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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-02-22] British Columbia. Supreme Court Feb 22, 1989

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 11980  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 22 February 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia; Vancouver, this Wednesday, February 22,  6 1989.  Calling Delgamuukw versus Her Majesty the  7 Queen.  I caution the witness you are still under  8 oath.  9 THE COURT:  Mr. Grant.  10 MR. GRANT:  Thank you, my lord.  Dr. Daly, I'd like to refer you  11 to page 164 of your report.  I believe that's where we  12 left off yesterday.  13    THE COURT  14 MR. GRANT  15 THE COURT  I'm sorry, page  9  164, my lord.  Thank you.  16  17 EXAMINATION IN CHIEF BY MR. GRANT:   (Continued)  18 Q   You have it?  19 A   Yes, I do.  20 Q   And that middle paragraph there I referred you to  21 yesterday, you have indicated the documentary evidence  22 of the nineteenth century which you were referred to,  23 and then you say:  24  25 " well as upon comparative understanding  26 of other, similar cultures 'discovered' by  27 Europeans in the past two centuries."  28  29 What other cultures were you referring to that you  30 would compare to -- give a comparative understanding  31 with?  32 A  Well, in my training, a lot of the work was in Africa.  33 Q   Yes.  34 A   The relations between the European powers and the Gold  35 Coast, for example, the Akan states, A-k-a-n, which is  36 matrilineal society.  37 THE COURT:  A-k-a-i-n?  38 THE WITNESS:  A-k-a-n.  3 9 THE COURT:  Thank you.  40 THE WITNESS:  The Ashanti Kingdom is one of the members of the  41 Akan-speaking groups, A-s-h-a-n-t-i.  And they had  42 quite a highly developed and enunciated system of  43 ownership.  That was one example that came out of my  44 training.  And the whole region of Central Africa  45 where Clyde Mitchell and Gluckman had focused their  46 work dealt with questions of ownership and how it came  47 into the before -- when it was confronted by the 11981  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 colonial experience.  2 MR. GRANT:  3 Q   Could you just pause.  The Akan states, were they --  4 what kind of societies are they considered --  5 A   They are a tribal society, tending toward the chiefdom  6 end of the spectrum in terms of their tribe.  They are  7 matrilineal; they are a slash-and-burn agricultural  8 society, and they are also in a middle belt  9 ecologically between an interior plane and the coastal  10 trading area.  11 Q   Is that analogous to --  12 A   It is quite analogous to the peoples I have studied,  13 the Iroquois and the Gitksan and Wet'suwet'en, sort of  14 intermediary position.  15 Q   What other cultures did you refer to -- are you  16 referring to when you base this opinion on comparative  17 understanding of other cultures?  18 A  Well, my understanding of property relations in the  19 context societies in Eastern Canada and the United  20 States which I had certain amount of work to do with  21 in relation to my thesis and historical research with  22 heritage Ontario.  That includes the Iroquios and the  23 Huron particularly, and the surrounding hunting bands,  24 Algonkian-speaking hunting bands.  A-1-g-o-n-k-i-a-n.  25 Q   Okay.  Any other societies which you'd like to  26 refer -- to which you referred to in this comparative  27 understanding?  28 A  Well, when I was studying economic and anthropology at  29 London School of Economics, most of the examples were  30 from Melanesia and Polynesia.  31 Q   And did you examine the concepts of ownership with  32 respect to those societies?  33 A   Yes.  That's part of the overall ethnographic  34 comparative work that one does in the course of one's  35 training in the field, I mean the field of  36 anthropology as opposed to field work.  37 Q   Have you studied any -- did you rely on any of the  38 work with respect to Central or Latin American groups?  39 A   I did in the course of working as a teaching  40 assistant.  41 Q   Okay.  In terms, I am talking about, in this concept?  42 A   The responsive of people such as, for example, the  43 Inca state, there was different types of ownership in  44 the Inca state which responded in different ways to  45 the conquest by Spain in the fifteen hundreds.  46 Q   And did you, in your training, have any familiarity  47 with other Northwest Coast cultures that you used in 11982  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 this comparative analysis other than the Gitksan and  2 the Wet'suwet'en?  3 A  Well, when I was at the ROM, we relied quite a lot on  4 the works of Barbeau, Boas, and general overviews of  5 the history of the aboriginal peoples, such as the  6 collection of descriptions of native society at the  7 point of contact by explorers and traders that was  8 collected by Erna Gunther, and Phillip Drucker's works  9 were like a handbook and the driver's comparative work  10 on the tribes and bands of North America.  11 Q   Okay.  And when you refer here in this statement to  12 comparative understanding of other similar cultures,  13 these are the cultures that you were referring to?  14 A   Yes.  15 Q   You also say at the end of that paragraph that this is  16 based on your understanding of present day Gitksan and  17 Wet'suwet'en kinship society and oral culture, as  18 explained in the previous chapters.  Do you also mean  19 in the subsequent chapters?  20 A   Yes.  21 Q   This being the early part of chapter 3 of your report.  22 Now, going to page 165 of your report, you refer  23 to the concept of ownership and set out that it  24 includes the following aspects:  Firstly, you say at  25 the bottom of 165 that ownership -- and this is  26 ownership at any culture?  27 A  Mm-hmm.  28 Q   And this is in terms of explaining in anthropological  29 terms what is meant by ownership?  30 A   I was seeking to find some common ground for purposes  31 of explanation, as anthropologists have a certain  32 understanding of what they mean by ownership, and I  33 know the legal profession does, and I thought that the  34 encyclopedia would be a general public view of -- a  35 general presentation of the whole subject in a -- with  36 a common denominator that perhaps would apply to  37 everybody.  38 Q   Okay.  Now, you say at the bottom of that page 165  39 that ownership implies the concept of exclusive  40 possession.  Now, what do you mean by exclusive  41 possession?  42 A   I mean that the persons or the groups that own  43 property have the right to enjoy it and use it to the  44 full extent of the laws of their society and they  45 have -- the laws of their society back up their  46 demands that others do not use that property without  47 their consent. 11983  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT  2  3  MR.  WILLM  4  5  6  7  THE  COURT  8  MR.  GRANT  9  THE  COURT  10  11  MR.  GRANT  12  13  14  15  16  17  18  19  20  THE  COURT  21  22  MR.  GRANT  23  THE  COURT  24  25  26  MR.  GRANT  27  28  29  30  THE  COURT  31  MR.  GRANT  32  33  34  35  36  37  THE  COURT  38  MR.  GRANT  39  THE  COURT  40  MR.  GRANT  41  42  43  44  45  46  47  And applying this to the Wet'suwet'en or to the  Gitksan, how would you explain that term?  :  My lord, I object.  There is no foundation for that  opinion at this point in the evidence and I object to  that opinion being asked unless my friend lays the  factual foundation for it.  Isn't this exactly what he told us yesterday?  In terms of the --  It seems to me I've heard that expression the other  day now.  He has given his opinion, yes.  He's given the  opinion on page 164, and it says with the aboriginal  people, he's described it.  Now, what he is -- he is  setting out here is a number of features of what he  means by ownership, my lord.  I have very little  difficulty with pausing because the balance of this  section of his report deals with how it applies to the  Gitksan and dealing with it at the applicability of  this to the Gitksan would be my only point.  Well, Mr. Grant, why should I be troubled with  Gitksan concepts of ownership?  Well —  I have to decide this case according to the law of  British Columbia, do I not? I can't apply any other  system.  The law of British Columbia that you will be  applying will be the law -- will include the law of --  the common law recognition of aboriginal title and the  question --  Surely, that's a legal question, though, is it not?  The common law issue of aboriginal title is a legal  question, but when you determine in the scope of this  case, and what will be sought is the scope and content  of aboriginal title with respect to the Gitksan and to  the Wet'suwet'en following the principle established  in Kruger and Manuel, it is --  Kruger and Manuel was a very narrow case, wasn't it?  Yes.  Shooting a moose out of season or something.  But what Justice Dickson, and it has been reiterated  of course in this -- in the Court of Appeal and in  other cases is that in any -- what Justice Dickson  said in Kruger and Manuel, you have to -- in dealing  with questions of title, you must deal with each band  and with its system, including its laws and all the  components of that particular band or organization you  are dealing with as to the issue of aboriginal title, 11984  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  and he said it is agreed by all parties that that's  not being dealt with here.  And I agree that that is  dicta but it is dicta that's being applied by the  Court of Appeal in the Meares Island case and in  subsequent cases both in this court and in the Court  of Appeal, it is very -- and I believe in Guerin it is  referred to as well as to what the court must look at  with respect to the content of aboriginal title, and  of course here you are asking -- you are being asked  to make a declaration of the rights of the Gitksan and  Wet'suwet'en, their aboriginal rights, those rights  including concept of ownership and jurisdiction.  :  Surely the rights, if I may, spring from the nature  of the use of the land.  Surely they don't spring from  the subjective beliefs of the claimants, do they?  :  They don't spring from the subjective beliefs of the  claimants but with respect, my lord, I don't think  they solely spring from the quote what you said the  use of the land.  :  I may have put it narrowly.  :  Because what they spring from is, I think, as  Judson, and I am paraphrasing here because I can't  recall it, but as Judson says, the people were here,  they were occupying the territories at the time of  contact.  Now, the question is, when you are dealing  now with these two nation groups, the Gitksan and  Wet'suwet'en, what is the aboriginal title of these  people in its fullness that is recognized if you make  a finding of aboriginal title to the territory, what  does that mean for the Gitksan and Wet'suwet'en?  And  I submit it means something significantly different  than possibly with Inuit as found by Mr. Justice  Mahoney in Baker Lake or with any other group where  there is a finding.  And of course that's why this  body of evidence has been produced to you.  Now, the  component -- in fact, the aboriginal title includes a  claim of Gitksan and Wet'suwet'en jurisdiction or  authority over their territory.  Now, that authority  over their territory has to be founded on a system.  The question is, do the Gitksan and the Wet'suwet'en  have a system of ownership within their system, and  that's relevant for you to find to have evidence of  that to determine if their system -- the scope of the  aboriginal title that existed at the time the  Europeans arrived and, therefore, then making the  subsequent findings subject of course to the findings  with respect to the certain defences of 11985  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 extinguishment, et cetera.  2 THE COURT:  Well, Mr. Willms, what is the specific objection  3 that you are making at the moment?  4 MR. WILLMS:  The specific objection, my lord, is that if the  5 witness is going to -- yesterday the witness gave  6 evidence about Wet'suwet'en, everybody's related to  7 everybody else and so they hunt on all the other  8 kinship and all of that.  Now, if that's the  9 evidence -- if those are the facts that this opinion  10 is based on, then it is a simple matter for the  11 witness to say that.  If there is something else that  12 the witness is basing this opinion on for the  13 Wet'suwet'en, in my submission it should be stated so  14 that we know what the facts are.  I mean, we know what  15 he said yesterday.  If that's all, that's fine; then  16 we can deal with that.  If there is something more,  17 that evidence should be led before the opinion is  18 asked so that there is a foundation for the opinion.  19 So that if I can put it it this way, my lord, so  20 that what we have is expert opinion, not just the  21 opinion of an expert.  22 THE COURT:  Well, these concepts are almost impossible to come  23 to any kind of grips with.  I am inclined to think  24 that, that is so often the case, that there is  25 something to be said for both of the points that have  26 been advanced.  I haven't heard from Ms. Koenigsberg  27 on this, perhaps I should do so before I stray any  28 further.  2 9    MS. KOENIGSBERG:  Well, I won't presume to add my two cents to  30 the problem of what ownership has to do with this  31 case.  However, I do have difficulties looking at the  32 next several pages of the report, and Mr. Grant's  33 eliciting the opinion, but I have the same difficulty  34 Mr. Willms does.  What is the foundation for the  35 opinion?  Now, we've been told that there is this  36 available documentary evidence and we have heard  37 something about that.  And we have -- I take it that  38 we are launching into something having to do with the  39 present day Gitksan/Wet'suwet'en kinship society; we  40 heard about that.  It would be extremely helpful, I  41 think quite frankly for your lordship, though I don't  42 presume to know if your lordship is able to follow  43 this, but I am having great difficulty following, when  44 we have an opinion, what it is that exactly is being  45 relied on in support of the opinion, and it would be  46 very helpful if it were set out by Mr. Grant in the  47 normal course of leading expert evidence because, in 11986  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 particular, these concepts are very strongly mixed up.  2 Are we dealing with subjective beliefs?  Are the  3 subjective beliefs part of what Mr. Daly says is his  4 opinion about the system?  That may be so.  Is it also  5 something else?  And then we can have an elaboration  6 of what it is.  But I don't know if I have helped any  7 but I am certainly having the same difficulty as Mr.  8 Willms.  9 THE COURT:  Well, it is more than two cents' worth anyway.  10 MS. KOENIGSBERG:  Thank you, my lord.  11 THE COURT:  Mr. Grant, I am disposed to accede to your friend's  12 objection and to say to you that I think you have to  13 establish the basis for the opinions the witness is  14 going to express.  I am not going to go so far as to  15 say that you have to resort to the hypothetical  16 question because in something as diffuse as this is,  17 we would never get all the factors properly stated.  18 And as an old defence counsel and in criminal work it  19 was always good tactics to let your friend state the  20 hypothetical question and then object at the last one  21 and ask him to repeat it and right before you do it,  22 the jury never understands what the hypotheticals  23 were, and understand what the people were doing.  And  24 I don't think you should get into hypothetical  25 questions or be forced to, but I think you do have to  26 have the witness indicate, before expressing opinion,  27 what it is that the -- what the opinion is that he's  28 reached on the basis of the information you have  29 adduced or he can refer in part to the report or  30 something, but I think we have to have something a  31 little more than just the opinion.  32 I am disposed to agree with you on the question of  33 the aboriginal rights question.  I think that whatever  34 the aboriginal rights are, they spring in part from  35 the social order as well as the occupation, and a  36 system of laws might, which seem to me be part of a  37 social order, that could form the basis for an  38 aboriginal right or an amalgam of aboriginal rights  39 and for that reason, I am not seeking in the ruling I  40 have just made to restrict you from adducing from the  41 witness what conclusions he has reached about what the  42 laws or social rules of the Gitksan and Wet'suwet'en  43 were.  I am not sure that that advances this very far  44 and it may move us several steps backwards, but I  45 think on that basis you will have to proceed with it  4 6 that way.  47    MR. GRANT:  If I may just have a moment, my lord. 11987  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GRANT:  Q  Yes.  I will go back, Dr. Daly, to page 165 at the bottom.  That -- first you provide the quote from the  Encyclopedia Britannica as to an explanation of what  property is and we have set out that quote?  A   Yes.  Q   Then you state:  "A broad explanation of ownership in any culture  would include the following aspects."  And that's -- I would like to ask you -- and then you  list a series of aspects.  And why do you say that a  broad explanation of ownership in any culture would  include these aspects?  A   Because that's what I have learned in my training,  that's what the chiefs have told me in this case, and  that's what they have told the court in their  transcripts.  That's what I found from my evidence and  my interviews from living in the community.  Q   Okay.  A   These are the features which were meaningful to me and  they are consistent with the systems of land tenure  and land holding and exchange of rights concerning  land in other societies.  Q   And would you refer there, for example, to the  societies that you have just described that you have  studied in your training?  A   Yes.  Q   Okay.  Now --  A  And that's -- that's true of all my opinion, that it's  based on my experience; it is based on my training as  an anthropologist in comparative studies, and first  and foremost, it is based on what the chiefs have said  in evidence and what they have told me and what I have  experienced of their society in the Gitksan and  Wet'suwet'en territories.  Q   Now, you had described yesterday tribal cultures,  tribal societies, and our society, that is Canadian  society, be known as a state society in this spectrum;  is that right?  A   Yes.  Q   Would these concepts of ownership apply in a state  society as well as a tribal society?  A   Yes, yes, they would.  Q   Now, you state that: 119?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2 "Ownership applies to concept of exclusive  3 possession.  Implicit in this aspect is the  4 delineation of boundaries; that is, social  5 recognition of the physical limits of the property  6 over which ownership is claimed.  While exclusive  7 possession is a dominant feature of ownership it  8 does not preclude the existence of defined areas  9 over which there are common or joint use rights."  10  11 Now, with respect to that statement about  12 exclusive possession, are you still talking here in  13 general concepts about what ownership in any culture  14 implies?  15 A   Cross culturally, yes.  16 Q   Cross culturally.  Now, why do you say that:  17  18 "While exclusive possession is a dominant feature  19 of ownership it does not preclude the existence of  20 defined areas over which there are common or joint  21 use rights."  22  23 I am talking here about cross culturally?  24 A  Well, in societies which are commonly organized  25 according to principles of a band, the use and control  26 of the territory is very subtle.  It is not engraved  27 in stone, and yet there is a system -- a recognized  28 system within the society.  