  37 what it was that I would want to write about in the  38 end and I also said --  39 MR. GOLDIE:  I wonder if it is necessary for the witness to  40 recount conversations, my lord.  41 THE COURT:  I am sure it isn't.  42 MR. JACKSON:  43 Q   Mr. Brody, the nature of your work, your entry as it  44 were, into the Gitksan and Wet'suwet'en territories,  45 would I be correct in comparing the open-ended nature  46 of your initial activities with the work you did in  47 the North Baffin when the Government of Canada asked 14174  1 you to go into North Baffin and, as it were, immerse  2 yourself in the area?  3 A   In a general way, yes.  There were so many  4 differences, I am a bit uneasy about pressing the  5 comparison too far.  6 MR. GOLDIE:  I think so.  7 MR. JACKSON:  8 Q   What emerged from your work when you went back in  9 1985?  What was the product of that work?  10 A  Well, the product was a -- first of all, a film, and I  11 said very early on that I thought perhaps the most  12 useful thing I could do would be attempt to make an  13 anthropological film, and the film was called On  14 Indian Land and was shot in the autumn of '86.  15 Q   Could you briefly explain what that film is about and  16 what anthropological questions it seeks to pose and  17 answer?  18 A   First let me correct myself.  I think I said autumn  19 '86, but I think it was shot in the autumn of '85.  By  20 this time in my work I had become extremely interested  21 in anthropological film and the relationship between  22 anthropology and film generally.  And the project that  23 had come to interest me more specifically was the  24 possibility that lay in film of taking people on a  25 sort of anthropological journey; in other words, it  26 had seemed to me to be possible with a film to take  27 somebody in a comparatively short time, an hour or an  28 hour and a half, to the people whom I had been working  29 with, someone could know something of their points of  30 view, some parts of their culture, take them to remote  31 parts of their territories and hear some of their  32 concerns.  So the film is an attempt to make a journey  33 on Indian land, film is an attempt to make that  34 journey of that kind; a sort of journey compressed  35 into one hour, the anthropologist might make in quite  36 a long period.  37 Q   And subsequent to the making of that film, perhaps I  38 should say paralleling and subsequent to the making of  39 that film you continued to work in the Gitksan and  40 Wet'suwet'en territories and the product of that work  41 is your report?  42 A   Yes.  4 3 MR. JACKSON: If I may have a moment, my lord.  I would tender  44 Mr. Brody as an expert in the areas I have indicated,  4 5 my lord.  4 6 THE COURT:  Thank you.  Mr. Goldie.  47 1  cross-e:  2  Q  3  4  5  6  7  A  8  Q  9  A  10  11  Q  12  A  13  14  15  16  Q  17  18  A  19  20  21  Q  22  A  23  Q  24  25  26  A  27  Q  28  29  30  A  31  Q  32  A  33  Q  34  35  36  37  38  A  39  Q  40  A  41  42  43  44  Q  45  A  46  Q  47  A  14175  EXAMINATION ON QUALIFICATIONS BY MR. GOLDIE:  I have one or two questions, my lord.  Mr. Brody, with respect to your curriculum vitae,  on page 2, in 1978, you stated that you were a  collaborator in socio-economic study of the effects of  mercury poisoning in Northwest Ontario?  Yes.  Who was your employer with respect to that?  Peter Usher co-ordinated the study and I think -- yes,  he hired me, directly I think.  Who was he working for?  I think an organization called Amog, A-m-o-g, which  was a group of Ojibway people of the area.  And  actually, you know, I don't think I know the answer to  that, but -- I don't know, I don't know.  It was on behalf of the -- or somebody was interested  on behalf of the people of the area themselves?  Yes.  It is one of these curious things.  It was the  people themselves, but no doubt the money went through  some other --  Yes.  -- institutional support.  With respect to the work you did in 1983, and it is  referred to on page 2, the second item from the  bottom.  Yes.  Contributor to background survey of Gitksan and  Wet'suwet'en cultural history.  Was there any  publication resulting from that?  No.  Any notes or field notes?  Yes, I think there is some notes, few.  I'd ask my friend to produce those if they haven't  been produced.  Now, Mr. Brody, it was in 1980, was it not, that  you proposed a film be made in support of the Gitksan  Carrier land claims?  I didn't — 1980?  Well, I am suggesting it is.  It was on my mind for a long time that the film --  there could be a film made in Northwest B.C. -- I  don't recall the date.  I will take your word if you  have the basis for saying that.  And it was you who proposed it, was it not?  I proposed the film, yes, in the area.  Yes.  It would be a film, I think as I said, that would take 1  2  3  4  Q  5  6  7  A  8  Q  9  10  11  12  A  13  Q  14  15  16  A  17  Q  18  A  19  20  Q  21  A  22  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  31  32  33  34  A  35  36  37  Q  38  39  40  41  42  43  44  45  46  47  14176  the viewer to the place -- to a place where land  claims were in issue there.  Although I wouldn't have  known that in 1980, I don't think.  Well, I want to show you a letter from Mr. Sterritt.  This, my lord, is plaintiff's document number 1786.  Do you have it before you now?  I have it, yes.  Yes.  That's dated November 18, 1980, addressed to you  at the Scott Polar Institute, and Mr. Sterritt says  that, Gary, you understand that or understood that to  be Mr. Gary Patsy?  Right.  Held a meeting with the Land Claims Advisory Team  October 28.  Was that the first time you had heard of  a Land Claims Advisory Team?  To my recollection.  Yes.  Did you know what was being referred to?  Only the words, only insofar as I know the meanings of  those words.  Well, what meaning did you ascribe to those words?  The team was advising, I assume, this tribal council  on their land claims.  And you knew what land claims were?  Indeed.  And this is in 1980, yes.  And they presented the  movie proposal to them, that was your proposal?  Yes, I imagine that's what it was.  And he says, "After the Hollywood jokes were set aside  we got down to business, and the decision was  unanimous.  They were very interested in doing a movie  along the lines we discussed."  That is to say, the  lines that you and Mr. Sterritt and Mr. Patsy  discussed?  I don't recall discussing it with Gary Patsy.  Actually, I don't recall discussing the film but I'll  take Neil's word for it, yes.  Then he quotes some of the comments that were made and  the last one of which was on page 2:  "Looks pretty goods.  If it's on the land claims I  am willing to tell my story."  And then Mr. Sterritt said:  "We will now proceed and we will wait to hear from  you on this." 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  2 9 THE  3 0 MR.  31 THE  32  33 MR.  34 THE  35 MR.  36 THE  37 THE  3 8 MR.  39  40  41  42  43 THE  44  45  46  47  A  Q  A  A  14177  Did you reply to that letter?  Well, I don't remember.  And then he was asked -- then he asked if a print of  the Inuit movie could be furnished and did you advise  him where that could be done?  Quite possibly.  I mean this is really beyond anything  I remember.  Well, with the letter in front of you, it refreshes  your recollection to the extent that it was you who  proposed the movie and it was in 1980, and it was  about land claims?  Well, I notice in this letter it says it will  encourage our young to speak the language, real  education among our people, touch them, flourish,  explain the names and why we have the land and the  mountain.  There is nothing that one could possibly do  in Gitksan country where people wouldn't want that to  be integral.  Yes.  So that was -- that was an integral part as you  put it of your proposal?  I said -- I didn't say that.  I said that that's what  the people would want to be integral.  I don't -- my  proposal, I am sure, would have been a very general  thing since I wouldn't have known at that time what I  was going to put in the film since I had made only a  few quite cursory visits to the area.  Q   You had made only what?  A   Cursory visits to the area.  COURT:  Mr. Goldie, is it convenient to change reporters?  GOLDIE:  Yes, if I could tender this as an exhibit, my lord.  COURT:  All right.  What's the next number?  Are you going  to have a book of --  GOLDIE:  No, I don't.  COURT:  -- documents for cross-examination?  GOLDIE:  No.  I have just some loose documents.  COURT:  Next exhibit.  REGISTRAR:  Number 985.  GOLDIE:  Thank you, my lord.  Q  A  (EXHIBIT 985  COURT:  All right,  now.  - LETTER DATED NOVEMBER 18, 198 0 TO  H. BRODY FROM N. STERRITT)  We will take the midmorning adjournment 14178  1 THE REGISTRAR:  Order in court.  This court will recess.  2  3        (PROCEEDINGS ADJOURNED AT 11:16 a.m.)  4  5  6  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein, transcribed to the  11 best of my skill and ability.  12  13  14  15  16  17 TANNIS DEFOE, Official Reporter  18 United Reporting Service Ltd.  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 14179  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  Thank you, my lord.  5 Q   Well, then, Mr. Brody, we have it then that in 1980  6 you proposed making a film that would be supportive of  7 the land claims of the Gitksan-Carrier as they were  8 then known?  9 A   No, I don't think so.  You have it -- we have it that  10 I proposed making a film, and there is this letter  11 from Neil Sterritt telling me what the committee that  12 is advising him on land claims said in response to  13 this proposal, which letter indicates that they are  14 interested in it in several dimensions.  15 Q   All right.  Well, then what was it that you proposed?  16 A  Well, it's difficult for me to remember, because  17 when -- what I proposed at what particular point, but  18 if I remember rightly, I said that I would -- would  19 very -- be very interested in trying to have a film  2 0 emerge from my work in the area.  And as to what this  21 film would contain I can't believe that I would have  22 ventured any very specific guesses.  I would have  23 supposed, just as I imagine Neil Sterritt would have  24 supposed, that it would include consideration of the  25 land claims question, since by 1980 that area was  26 known to be a land claims area.  27 Q   But —  28 A   But I don't recall making specific proposals.  2 9 Q   And it was something that you would charge for?  30 A   I think I said very early on that I would try and make  31 it a company production, which is to say that I would  32 raise money from a television company that would want  33 to transmit this film and, therefore, in part be paid  34 by them --  35 Q   Right.  36 A   — At least.  37 Q   And in part by the tribal council?  38 A   I imagine that was built in.  That was an unstated  39 assumption in the conversation.  40 Q   And this was the genesis of the film on Indian land?  41 A   This was the first conversation about any film.  The  42 genesis of the film on Indian land in anthropological  43 terms is my field work in the area which didn't begin  44 until '85 —  45 Q   Yes.  46 A   -- Really.  There was some in '83, as I've said, but  47 the serious working in Gitksan country was '85. 1  Q  2  3  A  4  5  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  A  14  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  23  24  25  26  27  28  29  30  31  Q  32  A  33  34  Q  35  36  A  37  38  39  40  41  42  43  44  45  Q  46  A  47  14180  And the film that -- On Indian Land was completed, as  you stated a few minutes ago, in the fall of 1985?  The filming was completed in the fall of '85.  The  editing was completed, I think, January '86,  thereabouts.  I think you used the word it was shot in the fall of  1985; is that right?  That's the term of the trade, yes.  Yes.  That was after the -- this action had been  commenced?  Yes.  And after the Province had filed its defence?  I don't -- I imagine so, but I don't know the history  of the legal proceedings.  You didn't see any of the pleadings?  No.  And it was first transmitted or broadcast, I'm  instructed, in July of '86?  Yes, on British television.  Yes.  And you were the writer and the producer?  Films of this kind don't have a writer.  If there's a  writer it's the people, so you don't have a writer's  credit on anthropological documentaries.  No voice  except the voice of the people.  No commentary or  anything like that.  I'm credited as one of the  producers.  That's in virtue of having raised money,  having negotiated with the British television company  and done some of the housekeeping.  Producing is a  housekeeping role really.  And I'm credited as  director.  And you were the interviewer?  Yes.  I think there might have been one interview I  didn't do, but yes.  And you selected the persons interviewed, or who did  if you didn't?  Selection of persons interviewed, yes, was my  responsibility.  Though, of course, it's a thing that  is done very carefully.  You can imagine on films like  this where the whole foundation is what people have to  say.  Films which are trying to convey the people's  view of the world the choice of whom you interview is  a critical matter, and I therefore would canvass many,  many different opinions about who would be good and  who would not be good as an interviewee.  Right.  And you edited the film?  There is an editor, Neil Thompson in this case, and I  I work alongside the editor. 1  Q  2  3  A  4  Q  5  6  7  A  8  9  10  11  12  Q  13  14  A  15  Q  16  A  17  18  Q  19  20  A  21  22  23  24  25  26  27  28  Q  29  30  A  31  32  Q  33  34  35  A  36  37  38  39  40  41  Q  42  43  A  44  45  Q  46  A  47  14181  Yes.  And there were, of course, parts of the  interviews that weren't used?  Indeed, yes.  Yes. And your report which you're tendering here  makes use of the statements made in the film in a  number of places?  It makes use of interviews that were filmed, though,  of course, sometimes you're recording and not filming,  and I in some places, I think, make use of sections of  interviews which weren't actually filmed, but were  part of the filming process.  Yes.  And there were a number of statements depicted  as fact in the film, are there not?  Well, people say things.  And they were treated as factual?  Well, documentary film leaves people's statements when  there is no commentary as statements, so I don't --  They're intended to convey the sense of accuracy and  truthfulness; isn't that correct?  They're intended to convey this is what people believe  is the truth.  And insofar as the people in the film  whom the viewer is disposed to believe then, yes,  there is -- on this question I'm not trying to sound  evasive.  You're going into a very big debate about  the nature of anthropological films here, and whether  or not films are positting fact or positting people's  versions of facts.  There wasn't any doubt about what you had in mind in  the film?  In some areas there's more doubt than in others  perhaps.  Well, perhaps not, but the purpose of the film was to  be supportive of the Gitksan-Carrier, or as it was  then known the Gitksan-Wet'suwet'en position?  The purpose of the film is to take the viewer on a  journey through Gitksan and Wet'suwet'en life and  history as the people themselves see it and describe  it.  Insofar as they are people who are impassioned  about particular subjects those passions carry through  into the film, as they always will.  And you selected portions which would carry that sense  of passion, didn't you?  I selected portions that were consistent with what I  understood to be the people's concerns.  Yes, as you were informed by them?  As I had become informed in the course of my work,  yes.  Sometimes -- 14182  1 Q   And the source of your information was the tribal  2 council, Mr. Sterritt, and other people of the  3 plaintiff group itself?  4 A  And documents that I've looked at in the case of  5 settlement of lands in the Bulkley Valley, for  6 example.  There is an important section of the film  7 which pertains to Chief Johnny David.  Now, my  8 knowledge about his circumstances comes in part from  9 what he and others of his community have told me, and  10 from what I've read in documents, and so on.  11 Q   We were provided with a -- on Friday, April the 7th,  12 provided with a document which the covering letter  13 described as a copy of your opinion, but I believe it  14 would be a draft.  Are you -- am I right in that?  15 MR. JACKSON:  Yes.  16 MR. GOLDIE:  So what was given us on April the 7th is a draft.  17 Q   You're familiar with that, are you?  18 A   You have to show me.  19 MR. GOLDIE:  Could the witness be given a copy of the draft  20 opinion, please.  21 MR. JACKSON:  I don't think we have it.  22 MR. GOLDIE:  All right.  23 Q   On page two of the draft, and I'm showing you that  24 page, are you able to identify that as the draft of  25 your opinion?  Perhaps I should show you the title  26 page first.  27 A   Yes.  Same type of page as the final draft, but I'll  28 take it that this is the draft.  How can I tell?  By  29 the references, that's the indication.  Yes, this is  30 the draft.  Yes.  31 Q   On page two in paragraph 2 there is a sentence that is  32 deleted in the final version, and it reads, and I  33 quote:  34  35 "The challenge to anthropologists and others  36 who wish to convey facits of indigenous  37 cultures to outsiders eyes is control of the  38 medium chosen."  39  40 A   That's right, yes.  41 Q   Why was that deleted, please?  