The actual boundary line  29 is generally a matter of fuzziness in the sense that  30 the focusing by one group of its boundary with the  31 next group is probably from the centre of the  32 resources that are exploited on that territory most  33 consistently.  For example, among the !Kung bushmen,  34 that's !-K-u-n-g, of Botswana and Namibia, the central  35 features of the ownership of the band is the  36 water-hole, whereas -- and then the next water-hole is  37 the next focal point of ownership for the next band.  38 There is some point -- some features of land which  39 mark a line of demarcation between the two which are  40 by common usage and common recognition on both sides  41 is the boundary, but no one makes a big issue of it if  42 someone strays over that boundary, but there is  43 certainly an issue if someone moves in and tries to  44 oust the others from their water-hole.  However, they  45 can come in to visit and be invited to use your  46 territory and then you can go -- this will be  47 reciprocally recognized, but this is much more subtle, 11989  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 and it's defined but it's not defined in terms that we  2 are familiar with in our culture.  3 Q   Now, that example of the !Kung you said was an example  4 of a band?  5 A   Yes.  6 Q   If terms of this use of boundaries, is there a  7 distinction between bands and tribes?  8 A   There is, because tribes are basically settled  9 populations or they are settled on the land for  10 considerable portions of the year.  I am thinking of  11 the tribes that we talked about yesterday morning that  12 are not based on agriculture.  But there is a  13 sedentary sense to the nature of the social structure.  14 People are on the land and in a more consistent way  15 together as a fairly large group.  16 And as a result, the population density is  17 greater, much greater than among a band, band  18 societies.  So you have to have -- the people find in  19 order to have ordinary orderly social exchanges, there  20 has to be more defined systems of control and  21 ownership of territories and resources.  That's  22 another thing, the individual family units within a  23 band may have ownership rights over specific resources  24 within a territory and, yet, they have band-wide  25 rights over the whole region and this is generally  26 much more territorially circumscribed in a tribal  27 society and certainly in a chiefdom.  2 8 Q   Now, then you have a concept that:  29  30 "Second, ownership entails rules to govern the  31 conveyance of rights from person to person, and  32 generation to generation."  33  34 Would this principle of ownership apply to both band  35 societies and tribal societies?  I should say --  36 A   Yes.  37 Q   -- feature.  I should use your term, you say it is a  38 feature of ownership?  39 A   Yes.  40 Q   And then you describe that:  41  42 "In some societies the conveyance of land is  43 limited to inheritance; in others, it can be  44 bought, sold, traded or auctioned."  45  46 Is that a distinction that you would find in tribal  47 and band societies? 11990  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  A   Tribal and band societies, the passing of land from  one holder to another or from one generation to  another follows lines of kinship, whereas the  predominant form in, of course, in our society is  through the market, the mediation of the market.  Q   And so when you say it follows lines of kinship, would  that be consistent with the conveyance of land is  limited to inheritance?  Yes.  You then go on to say that, thirdly, a third concept  is that ownership entails property management.  Do you  find this feature in both band and tribal societies?  Yes, you do.  There was an interesting article on the  aborigines of Australia fairly recently showing the  management of their land in terms of controlling  the -- well, shall I say since the coming of the  Europeans to Australia, there have been considerable  devastating bush fires, and the article was arguing  that this was because the government had put a stop to  the regular burning of territory by the aboriginal  populations and they had been burning territory in the  past to stop the spread of bush fires by having fire  breaks and to also stop the ecological cycle at what's  called a serai growth, that's s-e-r-a-1, so there is  more species generally that can be exploited in a  serai growth phase of an ecological cycle, and this  has kept -- when you fly over Australia you can see  it, the type of vegetation is changing now that there  has been over 200 years of European occupation, but  still the effects are -- of the management, what I  call here management of the territories by the  original population on the land, has had very definite  effects on the way the land is used and enjoyed by  different peoples.  Are the aborigines a band or a tribal type of society,  the aboriginals of Australia?  They are bands, the band structure.  Possibly you could have the blue book put in front  of you, tab 44.  What part of Australia were you talking about there?  THE WITNESS:  It was an article in general about the land -- the  burning on the northern territories.  THE COURT:  The northern territories, thank you.  THE WITNESS:  The article is item 44 in the book.  MR. GRANT:  Q   And this is an article by Clive Gamble?  A   That's correct.  A  MR. GRANT:  THE COURT: 11991  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   And do you know who Clive Gamble is?  2 A   He is, I believe, basically an archaeologist.  He does  3 a fair amount of writing on scientific journalists on  4 popularizing science.  5 Q   And this was an article in the April '86 New  6 Scientist?  7 A   Yes.  8 Q   This is the article to which you are referring?  9 A   Yes.  10 MR. GRANT:  I'd ask that that be marked as the next exhibit.  11 THE REGISTRAR:  Exhibit 890.  12 THE COURT:  8 90.  13 THE REGISTRAR:  Yes, my lord.  14  15 (EXHIBIT 890 - TAB 44 - WITNESS BOOK - ARTICLE BY  16 CLIVE GAMBLE IN NEW SCIENTIST 1986)  17  18 MR. GRANT:  19 Q   Now, that was one of the articles from which you  20 relied in your report that you referred to?  21 A  Well, it was sort of like an icing on the cake as I --  22 it certainly backed up what I -- my understanding of  23 the way the land is utilized but it wasn't the  24 foundation of my opinion.  25 Q   No.  You then go on to say that, fourthly:  26  27 "The ownership involves the owner in obligations to  28 whichever society recognizes and validates his or  29 her proprietorship."  30  31 And then you say:  32  33 "These obligations may involve the giving of gifts  34 and hospitality, or the payment of taxes."  35  36 And if we can just take each of those two statements,  37 can you explain what you mean in the general concept  38 of the owner involved in obligations?  39 A  Well, as I have been taught, ownership is a body of  40 rights in respect to property, and rights, according  41 to at least British social anthropology, entails  42 responsibilities as well as in society.  And the right  43 to enjoy ownership, as I see it in our society, is  44 balanced by a responsibility to pay your taxes.  45 That's one, under a very bold layman's fashion, view  46 of it in the situation.  47 In tribal societies and band societies, the right 11992  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 to enjoy the property depends on your whole social  2 performance in the course of your day-to-day life, and  3 it is frequently associated with giving of  4 hospitality, of providing largess, providing food and  5 services to the needy; if you have the rights in your  6 name, your kinship has the rights -- your kinship  7 grouping has the rights to use and enjoy certain  8 territory.  It has the responsibility to feed anybody  9 who is needy from that territory and, of course, that  10 reinforces your authority and standing as well.  11 Q   You then go on to say that ownership, and I take -- I  12 am going to ask you if this is the general or the  13 particular but:  14  15 "Ownership implies the right to manage and direct  16 activities concerning the property in question, be  17 they production activities, marketing or property  18 maintenance."  19  20 Are you here dealing as well with cross cultural --  21 A   Yes, I am.  22 Q   -- use of the term?  And why do you say that, that it  23 implies the right to manage and direct activities?  24 A   Because you can't have, in any society, you can't have  25 a successful economy unless you've got control over  26 your resources and you have some stability of labour,  27 ability to deploy labour.  And it is a question of  28 control, authority and ownership which is -- which  29 assures that stability which you need to engage in the  30 activities which will give you the returns of your  31 economy or your enterprise.  32 Q   I'd like to refer you to page 169 -- I'm sorry --  33 well, I am not going to quote this.  You state -- I  34 will just -- the initial statement at page 167 on the  35 bottom.  It says:  36  37 "The public and ceremonial announcement of changes  38 and reaffirmations of matters pertaining to  39 property is common in societies without a written  40 culture."  41  42 Now, then you go on through to page 171, and you're  43 talking about the Iroquois, and I'd just like you to  44 explain what you mean by that and, if you wish to do  45 it with reference to the Iroquios or those comments,  46 proceed?  47 A  Well, in order to -- that all the participants in a 11993  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  MR. GRANT  THE COURT  MR. GRANT  Q  system of ownership know who the owners are and what  the decisions and important activities that are being  engaged upon or deliberated upon, if you don't have  written documents, it is hard for the other actors in  the overall social drama which is an anthropological  term, to understand -- to know how to react and how to  respond, and whether the claims that the owners of one  group are pursuing are legitimate or not in terms of  the overall morality and unwritten laws of the  society.  So in these societies, there is a way of  recording the decisions in an oral fashion and that is  when one property-owning group makes important  decisions, such as succession, these decisions, in  order to be legitimate, must be witnessed by other  property-holding groups or their leading  representatives.  And when the witnesses do their  witnessing they are generally paid something by the  person who calls the gathering, to thank them for  their assistance and the witnessing is not passive.  Usually there is a comment by the witness as to the  correctness of what is going on from their own  experience and their own training.  And this certainly  was the experience of the early Europeans who came  into the eastern seaboard of the United States in  their dealings with the groupings like the Iroquios.  When they wanted -- when the land was being seeded in  the early stages, they found that the people  considered it to be illegitimate unless it was  witnessed by other chiefs.  No one could sign away  land unless the action was witnessed by their peers.  Now, is this reported by -- was this reported by  Cadwallader or Colden?  No.  Colden was the Surveyor General for the colony of  New York and this was his experience in achieving land  sessions for settlement in the sixteen hundreds.  Was he also an ethnographer?  No, he wasn't.  Well, he took a keen interest in the  cultures and the customs of the people he was working  with and wrote a lot about them.  :  Now, with reference to this, I'd like to refer you  back to page 9 of the report if you will bear with me.  :  Page 9.  Yes, page 9.  Now, here you're quoting Drucker and you  state at the bottom:  "Gifts are given to visiting chiefs.  These 11994  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 are payments made by the host group to the leaders  2 of other, like groups for having witnessed and  3 validated the decisions of the host."  4  5 And then quoting Drucker:  6  7 "Then the gifts were distributed in the name of the  8 recipient of the title or crest.  The first and  9 largest gift went to the highest ranking guest,  10 the second and next largest to the second in  11 precedence, and so on down the line.  Recital of  12 the history of the privilege and the distribution  13 of wealth served to validate its use.  The guests  14 were witnesses to the fact that the privilege was  15 rightfully owned and rightfully transmitted to its  16 new bearer.  This sanction was the essence of the  17 potlatch and the prime purpose of the wealth.  The  18 effect of the procedure may be compared to that of  19 notarizing a document or of registering a deed."  20  21 Then he says:  22  23 "...The myriad of rights in North Pacific Coast  24 culture had to be validated in this manner.  The  25 rights included those to names and titles, not  26 only names of persons but traditionally owned  27 names for houses and other property, the right to  28 use specific masks and symbols in rituals, the  29 right to perform the rituals themselves, to use  30 carvings, feast dishes, and the ownership of  31 places of economic and ritual importance.... It was  32 usual to announce to guests, for example, that  33 they were invited to eat sockeye salmon from such  34 and such a stream, which had been discovered,  35 given to, or captured in war by an ancestor and  36 transmitted to the incumbent head of the group.  37 The public announcement and tacit recognition of  38 the fact by the guest group, so to speak,  39 legalized the claim.  40 In my opinion, this passage describes in its  41 general contours, the essence of major feasts as  42 they are still given among the Gitksan and  43 Wet'suwet'en today."  44  45 Now, who was Drucker specifically talking about in his  46 quote?  47 A   He was talking about the phenomenon of what's commonly 11995  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 called the potlatch along the Pacific Coast, and he  2 had been -- he spent his life -- a lot of his life  3 studying the cultures of the whole region and wrote  4 innumerable papers and a couple of general guides,  5 general introductory books about the nature of the  6 cultures along the Coast.  And while he was a chief  7 ethnologist at the Smithsonian, he carried out work on  8 the -- studying the formation of the native  9 brotherhood and it took him into the Gitksan  10 territories; it took him into the Nishga territories  11 of the Nass River, out to the Queen Charlotte Islands  12 and around Prince Rupert, but he was also very  13 familiar with Boas' work among the Kwakiutl people in  14 the middle of the Coast and the work on the Nootka or  15 Noochalna (phonetic) today.  16 Q   And your statement -- you maintain your statement that  17 based on your own research --  18 A   This rings true, certainly does.  19 Q   With the Gitksan and Wet'suwet'en?  20 A   Yes.  21 Q   And in your description between 168 and 171 you  22 describe how this publication of witnessing occurred  23 amongst the Iroquios as well as reciprocal gift  24 exchanges?  25 A   Yes.  They also recognized that the British had their  26 own system of notarizing documents which was different  27 from theirs, and I have recorded that here, too.  They  28 recognize we have one system and you have another, so  29 let's make it properly formal; we will accede to yours  30 as you have acceded to our ways.  31 Q   So the Iroquios actually signed --  32 A   They actually signed the --  33 Q   -- documents on the British system?  34 A   They sent deer skins across so that the king could  35 sign and put his seal on which was his way and we send  36 you our wampum and we give you these gifts and it's  37 been witnessed by your representative on our shores.  38 The two processes side by side.  39 Q   Okay.  40 A  And they -- all the colonial administrators of that  41 period, they acceded to this etiquette or customary  42 way of doing business with the leaders of that time.  43 It is not to say they didn't get their way and end up  44 with most of the land in most cases.  45 Q   Now, this -- and this -- your research on that was at  46 the time you were doing your thesis; is that right?  47 A   That's correct. 11996  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  3  4  5  6  A  7  Q  8  9  10  A  11  Q  12  A  13  MR.  GRANT  14  THE  COURT  15  THE  WITNE  16  17  MR.  GRANT  18  Q  19  A  20  Q  21  A  22  23  24  Q  25  26  A  27  28  29  30  31  32  33  34  35  36  37  38  Q  39  40  41  A  42  MR.  GRANT  43  THE  COURT  44  MR.  GRANT  45  Q  46  47  Going to the next section, my lord, page 173; it is a  section entitled Rights of Exclusive Possession, and  you start with a quote by Xhliimlaxha, Martha Brown.  Now, is that from the interview which is at tab 10 of  the blue book?  I believe it is.  Martha Brown was one of your informants and at tab 10  and 11 you interviewed her in August of 1986 and in  April 1987?  Yes.  It is on page 5.  Of your interview notes?  Of the interview notes.  :  Now, she was -- sorry.  And then you have --  :  Where on page 5, please?  3S:  It is in the second section, the second half,  about six lines down.  "Why not ask if you can use it?  I said to them."  Yes.  Okay.  The GM refers to grandmother, and I consciously didn't  put in the names that she was citing for purposes of  rapport with the community.  And in terms in your field of anthropology, is that  common to not be named specifically?  Yes.  On this whole process of revealing of all the  documents and everything is quite foreign to the  ethics of conducting anthropological investigation.  If you are doing any research through a university,  the university will not underwrite the granting  bodies -- they won't support your grant unless you  have passed the Ethics Committee's requirements of  confidentiality and respect for the dignity of the  people and the information that they give you.  So  generally when you are writing up this sort of  information, you use pseudonyms or change the names of  the village or something like that for publication.  Now, you state there, and there is a Gitksan word,  Xhlenganamaxw:  "We tried to..." that refers to a  fishing site; is that right?  Yes.  Okay.  Do you have a spelling for that?  Yes, I will spell it.  It is in the -- that middle  paragraph of the interview on page 5, my lord.  X-h-1-e-n-g-a-n-a-m-a-x-w. 11997  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2 "We Try to check up on our sites and our trapline.  3 Those guys from blank have tried to get everything  4 away from us.  It is difficult for an old chief  5 nowadays to look after things properly.  Some  6 members of our houses have told them they have no  7 right to visit this site.  I have, too, and I  8 still tell them why not ask if you can use it?  I  9 said to them.  They said, but their grandmother  10 used it.  Yes, I said, lots of people have used  11 it, but we own it.  If you just ask us..."  12  13 A  Ask me.  14 Q  15 "...ask me, you can use it.  I will even tell you  16 where you can set your net."  Billy Williams  17 Gisgaast always used to ask Paul Xhliimlaxha and  18 he always got permission.  That's the way it  19 always was.  Then there is blank.  These guys  20 wanted on the basis that their father had used it.  21 He could use it because he was married into our  22 family.  That is our law.  He could use it right  23 up till his death.  Blank's mother's father was in  24 the house of Xhliimlaxha.  Then they were told  25 afterwards right in the feast that they were not  26 going to use it any more.  There was a court case  27 about it.  Then after the old man died, my mother  28 used the spot.  There was no road up there at that  2 9 time.  My mother used a big canoe.  She went up  30 there by boat.  It is a beautiful place to spend  31 the summer with all the families getting  32 together to catch all..."  33  34 A   " catch and put up some fish."  35 Q  36 " catch and put up some fish.  We always  37 fished there with nets, at least in my day.  The  38 old people made nets from cedar strips..."  39  40 A   Cedar string.  41 Q  42 "...cedar string.  We got twine from the cannery,  43 hay sported the coast and made nets.  The ladies  44 went down to the coast and worked the nets mending  45 them until their hands swelled up.  Before the  46 nets we had the mauss sticks pounded into the  47 river.  That's what there was at Temlaxamid. 1199?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  THE  MR.  Skak'sen..."  COURT:  Just a moment.  You better spell Temlaxamid.  T-e-m-l-a-x-a-m-i-d?  GRANT:  Q   Yes, Temlaxamid, thank you, my lord.  "Skak'san the sticks were about a yard apart with  the..."  A  Q  A  Q  A  Can you help he me there, "trips down in between"?  The traps.  "...traps down in between."  These are the basket traps.  "I seen a fish fence ti'in in the 'Ksan before the  flood of 1936.  Fish hooks that my mother said  they got moose or goat..."  THE  THE  THE  MR.  THE  MR.  THE  "...for fish hooks, my mother said, they got moose  or goat bone and sharpened it and tied them, two  of them in a cross."  And that's called dawx'aht, d-a-w-x-underline-'-a-h-t.  Now, this is the reference that you were referring to  about the fishing site of Martha Brown?  Yes.  And about the question of use and own it.  And that  underlining is -- that you put in your quote in the  report is also used and the own is underlined in the  transcript of your notes, and that was an emphasis  that she made or that you made?  That was the emphasis she made in her voice.  I  underlined it because that was what she was  emphasizing.  COURT:  What's underlined?  WITNESS:  She said, "I tell them you may use it but we own  it".  So you had underlined "use" and "own".  COURT:  Is that underlined?  GRANT:  You see in the -- it is underlined in the --  COURT:  Oh, yes, all right.  Yes, thank you.  GRANT:  Q   Martha Brown, Xhliimlaxha is now deceased?  A   Yes, she is.  COURT:  In the middle of page 5, starting that long  A  Q  A 11999  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 paragraph, there is a word there that I don't know  2 what it means.  X-h-1-e-n-g-a-n-a-n-a-x-w.  What does  3 that mean?  4 THE WITNESS:  That was my phonetic spelling.  It refers to a  5 dispute over a fishing site and I don't have all the  6 particulars of it.  It wasn't what was --  7 THE COURT:  That was the name of the fishing site?  8 MR. GRANT:  9 Q   That was the name of the fishing site?  10 A   I believe that was the name of the site.  I am  11 probably spelling it quite differently from what the  12 experts would.  13 THE COURT:  Thank you.  14 MR. GRANT:  My lord, I would ask to tender this interview as the  15 next exhibit.  16 THE COURT:  Well, I think it would have to be for the purpose of  17 establishing the knowledge of the witness only and I  18 suppose that's basically how you tender it, is it?  19 MR. GRANT:  I would like to — that's certainly one of the basis  20 and I will -- I wish to tender all of these interview  21 notes for that purpose.  With respect to this  22 interview, I would be tendering it as well as a  23 statement of a person now deceased with respect to  24 territory.  Martha Brown gave evidence by way of  25 commission in the case.  26 THE COURT:  Did she say these things in her evidence?  27 MR. GRANT:  She dealt with some of the things but she didn't  28 necessarily deal with all of the things.  29 THE COURT:  All right.  Well, I will mark it now for the limited  30 purpose I mentioned, and you may revisit the subject  31 later.  And I am uncertain about the second part of  32 your proposition but we will deal with that later.  33 MR. GRANT:  Yes.  I just wanted to put my friends on notice and  34 possibly --  35 THE COURT:  The next exhibit number.  36 THE REGISTRAR:  Next exhibit number 891.  Is that all of tab 10?  37 MR. GRANT:  Yes.  And I would ask then to put tab 11 in as well  38 at the same time which is the second interview with  39 Martha Brown.  4 0 THE COURT:  8 92.  41 THE REGISTRAR:  Thank you.  42  43 (EXHIBIT 891 TAB 10 - WITNESS BOOK - FIRST INTERVIEW  4 4 WITH MARTHA BROWN BY DR. DALY AUG. 198 6)  45  46 (EXHIBIT 892 TAB 11 - WITNESS BOOK - SECOND INTERVIEW  47 WITH MARTHA BROWN BY DR. DALY - APRIL 1987) 12000  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Seems to me there may be a problem, and I am only  anticipating that we might think about it, that the  exception to the hearsay rule for declarations made by  a deceased person entitles usually declarations are  made spontaneously; not sure that it extends to a  process of this kind where a statement has been made  for the purpose of litigation but I'd like to hear  counsel on that when the time comes.  MR. WILLMS:  My lord —  MR. GRANT:  I have no difficulty with that.  I wanted to raise  it, my lord, because I appreciated that the reason we  have put in interviews as -- as you have defined in  the past and I just wanted to put my friends and your  lordship on notice that I propose that there may be,  with respect to certain of the interviews, we may make  a different position but I think it is more sensible  to argue -- to mark it as an exhibit on the principles  that these types of things have been accepted and then  argue it at a later time rather than dealing with it  at the time of the witness time in terms of the  time-table.  That's the approach that I think is  preferable.  THE COURT:  Thank you.  MR. WILLMS:  My lord, just then to help my friend the other way.  These weren't delivered until the fall of this year so  there was no opportunity to test Martha Brown with  them.  The evidence had already been done.  We didn't  get them until October.  MR. GRANT:  My recollection is that Martha Brown — that these  actual -- that these interviews would have taken place  after her commission evidence.  She was one of the  first witnesses who gave commission evidence.  THE COURT:  Does your statement, Mr. Willms, apply to all of  these interviews in this blue book?  MR. WILLMS:  My lord, the earliest that we got any of these  interviews was October.  We got some as recently as  last week but the earliest was last October.  Well —  Let's get on with the case, Mr. Grant.  MR.  THE  MR.  GRANT  COURT  GRANT  Q  Yes, okay, my lord.  Under this area of Rights of Exclusive Possession  on page 174, and this is the area Unit of Exclusive  Ownership is the house.  Now, you have talked earlier  about the generic concept of exclusive possession  which you just dealt with, and you state on page 184  with respect here to the -- I am sorry, page 174 at 12001  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 the top, and I quote:  2  3 "The owner of territory need not be an individual;  4 among the Gitksan and Wet'suwet'en it is a  5 collective, corporate body:  the House group, with  6 rights vested in the chief on behalf of the whole  7 kinship group.  Decision-making in these groups is  8 consultative; the views of the chief, the elders  9 and general members are the regular components  10 of decisions taken with regard to ownership  11 rights."  12  13 Now, first of all, when you refer to collective,  14 corporate body, is that a term that is utilized in  15 anthropology?  16 A   It is used in anthropology and sociology to denote a  17 social grouping.  It has certain criteria.  It has a  18 system of boundaries.  There are certain criteria for  19 membership within the group.  The group has a name and  20 so on, and generally it delegates someone to act on  21 its behalf on -- under various circumstances.  22 Q   Now —  23 A   One example was the women's society among the Senaca  24 Iroquios and the women didn't speak in this council so  25 the chief who was the spokesman for the women, he used  26 to start all his speeches -- this was Corn Planter --  27 no, Red Jacket, Chief Red Jacket, he'd say, "We women  28 believe", that's how he started all his speeches.  He  29 was speaking as the corporate -- the representative of  30 the corporate grouping of all the women in the  31 counsils.  32 Q   Now, can you explain why -- what is the basis upon  33 which you have concluded that with respect to the  34 Gitksan and Wet'suwet'en, the owner of territory is  35 the house group with rights vested in the chief on the  36 basis of the whole kinship group?  Firstly, I am  37 asking you the source of that opinion -- the basis of  38 that opinion in terms of --  39 A   Do we have to do this with every statement?  Because  40 the sources are what we have already laid out.  My  41 experience in the community, what the chiefs have told  42 me, what I have read about the area, what Drucker has  43 said about the general region in general.  It just  44 seems to be every single statement you ask me the same  45 thing.  46 Q   What did you observe in the feast that reflects on  47 this? 12002  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  If  A  Q  A  A   I observed that the chiefs spoke about their  territories and their crests and their histories,  the chief was not able to attend, one of his wing  chiefs or his sub chiefs would speak on his behalf.  The unit which interacted in the feast was the house  group through the persons of their chiefs, and  these -- the chiefs -- the membership in these  groupings was through kinship, through matrilineal  inheritance.  Q   And you have indicated that you attended the fish  camps at An Kii Iss, A-n-K-i-i-I-s-s, and Gwinoop,  G-w-i-n-o-o-p.  Did you make any observations there  which reflected on this opinion?  Yes.  The people would always, not just at those  camps, but at all of the fishing sites it was made  very clear to you whose fishing site you were  visiting, who owned it; and in terms of those fishing  sites, the house group that owned them, the two of  them, it was the Eagles from Kitwanga, and I believe  it was Wii Moglusxw, Art Wilson, and his wilnadahl who  controlled -- who had ownership of the Gwinoop camp.  That was the one at Kispiox?  That's the one at Kispiox.  And these people were your  hosts in -- for all the events that were there, and it  was people associated with them that were the backbone  of the camps and were there on the permanent basis.  Other people came and went but they were -- because  they were the owners, they had to oversee what was  happening or be there in case anything or there were  any problems.  When you say those people, you are obviously  referring to, in the case of Gwinoop, to Wii Moglusxw  and his house group and, in the case of An Kii Iss, to  the Eagles that you just referred to.  Just a moment please.  Ms. Koenigsberg?  KOENIGSBERG:  Perhaps this is a good point to raise an  objection which we raised in the beginning and I  won't -- I haven't risen at every opportunity but  perhaps this is a good example.  This kind of  evidence, if we begin with the opinion that the  Gitksan/Wet'suwet'en is a collective, corporate body  and then go on to what the house group is and how the  decision-making is taking place and so on, it will be  our submission that that is inadmissible to the extent  that it is based upon this witness' interpretation of  what the witness has told him because of course the  witnesses have told your lordship, we have heard from  MR. GRANT  THE COURT  MS 12003  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 a variety of witnesses leaving aside, and I will get  2 to that, calling it a collective, corporate body,  3 which is the labelling for the purposes of  4 understanding anthropological concepts in which this  5 witness is of course qualified to do and it may or may  6 not be helpful and we will deal with that in due time,  7 but the balance of it is this witness telling us which  8 of what parts of what the witnesses have told your  9 lordship are to -- what meaning you should take from  10 it, and in my submission, that is objectionable and it  11 isn't admissible.  It is for your lordship to  12 determine.  13 THE COURT:  Whether they are a collective, corporate body?  14 MS. KOENIGSBERG:  Well, I think probably that too, but leaving  15 aside the label, whether on the basis of what the  16 chiefs have told your lordship with respect to this  17 very issue, whether the rights are vested in the chief  18 on behalf of the whole kinship group, and I mean, we  19 have had chiefs who have said something that we would  20 say, yes, definitely that's what they were saying, and  21 we have had chiefs saying something quite different,  22 and it is going to be a question of argument put to  23 your lordship as to what that means.  And here we are  24 landed right in the middle, in my submission, to the  25 difficulty with accepting and hearing evidence from a  26 witness like this whose evidence -- whose participant  27 observation includes the witness' evidence before the  28 court and includes interviewing them during --  29 exclusively during the ongoing court case, so that we  30 have no choice but to deal with his interpretation,  31 what he takes, what he selects of that and presents,  32 and it can make a cohesive hole, there is no doubt  33 about that, but in my submission, it is ultimately the  34 argument, the formal argument, and it certainly is  35 based on his interpretation of what the witnesses have  36 told you which is, in my submission, going to be your  37 function to determine.  38 THE COURT:  Isn't the conclusion that the Gitksan and/or the  39 Wet'suwet'en are a collective, corporate whole, not  40 for this limited purpose an anthropological  41 definition?  42 MS. KOENIGSBERG:  I'm sorry?  43 THE COURT:  It is a definition that is used perhaps, I don't  44 know, but perhaps it is used by anthropologists and it  45 is a classification.  4 6 MS. KOENIGSBERG:  Yes.  47 THE COURT:  And I am not sure that he is telling me as a matter 12004  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 of fact or as a matter of law that the Gitksan and the  2 Wet'suwet'en are collective, corporate bodies but  3 merely that's how anthropologists would classify them.  4 MS. KOENIGSBERG:  I agree, my lord, and I set that aside.  I say  5 for whatever purposes we can hear an anthropologist's  6 opinion, it would certainly be within his area of  7 expertise and admissible for him to look at assumed  8 facts or facts proven and say that constitutes a  9 collective, corporate body and it's like X in Africa,  10 to make a point, to make it understandable.  11 My problem isn't with his calling it a collective,  12 corporate body; my problem is, when he goes on to tell  13 us what that means for the Gitksan and Wet'suwet'en  14 when that very issue and all of those component parts  15 have been the subject of evidence before your lordship  16 by different chiefs who say they are the ones who can  17 tell your lordship what their role is, and it will be  18 our submission that it isn't as though it is beyond  19 peradventure what chiefs do and what the rules are.  20 We have had a lot of evidence on that subject.  21 THE COURT:  Well, I think I understand what you are saying, Ms.  22 Koenigsberg, but I don't think we have the right, any  23 of us in this case, to be overwhelmed by the magnitude  24 of the problem.  That may be a reality but we are not  25 allowed to be overwhelmed.  I have never had to deal  26 with a 700-page report before and I think it is almost  27 unmanageable.  I haven't taken the time to read it and  28 I have to rely on counsel to highlight the parts that  29 bear special attention.  I don't think we should allow  30 ourselves to be bogged down with detail.  I think that  31 when counsel put forward a 700-page report they are  32 going to have to allow it to speak for itself on a  33 leisurely-reading basis and I have to allow Mr. Grant  34 to show me those parts that he thinks I should  35 underline, which I am doing, and to give special  36 consideration to them when I come to read the report.  37 But I don't think, if I am not going to be  38 overwhelmed, that I can worry about the order in which  39 things are done or even possibly the admissibilities  40 of it.  I think we have to manage this problem, and I  41 am not sure that at the end of the day I am going to  42 be any wiser but I hope I will be, but I hope that if  43 Mr. Grant shows me the parts I have to pay special  44 attention to, it will fit into some scheme of things  45 and that I can classify it in terms of what's  46 admissible and what isn't or that all of it is  47 admissible or none of it is.  I am sure some of it is. 12005  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Therefore, I think that I have to fall back on the  2 old side door of the law and say that your objection  3 has been recorded but I am not sure that I give effect  4 to it.  5 MS. KOENIGSBERG:  For what it is worth, my lord, I didn't really  6 anticipate that you would.  I simply -- our difficulty  7 is that when we began in this way, it was left that we  8 would object as things came up and I am sure neither  9 Mr. Willms and I have done that very regularly but  10 here was an apt example of the kind of evidence that  11 we will be submitting is inadmissible at the end of  12 the day, and I don't think I need to put it any  13 clearer.  14 THE COURT:  Mr. Justice Bruce Macdonald had such a report in the  15 Anderson case, he saw the problem and ruled it totally  16 inadmissible, and perhaps it was even longer than this  17 one.  I don't think a judge should be expected to deal  18 with it in court in any other way than this.  It is up  19 to counsel to recognize that their job is to dissuade  20 and focus.  If they give me too big a target -- but  21 we'll do the best we can.  I don't think we can do it  22 any way except the way we are doing it.  We will take  23 the morning adjournment.  24 THE REGISTRAR:  Order in court.  Court will recess.  25  2 6 (PROCEEDINGS ADJOURNED FOR A RECESS)  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 12006  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  THE REGISTRAR:  THE COURT:  MR. GRANT:  Q  Mr.  Order in court.  Grant.  A  Q  A  Q  A  Q  A  Q  A  Thank you, my lord.  Now, you were describing about --  before the break, Dr. Daly, about your observations at  the fish camps with respect to this opinion at page  174 regarding ownership.  Now, you also have referred  to the fact that you went out and took trips on the  territory with some of the chiefs.  Did your  observations there influence your opinion here?  Yes, it did.  Okay.  Can you explain -- expand on what happened?  It was only the first or second day I was in the  region, and we were going to visit the territory of  Gisday wa in Wet'suwet'en -- in the Wet'suwet'en  region.  And I believe I was driving, and my guide was  Andrew George, who holds the name of Tsibasaa.  Is that a Wet'suwet'en chief?  Yes.  Ah ha.  From the Lakshamshu Clan.  And I had asked him if he  could just show us the territory and familiarize us  with the -- with the region.  Um hum.  Nothing -- I didn't ask any specific questions.  And I  was struck right away on -- as we were driving down,  he was pointing out the window at different land  features, that this belonged to so and so and this  belonged to someone else, and I recognized some of the  names.  But I remember we approached -- now, before we  got to Houston, he said, "This is the -- this is the  territory, both sides of Smogelgem."  And I said, "Is  that -- that's your brother, isn't it, Leonard George,  Smogelgem?"  And he said, "That's right."  He said,  "And it ends down here, and the territory south" --  well, anyway just before we get to Houston, we turned  off on to the road that follows the Morice River, and  he pointed out the land on our left was Kanoots' of  the Wolf Clan, the Gitdumden, and I didn't know who  Kanoots was, and he said, "Well, that's the Madeek  people."  So I said, "What is the Madeek people?"  He  said, "Well, that's their -- their house group."  And  then the next territory was the one we were going to  at Owen Lake.  So this alerted me to the -- the  concern for the -- for the -- whose territory we were 12007  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 crossing and who was located in relation to -- to whom  2 in the course of just getting oriented to the nature  3 of the -- of the region.  