42 A   Because that sentence was there to cover my tendency  43 in my anthropological work to integrate anecdotal and  44 more conventional writings.  In most of my  45 anthropological writings I rely quite heavily on  46 recollections written in the first person of episodes  47 that strike me as of significant -- of significance. 1  Q  2  A  3  4  5  6  7  8  9  10  11  Q  12  A  13  Q  14  15  A  16  17  18  19  20  21  22  Q  23  A  24  Q  25  A  26  27  Q  28  29  30  31  32  33  34  35  36  A  37  38  39  40  41  42  43  44  45  46  47  14183  Yes.  And when I was working on this opinion I had  originally expected to do likewise, and I think in my  very first draft, which is long since sort of  disappeared into the subsequent writings, there were  such anecdotal elements which I've taken out.  Now,  the medium -- the medium I'm talking about there is  really the balancing of the personal anecdote with the  more conventional social scientific essay mode with  use of documents, and so on.  Yes.  Or, indeed, with film and other medium.  Isn't that -- the film, isn't that the medium you were  referring to there?  I think, if I remember rightly, I remember thinking  that that sentence was misleading.  When I struck it  out I remember having a thought about the fact that  all the anecdotal sort of elements were no longer  present in this opinion.  I remember thinking that I  rather regretted that, but it was too late to do  anything about it.  As it was in the film?  I'm sorry?  As they were in the film?  There were no anecdotal elements in the film.  That's  another medium.  All right.  On page 11 you say:  "This legal action is based on a demand for  recognition of Indian jurisdiction of the  combined Gitksan and Wet'suwet'en house  territory.  This requires anthropological  explication of a new kind."  And you deleted that?  Yes.  And that was because when I thought about it I  was unsure whether or not this anthropological  explication was of a new kind.  And I thought  carefully about the anthropological literature.  It  struck me there is in fact a tradition of what might  be called jurisdictional anthropology reaching further  back than I had imagined, so for example the work  Speck comes to my mind always when I think of who was  writing in the thirties.  When I first read that I was  thinking that really this was the sort of anthropology  that didn't have a long history, but on more mature  reflection I think it does have a lineage anyway going 1  2  Q  3  4  A  5  6  7  8  9  10  11  12  13  14  15  Q  16  17  18  19  A  20  21  22  23  Q  24  25  26  27  A  28  29  30  31  Q  32  A  33  Q  34  35  A  36  37  Q  38  A  39  40  41  42  Q  43  A  44  Q  45  46  A  47  14184  back in time.  Well, whatever it was it was to be in support of the  claim?  I think what I'm saying is that a certain kind of  anthropology is required for explication of this  proposition, and since the proposition concerns  jurisdiction, the issue is jurisdiction.  There are  certain kinds of anthropology that is required.  You  see, the problem with anthropology in recent years,  and I'm excluding now perhaps the lineage I've  referred to.  The problem is is a lot of  anthropologists -- it doesn't relate a conception  approach which allows one to address very easily the  issues implied by jurisdiction.  Well, Mr. Brody, whether you created a new approach or  whether you didn't your intention was to provide  something which supported the plaintiff's claim; isn't  that right?  My intention was to support something that explicated  a proposition. If you read that again I think you'll  see that we are talking about anthropology being used  to make clear, not to make true.  Yes.  Your -- I think you told Mr. Jackson that you  were engaged as a contributor to the background survey  of the Gitksan and Wet'suwet'en cultural history, and  that was in 1983; is that right?  I think I said I did a small piece of work that  centred on Wet'suwet'en seasonal round and acquainting  of myself with the documents to be found in that  library in Hazelton.  In the tribal council's library?  Yes.  And there are no documents that you authored that come  out of that, as I understand it?  Well, one of the things I found in 1983 were Lorring  papers --  Yes.  -- For example.  Now, those documents then turned out  to exist in other forms much more completely in the  provincial archive, for example.  McKenna McBride  transcripts I --  Sorry.  You misunderstood my question.  I'm sorry.  I said nothing you authored came out of that, of the  1983 background?  Oh, I see.  I'm sorry.  When you say nothing I  authored you mean there is no published result? 1  Q  2  A  3  4  5  Q  6  7  8  A  9  Q  10  A  11  12  13  14  Q  15  16  17  18  A  19  20  21  22  Q  23  24  A  25  26  Q  27  28  A  29  30  31  32  33  Q  34  35  36  A  37  Q  38  39  A  40  41  42  43  44  45  46  Q  47  A  14185  That's right.  No, just some notes on the Wet'suwet'en seasonal  round.  The central piece of work there for me was the  Wet'suwet'en seasonal round.  Right.  And then you say in 1985, '87 a continuation  of study and production of a documentary film.  Now,  that's the film On Indian Land; is that right?  That's right.  That was to show some of the meaning of the culture?  It was to show the meaning of the culture to the  people.  As I said a moment ago, it is a film without  a commentary, it's a film only with the people's  voices.  And that -- that so far failed in the description that  you give as a documentary that the Canadian  Broadcasting Corporation refused to film it, because  it was against its policy of balanced broadcasting?  Refused to broadcast it, yes.   I had a long meeting  with the Canadian Broadcasting Corporation about this,  and the first meeting was a screening of the film at  which a Mr. Darcey, I believe --  Well, you needn't tell us what the conversations were.  The CBC refused to —  Ah, but the reasons that were given then and  subsequently were twofold.  Excuse me.  I'm quoting from you.  Is that not your  words "against the policy of balanced broadcasting"?  The Canadian Broadcasting Corporation said in letters  to the tribal council and others who -- under letters,  for example, to the Canadian organization NAPEN  (phonetic) who represented some anxiety about this  issue, said that they had two conventions.  Well, excuse me.  I'm not interested in what the  Canadian Broadcasting Corporation did.  Is that not  your summation --  It is not.  -- That it is against the policy of balanced  broadcasting?  As I understood it from the Canadian Broadcasting  Corporation, and my summation is, that they were  unhappy about the fact that it was funded by an  interested party.  That was their central concern.  And that if it went out it would have to be balanced  by a reply from those who did not share its point of  view.  Yes.  And this I distilled into the idea that it was against 14186  1 their policy of balanced broadcasting.  2 Q   I want to show you an extract of an article from  3 something called The New Catalyst.  That was a  4 publication in respect of which you gave permission to  5 file an article of yours?  6 A   That's right, yes.  7 Q   And it starts off -- by the way, you provided the  8 information about yourself that's in this article?  9 A   I doubt it.  I haven't read it.  I don't think so.  I  10 think probably they must have called someone up and  11 asked them about it.  People often copy things off the  12 back of a book of mine.  I haven't read what it says.  13 Q   Look at the italicized words.  To begin with the  14 article is by you, is it not?  15 A   Yes, the article is by me.  16 Q   Yes.  The italicized words describe you as a writer  17 and film-maker?  18 A   Yes.  19 Q   Currently working on the Gitksan-Wet'suwet'en case to  20 come before the courts early in 1987?  21 A   I have no memory of writing this.  It doesn't look  22 like I wrote it.  23 Q   It goes on:  24  25 "A film he recently produced and directed  26 for Channel 4 television in London, England,  27 entitled On Indian Land, is part of an  28 intense effort by Canadian Indian peoples to  29 explain their view of the world, and the  30 basis of their claim to be the owners and  31 administrators of all their lands."  32  33 That's not your writing?  34 A   I don't think that's my writing.  35 Q  36  37 "After deliberation the CBC has announced  38 that the film - which was given prime time  39 exposure in England - cannot be broadcast  40 because it is 'against the policy of  41 balanced broadcasting'."  42  43 Are those your words?  44 A   If -- well, if that was a quote from the article it  45 is -- I can only use the internal evidence here.  I  46 don't remember writing this, and I didn't write this  47 article for the paper.  This was taken from I don't 1  2  Q  3  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  13  14  A  15  Q  16  17  A  18  19  20  21  22  23  Q  24  A  25  Q  26  A  27  28  29  30  Q  31  32  A  33  34  35  Q  36  A  37  38  39  40  41  Q  42  43  44  A  45  46  47  14187  know where.  Now, your employment by the tribal council as a  consultant for the purposes of preparing your opinion  here was in April of 1986?  I think that's right, yes.  Yes.  And that was -- and the summary of your report  which was furnished is dated January of 1987?  Right.  And your final report expands on the summary?  Yes.  It follows the same organization and expands it and  adds footnotes and things like that, is that not the  case?  Yes.  There's no difference in the opinions that underlay  either the summary or the final report, is there?  I did a great deal of work between the summary and the  final report, and the summary was produced when one  particular schedule was anticipated in this court and  then there was a very long delay, as I'm sure you're  all too aware, during which I was working away, so --  and work always generates new findings and --  Yes.  And new thoughts.  But the basic opinions didn't change?  Not any of the basic opinions changed, but I'm  conscious that certain chapters, certain sections of  the opinion were the object of a great deal of my  attention.  And they were the underlying opinions you held when  you produced and directed On Indian Land?  No, I wouldn't say that, because between the making of  On Indian Land and the writing of the opinion came  another long period of work.  And the --  On Indian Land was produced very early in my -- in my  work.  Not very early, I mean On Indian Land was  produced after the first summer of the works, spring  and summer and I then did another block of work in the  area.  Mr. Brody, if I understand it correctly, you rely upon  the interviews that you made for the purposes of the  film in support of your opinion; isn't that right?  In my opinion I rely on parts of all my work in the  area.  Some archival work going back to '83, the  analysis of the Wet'suwet'en seasonal round interviews  for the film -- 14188  1 Q   Yes.  2 A   -- And many other things.  Some preceding and some  3 subsequent to the making of On Indian Land.  4 Q   I didn't suggest that they were the only sources.  I  5 suggest you relied upon the opinions -- that you  6 relied upon the interviews that you conducted for the  7 purposes of the film?  8 A   They're part of the evidentiary basis, yes.  9 Q   And you accepted the statements made in those  10 interviews?  11 A   No.  Now, here's a nice and important distinction.  I  12 accept that people made the statements, and very often  13 what's important about the interview is that this is  14 what somebody says and believes.  In other cases I  15 believe what they say because I have other reasons for  16 believing it.  17 Q   Well, when is The New Catalyst article?  Winter  18 '86/'87.  That would be the time that you were  19 preparing a summary of your opinion?  20 A   I -- it wouldn't be far off.  21 Q   Well, if the summary is dated January the 15th,  22 1987 --  23 A   Oh, I didn't know that.  24 Q   -- You would be preparing it in the summer and in the  25 winter of '86 '87?  26 A  Winter of '86 '87, that's right.  27 MR. GOLDIE:  All right.  Now, I want to show you another  28 document.  Could I have The New Catalyst article  29 marked, my lord.  3 0 THE COURT:  98 6.  31 THE REGISTRAR:  986.  32 MR. GOLDIE:  Thank you.  33  34 (EXHIBIT 986:  On Indian Land -  35 By Hugh Brody - Extract)  36  37 MR. GOLDIE:  38 Q   This is produced in England, was it?  39 A   This is the leaflet that was -- I recognize it was the  40 leaflet that viewers of the film could write in for  41 after seeing it if they were interested in the film.  42 Q   But it was produced in England?  43 A   I'm not sure where it was produced.  Certainly it was  44 edited and printed in England.  45 Q   Yes.  And it's what you wrote; you're the writer of  46 this?  47 A   No, I'm not.  I'm not the writer of this.  Simply, 1  2  3  4  5  6  7  8  Q  9  10  A  11  12  13  14  Q  15  A  16  Q  17  A  18  19  Q  20  21  A  22  23  Q  24  25  A  26  Q  27  28  A  29  Q  30  A  31  32  Q  33  34  35  36  37  38  39  40  41  42  A  43  Q  44  45  46  47  14189  this is produced by people at Channel 4 television who  insist on being the authors of these leaflets.  They  take stuff I give them, they take pieces of paper of  mine and they edit them together.  Now, I don't know  how much editing went into this.  I'm not sure I ever  went through this.  I know I checked it against other  things that I've --  If you look on page three you're identified as the  writer.  Writer of what?  Well, it's -- I'm the writer of the original documents  which the editor, Mr. Jones, used to create the  leaflet.  They're very stern about their control of  these leaflets.  But you are the writer of Exhibit 986, aren't you?  That's the previous one?  Yes.  Yes, insofar as the words are the same in that and  this I'm the writer of this.  All right.  Well, then you are the writer of the  document that I've just shown you?  Well, no, I'd have to check up on whether or not they  are in fact the same words.  And if they are then I take it you would agree with me  that you are the writer?  Yes.  All right.  And if you were -- you are the writer I  take it it expresses your opinions?  It expresses opinions I had when I wrote it.  The opinions you had when you wrote it?  If I'm the writer it would, of course, express the  opinions I had when I wrote it.  If you look on page two, and I'm now referring, my  lord, to the document produced in the United Kingdom.  If you look on page two, paragraph one — column two,  I should say, you see the paragraph there you state,  and I quote:  "In the early 1900's whites took possession  of large areas of lands."  That was your opinion and is your opinion?  Yes.  "First, individual settlers, especially  along the Bulkley Valley, began to establish  ranches and farms." 1  2  A  3  Q  4  5  6  7  8  9  10  11  12  A  13  14  15  16  Q  17  A  18  Q  19  A  20  21  22  23  Q  24  25  A  26  Q  27  28  29  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  40  Q  41  A  42  Q  43  44  45  46  47  14190  Is that your opinion?  Yes.  And then you say, and I quote:  "Then the Provincial and Federal Governments  of Canada began to claim that all the land  belonged to them, and that 'Indian' rights  amounted to whatever the governments of the  day permitted."  That was and is your opinion?  Yes.  Well, I wouldn't subscribe to that as a crude  opinion.  It's horrendously over-simplified at the  very least, and this is what happens when television  companies put out publicity statements.  Well, you wrote it, didn't you?  I'm not sure that I wrote that sentence.  Well, if the two are the same --  If you can find it in something I wrote, yes, but this  is not a document -- I have to keep saying, this is  not a document that I actually wrote.  I didn't sit  down and put it together.  Let's go to the Exhibit 986, and I understand you have  agreed that you are the author of that?  Yes.  All right.  Let's go to that instead of the other one.  Now, the corresponding sentence that I've been reading  to you is at the last paragraph on the first page, the  right hand column.  You see that?  And I read to you,  "In the early 1900's whites took possession" --  Yes.  And if you go over the page the last sentence is the  one I read to you a few minutes ago?  Yes, there it is.  Now, I put it to you that that was your opinion, and  is your opinion?  Yes, that is a very -- in '86 that was something I  wrote, and is, as I say, a very crude, over-simplified  version of what is my opinion.  Yes.  And what is your opinion today?  Well, my opinion is in my opinion here.  Yes.  And the next paragraph you say:  "Wet'suwet'en chiefs resisted settlers who  took land, and were promptly jailed."  You believe that? 1  A  2  Q  3  4  A  5  Q  6  7  8  9  10  11  A  12  13  Q  14  15  16  17  18  19  A  20  Q  21  22  23  24  25  26  27  28  A  29  30  31  Q  32  33  34  35  36  A  37  38  39  Q  40  A  41  42  Q  43  44  A  45  Q  46  47  A  14191  I'm not with you actually on the paragraphing here.  Well, I'm on the second page of The New Catalyst  article, the first complete paragraph in column one.  I've got you, yes.  Yes.  You say:  "Wet'suwet'en chiefs resisted settlers who  took land, and were promptly jailed."  And that was and is your opinion?  Again, it is my opinion.  It's a very crude and  over-simplified version of an historical episode.  "Indians urged whites to respect the  people's system, and to acknowledge Indian  jurisdiction."  That was and is your opinion?  Again, extremely crude and over-simplified version.  "A small number of Gitksan effected violent  opposition to some miners and prospectors  who were identified as the advance guard of  these new government designs upon the  territories."  That was and is your opinion?  Yes.  And this is, again, an over-simplified version  of my understanding of records that I've looked at,  and so on.  "In 1888 a military posse was dispatched up  the Skeena to put down these protests."  And that was and is your opinion?  Again, these are crude, tremendously boiled down  versions of things that I had been researching for  quite awhile.  A posse, that's kind of a wild west term, isn't it?  It's, in a way, the idiom of the cowboy film, if  that's what you mean.  Yes, that's right.  Yes, and that's what you intended  to convey?  I intended to convey that --  This was the frontier with the posse chasing the  Indians?  I intended to convey that in 1888 a group of military 14192  1 detachment were sent up to deal with unrest, yes.  2 Q   And posse also carries with it the sense of  3 lawlessness, doesn't it?  4 A   No, I don't think so.  Only insofar as it belongs to  5 films which are about lawlessness.  A posse, as I  6 understand, is a group of people who are out to make  7 sure the law is observed in their own lights.  8 Q   Or apply lynch law, or something like that?  9 A  A posse doesn't necessarily apply lynch law.  10 Q   It's not a word used -- that is used in England, is  11 it?  12 A   The cowboy culture is a worldwide culture.  13 Q   Now, the next paragraph -- and by the way, if you can  14 find any distinction between the paragraph that I  15 referred you to and the paragraph on page two of  16 the -- I'll call it the Channel 4 pamphlet, please  17 feel free to draw it to my attention.  And you say in  18 the last sentence -- and I see a difference and I'll  19 bring it to your attention.  The last sentence of that  20 paragraph:  21  22 "A Gitksan chief who had, in accordance with  23 Gitksan law, stabbed a white man whom he  24 held responsible for the drowning of his  25 son, was arrested, taken out of the area,  26 tried in a southern court and eventually  27 hanged."  28  29 That was your belief and opinion at that time?  30 A   That was my belief and opinion at that time.  The  31 "eventually hanged" part I think I subsequently found  32 was an unsubstantiated comment from the Barbeau Beynan  33 archive, and I came to the conclusion it might not be  34 true, and I think I subsequently dropped it.  35 Q   In the Channel 4 document the words are "eventually  36 hung", but you corrected that solecism, did you?  37 A   That may be the editor of the Channel 4 document.  38 Q   Which would you say was your word?  39 A   I think hanged is my preference, if I have to have  4 0 one.  41 Q   Yes.  All right.  Now, the next paragraph, and we'll  42 go back to Exhibit 986, you talk about:  43  44 "The feast was made illegal, totem poles  45 were declared by missionaries and others to  46 be objects of pagan worship.  In some places  47 they were cut down.  Ceremonial regalia was 14193  1 burned, and chiefs were persuaded to sign  2 agreements that they believed to be  3 guarantees of their rights but turned out to  4 be acceptance of new laws and total  5 acquiescence in Christian religious  6 doctrine."  7  8 And that was and is your opinion?  9 A  Again, that is a tremendous boiling down of an  10 enormous amount of research, and actually some rather  11 sophisticated research, so I'm uneasy about the  12 journalistic style, but, yes, it's -- the heart of it  13 is my opinion.  14 Q  15 "Men and women were arrested for living  16 according to their own rules; periodic  17 eruptions of discord, despite some  18 appearances that Indians were adjusting  19 themselves to an acceptance of the white man  20 and his governments, caused ever more unease  21 in official Canadian circles."  22  23 That was and is your opinion?  24 A   Likewise it's a very crude boiling down of a great  25 deal of research into a simple statement.  2 6 Q   All right.  Thank you.  And then at the -- over the  27 page, or if we're sticking with Exhibit 986 it's under  28 the heading "To The Courts" in the column one.  29  30 "But the Gitksan and Wet'suwet'en persisted  31 in their claim to their house territories.  32 Wherever they could, they used and  33 controlled their resources according to  34 their own rules."  35  36 A   I haven't found this one.  Whereabouts is it?  37 Q   I'm with Exhibit 986, page two, column one.  38 THE COURT:  This is the Catalyst?  39 MR. GOLDIE:  Yes, the Catalyst article.  40 A   Yes.  41 Q   Under the marginal heading "To The Courts".  42 A   I got you.  43 Q   You say:  44 "But the Gitksan and Wet'suwet'en persisted  45 in their claim to their house territories.  46 Wherever they could, they used and  47 controlled their resources according to 14194  1 their own rules."  2  3 That was and is your opinion?  4 A  Again, with a caveat that I'm bothered by the  5 over-simplification.  6 Q   Yes.  And you say:  7  8 "This has now led to a new and general  9 confrontation:  acting in legal concert, 54  10 chiefs representing 76 Gitksan Wet'suwet'en  11 houses have begun an action against the  12 Government of British Columbia.  They are  13 arguing that they have never yielded their  14 jurisdiction.  Since they never signed a  15 treaty, nor in any real sense agreed to the  16 newcomers' legal system, they insist that  17 their rights to all resources in their house  18 territories remain intact."  19  20 And that , of course, is and was your opinion?  21 A  Well, that's not an opinion so much as a  22 characterization of somebody else's opinion.  23 Q   I see, but you have adopted that?  24 A   No, I haven't adopted that.  I have characterized  25 that.  I said they are arguing that so and so and so  26 and so.  27 Q   But that's what your opinion is, isn't it?  28 A   No, I don't think it's as simple as that.  29 Q   It may not be as simple, but that's what your opinion  30 is?  31 A   I'm very reluctant to be -- to be unsophisticated  32 about these opinions, and in this particular case  33 since I'm characterizing somebody else's judgment I'd  34 be very clear that my own judgment would not  35 necessarily have this kind of a form.  Of course,  36 there are aspects of this which are close to what I've  37 found in the records, and so on.  38 Q   M'hm.  The -- you say it's somebody else's opinion.  39 Whose opinion?  40 A   They are arguing the Gitksan-Wet'suwet'en Tribal  41 Council, and I mean the Gitksan-Wet'suwet'en tribal  42 chiefs.  43 Q   And that was the point of view that was presented in  44 the film?  45 A  Well, insofar as the people in the film are Gitksan  46 and Wet'suwet'en chiefs and are expressing their point  47 of view, yes. 1  Q  2  3  A  4  Q  5  A  6  7  8  9  10  11  12  13  14  Q  15  16  A  17  18  19  20  21  22  23  24  25  26  27  28  Q  29  30  31  A  32  33  34  35  36  Q  37  A  38  Q  39  A  40  Q  41  A  42  43  44  45  46  47  14195  Yes.  Well, there is nobody else in the film, is  there?  People who are not Gitksan and Wet'suwet'en chiefs.  And don't express any other point of view?  Well, they're not arguing the specifics of this  proposition.  They're not pointing out that they have  a certain kind of case against the Provincial  Government.  They're talking about their lives,  aspects of their history, their concerns about the  present, how they use their land.  They're telling us  about their names.  We have in the film a long  sequence which is a feast.  This is not simply a  corroboration of this -- of these few lines.  Yes.  Mr. Brody, these lines were written for the  purpose of summarizing the film, weren't they?  No, they were not.  They were written -- or they were  chosen and edited for the purpose of providing more  information about the Gitksan and Wet'suwet'en to  those who are interested by the film.  The reason for  having leaflets like this lies precisely in the fact  that documentary films of the kind I'm interested in,  without commentaries and so on, tend not to have the  sort of background that television viewers have come  to expect.  So television channels like, if possible,  to make available to the viewer a document of some  kind, a leaflet, which takes the viewer into the sort  of information that the viewer might feel they lack.  You mean if the film isn't sufficiently informative in  itself the leaflet suggests the conclusions that  should be drawn?  No, not at all.  It's not that the film isn't  sufficiently informative.  Documentary films,  anthropological documentary films have a certain  style, which is to do with remaining within the voice  of the people, so you don't hear anything about --  The other side?  -- The intended historical circumstances.  Or the other side?  The other side?  Yes.  Well, be careful here.  I mean, you're interrupting  me.  It is not to do with the one side or another  side.  The point of anthropology is to look at the  world through another cultures eyes.  An  anthropological film, therefore, offers the viewer the  world through those other people's eyes.  There isn't  another side to that.  There is only a construction of 1  2  Q  3  4  5  6  7  8  9  10  11  12  A  13  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  21  22  23  24  25  26  27  Q  28  29  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  A  39  40  Q  41  A  42  43  44  45  46  47  14196  the world that is anthropological.  Well, if that's so why did you go on to talk about:  "This is probably the most important test of  aboriginal rights that the legal world has  yet faced."  What's the point of talking about that if the film  isn't to indicate that there are two sides, and that  there is a court case, and that the people whom you're  filming are in the right?  What television stations like to do is indicate the  importance of what they transmit.  So in order to do that you wrote this in these terms?  In order to situate this court case on a world map --  Yes.  -- I wrote this.  Yes.  All right.  But this was used in order -- this court case is  widely recognized as being of immense importance.  That there is a court case widely recognized being of  immense, and not to say historic importance, is  something television viewers didn't know from the film  they saw, and Channel 4 would be concerned that they  should know and therefore wanted to include this  thought.  Finally, the writer or the reader is invited to find  out more by writing the Gitksan-Wet'suwet'en Tribal  Council?  That's right, yes.  Now, the film, Mr. Brody, was a propaganda film,  wasn't it?  That's maybe your view of it.  It's not my view of it.  A polemic?  Not my view of it.  But you have agreed with me that it presents only one  side?  It presents the view of the world -- it presents the  world as seen by Gitksan and Wet'suwet'en people.  Yes.  If the Gitksan-Wet'suwet'en people in the film have a  systematic point of view then the film systematically  represents that point of view, just as a film about  any other group was confined to the voices of that  group, that is the case of course with most  documentary film, then that group's point of view is  what one is left with. 1  Q  2  3  A  4  Q  5  A  6  Q  7  8  9  A  10  11  12  13  Q  14  A  15  16  17  18  19  20  21  Q  22  A  23  Q  24  A  25  26  Q  27  28  29  A  30  31  32  Q  33  A  34  35  Q  36  A  37  38  Q  39  A  40  Q  41  A  42  Q  43  A  44  Q  45  46  47  A  14197  Yes.  Who saw the film before it was broadcast or  accepted by Channel 4, the tribal council?  No.  Mr. Sterritt?  No.  You mean to say this film went to Channel 4 and was  broadcast without Mr. Sterritt knowing anything about  it?  Well, they saw it before it was broadcast.  Now, wait  a minute.  I showed them -- I showed the National Film  Board -- all the people who had put money into the  film had a screening of the film --  Yes.  -- Separately.  So I brought it over here, took it to  the National Film Board in Vancouver, they had  invested in the film, and brought a copy of the film  to the tribal council.  And we had a screening in  Hazelton, and I don't recall the date, but it must  have been the spring of the year in which the film was  transmitted, and what I showed them was the final cut.  Yes.  And it was the film.  Yes.  And it was not screened until July of '86?  That's right, yes.  There was a preview I suppose is  what you'd call it.  If any important exception had been taken to what was  found in that film it wouldn't have been presented or  broadcast in the form that it was screened?  That might be the case, yes.  It's very difficult, of  course, to alter films once they have reached that  stage.  There was no objection taken?  Well, it was a screening to which only a small number  of people turned up.  Well —  There were no objections.  The six or seven people  that were there there was no objection.  Amongst that group would be Mr. Sterritt?  Mr. Sterritt.  And any other members of the tribal council?  I don't remember.  Quite possibly.  And —  Not many.  It was -- was it afterwards that you were retained as  a consultant for the purpose of preparing an opinion  for this case?  Well, in fact I was retained to prepare an opinion for 14198  1 this case long before in an agreement in words.  That  2 is to say, I was asked if I would do it a long way  3 before then.  The contract to work on this was issued  4 subsequently.  5 MR. GOLDIE:  Well, I want to have you identify -- but perhaps  6 first, my lord, I might ask that the document On  7 Indian Land, what I'll call the Channel 4 document --  8 THE COURT:  Yes.  9 MR. JACKSON:  — Be marked as an exhibit.  10 THE COURT:  987.  11 THE REGISTRAR:  987.  12  13 (EXHIBIT 987:  On Indian Land - Channel 4 Pamphlet)  14  15 MR. GOLDIE:  Thank you.  16 Q   Now, This is dated the -- I can't make it out,  17 something day of April 1986.  Do you have that in  18 front of you?  19 A   Yes.  20 Q   Is that your signature on the last page?  21 A   Yes.  22 Q   And that -- if you turn to page two you were retained  23 to do work, and it was to be in a manner satisfactory  24 to the tribal council?  25 A   Yes.  26 Q   And the work was -- included research of a  27 sociological account of the interaction between the  28 Gitksan and Wet'suwet'en economy, government and laws  29 on the one hand and the Canadian industrial economy,  30 government and laws on the other.  And that's what you  31 undertook?  32 A  Well, that's what's written down here.  I should say  33 that the understanding about the work I would do in  34 the area goes back to '85 when in fact I was first  35 asked to do an opinion on the court case thing early  36 '85, and there were many discussions in early '85  37 about what my opinion would cover, and it was --  38 Q   Well, if you have --  39 A   -- Summarized in this form in '86.  4 0 Q   If you have any other document which describes what  41 you undertook I'd be happy to see it.  42 A   No, I don't have any other document, but when I was  43 asked to work on the court case in '85 it was then  44 that I said rather than do research aimed first of all  45 at an opinion I would be very interested in doing  46 research that was aimed first of all at a film.  47 Q   Yes.  Then the contract goes on to say: 1  2  3  4  5  6  7  8  9  10  A  11  12  13  14  Q  15  A  16  17  Q  18  19  20  21  22  23  24  25  26  A  27  Q  28  29  A  30  Q  31  32  33  34  A  35  Q  36  37  A  38  39  Q  40  A  41  42  43  44  Q  45  46  47  A  14199  "The research will focus on the continued  exercise and assertion of Gitksan and  Wet'suwet'en territorial ownership and  jurisdiction."  There was an assumption on the part of both you  and the tribal council that the exercise in  jurisdiction of Gitksan and Wet'suwet'en territorial  ownership and jurisdiction was a continuing matter?  There is an assumption on the part of the tribal  council in this agreement, yes.  The only  assumption -- it's not an assumption on my part, I  might say.  Well, you signed the agreement, didn't you?  I did, because that's the contract which secured me  the work.  And you -- from -- continuing, and I quote:  "From before contact to the present and will  describe and explain the resistance and  apparent acquiescence of the chiefs to the  explicit and implicit challenges to their  authority and territories by the federal,  provincial and local government."  What page are you on, Mr. Goldie?  I'm on page two, paragraph 2.1(a).  Have you found  where?  Yes.  Yes.  And you were -- you were to explain the apparent  acquiescence, and it was to be apparent because you  were to tell his lordship that it was not real  acquiescence; isn't that correct?  It was to focus on the apparent acquiescence, yes.  Yes.  And it was clear that the acquiescence was to be  apparent, not real?  It was clear to the tribal council perhaps in drafting  this document.  Yes.  The focus on apparent acquiescence there is a focus  which leaves me in a position to judge on the basis of  my own research what is and isn't acquiescence from  the -- through the eyes of the people.  Yes.  But you didn't stipulate that you were to -- if  you found that the acquiescence was real that that's  what you would report on?  I accepted that I would focus my work inter alia on 14200  1 that.  2 Q   On apparent acquiescence?  3 A  Apparent acquiescence.  4 Q   Yes, and the research sources would be — would  5 include, but not be limited to --  6 A  Where are you now?  7 Q   I'm still at page two.  8 A  Ah, yes.  9 Q   And there are three items --  10 A  M'hm.  11 Q   -- Down there.  One is the tapes, transcripts and  12 notes of interviews with Gitksan and Wet'suwet'en  13 informants in the possession of the tribal council.  14 Anthropological, historical and biophysical reports as  15 may be provided by the tribal council and interviews  16 and other fieldwork to be conducted by the consultant  17 with Gitksan and Wet'suwet'en informants.  And all of  18 that was to be done in a manner satisfactory to the  19 tribal council?  20 A   That's what the contract says.  21 Q   Yes.  Is that consistent with a scientific approach in  22 your opinion?  23 A   In a way it's not, and I think there is a problem with  24 contracts issued by tribal councils and like  25 organizations.  Obviously the tribal council is going  26 to say, for example, apparent acquiescence, because  27 it's so central to their view of the world that there  28 hasn't been real acquiescence, but I, and researchers  29 like myself, and a very large proportion of Canadian  30 social science is now done in one way or another under  31 contract to Indian or Inuit groups.  So many  32 researchers like myself, a large proportion of the  33 scientific community, is confronted with attention  34 between what is embodied in the contract they might  35 sign and their idea of how they do this work.  This  36 difficulty is noted by the Canadian Ethnological  37 Society and I think the American Anthropological both  38 in their assessments of what anthropologists should  39 and should not do, and the ethics of anthropologists  40 have become now an important issue.  The understanding  41 is that anthropologists have to have the sympathy of  42 and be trusted by the people --  43 Q   I asked you a simple question.  44 A   — Which leads —  45 Q   I asked you a simple question, Mr. Brody, and I take  46 it that your answer is this contract is inconsistent  47 with scientific principles? 14201  1 A   I'm saying that this contract illustrates a problem  2 for scientists working among Canadian native people,  3 and I'm trying to explain to you a little bit of what  4 that problem consists of, and I'm noting that that is  5 a problem reflected in statements about ethics now  6 made by the senior associations in the anthropological  7 profession.  8 Q   But, in any event, your report passed the test, it is  9 satisfactory to the plaintiffs?  10 A   That's for the plaintiffs to tell you, I think, not  11 me.  12 Q   Well, you submitted it pursuant to this contract,  13 didn't you?  14 A   Yes.  15 Q   And you were paid for it, I mean in accordance with  16 performing the contract?  17 A   I was paid to do this research.  My understanding of  18 the ethics of research would mean that I would never  19 submit something that I thought was not supported by  20 evidence that I had carefully considered.  21 Q   Yes.  Now, Mr. Brody, you produced other films, have  22 you not, besides the ones that have been referred to?  23 A   Yes.  They're mentioned in the CV here, I believe.  24 Q   Am I correct from my reading of that, that that is  25 your occupation, a film-maker?  26 A   It is one of the things I do as an anthropologist.  I  27 have made one film that is not an anthropological  28 film, although I'm not sure it isn't --  29 Q   That's the 1919 film?  30 A   Yes.  31 Q   That's a work of fiction, is it?  32 A   It has a basis in fact, but it is a work of fiction,  33 yes.  34 Q   And that is a work in which it is said that the medium  35 of the film is a means of eliciting the truth that  36 lies within us?  37 A  Are you saying that in the film I -- the film somehow  38 affirms this?  39 Q   That's -- it has been said of this film that the  40 medium of the film is the means of eliciting the truth  41 that lives within us?  42 A   I would say it's true of all films as a general  43 statement about the nature of a film, I would imagine.  44 Q   And the film that you made, On Indian Land, was  45 designed to persuade the viewer that the truth was  46 being elicited from the people who made the statements  47 in the film? MR.  THE  THE  14202  A   It's not designed to persuade the viewer that the  truth is being elicited from the people, it's designed  to take the viewer into the world view of the people.  GOLDIE:  Yes.  My lord, may I have the contract marked.  COURT:  Yes.  REGISTRAR:  It will be 988.  9  10 THE  11 MR.  12 THE  13  14  15  16  17  18  19 MR.  2 0 THE  21 MR.  22  23  24 THE  2 5 MR.  2 6 THE  2 7 MR.  28  29  30  31  32  33 THE  34 MR.  35  36  37 THE  3 8 MR.  39  40  41  42  4 3 MR.  44  45 THE  46  47  (EXHIBIT 9?  Contract Agreement April 1986)  COURT  GOLDI]  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Yes.  Is it convenient to adjourn court?  I:  Yes, it is.  Thank you, my lord.  Before we adjourn may I raise with counsel another  awkward scheduling problem.  I am invited, and  expected to attend, the swearing in of Chief Justice  McLachlin next Monday morning in Ottawa.  What  difficulty does that cause for counsel?  I actually am  expected, quoting The Chief Justice of Canada, he says  in the nature of a --  My lord —  Of a royal command.  Maybe I can speak with that. Just to advise you,  the next witness commencing on Monday is Mr. Marvin  George --  Yes.  -- Cartographer.  Yes.  I believe there's  And he is scheduled for five days.  COURT  GRANT  COURT  GRANT  GOLDI  COURT  been some concurrence, as has been  the practice between counsel when we propose a  schedule, that is with both defendants, that the five  days was sufficient.  Of course, if you are  unavailable this may mean an extension.  I'm not sure  if it can be --  :  I'd be happy to sit on Saturday.  :  Yes.  And I can advise Mr. Rush is leading him, and  I can communicate your concerns to him immediately  about that.  :  Right.  :  I think from the position of the plaintiffs that  that would resolve the problem, but I'm not certain  what the defendants -- if they are already expecting  you would have sat on Saturday with respect to Mr.  George.  E:  I think there's a folk saying that covers this  situation, my lord.  Needs must when the devil drives.  : Well, I'm invited to another function which I think  I must decline which is on the evening, so I could be  back here on the Tuesday.  I unfortunately am in the 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  14203  position where I have to make some fairly early  decision on this.  Can counsel let me know after lunch  today if there's anything that I should add into the  equation?  My present view is that I must go, and  unless counsel tell me that it wouldn't be  inconvenient I would be back here on Tuesday morning.  If counsel can spare me another day that would please  me greatly, but I wouldn't expect that, but I would  not want to put us out of schedule more than just by  the day, if at all possible.  My lord, you wish me to confirm if you could go to  the Wednesday -- we start on the Wednesday?  Yes, but I'm not pressing that in any way.  Yes.  All right.  Thank you  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD. THE  THE  MR.  9  10  11  12  13  14  15  16  17  18  19  2 0 THE  21 MR.  22  23 THE  24  25  26  27  28  29  30  31 MR.  32 THE  33 MR.  34  35  36  37  38  39  40  41  42  43  44  45  46  47  14204  (PROCEEDINGS RESUMDED AT 2:00 p.m.)  REGISTRAR:  Order in court.  COURT:  Mr. Grant.  GRANT:  Before we proceed, I had an opportunity to discuss  your concern -- your scheduling concern with Mr. Rush.  From the plaintiff's perspective, and Mr. Rush, I  think to quote him exactly, said to encourage you  greatly to go to Ottawa for this important occasion.  From our -- from the plaintiff's perspective we  anticipate that Mr. George could be completed in four  days and the plaintiffs do not object to sitting on  the Saturday so if you wish to stay on the Monday  evening and us commence on the Wednesday, the  plaintiffs have absolutely no difficulty with that  from our perspective and Mr. Rush indicated that that  was based on the standard assumption that the  plaintiff's evidence would take two days and it is the  same amount.  COURT:  Well, thank you, Mr. Grant.  GOLDIE:  I don't know on what basis that assumption is  standard.  COURT:  I think I will save you some trouble, Mr. Goldie.  I  think that I have decided that I will go on Monday but  I will be back here on Tuesday.  I feel obliged that I  must be there on Monday but I don't think we should  lose a day for a dinner, as pleasant I am sure that  might be.  We will proceed then with this case on  Tuesday morning and hopefully we will finish and maybe  not even have us sit on Saturday.  We have no difficulty either way, my lord.  Thank you very much.  All right.  Mr. Goldie.  GRANT:  COURT:  GOLDIE  Q   I just have one or two further questions, my lord.  Mr. Brody, did you get a chance to look at Exhibit  986, which is The New Catalyst article, and 987, which  I will call the Channel 4 article and, apart from  hanged and hung, did you find any difference?  A   No, I haven't had a chance to look.  Q I see. I want to show you another version. I wonder  if the witness might -- this is from something called  The Newsletter.  Do you know what that publication is?  A   No.  Q   And it is headed On Indian Land:  The  Gitksan-Wet'suwet'en by Hugh Brody, and then follows  an introduction which, unless I am mistaken, is the  same as the introduction to the other two -- not the 1  2  3  4  5  6  A  7  8  9  10  Q  11  12  13  A  14  Q  15  16  A  17  18  Q  19  A  20  Q  21  22  23  A  24  25  Q  26  A  27  28  29  30  31  32  Q  33  A  34  35  Q  36  37  38  39  A  40  Q  41  A  42  43  44  45  46  47  14205  other two, the Exhibit 986, The New Catalyst.  And  indeed at the bottom of the second column on page 2 is  the item, "Reprinted with permission of the author  from The New Catalyst winter 1986/87".  Does that  refresh your recollection?  I don't remember giving my permission to do this but  certainly I can believe I did.  I often get phone  calls asking if something I have written can be used  somewhere else and I always say yes.  Yes.  And this phone call or letter or what have you  came in in April of 1987 or more accurately the  publication is April 1987?  Yes.  That was after you had provided the summary of your  opinion?  Yes, you reminded me earlier I believe my summary is  dated January 1987.  1987, yes.  Yes.  Yes.  So when you gave your permission you regarded  the statements that you made in this as still having  validity?  Well, I received a phone call saying can something I  have written be published --  Are you sure --  -- and I automatically say yes.  I don't ask myself,  is this something to which I still subscribe.  I mean  it is not the kind of question I would address to  myself, so I wouldn't have checked up on anything.  I  just say yes, but I could tell you by looking at it I  would think.  You are sure you've just got a telephone call?  Well, that's what I remember, yeah.  Usually these  things in my experience are done by phone.  And you would not be concerned about determining  whether there was any inconsistency in the statements  you have made here and the summary of the opinion  which you'd delivered in January of 1987?  If --  It would not be a matter of concern to you?  If somebody was standing at my elbow and I received a  telephone conversation and put the point you've just  made to me, I think perhaps I would -- I'd say, oh,  gosh, I should have a look, but in the normal course  of my professional life, I say go ahead and publish  it, publish it.  You know, I don't -- I don't ever  impede people's wish to publish my stuff. 14206  Q   It is good publicity?  A  Why bother writing if you don't publish it?  MR. GOLDIE:  May I have that marked, please, my lord.  THE COURT:  98 9.  THE REGISTRAR:  989.  (EXHIBIT 989 - ON INDIAN LAND - NEWSLETTER APRIL 1987)  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  Q   Now, Mr. Brody, I was glancing through the volume  which Mr. Jackson handed up and I see under item 7,  Field Interviews, Alfred Joseph.  Would you turn to  tab 7?  A   Yes.  Q   Is this an interview for the film or what?  A   This is one of the film interviews, yes.  Q   There are page numbers at the top, 7/ stroke and  followed by a number.  Would you turn to 7/5?  About  two-thirds of the way down the page in parenthesis are  the words:  "And what about the court case?  What do you think  about the court case?"  Who put that question?  A   I imagine I did.  I think I was the only interviewer  at this interview.  Q   And do you recall when this was -- when the interview  took place?  A   Summer '85, I would think late August '85 or early  September '85.  Q   Sir, you were aware of the court case and what the  issues were in the court case at that time?  A   I had some understanding of the issues of the court  case, yes.  Q   Now, was this recorded on tape?  A   Yes.  Q   Mr. Joseph is recorded as stating:  "Well, the court case, I think it is telling the  public more -- it is more of a publicity thing for  us, to let the people know what's happened to us,  how we have been treated, and I think it's like I  say making it a public awareness thing."  Just pausing there.  Do you recall Mr. Joseph making  that statement? 1  A  2  3  Q  4  A  5  6  7  Q  8  9  A  10  11  Q  12  13  A  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Q  30  31  A  32  33  34  35  36  37  Q  38  39  A  40  Q  41  A  42  Q  43  A  44  Q  45  A  46  47  14207  I know that he made it because I am reading this  document.  You have no --  I don't recall him making it, no.  I am, at that  period of my life, listening to people talking, you  know, all day, every day.  You have listed this as one of the documents that you  relied upon for your opinion however?  Yes, I would say I relied upon all the interviews I  conducted in the area.  And do you consider your role here to be contributing  to the publicity thing that Mr. Joseph refers to?  Publicities are a word that one has to be careful  about.  I am hesitating because I don't want to give  you an unduly long answer.  For all the northern  peoples I have worked among, facts have a tremendous  importance and they very generally believe that if  only others knew the facts about them, their -- what  they would call their grievances, their historical  difficulties, would be resolved.  So for them, there  isn't a distinction between presenting facts and what  we might call an adversarial situation of a court  case.  Court cases, Mr. Joseph says here, is an  opportunity to present the facts.  In presenting facts  others understand in understanding there is the  prospect of the resolution of their historical  difficulties.  So that's, I think, what lies behind  Alfred Joseph's comments here.  Yes.  And that was consistent with the purpose that  you have described of the land -- of the film?  The film is, as I said before lunch, an attempt to  take people into the world as the people in the film  see it and it is an opportunity therefore for us to  become acquainted with the facts as the people  understand them, a opportunity for the people to  acquaint us with the facts.  Facts as they understand them as you very properly put  it a minute ago?  That's right.  And that's what you are doing here?  In this particular interview you mean?  No, in your appearance here?  Is that a question?  Yes.  Isn't that right?  I thought it was a statement. Well, I am dealing with  many things in my opinion, including a great number of  facts, yes. 1  Q  2  A  3  4  5  6  7  8  9  Q  10  11  A  12  13  Q  14  15  A  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  A  24  25  26  27  28  29  Q  30  A  31  Q  32  A  33  34  35  36  37  Q  38  39  40  A  41  Q  42  A  43  44  45  46  47  14208  As seen by the plaintiffs?  As seen by me as an expert anthropologist as defined  here.  I am an anthropologist who has made a journey,  as many journeys through the lives of people of  Northern British Columbia including the people of the  Gitksan-Wesuwet'en culture area, and I am bringing the  results of that journey to bear on what I offer in my  opinion.  Yes.  Would you accept the accolade of informed  champion?  No, I would not accept the accolade of informed  champion.  I see.  In your C.V. you refer to the fact that you  gave evidence in the Apsassin case?  Yes.  You are familiar with the characterization of his  lordship in that -- in his Reasons for Judgment?  Yes.  His lordship was impressed by you as an informed  champion.  You say that's not true?  You said would I welcome the accolade.  Yes.  I think that anybody who does anthropology has to make  very strong links with the people amongst whom they  work.  There is no denying that.  There is a way in  which, as Wilson Duff always used to say, and as was  said of him I believe in the volume devoted to him  after his death --  Did you know him personally?  No.  All right.  I know -- of course I know this man's reputation.  There is a way in which anthropologists, to do with  the friendship of anthropologists, and the people he  studies.  That lies inside the anthropological  proj ect.  Well, my question to you was, I gathered that you  wouldn't accept that as an accolade.  Would you accept  it as an accurate description, an informed champion?  Well, I like the word informed.  Yes, I thought you would.  What about champion?  No.  I think it is an improper word to use if I may be  so bold to say so.  