4 Q   Well, in the course of that trip were you asking him  5 whose territory it was?  6 A   No.  Well, I started to after that because I became  7 alerted to it.  8 Q   Okay.  But he -- which of you initiated the concept as  9 to —  10 A  Well, he initiated -- on the trip down I didn't ask  11 him anything about the territories.  I was just  12 listening and driving.  But on the way back I was  13 asking about who -- where's the boundary line and so  14 on.  15 Q   Now, as an anthropologist -- did you go out on a field  16 trip shortly thereafter with David Blackwater as well?  17 A   Yes, I believe it was the next day.  18 Q   And where did you go with David?  19 A  We went up the Kispiox Valley and had a look at the  20 beginnings of the -- of the old telegraph line that  21 runs through the Gitksan area up into the northern  22 part of the province.  And that day I wasn't driving  23 so -- but I was sitting in the back seat.  I asked --  24 I'd asked David about the annual round and how the  25 territories were used, and as he explained, he  26 suddenly stopped and said, "Well, this -- these  27 mountain peaks here are very important.  That's where  28 we -- we go in the fall and our ladies are picking  29 berries in the middle and upper ranges around tree  30 level.  And not too long ago we were using the  31 groundhog skins as a main feast item."  And the  32 groundhog were very good.  They taste like bacon, and  33 they're very fatty, and it's a good food to give to  34 chiefs.  And he gave some examples of chiefs whose  35 territory was quite distant from Kispiox but they had  36 the rights to take groundhog and occasionally mountain  37 goat from someone else's territory but on a specific  38 mountain or a ridge of mountains because they needed  39 access to certain goods for their -- to uphold their  40 responsibilities in the feasting.  41 Q   Again, on that trip did you interview or question  42 David as to who owned these places that he was  43 pointing out or did he say anything about it?  44 A   Yes, yes, I asked him who owned them, and he would  45 give me the -- the name of the chief and tell me about  46 how the chief and his family or members of his group  47 would go there and use them in one way or another.  He 1200?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 also told me about a dispute he was having on his own  2 trapline, in relation to his own trapline on Slamgeesh  3 Lake in the Blackwater country.  That indicated to me  4 that he was -- when he was giving me the names of  5 chiefs in relation to the territories he was thinking  6 of them as the whole kinship grouping because this  7 man, who was a doctor from Smithers who runs a -- he  8 has a game -- big game and fishing resort business.  9 He flies businessmen into the area to -- to enjoy the  10 region.  And --  11 Q   He's a guide outfitter?  12 A   He's a guide outfitter.  And he -- he wanted to buy  13 David's trapline, rights to David's trapline.  14 Q   This guide outfitter, is he a Gitksan or Wet'suwet'en?  15 A   No, he's a non-Native.  16 Q   Okay.  17 A   David said, "I can't sell -- even if I wanted to, I  18 can't sell you this trapline because it's not mine to  19 give you.  It belongs to my house.  It belongs to  20 Niist, and Niist is not just me, it's everybody in our  21 house.  We don't sell our traplines, for one thing."  22 And I asked him what he meant, did he mean trapline or  23 his territory, and he said, "Well, the trapline and  24 the territory is the same thing as far as I'm  25 concerned."  He said, "But that would -- I would be --  26 immediately lose my position as a chief if I were to  27 sell -- agree to sell the land even on behalf of my  28 house without any consultation.  That would be it.  I  29 would be finished.  Nobody would have any respect for  30 me again."  31 Q   Now, as an anthropologist and a person with experience  32 in the field and other situations, is this -- what do  33 you -- do you -- how do you deal with statements of  34 persons about the concepts of ownership and their  35 society?  I mean, how do you use that?  36 A  Well, they -- they alert flags in terms of the  37 categorization that we're trained to make.  So this --  38 obviously this -- he was talking about corporate  39 groupings.  And there's lots of examples in the  40 anthropological literature, so then we just use that  41 as a guide to further thinking and looking for similar  42 explan -- or similar descriptions and explanations in  43 the -- in the written literature and in other similar  44 societies, particularly in the general cultural area.  45 Q   And when you reviewed, for example, transcripts of  46 witnesses in the trial, did you review those to  47 determine -- 12009  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 A   No, it's the same process.  It's the same way that  2 ethnohistorians read between the lines, so to speak,  3 or take bodies out of a text that a fur trader left in  4 terms of his description of how Native society  5 operated.  But he's not looking at it from the same  6 perspective that I would because my training is  7 different, my interests and training are different  8 than his were.  9 Q   Than whose, the ethnohistorian?  10 A   Than the person who wrote the account which is the  11 source of the ethnohistory.  12 Q   Okay.  13 A  And it's the same -- I treat the court transcripts in  14 the same light.  They're part of the raw material for  15 forming an opinion about the nature -- the contours of  16 the society and how it works.  17 Q   You were requested by counsel to review the court  18 transcripts, weren't you?  19 A   Yes.  2 0 Q   Now, you go on -- just a moment.  Now, when you  21 refer -- I'm sorry.  Go to page 175.  I'd just like to  22 refer you to the third line down on page 175.  You  23 state:  24  25 "Among the Gitksan and Wet'suwet'en,  26 ownership is predicated upon a system of  27 decentralized kinship government.  Here, the  28 means of decision-taking and enforcement is  29 worked out between Houses and clans  30 according to established rules and laws  31 which ensure a form of social control and  32 public order."  33  34 And that, I take it, is your opinion?  35 A   Yes.  36 Q   And now, can you explain what you mean about the --  37 why you came to the conclusion that the ownership is  38 based upon a system of decentralized -- you've already  39 really explained kinship -- but decentralized  40 government?  If you have to use it in the context of  41 kinship, that's fine.  42 A  My experience of the Gitksan and the Wet'suwet'en is  43 that the contours of their social structure and their  44 systems of interaction are consistent with what we  45 commonly call a tribal organization.  4 6 Q   Um hum.  47 A  And generally in tribes there's no overarching 12010  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  Q  4  A  5  6  7  8  9  10  11  Q  12  A  13  14  15  Q  16  A  17  18  19  20  21  22  Q  23  24  25  26  27  28  29  30  A  31  32  33  34  35  36  37  38  39  40  41  THE  COURT  42  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  47  THE  COURT  administrative body that settles disputes.  I think  we've already gone into this.  Yes.  Right.  So that the level of interaction in the society which  is most frequently called into play is the house group  of the -- of the kinship units.  So relations between  the house groups are -- that's the level of decision-  taking and legitimizing decision-taking and dealing  with questions pertaining to ownership and use of  property.  Now --  Whereas the similar questions concerning land disputes  in an African kingdom, such as the Barotse that  Gluckman studied --  Yes.  -- would be mediated by the king or his -- his -- his  court.  And the findings of the king, because he spoke  on behalf of the whole nation, were binding on -- on  the litigants, but this is not -- it's more of a  negotiated situation in the tribal or band society  between what I call corporate units.  Okay.  Now, you go on to say that the means of  decision-taking and enforcement is worked out between  houses and clans.  Now, can you explain -- and then  you -- just taking that part of that statement,  "according to established rules and laws," can you  explain why you came to the conclusion that the  decision-taking is worked out between houses and clans  and exemplify it if possible?  Now, this is most clearly exemplified in the feasting  situation.  When it's a question of succession to a  name, this is the business of -- of the house itself  and the families within that house, so whatever --  despite whatever degree of -- of common blood ties  they have, they -- they discuss who is going to be the  next incumbent to that name.  But they generally call  in to -- for advice people who are going to be in the  future and have been in the past closely associated  with them and with the ramifications of the decision  as to who they're going to choose.  Mr. Grant, I hesitate to interrupt, but I've heard  this over and over again from the witnesses.  Well —  How does it --  I don't need -- I take your point on this area, my  lord.  Yes. 12011  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT:  2  3  4  5  6  7  8  9  10  11  12  13  THE  COURT:  14  MR.  GRANT:  15  16  17  THE  COURT:  18  MR.  GRANT:  19  MR.  WILLMS  20  MR.  GRANT:  21  THE  COURT:  22  MR.  GRANT:  23  THE  COURT:  24  MR.  GRANT:  25  26  27  THE  COURT:  28  29  30  MR.  GRANT:  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  The only concern I have -- and I don't want to  repeat evidence.  The only concern I have is the  implication that my friends are making that if Dr.  Daly does not explain the facts upon which he relies  for the opinions that they're going to challenge the  very admissibility of the opinion.  And I concur with  your lordship, and it's one of the reasons why Dr.  Daly as well as doing his own research reviewed  transcripts, is that that's all before you, and I  don't have to give him a hypothetical question because  it's in evidence.  And -- but I don't need to have him  repeat it all, but I don't want the opinion --  But that's what he's doing.  That's right.  But, on the other hand, I'm faced  with these -- these positions that, first of all, he  can't rely on something that's in evidence.  I don't think anyone said that.  Well, he refers to transcript evidence.  :  I invite that, my lord.  And -- well --  If he's read it.  Yes.  He can't rely on what he hasn't read.  And what his report shows is that he refers to  specific witnesses and to their evidence, and that --  all he's doing is relying on that in part.  But it sounds to me like he's summarizing the  evidence for me.  Not even summarizing, in many cases  repeating.  No.  And that is not what the intent is here.  I  mean, the difficulty, as you indicated before the  break, is that in terms -- to form his opinions -- to  set out his opinions which are contained in the  report, I would like him to -- I don't see the need  for him to go through each particular fact that --  upon which he relies, but it seems to be on the basis  of which my friends are suggesting that at the end of  the day that's exactly what they're going to say he  has to do.  And if he has to then when he -- when he  relies on evidence before the court, if he has to set  out the facts upon which he relies, I don't want him  to repeat that evidence.  That's the -- that's the  Catch-22 that I find myself in with respect to this  position.  With all due respect to my friends, they  basically want it both ways.  He must set out the  facts upon which he relies firstly.  Secondly, he  can't repeat any of the evidence in the court, even -- 12012  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  but he should be relying on evidence that's before the  court or is going to be before the court.  Well, he  comes after the evidence, not before.  In many cases a  person -- an expert witness comes before you and you  say assuming A, B and C what do you conclude.  The  evidence is then established.  But that's the -- and  I'm not -- I can withdraw from this area based on your  comment, and I will govern myself according to your  concerns, but I just want your lordship to appreciate  that I find myself in a situation where I'm being  compelled to have Dr. Daly reiterate evidence, which I  think is unnecessary, and, on the other hand, to -- or  else I'm in jeopardy about his opinions.  On the other  hand, that if he doesn't -- if he doesn't reiterate  the evidence.  But I don't want him to reiterate the  evidence.  :  I haven't got a comprehensive answer to your  problem, but I know this much, that there is no profit  in a witness giving me a summary of facts that I have  heard from many, many witnesses.  : And that is not the intent, my lord. I appreciate  that. Maybe I can just go to the bottom of the page  175.  :  Yes.  Dr. Daly, you state there that ownership -- this is  after you reiterate that ownership of land and  property is the whole house group at the beginning of  that paragraph, which is your opinion.  And then you  say at the end:  "Ownership is vested in the persons of the...  high chiefs."  Now, what I'd like you to do, if you could, is to  explain what you mean when you say:  "Ownership is vested in the persons of the  simgiget... or deniize'yu."  S-i-m-g-i-g-e-t.  Deniize'yu, d-e-n-i-i-z-e-'-y-u.  Well, the body of rights and obligations that goes to  make up a corporate group is an intangible thing, and  societies are composed of persons that are not tied to  one another by ropes and chains.  So the -- the office  holder, if you like, the one with the high name,  stands for the whole group in relation to the 12013  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 deployment of people on the land, the ability of  2 others to use the land, and to speak on behalf of the  3 land in the public gatherings, the public forums.  4 Q   And is that -- that is the case -- that is what you're  5 referring to specifically with respect to the Gitksan  6 and the Wet'suwet'en?  7 A   Yes, it is.  And in the feasting -- I don't know  8 whether --  9 Q   Go ahead.  10 A   This is reflected in the -- in the seating in the  11 feasts.  The high chiefs are seated in a specific  12 order.  This reflects their -- their status in terms  13 of land and everything else.  14 Q   And that's what you observed?  15 A   Yes, that's what I observed.  16 Q   Okay.  Now, you state on the next page, in the middle  17 paragraph, that the chief acts as the human embodiment  18 of the house and its activities.  This is on page 176,  19 middle paragraph.  20  21 "The chief does so both informally in his or  22 her daily behavior and formally, on all  23 public occasions."  24  25 And is that --  26 A   Yes.  27 Q   -- what you're explaining about the vesting of  28 ownership in the chief?  29 A   Yes.  But when a person receives a name and goes  30 through the requisite exchange of gifts and payments  31 and is -- the event is witnessed in public, he or she  32 accedes to something already in existence, which is  33 this whole mantle of -- complex of rights and  34 prerogatives associated with the name, the crests, the  35 history, the songs, the -- the sense of power and  36 legitimacy.  And that's a very broad word -- broad  37 concept, rather, in these two cultures.  Power is  38 your -- of course your standing, your political  39 position vis-a-vis other members of your kinship  40 groupings and in relation to other chiefs, but it's  41 also an authority that you obtain by coming into that  42 name.  The blanket that's put over your shoulders is  43 the power of the land and the history and all of these  44 symbolic features of the history of -- and tradition  45 of that group.  So you're walking into a whole set of  46 responsibilities and prerogatives that are tied one to  47 the other, the land, and the crests, and the songs, 12014  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Q  and the adaawk, and so on.  Q   Is that -- is there similar features -- is that  similar to features in other tribal societies which  you examined?  A   It's consistent, yes.  MR. GRANT:  I'd like to go to the next section, Dr. Daly, which  is the section on page 177, Exclusivity and the Clan  System.  Crest System.  I'm sorry, Exclusivity and the Crest System.  Now, if  I could just go to page 185, 186, which is near the  end of that section and which sets out your -- your  opinions, and I'm going to go back to parts of the  section.  You state at the bottom of page -- I'm  sorry -- 186 or -- I'm sorry.  I'll start at page 185,  the fifth line -- sixth line down.  "The crests or ayuks on the pole display the  history of the events, often in the distant  past, whereby the crest was first adopted.  They stand for the pedigree of the House, as  do the names of river sites and features of  the land, and the songs.  Each crest pole  stands as a form of legitimacy of rights to  the fishing sites and the hunting ground."  Then at page 186 you state at the very bottom of that  page:  "The crests and the story of their  acquisition give legitimacy to claims to  ownership of land.  The crests are a map, or  a memory device..."  Then you refer to the Iroquois "memory cane," which  you described for us yesterday.  Now, those are your opinions with respect to the  crests and the relationship to the land; is that  right?  A   Yes, that's right.  Q   And that's based on your research and your background  training in other fields --  A   It is.  Q   -- as you've already described?  Now, first of all, can you tell his lordship, when  you say exclusivity and the crest system, what do you 12015  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 mean by crest system?  2 A   I think I've already -- already alluded to this in the  3 answer to the last question.  The crest system is --  4 is the whole -- the whole narrative of the -- which  5 gives rise to the legitimacy or the claims to  6 legitimacy of a house group to a specific title, to  7 the name, to the land, to the fishing sites on the  8 basis of their migrations through history and their  9 experiences, the wars they've been engaged in, the  10 facets of life which have been anomalies, the things  11 that are remembered peculiar to their -- to their own  12 history and tradition that's passed down through the  13 mother's side generation after generation, the things  14 that are considered to be crucial to the survival of  15 the social structure.  16 Q   So the crest system includes the oral history?  17 A   It includes the oral history.  18 Q   What else does it include?  19 A   The crests are quite often associated with events that  20 occurred in that oral history --  21 Q   Yes.  22 A   -- either wars or supernatural events and other  23 matters.  24 Q   Okay.  When you refer to crest system, what else are  25 you referring to besides crests and the oral history?  26 A  Well, it's -- the crests are manifested on virtually  27 all of the possessions of the -- of the people.  At  28 least in the precontact periods and the early contact  29 periods there were -- the chief's crest was on his  30 pole, it was on his blanket, on his talking stick, and  31 quite often tattooed on his chest.  32 Q   When you were doing work with the R.O.M., did you  33 investigate the crest system of the Gitksan and the  34 Tsimshian?  35 A   The Gitksan and the Nishga mostly.  36 Q   The Gitksan and the Nishga.  Including the use of --  37 the crests being tattooed on persons?  38 A   Yes.  I helped set up a display and worked with the  39 art department on the putting of -- putting of tattoos  40 on mannequins for displays.  We had to obtain the  41 early historic -- post-contact photographs to verify  42 what we were doing.  43 Q   Now, you refer to, both on page 186 and at the bottom  44 of 177, that oral cultures utilize many mneumonic or  45 memory devices.  That's m-n-e-u-m-o-n-i-c.  