My endeavour is to understand and  to convey my understanding, and those two projects,  understanding and conveying understanding, are  immensely complicated and involve many kinds of  inquiry and all sorts of information, and to say 1  2  3  4  5  6  7  Q  8  9  10  A  11  12  Q  13  14  A  15  16  17  18  19  20  21  22  23  24  25  26  Q  27  28  A  29  30  31  32  33  34  35  36  Q  37  38  39  40  A  41  42  43  44  45  Q  46  47  A  14209  champion is to suggest that the shadow of distortion  is cast across the collection of all this information  and that is precisely what I am not trying to do.  That's why I go to so many different sources.  That's  why I bother to interview six people about the same  thing or one person four or five times.  And his lordship was impressed by you as an  enthusiastic supporter of the Native peoples' cause  generally.  Would you not agree with that?  I would agree that that's what he wrote in his  judgment.  No, I am asking you if you'd agree with that  description?  I am enthusiastic about Native people.  I had the  opportunity to work in many areas and I have also  inevitably, because of the nature of the historical  process in Northern Canada, worked with people who  feel their lives and lands are under all kinds of  threat, and I have at times had -- I have been asked  to or from many sides describe what they feel about  that threat and do things that might minimize the  threat itself, and I have been asked to do that by the  Department of Indian Affairs, various branches often  on several occasions, and the British Museum and  Indian and Inuitan groups.  You are enthusiastic, but my suggestion is you are an  enthusiastic supporter of the Native peoples' causes?  There are some Native peoples' causes I don't support  at all if you want to know; I mean, if you have a  conversation about what causes I do and do not  support, but in general the project here in the case  of Gitksan-Wet'suwet'en particularly, because it is a  very complicated project, is to scrutinize an immense  body of information and try to find out what it added  up to.  And he thought that generally, that is, you were an  enthusiastic supporter of the Native peoples' cause  generally and of the Dunne-za, Cree in particular.  You were and are a supporter of those people?  I have just explained, I think, Mr. Goldie, that I  would resist the characterization of myself as a  supporter in general of Native peoples or any  individual Native groups more specifically I would  agree.  And he thought however that you were a person who  lacked the objectivity required of an expert witness?  That's — 14210  1 Q   You don't agree with that?  2 A   I don't agree with that, no.  I think that I ring to  3 bear on the information an immense amount of  4 experience and an immense amount of relation  5 information.  It is actually the accumulation of the  6 information secures the strength and possible validity  7 of an opinion if nothing else.  8 Q   And you assure his lordship of your objectivity?  9 A   I assure his lordship of my best endeavours to make  10 the best sense I possibly can of the immense amount of  11 information I had at my disposal in the writing of  12 this opinion.  13 Q   That wasn't my question.  14 A  My objectivity?  15 Q   Yes.  16 A   Yes, insofar as it's possible to the objector to  17 object if I am objected to.  18 Q   It may not be possible?  19 A  Well, there are epistemological problems here as I am  20 sure you are aware with social sciences and with all  21 sciences of the relationship, even observer and  22 observe, and I am not going to pretend  23 epistemological problems don't exist.  I am much  24 debated in the literature of both natural and social  25 science.  26 MR. GOLDIE:  Yes, thank you.  27 THE COURT:  I am sure madam reporter would appreciate the  28 spelling of that.  29 THE WITNESS:  Sorry.  Epistemological,  30 e-p-i-s-t-o-m-o-l-o-g-i-c-a-1 (sic).  31 THE COURT:  Ms. Koenigsberg.  32  33 CROSS-EXAMINATION BY MS. KOENIGSBERG ON QUALIFICATIONS:  I have just one question for you, Mr. Brody.  Have you done any studies of white communities on  the frontier with regard to their world view or their  land use other than the one that I think you described  relating to the Sustet Deni which I think you  described as a description rather than an analysis?  Sustet Deni, no.  Dunne-za I think you mean.  Yes, it may have been.  -- the Gitksan-Carrier.  Have you done any?  The study I referred to, the Northeast B.C. study  included a very comprehensive description as you say  of all the various sectors.  It also involved an  attempt to analyse how the people acting in those  34  Q  35  36  37  38  39  40  A  41  Q  42  A  43  Q  44  A  45  46  47 14211  1 sectors perceive the Dunne-za of the relevant area.  2 In that extent he goes beyond the description and  3 becomes an analysis.  In my work in North Baffin  4 Island, and I think this is probably a more important  5 example, the focus is relations between Inuit and  6 whites in remote settlements and to that end, I did a  7 great deal of work within the white community and  8 attempted to analyse it in relation to its social  9 composition, the connection between its social  10 composition and perceptions, it as a group would be  11 likely to have so that constitutes an analysis there  12 in North Baffin.  Those two examples come to mind.  13 Q   And you would characterize those as studies of the  14 white communities on the frontier and their world  15 views?  16 A   Certainly in the case of the North Baffin Island  17 because I could know every member of the community I  18 could hundred percent sample into villages and had  19 very easy access to their lives and their professional  20 activities.  In the case of Northeast B.C., I tried  21 wherever I could to get a sense of the white world  22 there and of course inevitably you are getting it in  23 the course -- in pursuing everyday life, and -- but I  24 wouldn't claim to have achieved anything like the kind  25 of access to that community that I did in North  26 Baffin.  27 Q   Was there a reason why in your description of that  28 work in northeastern British Columbia that you started  29 off calling it an analysis and then said it was a  30 better -- a better thing to call it would be a  31 description as opposed to an analysis?  32 A   Yes, because, as I was just saying, I didn't have the  33 time to create the necessary access to create what I  34 would -- I would think constituted a proper analysis.  35 So remaining on the safe side, I am happy to call it a  36 description.  Press me and I will find the elements of  37 the word which go beyond description of analysis.  38 Q   It wouldn't inhibit you from opining on the world view  39 of those people that you had not done as thorough a  40 job as you did in Baffin Island?  41 A   I could only just hear the question.  42 Q   I am sorry?  43 A   I could only just hear the question.  Perhaps you  44 could ask it again?  45 Q   Yes.  It wouldn't inhibit you from opining about the  46 world view of the whites in Northeast British Columbia  47 the difference between -- in quality between the work 14212  1 you did there as the work you did in Baffin Island?  2 A   It would inhibit me opining about certain things, for  3 example, the social composition of the group, their --  4 what you might call their class backgrounds, because I  5 don't have that kind of -- I didn't have that kind of  6 data in Northeast B.C. but of course opining about  7 whites, the frontier is to some extent opining about  8 myself.  I am familiar with the culture.  I am a  9 member of the frontier white culture in the north.  I  10 am a white person in the north along with the others.  11 I am familiar with the historical circumstances which  12 have led many of the whites to the frontier and I can  13 very quickly discover the historical circumstances of  14 those whom I meet because we speak the same language,  15 we operate in the same conceptual world.  We share  16 many basic view points.  And anthropologically I am  17 inside my own culture.  So if you ask me if I am  18 inhibited about opining, there are a few inhibitions  19 than there might be simply by virtue of the shared  20 cultural place.  21 MS. KOENIGSBERG:  Those are all my questions.  22 THE COURT:  Thank you.  Mr. Jackson, you are tendering the  23 witness to give the opinion evidence.  24 MR. JACKSON:  I just have several questions in re-direct.  25 THE COURT:  All right, thank you.  26  27 RE-EXAMINATION BY MR. JACKSON ON QUALIFICATIONS:  28 Q   Mr. Brody, could you look at Exhibit 987, On Indian  29 Land?  And could you turn to the last page of that?  30 And in the second column there is a statement, "This  31 leaflet has been produced with the support of the  32 Canadian High Commission."  Do you know to what that  33 refers?  34 A   I think the Canadian High Commission provided some  35 funds for the production of the leaflet but that's a  36 matter between Canadian High Commission and Channel 4,  37 but I remember Channel 4 telling me that they had  38 asked Canadian High Commission if it would help fund  39 this leaflet and I believe the answer was yes.  40 Q   Second question to you is that you told Mr. Goldie  41 that On Indian Land was screened not only before the  42 Canadian Broadcasting Corporation but the National  43 Film Board.  Did they have any concerns on the issue  44 of balanced content?  45 A   The International Film Board screening was to the one,  46 two or three persons at the Vancouver office who were  47 involved in providing support for the project.  They 14213  1 did have a concern -- I have just remembered  2 something.  I gave Mr. Goldie -- I will come back to  3 it.  Yes, they did have a concern and it was about a  4 goat-hunting sequence.  They felt that the  5 goat-hunting sequence in the film was something that  6 would -- that didn't really represent the people in a  7 true and fair light.  They thought that the  8 goat-hunting sequence might, as it were, give offence  9 to the ordinary Canadian or British viewer, and  10 suggested that I remove it in order to protect the  11 people from such criticism.  12 Q   And your response to that advice or that comment?  13 A  Was that I would leave it in.  The thing that I  14 remembered when you asked me that was that Mr. Goldie  15 asked me about the screening to the tribal council in  16 Hazelton in the spring of '86, and I believe Mr.  17 Goldie asked me if there was any response to that  18 screening and I said -- any criticism or complaint at  19 that screening and I said no.  In fact there was --  20 there were complaints, there were two complaints that  21 emerged -- not at the screening.  I think at the  22 screening everyone was too polite really to say  23 anything but these are lovely but in the next day or  24 two there were two serious difficulties that emerged  25 from people who had been at the screening.  They came  2 6 and told me about them.  One was to do with two  27 sequences that showed fishing at Moricetown.  People  28 were upset at the sequences which have Moricetown  29 people, Wet'suwet'en, gaffing fish at the falls there  30 and they didn't like that to be shown too widely.  And  31 the other objection was also to the goat hunt which is  32 why your question reminded me.  There were complaints  33 about the goat hunt saying that it didn't show the  34 people in fair light, and I had many conversations and  35 long conversations with the persons who made the  36 complaints and with some of the -- from the others who  37 were involved, especially in the filming of the goat  38 hunt, and said that in fact I wouldn't agree to take  39 those sequences out of the film.  40 Q   You identified Mr. Goldie a conflict between the terms  41 of the tribal council contract and I think you said  42 that they were an exemplar of other kinds of contracts  43 tribal councils seek to set, a conflict between the  44 contract and the scientific approach, I think that was  45 Mr. Goldie's term.  Could you explain how you  46 resolved -- attempted to resolve that conflict in  47 undertaking your research and in preparing and writing 14214  1 your opinions?  2 A  Well, I think I would like to say --  3 MR. GOLDIE:  No, I am concerned about that, my lord.  Is the  4 witness seeking to vary the terms of the agreement  5 which he entered into?  I don't think it is competent  6 for him to testify and answer to that question.  7 THE COURT:  Well, could the agreement not be amended?  8 MR. GOLDIE:  Well —  9 THE COURT:  Surely the parole evidence —  10 MR. GOLDIE:  It could be amended but it wasn't.  There is no  11 suggestion the contract was amended or that a  12 collateral contract was entered into.  13 MR. JACKSON:  My lord, I am attempting to give Mr. Goldie — Mr.  14 Brody an opportunity to explain a conflict as  15 identified in response to Mr. Goldie's question and I  16 don't think that, whatever the situation might be, if  17 there was a dispute between the tribal council and Mr.  18 Brody, the question of the admissibility of parole  19 evidence to vary the terms of the contract is not the  20 issue.  I am asking Mr. Brody whether or not the terms  21 of the contract indeed led to the conflict as he  22 identified it or whether in fact there was a  23 resolution of it, and I submit that that is a  24 permissible question.  25 THE COURT:  Ms. Koenigsberg?  26 MS. KOENIGSBERG:  I don't see how — first of all, I think that  27 Mr. Brody did give a very full answer and went on in  28 some length about the conflicts and the Ethics  29 Committees of the anthropologists and so on, so that I  30 don't think that we are here seeking to clarify an  31 answer which was ambiguous in some way.  And I share  32 with Mr. Goldie his concern that to ask the witness  33 what he means or what else or what -- how did he  34 resolve the conflict which he did discuss is to ask  35 what else there is with the contract that we should  36 look at to interpret the relationship that resulted in  37 the report and, in my submission, that isn't proper.  38 THE COURT:  Well, I am chasing all around — I can't find the  39 pidgeon who put this subject matter into -- I think  40 the subject was raised in cross-examination and I  41 think it is competent that parole evidence in my view  42 not be applicable for counsel to ask the witness if  43 there is anything more he wants to say about that  44 question.  I don't think he can be led.  I don't think  45 he will be on that, but I think you can go that far.  46 MR. GOLDIE:  I don't object to that question but the question as  47 put was leading. 14215  1 THE COURT:  It was leading, yes.  Go ahead, Mr. Jackson.  2 MR. JACKSON:  3 Q   Were there any other matters in relation to your  4 research in preparing your research, apart from the  5 term of the contract, which guided you in undertaking  6 the research and preparing your report?  7 A  My research way predates that contract.  I was  8 retained by the tribal council to do work in the area  9 in '83.  I don't think there was a contract for that.  10 It was just a verbal agreement under which I was  11 retained.  Again -- and thereafter because I did  12 continue doing some work, I did archival work in  13 London, for example, London background matters  14 pertaining to the history of the region; I began field  15 work in the area; I resumed field work in the area in  16 '85.  Again, as I recall, the verbal agreement  17 retained -- was a verbal agreement but I think what I  18 can say is that it was quite clear I am sure in  19 everything I said to the members of the tribal council  2 0 with whom I had dealings and quite clear in my own  21 mind that what I was going to do was come up with my  22 own views of the matter and I would go where my  23 evidence, my findings, my date, my interviews, my  24 archive, my reading led me.  25 MR. JACKSON:  They are all my questions on re-direct, my lord.  26 I tender Mr. Brody as an expert in the areas I have  27 identified in my opening.  2 8 THE COURT:  Yes, all right.  Thank you.  Mr. Goldie.  29 MR. GOLDIE:  My lord, in my submission Mr. Brody is  30 disqualified.  His production of On Indian Land and  31 its contents as described in the three exhibits of  32 which he is the author was to marshal support by the  33 controlled use of that particular medium.  He has told  34 us that the National Film Board objected to the goat  35 sequence.  I assume that's because the shot was missed  36 and that would be a reflection on the frontier  37 accuracy of the marksman.  38 THE COURT:  Maybe it was thought to be too cruel or something of  39 that kind.  That's the picture I gained from it.  40 MR. GOLDIE:  Yes, it could well be.  I doubt if that would  41 really create a problem for the National Film Board.  42 It is not that he is an employee of the tribal  43 council, it is that he displays consistently from the  44 beginning of his relationship a partiality.  He has --  45 he has set out to describe the Gitksan-Wet'suwet'en as  46 they see themselves.  He told Ms. Koenigsberg that he  47 had not made any attempt to see things from the 14216  1 standpoint of the community that lives there other  2 than the Natives.  It's not that Mr. Brody is a  3 champion, many people are champions, is that he has  4 used his skill to clothe argument in the guise of  5 opinion and, by argument, I mean as a publicist, as a  6 writer and producer of films.  As Mr. Justice  7 Macdonald said in the Emil Anderson case, speaking of  8 the reports, viewed in their totality they are more  9 appropriate as argument than they are as evidence, and  10 that's what Mr. Brody has set out to do.  11 He produced a film which he presented which was  12 intended to present the plaintiff's point of view.  We  13 know what that -- how that film is characterized by  14 the public broadcasting body of the country.  He is  15 retained as a consultant to demonstrate the same point  16 of view through another medium.  It was pre-ordained  17 that the views put forward in the film and the views  18 put forward in his report would be exactly the same  19 and as -- and to lead to the conclusions that he  20 describes in the pamphlet promoting it.  21 Those views were repeated in April of 1987, and  22 while Mr. Brody has no particular recollection of  23 thinking about the substance in terms of his report,  24 it is clear that in giving leave to reproduce a report  25 which he, as a scientist, he was open to question, he  26 would never countenance, but as a publicist it was  27 perfectly all right.  28 Now, my friend has sought to blunt the provisions  29 of that contract by saying that -- by inviting the  30 witness to say that he would endeavour to apply his  31 scientific methods to what he was doing but, as he put  32 it, a good part of the research was done before that,  33 a good part of the research was done for the film.  34 And, my lord, everything that he did after he entered  35 into the contract was done subject to the words in the  36 contract in a manner satisfactory to the tribal  37 council.  I say with all respect that it is a misuse  38 of Mr. Brody's skills, and they are many and varied,  39 but he -- it is a misuse of his skill as an  40 anthropologist to clothe the point of view adopted as  41 a publicist for the purposes of these proceedings.  42 THE COURT:  Well, does Mr. Justice Macdonald's dictum not relate  43 to the substance of the report that he had before him  44 in that case?  45 MR. GOLDIE:  Oh, yes, and that is correct, and my objection goes  46 to the witness being qualified as an expert.  Normally  47 speaking the objection is taken to the report, not to 14217  1 the qualifications of the witness, but my objection is  2 on the basis that he has -- has laid down a path that  3 he has followed that lacks objectivity, and to use the  4 words of Mr. Justice Oddie in the Apsassin case, lack  5 the objectivity required of an expert witness, and my  6 submission, that means that the objection that I am  7 taking should be made to his qualifications.  8 THE COURT:  Well, let me pose this scenario, that an expert in  9 the sense of a person highly trained and experienced  10 in the discipline who has strongly held and widely  11 publicized views on the question, is nevertheless  12 called as an expert witness and he's qualified in the  13 sense that he is shown that he has all the  14 experience-related requirements of an expert.  Can the  15 court say I won't hear this witness because he has a  16 well known and admitted point of view?  Is that not a  17 matter that goes to weight?  18 MR. GOLDIE:  Normally speaking.  The experts everyday are called  19 who are -- who are known as the proponents of a point  20 of view, that is to say, they favour a particular  21 theory but this is not a case of favouring a  22 particular scientific theory.  23 THE COURT:  Favours a party.  24 MR. GOLDIE:  He is favouring the party.  That's the thrust of my  25 submission, my lord, and if he favours the party that  26 takes him out of the category of the expert who says,  27 well, I believe in the such and such theory of  28 relativity.  2 9 THE COURT:  Yes.  30 MR. GOLDIE:  And I will stand up and be counted on that point,  31 but there is no such suggestion of that here.  32 THE COURT:  And then proceeds to try and persuade the court that  33 his theory is right.  34 MR. GOLDIE:  That's correct.  That's correct, but his theory —  35 THE COURT:  What's the point of that?  36 MR. GOLDIE:  His theory has got nothing to do with the  37 particular parties to the case.  There is no theory  38 being advanced here in my submission.  39 THE COURT:  Well, let us take a skilled person in any of the  40 many sub-lists we have heard here who said I think the  41 witnesses have been treated badly and I think they  42 deserve everything they can get; they are absolutely  43 right.  Say that is his spiel.  And then he says that  44 in my specialty I am dealing with, let's say  45 anthropology, and I am going to express a scientific  46 opinion that happens to support the view that I hold.  47 Can I refuse to hear him or can I put that to the back 14218  1 of my mind to when I come to weigh the evidence of  2 this witness I have to consider his possible lack of  3 objectivity?  I might conclude from hearing that he  4 does not enjoy the objectivity that is required or I  5 might say his views are well known but I saw nothing  6 to suggest that his opinion was coloured by the  7 prejudgment that one would naturally ascribe for a  8 person who's expressed himself the way this witness  9 has.  I think the evidence that he gave was correct, I  10 think that he was biased in the extreme, but I think  11 his evidence is correct.  12 MR. GOLDIE:  Because it could be tested objectively and it stood  13 up in that circumstance.  14 THE COURT:  Well, isn't that the position?  You have to hear the  15 evidence in order to find out whether it is --  16 withstand that muster?  17 MR. GOLDIE:  My objection goes to the proposition or supports  18 the proposition that if I am wearing a cap marked  19 film-maker, pursue a particular point of view, that is  20 an issue -- that is -- that is a fact which must be  21 taken into account when the witness claims that he can  22 dissociate himself from that, and he has not, my lord,  23 he's not dissociated himself from that at all.  Mr.  24 Brody doesn't purport to apply any scientific analyses  25 or methods to his film-making.  I haven't addressed  26 what is in his report at all.  27 THE COURT:  I haven't seen it.  I don't think it's been tendered  28 yet.  All right.  Thank you, Mr. Goldie.  Ms.  29 Koenigsberg?  30 MS. KOENIGSBERG:  I certainly agree with Mr. Goldie's  31 submissions that it really does boil down to should an  32 expert be heard by a court to be assisted in  33 understanding the issues.  As an exception usually to  34 the hearsay rule and we are not dealing with it  35 directly here yet, if that witness can be shown to be  36 in favour of a certain outcome in the litigation about  37 the issues themselves and, in my submission, that is  38 the purport of the evidence that we have heard.  That  39 is the problem with the -- not just the film which  40 we -- haven't seen the film, it is not a question of  41 evidence in this courtroom, but of the pamphlets that  42 were authored, and in my submission they deal  43 precisely with this litigation, with the outcome of  44 the litigation, and when we look at the wording of the  45 contract the assumptions made in that wording accord  46 precisely with the writings of Mr. Brody and in  47 substance we are saying to admit this witness as an 14219  1 expert, we are saying he is impartial.  There is no  2 other reason to hear expert evidence on matters that  3 we have already heard evidence on unless he is  4 impartial.  He is -- his expertise in my submission is  5 what should make us assume that he is impartial, but  6 the evidence is overwhelming in my submission that he  7 is not impartial and the impartiality is in direct  8 relation to the outcome of this litigation.  9 THE COURT:  Well, you are ahead of me, Ms. Koenigsberg.  I  10 didn't know we were going to see a film.  11 MS. KOENIGSBERG:  I don't know if we are going to see a film.  I  12 was referring to the film that's being discussed On  13 Indian Land.  I don't know that we are going to see  14 the film but the writings about the film that we have  15 gone through and discussed deal directly with the  16 lawsuit, deal directly with the land claim, and in my  17 submission it is that which draws it so closely to the  18 terms of his contract and, on that basis alone, in my  19 submission he should not be accepted.  20 My concerns about his qualifications otherwise are  21 quite limited and very precise and related only to one  22 area, and I won't deal with that now if we are going  23 to just deal with the first issue.  24 THE COURT:  Well, there is no authority, is there, Ms.  25 Koenigsberg or Mr. Goldie, that deals with this point?  26 There are lots of general statements that one assumes  27 that an expert is, upon being qualified, is impartial  28 and objective but is there any authority that says  29 that an expert lacks qualification give evidence if he  30 is not impartial?  31 MR. GOLDIE:  The normal comment is that impartiality or  32 partiality goes to weight, but I am concerned that a  33 witness can be qualified where he lacks the basis for  34 expressing an opinion or, as Ms. Koenigsberg put it,  35 he lacks the basis for asking the court to accept his  36 opinion.  37 It is clear that a wildly biased person can give  38 evidence of fact.  Who cares?  But normally speaking  39 who cares whether the man who witnessed the motor  40 vehicle accident at the intersection is in favour of  41 one or the other; in fact, he isn't allowed to express  42 an opinion, but this is the equivalent of allowing the  43 witness, not that he witnessed anything, but allowing  44 a witness to say you should find in favour of these  45 people because I have expressed opinions that the  46 outcome of this litigation should be a certain way.  47 It goes to the question of whether the qualification 14220  1 otherwise accorded him by his education and his  2 experience will overcome the lack of -- the  3 partiality.  4 THE COURT:  Could Dr. Morgentaler be stopped in giving expert  5 evidence in the issue of abortion?  6 MR. GOLDIE:  He couldn't be stopped of giving expert evidence of  7 a factual nature, of the medical procedures to be  8 used.  9 THE COURT:  How about the opinion on the advisability as between  10 an abortion clinic and a hospital?  11 MR. GOLDIE:  I -- he could probably give evidence on the fact  12 that one is as good as the other.  13 THE COURT:  Even though, I am assuming he is partial towards  14 private clinics, I don't know if he is or not, but  15 that's an assumption.  16 MR. GOLDIE:  He would have to give it as a medical man based on  17 his learning as a medical man.  18 THE COURT:  I remember calling a hockey coach one time who  19 talked about the joys and virtues of fighting in  20 hockey and he was a coach in actual hockey, and no one  21 stopped him from saying how wonderful fighting is.  22 MR. GOLDIE:  If the other counsel wanted to hear it as much as  23 you did, there would be no objection taken.  24 THE COURT:  Ms. Koenigsberg.  25 MS. KOENIGSBERG:  The authority which is not directly on point  26 but is around it that I have looked at sometime ago  27 and I think has been before your lordship in any event  28 is from Wigmore and it is the paragraph or part 1692  29 and I can't -- in volume 6, and I just had the bit  30 here, I will read it to you and I --  31 THE COURT:  I haven't seen -- do I have the same thing here?  32 MS. KOENIGSBERG:  It is my volume on authorities respecting  33 opinion evidence and I can't recall if this whole  34 volume was put in.  I recall referring your  35 lordship --  36 THE COURT:  I have the same thing.  What tab are you on?  37 MS. KOENIGSBERG:  1692 — no, I am sorry, tab 1.  It is under  38 the general exception to hearsay in dealings with  39 the -- dealing with the professional work, Learned  40 Treatises is where you find it, and it is dealing with  41 the necessity and then trustworthiness, and under --  42 that's what we're essentially dealing with here.  And  43 the first part of the argument of course goes to, that  44 you have to meet, is necessity and, in my submission,  45 we haven't got that far yet but I would be arguing to  46 your lordship at some later time in reference to the  47 report or the opinions that there is no necessity as 14221  1 to the the best evidence when we have already heard it  2 before, but dealings with trustworthiness under (a),  3 1692 (a) :  4  5 "There is no need of assuming a higher degree of  6 sincerity for learned writers as a class than for  7 other persons; but we may at least say that in the  8 usual instance their state of mind fulfils the  9 ordinary requirement for the hearsay exceptions,  10 namely, that the declarant should have 'no motive  11 to misrepresent.'  They may have a bias in favour  12 of a theory, but it is a bias in favour of the  13 truth as they see it; it is not a bias in favour  14 of a lawsuit or of an individual.  Their statement  15 is made with no view to a litigation or to the  16 interests of a litigable affair.  When an expert  17 employed by an electric company using the  18 alternating or single current writes an essay to  19 show that the alternating current is or is not  20 more dangerous to human life than a single  21 current, the probability of his bias is plain; but  22 this is the exceptional case, and such an essay  23 could be excluded, just as any hearsay statement  24 would be if such a powerful countermotive were  25 shown to exist."  26  27 And while this doesn't deal directly with the  28 admission of expert evidence, in my submission the  29 very essence of the reason why we require expert  30 evidence is because -- and the only reason your  31 lordship should ever hear expert evidence is because  32 there is something about the facts which your lordship  33 might not appreciate, and so great reliance has to be  34 put on what is represented to your lordship as the  35 proper interpretation.  And it is the very  36 impartiality that one assumes from the expertise that  37 gives it weight.  Without that there is no weight.  38 And in my submission that's all that's being discussed  39 here under this section dealing with Learned  40 Treatises.  There is no weight so you must exclude it.  41 THE COURT:  All right, thank you.  Mr. Jackson, I think the only  42 point that's troubling me is whether there is some  43 exclusionary jurisdiction and the event of bias being  44 shown.  I have to say however that I am not sure that  45 the evidence goes that far to show bias, shows a point  46 of view.  Perhaps a recognition of what is likely to  47 attract listening audience and what won't, but I am 14222  1 not sure it goes beyond that, but I think I'd like to  2 hear your submissions on those two points.  3 MR. JACKSON:  As I understand the thrust of Mr. Goldie's  4 position when he opened his comments to your lordship,  5 he characterized Mr. Brody as a publicist and as I  6 take Ms. Koenigsberg's point, she also suggests that  7 if indeed that is an appropriate characterization of  8 Mr. Brody then his evidence lacks the credibility  9 which should cause your lordship to have some doubt  10 about his credentials as an expert witness.  11 My lord, in reviewing Mr. Brody's career  12 publications in its totality, and that of course is  13 what I sought to do in qualifying Mr. Brody, I think  14 it was established beyond paraventure that he is  15 highly regarded as an eminent authority.  From the  16 Canadian Government to a former Justice of this court  17 to the British Museum have asked Mr. Brody to  18 participate exactly in the capacity in which he is  19 tendered to you as an expert witness, to bring to bear  20 an enormous body of experience, anthropological  21 insight onto a set of anthropological questions which  22 we submit are of the essence in this case.  23 If my friends are correct and that Mr. Brody is  24 indeed a publicist masquerading as an expert, a  25 publicist I would submit is someone whose opinions are  26 bubbles.  Whether or not Mr. Brody's opinions are  27 doubles will be tested in the crucible of direct and  28 cross-examination, and indeed --  2 9 THE COURT:  I am not troubled by that.  It seems to me that a  30 publicist, if that's all he is, can't get up to the  31 threshold, but that doesn't mean that an expert can't  32 have a publicist dimension about it, and so I wouldn't  33 think that I could exclude evidence of an otherwise  34 qualified expert just because he had spent part of his  35 time as a publicist.  So I don't -- that doesn't  36 trouble me.  What troubles me is the question of bias  37 or prejudgment or lack of objectivity that I am  38 getting any slant that shouldn't be there in the form  39 of expert evidence.  It relates to what the good  40 people at Wigmore's work call trustworthiness.  He  41 points out that:  42  43 "The abuses of expert testimony, arising from the  44 fact that witnesses are too often in effect paid  45 to take a partisan view and are practically  46 untrustworthy, are too well known to repeat."  47 14223  1 And it is suggested he shouldn't hear it.  And he  2 said -- he puts it on the basis that it has been  3 described that they may have a bias in favour of  4 theory and that seems to be all right, if it is a bias  5 in favour of the truth as they see it, but it suggests  6 otherwise, that if it is a bias in favour of a lawsuit  7 or of an individual, and that seems to me to be the  8 problem in this case.  The evidence goes so far as to  9 suggest that Mr. Brody has a bias in favour of the  10 plaintiffs.  I don't dispute the fact that he is in  11 the plaintiff's camp.  You can't get ready for a case  12 like this without being closely associated with the  13 people and of being associated with them, but the  14 question is does it go beyond that when he says, as he  15 said before, he likes Indians and he has an -- or  16 aboriginals and he has a favourable disposition  17 towards them.  Does that disqualify him?  18 MR. JACKSON:  I would submit it does not, my lord.  