And you  46 described yesterday the utilization of memory canes by  47 the Iroquois.  Are you suggesting that the use of 12016  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 crests among the Gitksan and the Wet'suwet'en are also  2 mneumonic or memory devices?  3 A   I am.  4 Q   Okay.  Can you explain why you give that opinion --  5 have that opinion?  6 A  Well, there are -- looking at the societies as a  7 whole, not all chiefs know all the crests and all the  8 stories of all the other chiefs, but there are groups  9 of chiefs that have acted together through history,  10 through different parts of history, shall we say, at  11 least in the present and recent past, and according to  12 the oral traditions for very long periods of time.  13 They -- they tend to know one another's history and  14 their crests.  They interact with one another on the  15 land in the course of their seasonal rounds and  16 their -- their village interactions.  So the crests  17 are known and the land that the chief comes from is  18 known, and when these are seen in the feast, it calls  19 to mind your relationship, if you're speaking as a  20 chief, your relationship to the territory of the crest  21 of -- on the back -- on the blanket of -- of a chief  22 sitting across the room.  23 Q   Can you explain an example of where you actually saw  24 that utilization of the crest?  25 A   This was -- this was explained in very, I think, very  26 graphic terms at the Burns Lake feast in April of '87.  27 Q   Yes.  28 A  Which was a gathering of Wet'suwet'en, Gitksan, and  29 other Carrier peoples from farther to the east.  And  30 they were discussing boundary questions, and in the  31 afternoon of the first day I believe it was --  32 Q   You attended this?  You saw this?  33 A   I attended this.  One of the reasons I wanted to go  34 was that I knew since there were people there from  35 different aboriginal nations that at least part of the  36 proceedings would be in English, and it's easier for  37 me not speaking the languages to follow the  38 explanations of what was -- what was being presented.  39 And in the afternoon of the first day a group of  40 Gitksan chiefs from the northern territories, from  41 Kuldo and Kisgegas, they were the next item on the  42 agenda.  They sat up at the roster and explained to  43 the -- all the people who were there their ancient  44 history of -- their legitimacy for their claims to  45 certain territories in the vicinity of Bear Lake, and  46 the way they did this was to ask Chief Nii kyap, David  47 Gunanoot, to recite part of his adaawk, which I think 12017  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  Q  4  5  A  6  Q  7  A  8  9  10  11  THE  COURT  12  13  MR.  GRANT  14  THE  COURT  15  16  MR.  GRANT  17  THE  COURT  18  MR.  GRANT  19  20  21  THE  COURT  22  23  24  25  MR.  GRANT  26  27  28  THE  COURT  29  MR.  GRANT  30  Q  31  32  A  33  34  35  Q  36  A  37  38  39  40  41  42  43  44  45  46  47  you find in his commission evidence as well.  I  located it there.  Okay.  That's the adaawk he refers to in his  commission evidence?  Yes.  Yes.  And then what happened?  He told it in his language, and he was dressed in his  robes.  The telling was translated by Gyolugyet, Mary  McKenzie, and also translated and commented upon by  James Morrison.  Haven't I heard all this, Mr. Grant?  I'm sure I  have.  My lord, you're in the best position to know.  Well, I'm sure I've heard this whole story.  There's  a transcript of it.  The transcript -- there's a transcript of the feast.  Yes.  But tying to it is the question of the relationship  of the crest system to the territory in this witness'  opinion.  :  I remember being told that David Gunanoot was asked  to speak.  I remember it being said that he wore his  blanket.  I think I've heard all this before.  I don't  think I've made it up.  :  No, I'm certain that you haven't, my lord.  You've  been here much more regularly than all counsel,  although I -- I'll just ask one question.  :  All right.  Dr. Daly, in the event -- can you go to the point at  which you saw the utilization of the crest?  What struck me was at a certain point when James  Morrison was speaking he turned David Gunanoot around  to face the assembled people there --  Yes.  -- and to display the crest on the back of his  blanket.  And he said -- and then he explained, "This  is Gaimadim, the split bear, and it's related to the  events of the -- of the adaawk which you've just  heard, and people -- older people here will know what  I'm talking about because this crest is associated  with this house and this piece of land."  And there  was some feathers, a group of feathers sewn on to one  corner of the blanket, and he said, "These feathers  are the feathers of this territory, and they're  associated with this ancient history and the songs of  mourning and the whole migration into the area."  Now, 1201?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 I didn't quite understand what he meant, so I asked  2 him during a break out in the parking lot, and he gave  3 me more explanation, and then I interviewed him on it  4 at a later date.  But the feathers were of a very  5 specific type of ptarmigan that only grows on one set  6 of mountains in the region, which is in that Nii kyap  7 territory, and anyone sees them who knows that area  8 and is a regular user of the land in that region or a  9 fellow chief, they recognize that fact.  10 Q   Now, I just refer you to page 184.  Halfway down you  11 state, after the quote from Fred Johnson's commission  12 evidence, you state:  13  14 "There is archeological evidence of the  15 inscription of crests on material objects  16 along the Skeena system for at least the  17 last two and a half millennia."  18  19 Then you refer to Fladmark, and you actually cite  20 Fladmark for that.  Are there other archaeologists who  21 have -- upon whom you relied to come to that  22 conclusion?  23 A   George MacDonald and Richard Inglis.  They concur with  24 this view as well.  25 Q   Now, on page 188, the third line from the bottom, you  26 state:  27  28 "In the Gitksan and Wet'suwet'en areas the  29 travels" —  30  31 I'm sorry, I should put it in context because -- above  32 there you say -- you quote from a book on the  33 aborigines of Australia, and then you state:  34  35 "The ownership rights to long sections of  36 these songlines is defined by reference to  37 kinship, economy and the world of spirits."  38  39 Here you're referring to the Australian aborigines?  40 A   Yes.  41 Q   Then you say:  42  43 "Aboriginal Australian rights to property  44 ownership are validated in ways similar to  45 those found among the Gitksan and  46 Wet'suwet'en - through crests, narratives  47 and songs that have to do with the way the 12019  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 ancestors came to walk the land."  2  3 And this is part of your comparative analysis that  4 you're reflecting here of different culture groups; is  5 that right?  6 A   Yes.  7 Q   And that's your conclusion.  And then you describe how  8 they -- what happened in Australia in the next line --  9 sentence, and then you go on to say:  10  11 "In the Gitksan and Wet'suwet'en areas the  12 travels were confined more to the present  13 territories, the northern interior and  14 adjacent coast.  The ada'oxs and kungaxs  15 tell us of migrations and dispersals which  16 were the people's responses to a combination  17 of factors, including the settlement  18 patterns of other human groups, climatic  19 changes, and the importance of trying to  20 remain within seasonal reach of the  21 phenomenal salmon runs."  22  23 And that is your conclusion -- your opinion and  24 conclusion with respect to the Gitksan and the  25 Wet'suwet'en?  26 A   The comparison with the Australian situation is that  27 the Australians, being bands, they are moving over a  28 large territory where they have experienced through  29 the generations a lot of events over many generations,  30 and they're following a -- they all -- all the  31 groupings have their pathway right across the  32 continent almost the way -- the way it works out.  33 Q   Okay.  34 A  And then they work their way back to the starting  35 point.  It may take two or three years, this whole  36 process of hunting and gathering along the way, but  37 that's their way and they're following their spiritual  38 connections with the land, and every bush and every  39 rock denotes a certain history that they have had or  40 their grandparents have had or their ancient  41 ancestors, quite often called supernatural ancestors,  42 have had.  But in this area, in the tribal society,  43 such as we're studying here, these travel routes were  44 much more conscribed -- circumscribed by the different  45 nature of the economy.  The recurring oolichan runs  46 and salmon runs were very often important to the  47 nature of the trails in these two regions. 12020  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   Is there an analysis of the trails in the regions of  2 the Gitksan and the Wet'suwet'en upon which you rely?  3 A   Yes.  4 Q   And whose is that?  5 A   That's by Dr. George MacDonald.  6 Q   Okay.  If I could have Volume 2 of the report,  7 Appendix E.  It would be tab E in your copy, my lord.  8 If you could just look at the tab E, Dr. Daly.  Is  9 this the reference to doctor -- or to George  10 MacDonald's report --  11 A   Yes, it is.  12 MR. GRANT:  — which you're referring to?  13 THE COURT:  This is the report by Dr. MacDonald?  14 THE WITNESS:  It's a portion of a report where he sets out in  15 descriptive terms the important grease trails and  16 trading trails in the region of the Gitksan and their  17 neighbours.  18 THE COURT:  What is this, an extract or a summary or something  19 like that?  20 THE WITNESS:  It's an extract.  21 MR. GRANT:  22 Q   The first three lines are your statement, and then  23 where it starts "Kitwancool Trail," that's a quote  2 4 from him?  25 A   That's correct.  26 Q   And it goes on from there?  27 A   Yes.  28 Q   It's George McDonald's report.  29 A  And this information has subsequently been published  30 in the Canadian Historical Atlas.  31 MR. GRANT:  Okay.  I'll take you to that now.  32 MR. WILLMS:  My lord, if it assists my friend, it's also in the  33 Epic of Nekt, which has been marked by the plaintiffs.  34 The trails are laid out on a nice little map by Dr.  35 MacDonald in the Epic of Nekt.  3 6 MR. GRANT:  37 Q   I'd like to refer to this document book, and I'd like  38 to refer you to tab 89, which is the very last tab in  39 that document book.  And it's in a plastic holder, my  40 lord, so it's easier to get out.  And it's two pages.  41 And can you just describe for the Court what this  42 extract is from?  43 A   This extract is -- I believe is from the -- the --  44 it's from the historical -- Canadian Historical Atlas.  45 Q   And on the second page -- in the bottom right-hand  46 corner of the first page is "Trade Goods and Trade  47 Routes," and that's enlarged on the second page. 12021  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 That's actually the same -- an enlargement of that  2 section on the first page; is that right?  3 A   That's correct.  4 Q   And are these -- this is a reference to trails which  5 are numbered on the map on the first page?  6 A   That's right.  And in the original it's nicely colour  7 coded.  It is much -- it's easier to read.  8 Q   Okay.  Now, you referred in your report to doctor --  9 or to George MacDonald's Appendix E, and subsequently  10 you had an opportunity to review the Historical Atlas;  11 is that right?  12 A   Yes.  13 MR. GRANT:  I'd ask that that document, tab 89, be marked as the  14 next exhibit, my lord.  15 MR. WILLMS:  My lord, if it's being marked just as something  16 that the witness can identify, that's fine.  If it's  17 being marked for the truth of the contents, I object.  18 THE COURT:  Well, it can only be the former, can't it, Mr.  19 Grant?  20 MR. GRANT:  Certainly, yes.  21 THE COURT:  All right.  Exhibit?  22 THE REGISTRAR:  Exhibit number 893.  23 THE COURT:  893.  Thank you.  24  25 (EXHIBIT 893 - TAB 89 - WITNESS BOOK II EXTRACT FROM  2 6 CANADIAN HISTORICAL ATLAS SHOWING TRAILS)  27  2 8 THE COURT:  I'm having trouble finding the main trail that I've  29 heard so much about.  30 MR. GRANT:  Can you just — do you have that excerpt?  31 THE COURT:  It must be the one that starts at Kitwanga, is it?  32 MR. GRANT:  This is the grease trail to the Nass?  33 THE COURT:  Yes, it heads north to Kitwancool.  34 MR. GRANT:  35 Q   It would be the one numbered 9, my lord.  It actually  36 starts -- yes, it starts at Kitwanga, and you see a  37 number 9 on it.  It goes up past Kitwancool.  38 A   It goes up to the Cranberry junction and then down  39 into the Nass.  40 MR. GRANT:  Then it goes down to the Nass, and it's numbered one  41 there it appears.  42 THE COURT:  What is this large double line?  43 THE WITNESS:  These are —  44 THE COURT:  Or are they trails —  45 THE WITNESS:  They're ethnic boundaries of different language  46 groupings between the Nishga, the Gitksan and the  47 coast Tsimshian. 12022  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  I see.  So the double line is language boundaries?  2 THE WITNESS:  Yes.  3 THE COURT:  All right.  Thank you.  4 THE WITNESS:  They're actually shaded on the original map in  5 different colours.  6 THE COURT:  Thank you.  7 MR. GRANT:  8 Q   This -- my lord, this, as I recall, contains the --  9 except for some markings to the east, that is, to the  10 right-hand side, and cut off of some of the writing on  11 the left and a cutting off on the bottom, the only  12 part of the map that may be cut off a bit is to the  13 east, otherwise the entire map -- it goes right to the  14 top of the page.  It was rather difficult to  15 reproduce.  16 A  And it excludes the trails in most of the Wet'suwet'en  17 territory.  18 Q   Is that excluded by that photograph on the bottom?  19 A   Yes.  Well, they extend farther to the south, so it  20 would go off to the bottom right.  21 THE COURT:  The bottom of the map is Prince Rupert Harbour?  22 THE WITNESS:  On the left, yes.  2 3 MR. GRANT:  24 Q   Is George MacDonald's work with the trails in this  25 area, is that recognized in the field of anthropology?  26 A   Yes, it is.  He collated it from the eyewitness  27 accounts of surveyors and early travellers for the  28 most part, as well as finding out what -- what the  29 local Native people had to say about where their  30 trails were.  People like George Dawson and Poudrier,  31 who were drawing maps and looking for transportation  32 corridors from along the north coast into the  33 interior, they ran into these trails in the 1880's and  34 1890's.  35 Q   And Poudrier is one of the persons you've looked at --  36 A   Yes, I've relied on.  37 Q   -- and examined and relied on yourself?  38 A   Yes, he was a very nice map maker.  39 Q   Now, I'd like to move to the next section on page 189  40 of the report, Volume 1, my lord.  Now, you state as  41 an opinion at the beginning:  42  43 "The right to grant or withhold consent to  44 use House territory is closely linked to the  45 owner's public responsibility to see that  46 the land is well used, its general fertility  47 maintained, and the people's basic 12023  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 subsistence requirements fulfilled."  2  3 And that is your opinion?  4 A   Yes.  5 Q   Now, what I'd like to ask you is why do you say that  6 the -- among the Gitksan and Wet'suwet'en why did you  7 conclude that the owners, in this case it would be the  8 house groups, that their -- the right to grant or  9 withhold consent is linked to the owner's public  10 responsibility?  What do you mean by public  11 responsibility there?  12 A  Well, public responsibility is first and foremost to  13 be very active in -- in the feasting system, not to  14 fall into arrears but keep the name of the house up by  15 having good feasts to pay back your debts after  16 somebody has died particularly, and to mark the -- the  17 passing through the life cycle of young members of the  18 house, particularly those who may one day accede to  19 high names.  20 Q   Now, on the bottom line, just to clarify, you refer  21 to -- there's two persons who may seek and be granted  22 permission.  One is the father's house group, and then  23 B, at the second bottom line, the spouses' kinship  24 groups.  When you say the spouses' kinship group, are  25 you referring to the house group or another group?  26 A   The house group.  27 Q   Now, you state at the top of page 192 that:  28  29 "Whether the user is linked to the House  30 through his or her father, or spouse, or is  31 more distantly linked, the use rights are  32 supposed to be extinguished at least by the  33 time of the death of the person to whom  34 these rights were granted by the chief."  35  36 And you refer there to Olive Ryan.  And that's  37 something that -- I take it from that citation that  38 that's something that you read in her transcript?  39 A   Yes.  But it's also a concern in the community.  You  40 hear lots of discussion on the question about why  41 someone is using a piece of land when their father has  42 passed on and they should by rights have left and gone  43 to their own territory.  44 Q   Okay.  Well, I think you've anticipated my question,  45 which is:  Is that concept, aside from Olive Ryan's  46 statement, is that something you found generally in  47 the community? 12024  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  THE  THE  MR.  THE  MR.  A   No, it's very much alive, yes.  Q   Would that apply to the Wet'suwet'en as well?  A   Yes.  But it's slightly different, I think.  Q   Can you explain that distinction?  A   I can think of various instances, but the Wet'suwet'en  tend to realize that there's a shortage of land these  days because of the changes that have occurred in the  last hundred years, so before making a big fuss about  somebody staying on the land after the death of their  father, they weigh all the consequences of how this  person is going to have access to land, if they're  asked to leave that piece of land, will they have  anywhere to go.  So there's more consciousness about  the shrinking nature of land that can be used for  hunting and trapping and berry picking.  GRANT:  Now —  COURT:  I'm sorry, they're picky about letting someone stay  or about kicking someone off?  WITNESS:  I think I said berry picking.  COURT  GRANT  COURT  GRANT  Q  A  Q  A  Q  A  MR.  THE  THE  GRANT  COURT  Oh, berry picking.  I'm glad you asked the question, my lord.  All right.  But maybe -- do you understand his lordship?  There  was -- they're more concerned about letting someone  stay on the land?  No, I mean the rules are -- the rules are cited in  both -- in both societies --  Yes.  -- that once your father has passed on you should --  you should leave the land, and you might be asked to  or you'll find out in a feast that the land is now  being used by someone from the house.  It's announced  there.  Um hum.  Or if -- if the person who's been using the land has  discussions with the -- the chief in question whose  land he is on, and that whole family, they may decide  that since he doesn't have anywhere else to go he can  be their caretaker if they're not using the land.  That sort of arrangement will be used to extend the  rights.  But they don't -- the rights aren't  forgotten; it's just there are various ways of dealing  with the real situation on the ground today.  Okay.  Do I take it that it's different in the Gitksan?  WITNESS:  I think it's a matter of degree. 12025  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  More rigid?  2 THE WITNESS:  The Gitksan is more —  3 THE COURT:  Not rigid but —  4 THE WITNESS:  They're a little more sticklers to getting people  5 off the land after that period of time.  But there's  6 gradation, so it's hard to say that it's all one and  7 then all the other.  It's just a matter of emphasis, I  8 think.  9 MR. GRANT:  10 Q   Within the Gitksan are there gradations about the  11 applicability of this rule?  12 A   Yes, there are, and other -- other facets too.  13 Q   Can you expand on that?  14 A  Well, my impression is that there's more leeway, a  15 more relaxed attitude, if you like, in the northern  16 and eastern territories than in the western  17 territories.  They're more coast like in terms of  18 the -- the cut-and-dried nature of the relations and  19 the competitive nature of questions concerning land  20 use.  21 Q   Okay.  Now —  22 A  Again, it's a question of gradation, and it's not all  23 of one or all of the other.  24 Q   I'm going to ask -- on page 193 you state:  25  26 "The user of a fishing site customarily makes  27 an on-the-spot payment,"  28  29 the middle paragraph,  30  31 "for short-term use rights to fishing  32 locations."  33  34 Now, have you observed this happen among the  35 Wet'suwet'en, the Gitksan, or both?  36 A   I have observed it among the Gitksan where someone  37 will pay -- a couple of times in the hot summer  38 weather they'll pay with a case or beer of something  39 of that nature, or some cold drinks, for the right to  40 fish for a day, and then maybe later on they'll give  41 some of the fish to an elder who's associated with the  42 site that they used.  43 Q   Have you seen this happen with respect to the  44 Wet'suwet'en, and does the statement apply to the  45 Wet'suwet'en from your -- based on your research?  46 A   Based on my research it certainly applies, but I  47 haven't actually seen it with my own eyes. 12026  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  MR. GRANT  THE COURT  MR. GRANT  THE COURT  Okay.  Time for lunch, Mr. Grant?  Yes, it may be appropriate, my lord.  All right.  Thank you.  Two o'clock.  THE REGISTRAR:  Order in court.  Trial will adjourn until 2:00.  (PROCEEDINGS ADJOURNED AT 12:31 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Leanna Smith  Official Reporter  United Reporting Service Ltd. 12027  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED AT 2:00 p.m.)  THE REGISTRAR:  THE COURT:  MR. GRANT:  Q  Mr.  Order in court.  Grant.  A  Q  A  Q  A  Q  A  Thank you, my lord.  Dr. Daly, I am at page 194 of  your report, or, I'm sorry, there was one thing I  wanted to ask you.  In terms of this section I just asked you about  the comment on page 193 before lunch about the  on-the-spot payment for short-term use of rights to  fishing locations.  From your research, including your  ethno historical work and your work in the review of  the adaawks and the kungax and other ethnographies,  was there an example historically among the  Wet'suwet'en where they went to other areas to use  fishing rights?  Historically, you mean in the written records?  In the distant past, yeah, but in the written records?  Well, certainly in -- after the rock slide in the  canyon, they couldn't get fish in Moricetown.  Yes.  They went to the Babine, which was a reversal of the  process.  More often Babine people would come to fish  to Moricetown before that and even subsequently,  today.  And then they made arrangements with fellow  clansmen from the Gitanmaax area around Hazelton to  move to what is today Hagwilget.  That's in sort of  contact period.  Okay.  And from -- and that is recorded in historical  documents?  Yes, it is.  And there is a certain number of  references to it in the notes of William Beynon in the  Barbeau-Beynon papers about all the negotiations for  the move to the fishing sites in Hagwilget Canyon.  Okay.  My lord, I just am going into the next section,  Exclusive Rights and Trapline Registration, and I just  wanted to set out clearly for your lordship and my  friends in case there is any -- I'd hate to come to  the end of this direct examination and find that  people are operating under different assumptions.  In  light of your comments this morning, my lord, I don't  intend to lead through Dr. Daly all of the specific  facts upon which each opinion is based.  I will submit  that those are set out in his report.  He's also now  given evidence of all of the major sources.  I may  exemplify them in certain circumstances, but I feel 1202?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT:  Q  otherwise, my lord, the time I have allocated would be  just tripled and I don't see any point in that.  And  if my friends have an objection on that, then I think  they should raise that at the time of the specific  area and then I will focus on it.  THE COURT:  You may find that in cross-examination, counsel  might make something inadmissible into something that  is admissible.  That often happens.  MR. GRANT:  That's why I like to give them ample opportunity to  expand --  THE COURT:  Yes, to prove your case for you.  Well, I think,  with respect, that's a correct decision.  If the facts  upon which opinion are based are not in the report,  well then probably the opinion isn't admissible or  elsewhere that's been established.  Yes.  Or elsewhere includes the -- of course the transcripts  that the witnesses have reviewed.  I'd like to make a brief reference, and you don't  have to pull this at this time, my lord, to George  MacDonald's appendix E of your report, that is the  reference to the trails?  Yes.  Now, you yourself have reviewed certain of the  historical documents such as the Poudrier documents?  Yes, and Horetsky's travels and so on.  Okay.  And there is a count by a man by the name of Chisholm  who travelled through the area at the end of the  century written up in one of the Victorian newspapers  I think.  And you have read through that?  A number of things of that nature.  Yes.  Based on your own ethno historical analysis, do  you adopt the opinions of George MacDonald that are  set out in appendix E?  Yes.  I think it's -- his portrayal of the trails is  quite well accepted in the field of their existence  and the fact that they have considerable time depth to  them.  Q   And in terms of the locations of those trails that was  consistent with your own ethno historical research?  A   Yes, it was .  Q   That is with respect to the trails that are within the  Gitksan and Wet'suwet'en area?  A   Yes.  Q   And with respect to the map, in the map atlas, do you  A  Q  A  Q  A  Q  A  Q  A 17 MR. GRANT  18 THE COURT  19 MR. GRANT  12029  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 assume that that map accurately reflects the trails  2 that George MacDonald refers to in appendix E of your  3 report?  4 A   I do.  5 MR. GRANT:  My lord, I am not going to go through the appendix  6 in detail.  7 THE COURT:  All right.  The map is Exhibit — was it tab 38, was  8 it?  9 MR. GRANT:  Tab 89.  10 THE REGISTRAR:  Exhibit 893, my lord.  11 MR. GRANT:  — of the green book.  12 THE REGISTRAR:  Exhibit 893, my lord.  13 THE COURT:  Exhibit 893.  14 THE REGISTRAR:  Yes.  15 THE COURT:  Thank you.  Shouldn't you then be tendering this as  16 Exhibit E, Mr. Grant?  Yes.  Whenever you wish.  Yes.  I would propose that, if the report goes in,  20 of course I would tender the exhibit as appendix E as  21 part of the report.  22 THE COURT:  All right.  2 3 MR. GRANT:  24 Q   Now, I refer you to the next section of your report on  25 page 194 dealing with Exclusive Rights and Trapline  26 Registration.  And at page 194, 195, you set out your  27 opinion.  You state that:  28  29 "Today, particularly as a result of trapline  30 registration, there is considerable pressure upon  31 the Gitksan and Wet'suwet'en to convert this  32 system of matrilineal exclusive ownership and  33 inheritance..."  34  35 That's the system you have been describing previously  36 in the earlier parts of your report?  37 A   Yes.  38 Q  39 " a patrilineal system where property passes  40 from father to son.  The property rights of the  41 matrilineal owners continue, however, to be  42 recognized in the communities, even over lands  43 that have been in use for considerable periods of  44 time by people whose predecessors were in father-  45 son relationships to the owning house.  The elders  46 are stressing the adherence to the long-standing  47 rules of succession and the attendant system of 12030  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  exclusive ownership rights embodied in the  matrilineal House group."  Then you say:  "To an outsider..."  the next paragraph:  " may look as though the Gitksan and  Wet'suwet'en pass land from father to son in many  instances.  But this impression is incorrect  because the apparent father-to-son succession to  land is frequently made legitimate when the sons  practise cross-cousin marriage or are adopted into  the owning House."  Now --  A   I would like to -- this isn't necessarily cross-cousin  marriage but marrying into the house of your father,  the house and clan of your father.  Q   Okay.  So it may be articulated through cross-cousin  or another marriage into that house?  A   Yes, so that you establish -- you continue an ongoing  inter-generational relationship but it may not be  exactly a cross-cousin marriage.  THE COURT: Are you making those alternatives as Mr. Grant said,  cross-cousin marriage, or marry into the house, or are  you substituting marrying for cross-cousin marriage?  THE WITNESS:  Cross-cousin marriage results in marrying into  that house, too, but it is a very specific  relationship.  You have to marry a very specific  person.  THE COURT:  All I want to know is whether you want your report  to read with those as alternatives or as one being  substituted for the other?  THE WITNESS:  I would say alternatives.  THE COURT:  Or marrying into the house of the father, all right.  MR. GRANT:  Q   Now, I have read a lengthy portion of your opinion  there and I just want to go back to that first page  194.  Basically, can you explain why you have  concluded that although there is this considerable  pressure, that firstly there is considerable pressure  and also why you say that matrilineal owners continued  to be recognized in the communities?  Would you expand  on that please or explain why you have come to that 12031  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 conclusion?  2 A  Well, trapline registration tends to follow a pattern  3 of father-to-son inheritance according to the wildlife  4 people and this flies in the face of the matrilineal  5 system of succession to land and fishing sites of the  6 Gitksan and Wet'suwet'en.  The same time the people  7 have -- my understanding, the people have done their  8 best to register their traplines in what they call the  9 white man system.  At the same time not give up their  10 own system of reckoning and transfer of rights over  11 the land.  So it is rather difficult to explain.  I  12 wrote it out here in the report.  13 A man may inherit land according to the wildlife  14 system from his father, but of course during -- he can  15 legitimize his position there through his kinship  16 ties.  He can either get -- be acknowledged as a  17 temporary caretaker of that land on behalf of the  18 house, and then the land is -- there is a shifting of  19 ownership at a later date.  Or through the type of  20 marriage he engages in, he can gain legitimacy by  21 marrying back into that house and then as a spouse he  22 has rights to be there.  Or he or one of his children  23 may be adopted in, and there is various ways of  24 adjusting to the realities of the wildlife  25 registration system in terms of the regional system.  26 Q   Just one comment you said, I want to be clear on it.  27 You said he could be a caretaker of land and then the  28 ownership could shift at a later stage.  Are you  29 referring --  30 A   I am not -- did I say ownership?  31 Q   Yes, you did.  I just wanted to be sure what you meant  32 there.  33 A   No.  The actual use rights, because the ownership  34 hasn't shifted in the eyes of the community; the  35 ownership remains with the house group, but the actual  36 user who is the registered owner or controller of the  37 trapline, his rights to use that territory will be  38 shifted to someone else at a later date.  39 Q   Thank you.  40 A  And there are quite a few examples of people ending up  41 on their father's territory and the people who are on  42 their territory are their patrilateral relatives, too,  43 so at a certain point they then switch over the land  44 and go back to zero -- back to square one and start  45 over again in terms of the passing on of land and the  46 use of the land.  47 Q   And have you seen an example of this or have you 12032  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 investigated any examples of this without getting into  2 the description of that example right now?  3 A   There are quite a few examples but I have recounted  4 one in some detail in the report.  5 Q   And that is between which houses?  6 A   That's between the House of Namox and the House of --  7 it is the John and Pat Namox on one side and Emma  8 Michell and Dan Michell and Victor Jim on the other.  9 They are the House of Namox.  10 Q   Okay.  So it is the house of John and Pat Namox?  11 A   Yes.  12 Q   It's okay, we will come back to it.  Now, aside  13 from -- and you investigated that particular example  14 and researched it as part of your own research?  15 A   I did.  16 Q   And did you -- do you know of anything with respect to  17 David Blackwater and trapline registration?  18 A   Yes.  The predecessor to David's trapline in terms of  19 the registry, when he passed on, the land was  20 re-registered by the Wildlife office in the name of  21 this man's son.  The man said, "No, I don't want -- it  22 is wrong to put my name on it because I am not the  23 successor to Niist", which is Niist's trapline and  24 Niist is David Blackwater.  25 Q   And that, if David Blackwater was the one that  26 obtained that registered trapline, that would be  27 consistent with the --  28 A  With the matrilineal succession, yes, because the  29 previous holder was the -- held it in the name of the  30 House of Niist.  31 Q   Now, I'd just like to refer you to the bottom of page  32 195 and the top of page 196 and ask you to expand on  33 that.  You state over -- you state at the bottom, you  34 state:  35  36 "Over time, these interacting Houses and Clans will  37 be 'feeding each other's children' from their own  38 respective territories in alternate generations.  39 This system of enduring reciprocal relations  40 knits the respective kinship social units  41 together, and the Gitksan and Wet'suwet'en strive  42 to reassert it, and set right the confusions  43 wrought by modern trapline inheritance."  44  45 Now, there is a couple of concepts there that I'd like  46 to ask you about.  What do you mean when you say the  47 interacting houses and clans will be feeding each 12033  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  other's children from their own respective territories  in alternate generations?  A  Well, the people who are using the land at any one  time, if they are married people, only half of them  are members of the owning group.  The other half are  members of other groups, and because of matrilineal  succession or because of the system of inheritance,  half of the people using the territory will belong  to -- at least half of the people will belong to other  houses, so they are being raised on the territory in  question, so that territory and its chief and its  lineage or its chief and its house are feeding the  children of these other property owning chiefly  groups, these other houses.  Q   Right.  A   So that's the way this concept of feeding each other's  children works.  And they also talk about producing  children for -- we give you spouses so that you may  produce children for your lineage or, sorry, your  house and then somewhere down the line there is a  reciprocation of this process.  Q   And would this apply in cases where houses marry each  other in alternate generations?  A   Yes.  GRANT:  Now, you go on to refer to the -- page 196 at the  top:  "The Gitksan and Wet'suwet'en principle of  matrilineal inheritance can easily come into  conflict with the residential pattern if which a  wife moves to her house territory..."  MR. WILLMS:  MR. GRANT:  Q  Husband's,  , to her husband's territory",  thank you:  "...(that is, after a new husband has lived among  his wife's people for a period of time, working  and hunting on their behalf, he may then take his  wife to live on his House territory, as was the  personal experience of Johnny David."  Now, did you see other examples of this, other than  Johnny David, what he has described, and I take it in 12034  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 his commission evidence, of where the wife moved to  2 her husband's territory and then the husband then  3 moved back and worked on his wife's house territory,  4 or one of the -- or the other of those features?  I am  5 referring here specifically to the Gitksan.  Do you  6 recall a situation where the husband worked on the  7 wife's territory and taught her children about that  8 territory?  9 A   No.  One example that comes to mind is the situation  10 of Art Matthews Senior who was from the House of  11 Luuxoon, I believe, from Kitwancool.  12 Q   L-u-u-x-o-o-n.  13 A  Which is the Ganada or the Frog Clan.  But he was  14 raised on his father's side territory and he married  15 there, which is a very good situation for raising  16 for -- not a particularly good situation politically  17 for that man in terms of rising to a position of great  18 importance in his home lineage because he is living  19 outside his territory, but it's a very good situation  20 for his children because he is raising his children on  21 the land that they legitimately inherit so that their  22 whole life time experience on that land is unbroken  23 and it gives them a very good attachment to it;  24 whereas in other situations, the children will -- at a  25 certain point the sons will have to leave the father  26 and be schooled by their uncle and sometimes it is at  27 quite a distance away in a different territory.  2 8 THE COURT:  Why do they have to leave their father?  You mean  2 9 when he dies?  30 THE WITNESS:  Well, the father has heirs that are not his  31 children.  His heirs are his sister's children,  32 according to the matrilineal inheritance.  33 THE COURT:  Well, that doesn't explain to me why his children  34 have to leave him.  35 THE WITNESS:  They don't have to leave him but, if they are in  36 line for a chiefly position within their own house,  37 their mother -- the house that their mother --  38 THE COURT:  The house where they are?  39 THE WITNESS:  Well —  40 THE COURT:  Why don't they just stay there?  41 THE WITNESS:  If they are in the — an example of Axtii Hiikw,  42 Tenimgyet with the Matthews, that's the situation, but  43 in the other situation which is very common, the  44 children are raised where their father is.  The father  45 takes his wife onto his land.  He raises his children  46 there.  47 THE COURT:  I am sorry, I thought you were postulating the 12035  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 situation where the husband went to live at his wife's  2 territory and his children were going to stay there.  3 I thought that's the situation you were describing?  4 THE WITNESS:  No.  I switched from that to the alternate.  5 THE COURT:  So you were talking about where the children are  6 being brought up on the father's land which they will  7 not inherit?  8 THE WITNESS:  Yes.  9 THE COURT:  Then they will — at some point they will go back to  10 the land they are going to inherit on their mother's  11 side?  12 THE WITNESS:  Yes, or else they will maintain a position there  13 during the life of their father through the rights of  14 Negedeldes, Amnikwats.  15 THE COURT:  I understand, thank you.  16 MR. GRANT:  17 Q   And that was a situation, for example, with Vince  18 Jackson, the son of Robert Jackson Senior; he was  19 raised on his father's land, is that right?  