I mean, what  19 this goes to --  20 THE COURT:  I think, if you don't mind, I think we will take the  21 afternoon adjournment, it is time for the reporters to  22 change, and I look forward to hearing your submissions  23 when we return.  Thank you.  24 THE REGISTRAR:  Order in court.  This court will recess.  25  2 6 (PROCEEDINGS ADJOURNED AT 3:05 p.m.)  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein, transcribed to the  31 best of my skill and ability.  32  33  34  35  36  37 TANNIS DEFOE, Official Reporter  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47 14224  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Jackson.  4 MR. JACKSON:  My lord, the issue I've raised — my friend Ms.  5 Koenigsberg raises of whether or not Mr. Brody has a  6 bias which in some way ought to disqualify him from  7 giving evidence in this case as an expert, it is my  8 submission that what you have heard from Mr. Brody  9 supports exactly the proposition which is stated in  10 Wigmore, that what Mr. Brody has is a bias for the  11 truth as he sees it.  12 The problem perhaps in this case is posed by  13 virtue of the fact that as with most of the rules  14 which relate to expert evidence, and I think this was  15 what Wigmore has written with a view to, we are  16 talking about the physical sciences.  As your lordship  17 has heard, anthropology seems to be, whatever else it  18 is or is not, very different from the physical  19 sciences.  The scientific method which Mr. Brody  20 talked about is the attempt to come to grips with  21 questions about the nature of native societies and  22 their responses to European contact.  An  23 anthropologist in order to be informed, and I think  24 Mr. Brody made this very clear, has in a very real  25 sense to get close to the people about whom he is  26 going to form opinions.  That does not mean that  27 getting close to them prevents him from forming  28 independant opinions.  29 My friends have taken one tiny aspect of the  30 compendium of Mr. Brody's work and sought to suggest  31 that it indelibly signals what he will say and the  32 conclusions he has come to.  The film in the context  33 of Mr. Brody's work is designed to present, as he put  34 it, a journey which other people can make into native  35 people's world view.  The opinions he will be giving  36 you are not so circumscribed.  His opinion will  37 address a range of issues, the issues to which I have  38 alluded in my opening.  And to seek to characterize  39 those opinions by reference to one piece of work is, I  40 submit, misconceived.  Particularly misconceived when  41 that is put in the context of a whole body of work,  42 over 20 years work which has, as it were, been  43 validated by reference to hallmarks of objectivity.  44 The fact that, as I say, institutions such as the  45 British Museum and the courts of this country sitting  46 as royal commissions have sought out Mr. Brody's work.  47 Ultimately, my lord -- 14225  1 THE COURT:  That doesn't really carry much weight, does it, Mr.  2 Jackson?  I've heard witnesses say oh, yes, I've given  3 evidence in the courts of this province in many  4 occasions.  No one ever asks the next question, was  5 your evidence accepted, or more importantly, did they  6 know about the bias that you have.  7 MR. JACKSON:  It seems, my lord, the way to address this  8 question, an ultimate question for your lordship, and  9 as Mr. Oddie dealt with it in Apsassin, he heard the  10 evidence and he made up his mind.  11 THE COURT:  But did he have this kind of submission beforehand?  12 MR. JACKSON:  I'm not aware that he did.  But it seems that  13 there is no way in which your lordship can in fact  14 evaluate the extent to which Mr. Brody's biases are  15 such as to disentitle the evidence to be part of the  16 corpus of evidence of this case without hearing the  17 evidence and evaluating the extent to which that  18 evidence clearly is pre-determined by prior statements  19 or opinions expressed by Mr. Brody, the extent to  20 which those statements stand up to the analysis.  And  21 in his evidence Mr. Brody will be dealing with the  22 methodology.  He has already indicated that his work  23 spans a number of years both before and after the  24 making of the film.  And your lordship will be in the  25 position of evaluating whether or not his opinions are  26 ones which are entitled to any weight, substantial  27 weight based upon hearing the opinions, based upon  28 hearing the testing of those opinions under the full  29 scrutiny of a scientific -- a social scientific  30 analysis.  31 My friends have certainly demonstrated their  32 ability to apply that scrutiny.  Dr. Daly's evidence  33 and Dr. Mills' evidence was subjected to the same  34 approach.  And it seems to me, my lord, that is the  35 approach you ought to adopt in this case.  36 THE COURT:  All right.  Thank you.  Well, I think that I will —  37 I think that I will hear the evidence subject to the  38 objection.  In a perfect world I would hope that  39 parties would confine their expert testimony to  40 persons whose objectivity is not open to question.  41 That may not always be possible.  And, indeed, it  42 might be a dangerous test to apply, because the person  43 who hides his bias is no more credible than the person  44 who makes it known.  The former may be more dangerous  45 than the latter.  But I do want to consider whether  46 bias and pre-disposition is a ground for  47 disqualification or is merely a matter that goes to 14226  1 weight, and as this is the first witness that I recall  2 this issue has been raised squarely I think the course  3 of wisdom is to hear the evidence and give the matter  4 some leisurely consideration and possibly ask counsel  5 for further argument if I -- if my own research or my  6 own further consideration doesn't lead me conclusively  7 or at all to the answer to the question the matter  8 raises.  9 I will hear the evidence subject to the objection,  10 and I will rule upon it at some other time, and I will  11 give counsel an opportunity to address further  12 arguments if I think it's necessary.  13 MR. GOLDIE:  My lord, I take it it's unnecessary for me to say  14 the exhibits I tendered were not for the truth of the  15 matter stated therein, but for the state of the  16 witness' mind.  17 THE COURT:  No, we are not playing checkers.  All right.  Thank  18 you.  19 MR. GOLDIE:  Or lack of it.  20 THE COURT:  Mr. Brody, take the witness stand again, please.  21 Thank you, Mr. Jackson.  22 MR. JACKSON:  Yes, my lord, I would like to mark — I omitted to  23 do so before, Mr. Brody's curriculum vitae as the next  24 exhibit.  25 THE COURT:  Shall we mark the book as the next exhibit and all  26 the items in it, as may be prudent, as tab numbers.  2 7 MR. JACKSON:  Yes, my lord.  28 THE COURT:  So the book will be exhibit —  29 THE REGISTRAR:  990.  30 THE COURT:  990.  Thank you.  And the curriculum vitae, no  31 objection to that, will be Exhibit 990-1.  32 THE REGISTRAR:  Thank you.  33  34 (EXHIBIT 990:  Document Book of Mr. Hugh Brody)  35  36 (EXHIBIT 990-1:  Curriculum Vitae of Hugh Brody)  37  38 EXAMINATION IN CHIEF BY MR. JACKSON:  39 Q   Mr. Brody, in dealing with your first field study in  40 anthropology, in social anthropology, you identified a  41 number of fronts upon which you moved methodlogically,  42 and I would like to just review those with you, and if  43 you could indicate whether or not those were fronts,  44 methodlogical approaches which you utilized in the  45 work you have done in preparation for your opinion  46 report.  47 The first front was participant observation.  Did 14227  1 you engage in participant observation in this case?  2 A   Yes.  3 Q   What was the nature of that participant observation?  4 A   I spent time with people in their homes visiting.  5 Participating in the ordinary round of everyday is  6 usually the most important part of participant  7 observation in any study.  I went with people on the  8 land when I could.  I went to public events and  9 occasions when I could.  On the whole, the balance of  10 participant observation in this work compared to other  11 work was less, and my family circumstances were such  12 that I was not in a position to do the kind of  13 participant observation I had done in other studies,  14 but whenever I could I did.  So, for example, I went  15 fishing with people, hunting with people, visiting  16 with people, and as I said, to public occasions  17 insofar as I could.  18 Q   Okay.  Work in or on the land?  19 A   Yes.  I worked whenever I could on what terms meant.  20 If I was hearing particular terms appearing very often  21 I would try and explore their meaning with informants.  22 I had done work on the Athabascan language in  23 northeast British Columbia, but not in a way which  24 allowed me any competence in the Wet'suwet'en  25 Athabascan language, and I was unfamiliar with  26 Gitksan, but I used when I could linguistic data with  27 the help of translators and informants in a very  2 8 conventional manner.  29 Q   The third approach, analysis of archival records?  30 A   Yes, I would say here it was a particularly important  31 part of my work.  I did a tremendous amount of  32 archival work, reading of relevant documents, and so  33 on, from all periods.  For example, the important  34 examples would be Hudson's Bay Company diaries that  35 were pertinent to the area, the Gitksan-Wet'suwet'en  36 area, the Barbeau Beynan archive, the immense  37 collection of interviews with Gitksan-Wet'suwet'en  38 people, especially for me in the 1920's.  The Lorring  39 papers, the documents generated by the Indian agent at  40 Hazelton 1889 to 1920, I think.  The transcripts of  41 the McKenna McBride Commission in 1915.  Both the  42 Babine Lake Agency hearings and the Stuart Lake Agency  43 hearings insofar as there is evidence to suggest the  44 Wet'suwet'en gave submission to the Stuart Lake agency  45 hearings.  There's the -- those are the ones that come  4 6 to mind.  47 Q   Did you also have regard to any -- well, let me leave 14228  1 that.  Interviewing, was that a technique you  2 employed?  3 A   Yes, I did a great deal of interviewing.  I did lots  4 of informal interviewing, conversations of the  5 ordinary anthropological kind in the course of  6 visiting and participating.  I did a series of  7 interviews in the Wet'suwet'en area that were, I  8 suppose, I don't know one can coin ridiculous, that  9 were semi formal.  I didn't go with a series of  10 questions, I went with an idea of an area of enquiry I  11 wanted to cover and I took notes of what people said.  12 And I did some rather more formal interviews  13 especially among Gitksan.  14 Q   Could you look at volume 1 of the document book before  15 you to tabs 25 to 35.  16 A   Yes.  17 Q   Mr. Brody, perhaps, I think I've misled you there.  18 Tab 35 should be the first one you should be directing  19 your mind to.  35 to 41.  20 A   Yes.  21 Q   Are those the semi formal interviews to which you're  22 referring?  23 A   Yes, these are they.  24 Q   And those are notes that you made.  Were they  25 originally handwritten?  26 A  What I did is I wrote in pencil I think at the time  27 and then transferred them the same day usually, or the  2 8 next day, onto computer whenever I could find time to  29 do it.  30 Q   And these are the only records you have of those  31 notes?  32 A   Yes.  These are the ones that I -- I wouldn't keep the  33 illegible pieces of paper.  34 Q   Were there any other forms of interviews which you  35 conducted?  36 A  Well, there's the informal ones that I mentioned, and  37 then there's interviews for the film which were  38 actually very important for me.  39 Q   And could you turn to tabs 2 to 24?  40 A   Yes.  41 Q   And could you identify those as the film interviews as  42 you have called them?  43 A   Yes, these are they.  44 Q   Mr. —  45 MR. GOLDIE:  Including 24?  4 6 THE COURT:  Yes.  4 7 MR. JACKSON:  Yes, two to 24. 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15 THE  16 MR.  17 THE  18  19  2 0 THE  21  22  23  24  25  26  27  28  2 9 THE  30  31  32 THE  33  34  35  36  37  38  3 9 MR.  40  41  42  43  44  45  46  47  THE  MR.  14229  Q   Also could you refer to tab 42?  A   I must apologize in passing for the quality of the  transcription of the film interviews.  They were  transcribed by somebody who had no experience at all  with Gitksan and Wet'suwet'en terms.  As everyone  knows that presents formidable difficulities and gaps  all over the place, the typist's inability to cope  with names and people and places on the tapes.  Q   Tab 42 there's an interview with Johnny David at  Barrett Farm?  A   Yes.  Q   Should that be one of the film interviews?  A   Oh, yes, it should.  This is --  Q   That's my error, my lord.  COURT:  That's 42.  JACKSON:  I mischaracterized it and therefore mistabbed it.  COURT:  I take it that INT in the other ones means  interpreter, does it, and TRANS would mean translator?  A   On my notes?  What are you looking, my lord?  COURT:  If you go back to tab 2 -- no, I'm sorry.  You go to  36 to 41 I see INT.  A   36 to 41.  Yes, interpreter,  yes .  COURT:  And then on this one, 42,  does that mean?  A   Yes, that means translator.  GOLDIE:  Maybe the witness can be of further assistance, is  A.J. Mr. Alfred Joseph?  COURT:  I assume that.  A   Usually, yes.  I think -- I can't imagine it would be  anybody else.  COURT:  The question is who is the interviewer on tab 42?  A   The interviewer unless otherwise stated is myself.  When no transcription exists of what the interviewer  said it's because the voice didn't get recorded on the  tape.  Very often we're using a microphone for  interviewing the interviewee and the sound recorder  would only be picking up what the interviewee says.  JACKSON:  Q   If you turn to tab 2, Mr. Brody, which is the  interview with Marvin George.  A   Yes.  Q   On page 3 of that interview --  A   Yes.  Q -- There is a heading "207 Front Board". Could you  just explain for the benefit of the rest of us what  that means?  INT means interpreter,  Victor Jim, TRANS, what  Minor inconsistency. 14230  1 A  When you're interviewing on camera you have to ensure  2 that the sound and the picture are synchronized and  3 this is done by marking with a clapper board so that  4 sound picks up the bang and the picture picks up the  5 image of the top of the board meeting the bottom and  6 then the editing team can synchronize the sound of the  7 picture using the boards because the boards are always  8 numbered.  So the front board means -- 207 front board  9 means the 207th time a board was used to mark a  10 synchronized piece of filming, and front means that  11 the mark was done at the beginning of the shot when  12 the camera started running as compared with end board  13 when the camera stops running.  14 Q   Now, these interviews, are they edited beyond?  As  15 you've explained, the microphone may not have picked  16 up the words, but were they subject to any process of  17 editing after the recording was done?  18 A   No.  The transcribers transcribe every word they hear  19 on the tape.  20 Q   Okay.  If you could turn to tab 24.  21 A   I should explain in answer to that last question that  22 the reason one finds things like 207 front board on  23 the transcription is that the sound recordist or  24 assistant is calling out the marking so those  25 instructions are on the tapes and find their way into  26 the transcript.  27 Q   Tab 24.  Could you identify what that document refers  28 to?  It does not seem to be similar to the other  29 interviews.  Is that in fact an interview or is that  30 notes you have made?  31 A   This is a transcription of an interview done at  32 Kisgegas with Neil Sterritt, I'm sure.  I'm surprised  33 it's not identified.  I don't know how I could have  34 slipped through and identified him.  It must have been  35 with a bunch of other interviews I had seen.  Probably  36 perhaps with a group of interviews with Neil Sterritt.  37 I think it's Neil Sterritt, but I could find out  38 overnight, so to speak.  39 Q   Is it in fact a film interview or is it in fact one of  4 0 your semi formal interviews?  41 A   I think it's a film interview.  42 Q   While we are in the tabs, Mr. Brody, perhaps you could  43 turn to tab 29 and tab 30.  Now, tab 29 -- does your  44 lordship have that?  4 5 THE COURT:  Yes.  4 6 MR. JACKSON:  47 Q   Is heading A The Wet'suwet'en System, and tab 30 is a 14231  1 diagram.  Could you identify what tab 30 heading is?  2 A   The Indian Economy 1909.  3 Q   And the document on the second page of that tab?  4 A   1820 to Circa 1950 Seasonal Round Wet'suwet'en.  5 Q   Now, those documents, to what period of your work  6 would they relate?  7 A   This is 1983 work.  This is the work that I did first  8 in the area, the first formal work I did in the area.  9 And these -- this is my attempt to try and come to at  10 least a first understanding of the Wet'suwet'en place  11 in the scheme of things, and to describe the seasonal  12 round of the Wet'suwet'en economy.  So the diagram,  13 for example, at tab 30, the second item of tab 30 is a  14 cumulative thing.  This would be the result of a  15 series of interviews of things which I gradually put  16 together, different sort of snipits of information  17 about where people were at different times of the  18 year, how they moved from place to place, who moved,  19 why they moved.  20 Q   Returning to your methodology, the next front which  21 you indicated in your Inishkillane work was the  22 reading of anthropological writings about the same or  23 analogous areas.  