20 A   Yes, and a number of his brothers, too.  21 Q   And his brothers.  And with the situation with the  22 children of Mary McKenzie, they were raised on --  23 A   They were raised on their father's land, yes.  24 Q   I think you have already referred to James Morrison  25 yesterday?  26 A   Yes.  27 Q   Now, politically or in terms of power, Dr. Daly, how  28 does this, what you have just described, this fact  29 that children are commonly raised on their father's  30 land and then they move back to their mother's house  31 territory?  Does that have any effect on --  32 A   It has an effect --  33 Q   -- power relationships within the kinship system of  34 the Gitksan and Wet'suwet'en?  35 A   It is a common feature of matrilineal societies.  36 Where you have buildups of power in the patrilineal  37 systems, it is a group of men who are brothers and  38 their sons and their grandsons who control on the  39 ground throughout several -- three or four  40 generations.  But in a matrilineal system there is  41 quite often this shifting of men between different  42 maternal groups, so it breaks up this tendancy to  43 develop inter-generational long-term types through the  44 father's side.  I mean, there is relationships but  45 they don't hold all the power because you don't  46 inherit father to son.  47 Q   And this is common with other matrilineal groups other 12036  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 than the Gitksan/Wet'suwet'en?  2 A   Yes, and it is one of the structural features which  3 keeps the society in a sort of equilibrium between  4 kinship groupings rather than developing into a  5 hierarchical chiefdom.  6 Q   Now, does that apply in a circumstance where a person  7 is raised on say his father's territory and may learn  8 a lot about it, but he's not of that house and when it  9 comes time to describing that territory to somebody  10 else, whether that person can do so or not?  11 A  Well, he has no rights -- he has no rights to talk  12 about the territory or to be its representative.  All  13 he can do is use the land or the fishing site.  14 Q   Okay.  Now, did you research any examples of how that  15 gave rise to that conclusion?  16 A   Yes.  I came into one rather interesting example  17 where -- when Alfred Joseph was researching the  18 territories of the chiefs, he went to Emma Michell,  19 the elder of the House of Namox, the Tsayu Clan, and  20 asked her about the Namox territory, and she said,  21 "Well, I wasn't actually raised on my land, I was  22 raised on my father's land, so you should talk to the  23 people who actually have been using it, and that is  2 4 John and Pat Namox."  25 Q   Before you go further, did you also talk to Emma  2 6 Michell and to John and Pat Namox about this?  27 A   I didn't talk to John Namox, I talked to Pat Namox and  28 to Emma Michell and to Alfred Joseph.  29 Q   About this?  30 A   Yes.  31 Q   Go on.  32 A  Anyway, Alfred went to visit Pat Namox and Pat said,  33 "Well, I don't know anything about this territory.  34 Why are you talking to me?  It is not my land.  You  35 should see the Tsayu people, see Emma Michell, she is  36 the person who can deal with it.  I don't know  37 anything about it."  38 Q   Yes.  39 A   But Alfred said, "Well, I got permission from Emma.  40 She sent me to talk to you."  So she said, "Well, in  41 that case I will talk to you."  And he told in detail  42 the place names and the use of the different regions  43 within the territory.  44 Q   Is that example typical of what you have found in  45 other matrilineal societies in terms of persons may  46 learn about their father's sides territory, for  47 example, but not disclose it? 12037  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 A  Well, it is a feature of non-centralized societies.  2 You get into trouble if you talk about the affairs of  3 others that you are not related to, so you get a  4 rather tunnel-vision view of the overall society  5 because people are focusing on their own affairs.  6 That's what interests them the most and that's what  7 they have a legitimate right to talk about, but they  8 can't, except in exceptional circumstances, speak on  9 behalf of everybody, of all the groupings.  10 Q   Now, I'd like to refer you to -- you state on page 198  11 of your report, and this is starting the second line  12 from the top:  13  14 "Over the years, 'companies', usually groups of  15 matrilineal kin from within the House, have  16 registered traplines."  17  18 And that's an assumption you make of the trapline  19 registration systems; is that right?  20 A  Well, that's what people told me.  21 Q   Okay.  22  23 "...both out of fear of losing their territories to  24 the Government, and gaining a degree of Government  25 recognition of their ownership, and their right to  26 be on the lands where their traplines are located.  27 They believed that they had, by this means,  28 obtained at least a de facto recognition, from  29 Government, of their authority over their own  30 lands."  31  32 It is based on part of what people have told you; is  33 that right?  34 A   That's correct.  35 MR. GRANT:  I'd like to pause here and ask you as an  36 anthropologist, do you -- what do you do with what  37 people describe in terms of their beliefs of certain  38 set of circumstances?  Is that part of the field of  39 anthropology?  40 MR. WILLMS:  My lord, my friend qualified this witness two days  41 ago.  There was nothing about value belief systems in  42 that qualification that this witness was acutely able  43 to say, when he talked to somebody, that they really  44 believed in it or that they really believed something  45 else when they said what they said, and even if he  46 would have said that, in my submission, there is no  47 way in the world that any person is qualified in a 1203?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 court case to say what people believed or what they  2 thought, other than perhaps your lordship, except in  3 the case where there is perhaps a psychiatrist where  4 we are talking about a defence of diminished  5 capability or something like that.  But in  6 circumstances like this, I mean, the witness talked to  7 20 people and now he is going to say what their value  8 belief system was about what they were talking about  9 and I object.  10 THE COURT:  Ms. Koenigsberg?  11 MS. KOENIGSBERG:  I don't think I will try to add anything to  12 that.  13 THE COURT:  Thank you.  Mr. Grant.  I am sure there are various  14 ways of looking at this and I am sure you are not  15 asking the witness to rate the credibility of the  16 various witnesses he talked with.  17 MR. GRANT:  Of course not.  18 THE COURT:  Aren't you going into an area of trying to make  19 subjective assessments of subjective matters?  20 MR. GRANT:  Well, no, with respect, I don't believe so, because  21 as was argued out I believe with another expert  22 witness in this field and as I think my friend keeps  23 forgetting, we are dealing here not with chemistry but  24 with anthropology, we are dealing with human beings,  25 and just as the chemist looks at the molecules under  26 the microscope, what an anthropologist does is look at  27 people and their interactions and their social  28 relationships.  2 9 THE COURT:  That's what they do and how they live and what —  30 well, the things they use and that sort of thing.  31 MR. GRANT:  Right.  And in the analysis of the conduct and  32 behaviour of a society what the people -- the  33 assumptions or the beliefs upon which the people are  34 operating under in terms of why they do things, now I  35 haven't had the opportunity to ask Dr. Daly this yet,  36 but if he says that's part of the field of  37 anthropology which is the question at which my friend  38 objected, I submit that that's relevant.  It is not --  39 of course, I am not asking Dr. Daly this question to  40 determine the truth of the statement of those people  41 which would be the hearsay point, but the fact that  42 people have said this to Dr. Daly may have some impact  43 on his opinion and also it may be something that, as  44 an anthropologist, he can interpret.  My friend used  45 the analysis of a psychiatrist.  Psychiatrist deals  46 with individuals and their thought pattern.  An  47 anthropologist deals with societies, with groups of 12039  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 people and their behaviour, and I submit that this is  2 exactly what he was being qualified -- for example, I  3 had him qualified in the system of management and  4 harvesting of resources, the system of the set of  5 social relations and institutions and their linkages  6 to the --  7 THE COURT:  You don't need to read all seven again.  8 MR. GRANT:  No, I am not going to, but those two examples, I  9 have qualified him in the field.  But of course if he  10 says this isn't what anthropologists normally do --  11 THE COURT:  The trouble, Mr. Grant, is when you get into values,  12 you are into a double concept at least and maybe more  13 than that, and if you are assessing how someone  14 behaves, you can describe it objectively.  If you are  15 talking about what somebody thinks, psychiatrists will  16 guess at what people think; juries decide what people  17 are thinking all the time when they are dealing with  18 the question of intent; medical doctors tell us that  19 the pain is thought to be real, even if there are no  20 objective signs, but they do it on the basis of an  21 assessment of the injury and the likely period of  22 recovery and the response they get to an  23 investigation -- detailed investigation.  But once you  24 are into values, everyone's values are different.  25 MR. GRANT:  But I submit with respect, my lord, I am not asking  26 about values; I am not asking about values here.  I am  27 asking what the witness was told -- what a person is  28 told -- if Dr. Daly is told something by a person, it  29 is as much a fact that he can speak to as if he sees  30 the person do something, and that's what I am asking  31 about and then I am saying what do anthropologists do  32 when they are told fact with respect to this area.  Do  33 they deal with that?  34 THE COURT:  Well, I think that the thrust of the debate has  35 changed a bit because values were -- certainly we were  36 in the values earlier and that's what made me lean  37 towards your friend's objection, but if you say you  38 are not talking about values, then I have lost it  39 through the tread of what we are talking about.  40 Perhaps we will solve all our problems if you just  41 start again and we will see if your friend objects to  42 your next question, and I won't have to rule.  43 MR. GRANT:  Well, my friend objected because I asked him what  44 anthropologists do.  45 THE COURT:  But that's from an answer to a previous question.  46 So you decided to bring it within the field of  47 anthropology. 12040  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE  THE  THE  THE  THE  THE  I heard some humming and hawing to my right, that's  for sure.  Both your friend and the witness may be right.  Not from the witness, my lord, not from the witness.  I can hardly hear the witness sometimes from my  friend.  Dr. Daly, you make this statement that, with  respect to the people:  "They believed that they had, by this means,  obtained at least a de facto recognition, from  Government, of their authority over their own  lands."  And earlier on, you say that people told you why they  registered traplines, and this is one of the things  that people told you, and you describe it above that.  COURT:  You are really not saying anything more there than  the fact that that's what they told you?  WITNESS:  I think I am.  COURT:  You think you are saying something more than that?  WITNESS:  I think I am saying something more.  COURT:  You're saying that they told you and you believed  them?  WITNESS:  No.  I am saying that, in terms of their culture,  they have a set of objectives, values, principles, and  sets of means which are -- have a logic of their own  which is different from ours and this is what  motivates them in their actions, and it is not always  the same assumptions that lead them into a set of  actions that we have.  MR.  GRANT:  Q  A  Q  A  Well, you referred this morning to the example that  you have referred to earlier in your research from the  ethno history of the Iroquios and first contact with  the white men and the different methods that they  dealt with.  You recall that?  Yes.  Now, is that analogous to what you are talking about  here?  Yes, it is.  There is one set of assumptions from the  Game and Wildlife -- Fish and Wildlife Department, and  another set of assumptions from the  Gitksan/Wet'suwet'en who are registering their  traplines as to the signification of that -- those  events.  There is two cultures at work perceiving of  the situation in different ways. 12041  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR.  Q   Now, that analysis of contact -- of how two cultures  interact with different assumptions, is that something  that is studied in the field of anthropology?  A   It is involved in every study in the field of  anthropology since contact because there are -- there  is this culture clash and conflict and interaction and  the waxing of one and the waning of the other, and the  relationship between the two and how it changes  people's perceptions and how ideological frameworks  develop and change.  :  Well, Mr. Grant, I intend absolutely no disrespect  to the discipline of anthropology but on this  particular area here, what the doctor is telling me is  really no different from what Mr. Michell told me  which is quoted on the same page.  He is telling me  that that's what the various plaintiffs believed when  they registered their traplines and they have told me  that themselves.  Now, what do I get in addition to  that —  :  Well —  :  -- from having the doctor repeat it?  It seems to me  to be perfectly obvious and it's really a question:  Do I believe what they said when they said they  registered for that reason?  How can the doctor help  me?  That's for certain but, of course, the doctor here is  talking about these areas that I have qualified him in  and I'd like to go to that next step from that which  is where I was when my friend objected, and that is:  Does it tell you anything about the Wet'suwet'en and  Gitksan system from an anthropological point of view  when this is what the people are saying occurred of  the trapline registration?  A  Well, taken in the context of all the other things  that I observed people doing and saying and making and  so on in the course of the field work, it does make  sense.  It fits into their matrilineal principles of  ownership and land holding and their problems of how  to maintain it today when there is a lot of duress and  pressure against its maintenance.  Q   Does it reflect a continuation from an anthropological  point of view of the matrilineal kinship system or  does it reflect a demise or major alteration of that  system?  A   The thinking is based on the matrilineal principles;  it's not a question of whether it is in demise or it  GRANT:  Q 12042  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 is continuing.  That's what the basis of the opinions  2 and the goals and the actions of the Gitksan and  3 Wet'suwet'en on this matter are informed by.  It is  4 very much at the core of their understanding and the  5 tools of which they deal with the world, the frame of  6 reference.  7 Q   If I could just have a moment, my lord.  8 Now, can you explain -- you mentioned earlier,  9 just completing this area, you mentioned earlier about  10 research you did with respect to Pat Namox's house and  11 the House of Namox, and I believe in your report at  12 page 201 you refer to it and there you refer to it as  13 the House of --  14 A   Hagwilneghl.  15 Q   Hagwilneghl, thank you.  Can you describe for his  16 lordship what occurred there in terms of this back and  17 forthing in terms of your research?  18 A  Well, you get an indication of it from the very  19 name -- the fact that the two -- the Namox brothers  2 0 who were using the Namox land have that name.  Their  21 father was the chief of that house in his generation.  22 Q   Their father was Namox?  23 A   He got through the patrilineal naming system of the --  24 of the Canadian society and reinforced by the churches  25 and so on.  He passed his name on to his sons but of  26 course they don't inherit through the same system.  27 Q   What happened -- was there any change?  28 A   They were raised on his land and the -- one of them --  29 the central family in the Namox house of that  30 generation were being raised, the inheriters shall we  31 say, were being raised on the land which the Namox  32 brothers should have been on that was -- their  33 inheritance through their mother, the Hagwilneghl  34 territory, in the upper Telkwa region.  35 Q   Right.  36 A   So this switchover went on for some years, and then at  37 a certain point the two houses decided that they would  38 get -- sort out the anomaly and each go back to their  39 own territories but invite one another to use them  40 from time to time, so that's how it happened and this  41 was all formally transacted in the course of feasting.  42 Q   Now, on page 203, I'd like to ask you, this is after  43 you talk about -- talk about this particular example.  44 You go on to say -- at the top of 203:  45  46 "Such inter-weaving of lands and rights of  47 exclusive ownership between House groups is 12043  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 typical in the Gitksan and Wet'suwet'en  2 communities."  3  4 And then you go on to say:  5  6 "The Wet'suwet'en example presented above  7 illustrates the articulation of rights that occur  8 between intermarrying clans and Houses.  This same  9 system pertains among the Gitksan although it is  10 my impression that longterm use rights (such as  11 several chiefs hunting jointly on their combined  12 territories) are granted less frequently to those  13 who are not members of the land-owning House, or  14 for shorter duration than among the Wet'suwet'en."  15  16 Can you explain to his lordship why you make that  17 distinction between the Gitksan and the Wet'suwet'en  18 with respect to the long-term use rights?  19 A   I think basically it is a matter of gradation as well  20 as the pressure on the available land for hunting and  21 and trapping purposes because you find areas in --  22 among the Gitksan where this occurs as well.  23 Q   Which areas are that?  24 A   Particularly in the northeast in the Kisgagas area.  25 While farther to the west there is a considerable  26 detailed attention paid to housekeeping and  27 straightening out the indebtedness and the use  28 relationships between houses which isn't to say that  29 the hunters in that area don't hunt together on each  30 other's lands either.  They do, but in some areas  31 among the Wet'suwet'en chiefs, a whole set of families  32 would hunt and trap together over several territories  33 and maybe involving two clans, so that the harvesting  34 of the resources was planned and in a way that would  35 allow lands to be left fallow for a year or two, so  36 maybe three or four hunters would all trap together on  37 one man's land and then move to another one.  And it  38 varied with the species, too, and the knowledge of  39 where the certain species would be at a certain time  40 of the year.  41 Q   Can you go to page 204, and I am going to combine this  42 with something you have on 205.  The first paragraph  43 on page 204 you say:  44  45 "In the course of trapline registration and  46 inheritance these interrelations between Houses  47 have tended to become reified and frozen.  Men 12044  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 become attached to one territory/trapline - so  2 long as it has not been clearcut or cleared for  3 settlement - and kinship reciprocity between  4 Houses begins to breakdown."  