Was that part of your research in  24 this case?  25 A   Yes, very important here because northwest coast  26 literature is very extensive.  I had a great deal of  27 ethnographic background work to do, and I was  28 particularly concerned with theories of northwest  29 coast culture and, of course, I did that kind of  30 reading.  So, yes, it was quite an important part of  31 this work.  32 Q   And the next front is anthropological theory.  33 A   I think I just covered that in my last question.  Yes,  34 the theory is important, especially for northwest  35 coast culture.  There is a great deal of theory of  36 questions of how northwest coast culture is placed in  37 relation to hunting and gathering societies, so  38 there's a lot of reading work to be done there.  39 Q   And the last front was related writing from other --  40 relevant writing from other related disciplines.  Was  41 that part of your methodology?  42 A   Yes.  I think I said this morning that there's always  43 the problem for anthropologists of having to acquire  44 pseudo expertise in related areas.  In northwest B.C.  45 an understanding of anadromous fish, the salmon  46 species, a basic biology of the river systems, an  47 understanding of the mammals, a sense of climate 14232  1 change it seems sometimes to be relevant especially to  2 the literature in the area, and so on.  Archeology is  3 very important again in northwest coast and  4 Gitksan-Wet'suwet'en country archeological  5 information.  6 Q   And your work in this area, did it, as in  7 Inishkillane, move on all fronts?  8 A   Yes.  And there's one front we haven't mentioned in  9 relation to Gitksan-Wet'suwet'en, and that is the oral  10 history.  In the Inishkillane work in a way the  11 equivalent of the oral history was the voluminous  12 Irish literature that pertained to who had arisen from  13 peasant society in Ireland.  And in  14 Gitksan-Wet'suwet'en culture an equivalent for that is  15 the stories people tell.  It is a very strong oral  16 culture, and at the more formal of the oral history  17 there is, of course, the adaawk.  18 Q   And in the course of your research did you read the  19 adaawk?  20 A   I read —  21 Q   Some of the adaawk?  22 A   I read some adaawk and some kungax from the  23 Wet'suwet'en equivalent.  24 Q   And if you could turn again to the document book at  25 tabs 44 to tab 60 there are set out a list of selected  26 adaawk.  Were those some of the adaawk which you read  27 and took into account as part of the general data base  28 for your opinion in this matter?  29 A   These seem to be the adaawk from the Barbeau Beynan  30 collection of adaawk, and I read many of those far  31 more than is in here, but I also had the opportunity  32 to collect some of my own bits of the adaawk in my own  33 interview.  So, for example, Antgulilibix, Mary  34 Johnson, gave me on two occasions a large part of her  35 adaawk.  Gyolugyet, Mary Mackenzie, when I interviewed  36 her offered part of the adaawk.  And in general when  37 talking especially to the older chiefs it's so  38 important to them to establish the basis on which they  39 speak that they will in the course of even an ordinary  40 interview with an outsider like myself provide some  41 part of their adaawk to establish their name, their  42 house, their crest, some aspect of their history and  43 territory.  So there are adaawk I relied on that go  44 beyond the ones included here.  45 MR. JACKSON:  My lord, I would like to hand up two copies of Mr.  46 Brody's opinion evidence.  Your lordship may be  47 comforted by the fact that it is a mere shadow of Dr. 14233  1 Daly's report.  2 THE COURT:  Yes.  3 MR. JACKSON:  But nevertheless discomforted by the fact that it  4 is 200 pages.  5 MR. GOLDIE:  Well, I'll give some further comfort to your  6 lordship.  I'm objecting to it being marked as a  7 report.  8 MS. KOENIGSBERG:  I don't know if it will be of any comfort at  9 all to ask your lordship when it would be convenient  10 to hear the argument on relevance.  I would object to  11 its marking as well, but it may be an overlap with the  12 submissions I would like to make to your lordship with  13 regard to the extent that it is repetitive of both  14 evidence given by chiefs, but in particular evidence  15 given by other experts, in my submission, and we  16 shouldn't be listening to it again.  17 THE COURT:  All right.  Well, what is your plan, Mr. Jackson,  18 are you going to dive into the report now?  19 MR. JACKSON:  That was my intention, my lord.  20 THE COURT:  Yes.  Well, this must be the only appropriate time  21 then to hear the objection then, is it?  22 MR. JACKSON:  I expect that is appropriate, my lord, although  23 having heard the objections -- of course, depending  24 upon their nature, and my friends have given me some  25 indication of the nature of those objections, it will  26 be my submission that the way to deal with those  27 objections is to -- in the way you dealt with the  28 objections which in some matters were similar in  29 relation to Dr. Daly's and Dr. Mills' report, which is  30 to hear the evidence subject to the objections, the  31 same way as you have dealt with the matter of Mr.  32 Brody's question of bias in relation to qualifications  33 so that in fact we can use the time in the most  34 expeditious way while preserving the position of my  35 friends.  36 THE COURT:  It may come to that, but I suppose I should hear  37 what your friends' objections are.  Who's going to go  38 first?  39 MS. KOENIGSBERG:  My lord, my objection to the marking of this  40 will be confined to -- essentially to an argument on  41 relevance and it goes over into repetition.  For  42 convenience I would hand up a summary as my colleague  43 Mr. Macaulay did with regard to Mr. Morrell.  And all  44 this is is -- these are quotes in almost all cases  45 with a page number, and they run to almost ten pages,  46 and that is for the purpose of demonstrating what I  47 will be submitting to your lordship is the problem 14234  1 with the report.  2 It is our submission that essentially there is  3 nothing new in Mr. Brody's report, and that it  4 contains massive amounts of argument and speculation,  5 and that it is so interspersed throughout the entire  6 report that the report ought not to go in.  And I'll  7 just go through some of these opinions to illustrate.  8 Even skipping down to page seven, number four, Mr.  9 Brody's opinion is:  10  11 "Nonetheless the jurisdictional approach  12 raises certain difficulties.  It means we  13 must gain access to elusive cultural  14 elements - the insides, so to speak, of  15 people's minds.  It follows that we stand in  16 need of knowledge and insights that cannot  17 be represented on maps and that can require  18 an immense imaginative effort to grasp."  19  2 0 On down to page ten.  21 THE COURT:  Stopping there, what's your objection to that?  22 MS. KOENIGSBERG:  It is an introduction to what I would  23 characterize as a speculative endeavour, and it  24 certainly is argument.  It is the kind of conclusory  25 statement that counsel might make.  26 THE COURT:  Well, I've told lots of juries to look into the mind  27 of the accused at the time he fired the shot and  28 decide for yourself whether he really meant to kill  29 the person or whether he meant to frighten him off.  I  30 tell people all the time to look into people's minds  31 and decide what they intended to do.  What's the  32 difference between that and this?  33 MS. KOENIGSBERG:  My lord, if the only problem we had to face  34 was to ask the jury to look into the minds I don't  35 know that we would require an expert to help us.  36 That's another problem.  In my submission, what is  37 pervasive throughout Mr. Brody's report is that he is  38 on the historical end -- and we can cover some of  39 those.  On the historical end of things he is  40 interpreting for your lordship what is meant by things  41 that are in the McKenna McBride transcript, what is  42 meant by Mr. Lorring in his letters, what is meant --  43 he interprets and reviews commission evidence given  44 and tells us what people must have meant because it  45 wasn't what they said, and so on.  And, in my  46 submission, he usurps your function.  47 And we are dealing, at least when we are dealing 14235  1 with just taking aside the part of his report which  2 deals with white settlers views and world views, when  3 I asked Mr. Brody the question about the studies he  4 had done, and I think he essentially qualified himself  5 to give us an opinion about white people and their  6 attitudes and their world views, because he is one.  7 And, in my submission, if that's the qualification  8 that's required, and I don't know that I quarrel with  9 him, your lordship is in as good a position as Mr.  10 Brody.  Certainly it is the function, in my  11 submission, of the court to interpret the documents of  12 that historical record.  You may require context,  13 which are other documents, but in my submission you  14 don't require assistance in understanding what the  15 words mean given the kinds of aids that a court  16 usually has available.  In my submission, that is one  17 very, very big part of Mr. Brody's report.  It is, in  18 my submission, a polemic, and I think that can be  19 demonstrated by looking at many of these quotes, and  2 0 they are numerous.  And I could have doubled the  21 number.  22 The page ten, number seven:  23  24 "The heart of the endeavor here is to  25 recognize and then break free from  26 Euro-Canadian ethnocentricity."  27  28 Over onto the next page.  Page 11:  29  30 "Their joint or paired jurisdictions" --  31  32 Referring to the Gitksan-Wet'suwet'en.  33  34 "...therefore operate according to groupings  35 and laws that are at times highly visible,  36 as at the feast, and at time elusive, as in  37 vital connections between the human and  38 spirit worlds.  The combination of the two  39 systems into a body of law and an  40 arrangement of territories governed by these  41 laws is a balance of parallel excellence -  42 both from jurisdictional and economic points  43 of view."  44  45 On down to page 19.  46  47 "Properly told, an adaawk history is full of 14236  1 detail, precisely related little facts.  By  2 providing elaborate detail, a chief is  3 attempting to leave his witnesses free to  4 come to their own conclusions.  The detail  5 is, as it were, inductive and value free..."  6  7 Page 22.  8  9 "...if one culture refuses to recognize  10 another's facts in the other culture's  11 terms, then the very possibility of dialogue  12 between the two is drastically undermined."  13  14 Page 26, the very next one down.  15  16 "It is difficult for White people, even  17 those who have lived all their lives in the  18 area, to see the ways in which Gitksan and  19 Wet'suwet'en jurisdiction has continued."  20  21 Page 26.  22  23 The invisibility to outsiders of Gitksan and  24 Wet'suwet'en jurisdiction has, as its  25 historical counterpart, the piecemeal and  26 limited nature of the white man's  27 jurisdiction."  28  2 9 Next quote.  30  31 "Without even knowing it, they (whites) were  32 often also receiving forms of Gitksan and  33 Wet'suwet'en permission to travel within or  34 across specified territories."  35  36 Page 27.  37  38 "By the end of the nineteenth-century Indian  39 economic life had entered into something of  40 a partnership with many of the whites who  41 had established themselves on the frontier.  42 But all whites continued to be dependent on  43 Indians."  44  45 Page 41.  46  47 "But William Charlie" — 14237  1 This is related to Bear Lake.  2  3 "But William Charlie, William George and  4 Tommy Patrick - much of whose hunting,  5 trapping and fishing are done at Bear Lake,  6 and who recognize many links with Kisgegas  7 and Gitanmaax.  Gitksan are residents of  8 villages within Carrier-Sekani country.  As  9 such, their management of resources at Bear  10 Lake tends to confirm Miluulak, Nii Kyap and  11 Wii Gaak maintenance of Gitksan  12 jurisdiction."  13  14 Next paragraph.  15  16 "With this move, the boundary dispute, at  17 least from the visiting Gitksan elder's  18 point of view could be resolved.  Gitksan  19 jurisdiction and the Bear Lake peoples use  20 of this area had been joined.  The tension  21 that had been building in the past few days  22 was diffused."  23  24 Next paragraph.  25  26 " of authority, or jurisdictional  27 arrangements, are relatively visible at the  28 sedentary end, but invisible to any but the  29 most penetrating eyes at the nomadic end."  30  31 Next paragraph.  32  33 "These moves occurred long ago, perhaps as  34 much as 3000 years B.P., but the adaawk in  35 which they are recorded has existed ever  36 since."  37  38 Next down to page 57.  39  40 "And conflict can lead to adjustments in  41 house territories.  Thus the systems  42 carefully defines, redefines when occasion  43 arises, and enforces specific localities for  44 exclusive use of particular houses and  45 clans.  Management of this system means that  46 ownership is precise yet liable to change.  47 Here is a combination of forces that act to 14238  1 maintain a remarkable blend of sedentism and  2 mobility."  3  4 Then the next quote on that page.  5  6 "Authority and power pertain to the  7 practical world of economics and to the  8 spiritual world that influences all events.  9 In Gitksan cosmology no distinction is made  10 between the practical and the spirtual, the  11 secular and the sacred.  Gitksan view of the  12 world is in this way holistic."  13  14 At 67.  15  16 "The encounter between native culture and  17 frontier whites may be said to constitute a  18 meeting of culture and anti-culture."  19  2 0 THE COURT:  Well, what's wrong with that?  21 MS. KOENIGSBERG:  Well, in my submission, that doesn't even  22 quite make it to argument.  I would call it rhetoric.  23 THE COURT:  If that is a conclusion a researcher has reached it  24 may not reach or achieve universal acceptability, but  25 is there anything in there that would prevent me from  26 hearing it as being this researcher's conclusion?  27 MS. KOENIGSBERG:  Well, I would put it this way, my lord, I  28 would submit it is speculation and argument, and I  29 have no doubt it is his conclusion and his opinion,  30 but of what possible benefit could it be to the trier  31 of fact in this case?  32 THE COURT:  Well, not much, because I concluded long ago there  33 are at least two solitudes written in this equation.  34 Is there anything different between that and the  35 famous two solitudes that we talked about in the other  36 part of the country?  37 MS. KOENIGSBERG:  My lord, if lightly interspersed in an  38 expert's report the purport of which, and what in fact  39 does give your lordship evidence and facts which are  40 not otherwise available to you, if there happen to be  41 a few embellishments of or arguments then I think the  42 practice has been that it goes in.  But, in my  43 submission, there's very little else in Mr. Brody's  44 report.  It is a bringing together of a number of  45 factors, and I don't wish to do it any diservice in  46 its breadth, but I think it is essentially looking at  47 the Gitksan-Wet'suwet'en culture and its institution 14239  1 and the way it has met, I think as he put it, the  2 Euro-Canadian culture and what happened, and his  3 explanation of the evidence.  It is not giving you the  4 evidence.  In my submission it is his explanation of  5 the evidence.   His interpretation.  And I, in my  6 submission --  7 THE COURT:  Is that not what experts are supposed to do is --  8 MS. KOENIGSBERG:  In my submission, not unless your lordship  9 because of its technical nature or its complexity is  10 something you can't interpret yourself.  11 THE COURT:  You say I can't interpret it, the facts upon which  12 these opinions are given?  13 MS. KOENIGSBERG:  In my submission in Exhibit 1 you've been  14 given a great deal of help in that regard, in which we  15 have Dr. Daly's report deals with a great deal of Mr.  16 Brody's.  That is they cover exactly the same areas.  17 I would be able to find page after page after page in  18 which you have exactly the same evidence.  The same  19 would be true for the Wet'suwet'en from Dr. Mills.  20 You certainly have heard about the mixed economy, you  21 certainly have heard about the Wet'suwet'en culture  22 and its institutions, and the Gitksan culture and its  23 institutions, and the affect of white settlement, et  24 cetera, et cetera.  Those things are covered by Mr.  25 Brody's.  And, in my submission, if you needed help  26 before with those you received that help.  Now, do you  27 require further help in having another expert come  28 before you to reiterate much of that and then give you  29 his interpretations of what people really meant when  30 they said something?  31 THE COURT:  I'm afraid I'm going to have to adjourn, Ms.  32 Koenigsberg.  I'll be glad to hear the balance of your  33 submissions in the morning.  34 MS. KOENIGSBERG:  Thank you, my lord.  35 THE COURT:  All right.  Ten o'clock.  36 THE REGISTRAR:  Order in court.  This court will adjourn until  37 10:00 a.m..  38  39    (PROCEEDINGS ADJOURNED TO APRIL 11th, 1989 AT 10:00 a.m.)  40  41 I hereby certify the foregoing to be  42 a true and accurate transcript of the  43 proceedings herein to the best of my  44 skill and ability.  45  46 Peri McHale, Official Reporter  47 UNITED REPORTING SERVICE LTD.


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