5  6 And then I'd like to refer you to 205, before asking  7 you the question.  You say:  8  9 "The chiefs and elders have responded to these  10 consequences of the trapline registration with  11 renewed vigour, standing in the feast house and  12 explaining the indigenous system of exclusive  13 ownership rights devolving from mother to child,  14 and the reciprocal relations between father's  15 House and that of his children - relations which  16 are emphasized in the giving of gifts and making  17 of payments in the feast."  18  19 Now, when you refer to this reified and frozen, what  20 are you referring to on page 204?  It appears that  21 those two statements appear to contradict, to me, when  22 I read them on their face.  Can you explain that?  23 A   I am referring to the system of trapline registration,  24 sets a lot of men on the land that they don't belong  25 on in terms of the matrilineal system and this is a  26 fact.  It is a de facto fact, so then the system goes  27 into action to readjust to this reality.  It is not  28 something which has -- that is, I am not trying to  29 suggest that the matrilineal system of inheritance is  30 crumbling, but by the nature of the registration, the  31 situation has changed; it is like a rock in the middle  32 of the river but with the culture, like water, goes  33 around that rock and tries to find ways of rejoining  34 again.  It is perhaps not very well put in the text.  35 Q   On page 205, you have described this renewed vigour in  36 the responses.  Have you seen this in your own -- have  37 you seen this observed, this personally, in the feasts  38 or in meetings or at other occasions?  39 A  Well, I don't know if it is renewed vigour but there  40 is certainly a lot -- there is a pre-occupation in the  41 feasting and in the communities with the question of  42 making sure everyone in the community knows whose land  43 is whose, because there is a considerable pressure to  44 register through the patrilineal line.  The chiefs are  45 concerned, and have been for quite a long time, that  46 the long-standing system prevail in the face of the de  47 facto registrations. 12045  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   I'd like to -- you make reference then to one of the  2 incidents you have already referred to.  I'd like to  3 go to chapter -- or to the next part, page 207 on  4 trespass.  And then to page -- I'd like to start at  5 page 212, because you appear to make a general  6 statement and then be more specific there.  You state  7 at page 212, the middle paragraph, my lord:  8  9 "In any society, if the laws of trespass (as a  10 component of kinship property rights), are to be  11 effective they must be known widely in the  12 society.  The important role of the crests and  13 their history, in this information system, has  14 been discussed.  Among the Gitksan and  15 Wet'suwet'en, as well as among all their  16 neighbours, this announcement of rights and  17 boundaries is carried out, above all else, in the  18 feast hall."  19  20 This is your opinion; is that right?  21 A   Yes.  22 Q   Now, on page 209, you state -- on 209, 210, you refer  23 to the punitive systems that have changed and I will  24 just focus on page 210 actually:  25  26 "Today, more than ever, trespass is a question of  27 great concern to the owner-groups of Gitksan  28 and Wet'suwet'en.  The struggle to maintain  29 exclusive possession has not been stopped.  Public  30 opinion mobilized against trespassers, including  31 warnings and social ostracism was, and remains, a  32 forceful sanction against those who violate the  33 laws of ownership."  34  35 And that is your opinion as well, regarding trespass  36 among the Gitksan and Wet'suwet'en?  37 A   Yes.  38 Q   Why do you say that public opinion mobilized against  39 trespasser remains a forceful sanction?  40 A  Well, public opinion has always been a very important  41 feature of social control, and I assume in this  42 society because it is a feature of tribes and bands,  43 you don't have a police force, you have a moral force  44 and you have the effects of gossip and possibilities  45 of ostracism.  The constant pressure on people to  46 follow the rules, it is common knowledge in the nature  47 of tribal societies. 12046  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  In public opinion in this passage, you mean public  2 opinion within the Gitksan and Wet'suwet'en  3 communities?  4 THE WITNESS:  Within the Gitksan and Wet'suwet'en commununities  5 and face-to-face relations with the villages, and news  6 travels fast.  Everyone understands when someone is  7 using land which does not -- they don't have rights  8 to.  And there is a considerable outcry and social  9 pressure that takes various forms on a day-to-day  10 basis.  I haven't actually seen with my own eyes the  11 instances which I have been told about in feasts.  12 There are announcements made that so and so has no  13 right to be on our land.  The feast isn't necessarily  14 held for this reason but it is done in a big feast in  15 a public way and made very clear.  16 MR. GRANT:  17 Q   Is that consistent with the ethnographic work you have  18 read about the Gitksan?  19 A   Yes, it is.  20 Q   And is this feature similar with other Northwest  21 Coast --  22 A   Of course most of the ethnographic accounts talk about  23 the situation right at the time of the contact when  24 trespass was dealt with in a different way but  25 ultimately ended in the execution of the trespasser  26 after a certain number of warnings and the procedure  27 that everyone understood.  I mean these things were  28 very difficult to carry out because the lack of a  29 centralized authority, so to follow the rules and be  30 able to kill a trespasser without having the  31 repercussions of a member of your group, your  32 corporate group, being killed in return, there had to  33 be a regulating body to cover.  And the same thing  34 when a trespasser may affect your relations with his  35 or her whole house group, so it has to be handled in a  36 very diplomatic way, too, according to rules of  37 custom.  38 Q   Now, you say at the bottom of page 210 that:  39  40 "The actions they take involve the warning,  41 isolation and ostracism of trespassers, and formal  42 public debate on the subject, with the outcome  43 witnessed in the feast hall by the high chiefs."  44  45 And this is a result of your research and what people  46 have told you?  47 A   That's right. 12047  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  A  Q  A  THE COURT  MR. GRANT  THE COURT  MR. GRANT  It is also a result of your review of evidence of  Alfred Joseph, Stanley Williams, Art Matthews and  Johnny David?  That's right.  Of their transcripts.  Now, what I'd like to ask you is what you -- with  respect to relations in a matrilineal society or a  kinship society, a contact situation, when the  trespasser is not a member of that society.  Do  anthropologists -- have anthropologists researched  that kind of aspect of contact?  Well, if people come in from another culture who don't  understand your rules, then they are not going to  obey -- they are not going to follow your rules.  You're going to try to teach them or else ignore them,  and one or other response is usually followed.  Okay.  Now, with respect to issues of trespass say  between the Gitksan and Wet'suwet'en on the one hand  and say their neighbours, that is, the -- when I say  their neighbours, I talk here about the Haisla, the  Nutsinii, Secani --  Tahltan.  Tahltan, the Nishga, and the Coastal Tsimshian.  Is  there a relationship --  Everybody understands the system of trespass within  the region.  It is a common procedural matter between  all the peoples in that whole general area, and the  whole system of settling disputes is likewise a common  matter of -- matter of common knowledge across the  linguistic and local cultural boundaries.  We will take the afternoon adjournment, Mr. Grant.  Yes, my lord.  Mr. Grant, do you want to sit an extra hour this  afternoon?  You can talk about that.  I will operate on the basis -- maybe I could advise  you after the break. 1204?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1    THE REGISTRAR:  Order in court.  Court will recess.  2  3 (PROCEEDINGS ADJOURNED)  4  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein, transcribed to the  10 best of my skill and ability.  11  12  13  14  15  16 TANNIS DEFOE, Official Reporter  17 United Reporting Service Ltd.  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 12049  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  Q  (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  REGISTRAR:  Order in court.  COURT:  Mr. Grant.  GRANT:  Thank you, my lord.  COURT:  I'm told you want to sit an extra hour this  afternoon.  GRANT:  I don't know if you should say the word "want," my  lord, but it may be the better decision though.  COURT:  Yes.  All right then.  Well, the only problem is I  think we'll take a very short adjournment at four  o'clock.  And will you want to be replaced?  You'll  stay, Madam Reporter.  Yes.  All right.  We'll take  five or ten minutes at four o'clock, then we'll go to  5:00.  My lord, just to be clear, were you unavailable  tomorrow?  No, tomorrow is fine.  We can sit late tomorrow  afternoon.  Because I thought you'd indicated that you weren't.  No.  Can I refer you to page 211 at the bottom and 212.  You state there it's part of your opinion that:  "The reiteration of the history of  ownership - the story of the crests, the  migrations and of the land itself - in an  important feast is a further assertion of  exclusive rights.  So too is the protection  of the property by psychic means, such that  misfortunes and illnesses suffered by  trespassers and their close relations, are  ascribed to the trespasser's dishonourable  actions - to his or her anti-social,  anti-reciprocal, anti-respectful behaviour.  While this is an intangible feature of  societies without central government, it  certainly exists and exerts pressure on  people to follow the law therein."  Now, first of all, in general in dealing with  societies without central government, and specifically  tribal societies, is this common to find the use of  psychic protection, if I may put it that way, as a  feature of the society?  A   It is.  It's similar to the institution of gambling. 12050  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  It's a way of dealing with intergroup relations  without one side or another -- or I suppose gambling  is a bit different.  It -- gambling is explained in  the -- such cultures as the competition between the  will or the power of the participants, and whichever  one is the strongest affects the turn of the die, so  to speak, and the whole concept of psychic power is  very much a part of such societies.  Q   What -- when you say psychic power, what do you refer  to?  What are you referring to?  A   I'm referring to the people's perceived sense -- the  sense of strength and authority they get from their  land and from the training they have to -- to become  either healers or chiefs in the society in the Gitksan  Wet'suwet'en area.  And this is considered to be  something -- something tangible, something related  to -- something like electricity, if you like, which  helps people focus on hunting and on -- on the -- on  your fishing, finding -- locating the game, assisting  in the spiritual -- or healing purposes and the  psychic and physical well-being of people.  Shamanism  is the common term used.  It's from a -- from a  Siberian word which means a doctor or medicine person.  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MR. GRANT:  Q  Spell that, please?  Shaman is S-h-a-m-  i-s-m?  i-s-m.  Did you in your experiences with the Gitksan and  Wet'suwet'en see -- observe how people behaved on the  land, for example, and see examples of what you  describe?  A  Well, this isn't something that you observe.  It's  something that is very -- very deeply hidden in the  cultures, and people don't talk about it readily  because it has been labelled as witchcraft by the  churches and by the white society in general.  But  what I'm referring to here are the stories that one  hears about other -- generally it's people referring  to other societies.  The Wet'suwet'en, for example,  one Charlie Austin told me -- he's one of the elders  at Hagwilget -- of an occasion when a group of  Wet'suwet'en hunters were hunting in Tahltan  territory, which is not their area, and they didn't  have permission, and on the first night they were  hunting there one of the hunters had shot at an  animal, and he fell ill that evening.  The explanation 12051  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 of this situation was that he had had something shot  2 into him by a power person among the Tahltan because  3 he was hunting there without permission, because these  4 were foreigners and it was a protection of the land,  5 so various things were done to right the situation.  6 And it's frequently by reputation that you don't go to  7 other people's land because they're known to be people  8 with great power, which they can use either to heal  9 people or they can use it to create harm in others.  10 So it is another form of boundary maintenance in a  11 very subtle -- subtle fashion.  And this is -- this is  12 in the body of -- I, as an anthropologist, consider it  13 is part of reality because it's very alive in the  14 communities, but you don't -- it's intangible.  It's  15 part of the values and the cultural beliefs that have  16 been -- been in operation for a long period of time.  17 Q   Are examples of these also delineated in the evidence  18 of some of the witnesses that you reviewed?  19 A   I believe there are, but I -- for the moment I can't  20 recall.  21 Q   Did you refer to adaawk, that is the Barbeau-Beynon  22 adaawk?  Do they reflect --  23 A   Oh, yes.  24 Q   -- the importance of psychic powers?  25 A  And I think -- I think we mentioned one in the last  26 couple of days where the people who were perceived by  27 the Frog-Raven Clan of -- members of one of the houses  28 from the Kisgegas area to have -- no, it was the -- it  29 was either the frogs or the wolves from Kisgegas.  30 They had an incursion by people from the north, one of  31 the leaders of whom was considered to be a man of  32 great, great spirit power, and they describe  33 graphically some of his uses of his power in an  34 aggressive way, which is against the value system of  35 both peoples, and that's the justification for -- for  36 the action that was taken against them.  Apart from  37 the fact that they were trespassing, the powers that  38 he was using were -- were anti-social.  39 Q   When you refer to -- when you refer to witchcraft, it  40 implies to me in our perspective a negative aspect.  41 Is that how shamanism or the use of psychic powers is  42 usually considered?  43 A   No, power is power.  It's like electricity or fire.  44 Used in one way it's beneficial, and used in a  45 different way or uncontrolled it's dangerous.  It's  46 the same attitude towards many -- many phenomena, that  47 if they're kept in control, they're of use to people, 12052  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Q  A  MR. GRANT  THE COURT  MR. GRANT  Q  A  and if they're not, they can be dangerous.  :  Sounds like judges.  And you learned of these events from or you also saw  examples of this in interviews that you conducted,  such as you've referred with Charlie Austin, for  example?  Yes, informal discussions with people.  It's a very  touchy subject, and it's not something that one  readily writes about until you -- you have a lot of  experience in the community.  :  Now, I'd like to go to the next section, which is  Exclusivity and Common Use Rights, at page 213.  :  I'm sorry, what page?  213, my lord.  213.  Now, I'd just like to focus on your opinion at the  beginning of this section.  You say, Doctor, that:  "Among the Gitksan and (the) Wet'suwet'en,  the right to exclude others from the  enjoyment of one's property and the  resources located there were qualified by  certain common use rights; that is, by  virtue of unique resources found there,  certain places in the Gitksan and  Wet'suwet'en territories have traditionally  been treated as a type of 'common land'.  This term warrants couching in quotation  marks because the land in question generally  is not without an owner.  The point is that  under certain conditions these locations are  open to all members of the local community."  And you then go on to refer to Moricetown being on the  land of Wah Tah K'eght, Hagwilget on the land of  Spookw, and Kitwanga on the Eagle lands of Sakxum  Higookx and Simadiik.  Now, can you expand and explain for the Court what  you mean here by "common land"?  You've cautioned it  by putting it in quotation marks and said that it's --  it's not land that's without an owner, but can you  explain what you mean?  And if you wish to use  examples, that's fine.  Well, there's a -- there's a fishing site that comes  to mind in Kispiox, which David Blackwater explained  was the location where they -- he and his grandparents 12053  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  THE  COURT  7  MR.  GRANT  8  THE  COURT  9  10  11  12  13  14  15  MR.  GRANT  16  THE  COURT  17  18  19  MR.  GRANT  20  21  THE  COURT  22  MR.  GRANT  23  24  THE  COURT  25  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  Q  30  31  32  A  33  34  Q  35  A  36  37  38  39  Q  40  A  41  42  43  44  Q  45  46  A  47  took their -- their salmon when they were in the  village in the summer months when he was a child.  They -- they were some of the caretakers of the  village while most of the villagers were away at the  coast and engaged in cannery work and the fishing.  Mr. Grant, I've had evidence about all of this.  Of the specific --  Yes.  There's the area at Kisgegas, and there was an  area where there was shale where they were all free to  look for things, and I don't -- there are other  examples, not many, but I've heard about these common  areas.  I've heard them firsthand.  I'm not sure  there's any point in repeating it.  If there's  something additional, that would be fine.  I appreciate your comment, my lord.  I know it was at Kisgegas.  They said there was an  area around the village that was open season for  everyone.  Well, that -- the common hunting area, James  Morrison described that, I believe.  Yes, James Morrison.  And he described how the chiefs got together on  that.  If this is something different from that, well then  by all means proceed.  Yes.  I wasn't going to refer to that example.  All right.  Except by --  Now, you're referring to a fishing site in  Kispiox?  Yes.  Would you -- you want me to talk about the  principles --  Yeah, if you can explain --  -- if the Court already knows the -- most of the  examples.  My understanding is that these areas which  are considered to be common grounds or common sites  are actually owned by one house or another.  Yes.  Or the area in the Silver King basin east of Smithers  is between two -- right -- part of it is on one  chief's territory and part of it is on another near  Mount Cronin.  And what is that?  Is it a hunting or a trapping or a  berry area or what?  It's an area that was known for very rich groundhog  country, for pelts and for the fat content of the 12054  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 groundhog, as well as for a certain amount of mountain  2 goat hunting.  3 Q   Now, with respect to -- I believe that area was  4 described in the evidence by --  5 A   It was described by Alfred Joseph.  6 Q   Alfred Joseph.  Now, with respect to the concept of  7 common areas as described in this case by Alfred  8 Joseph at Mount Cronin, James Morrison at Kisgegas,  9 this fishing site that you talk about at Kispiox, and  10 other similar areas, how does that fit into the  11 concept of ownership of these territories in a  12 matrilineal kinship system?  13 A  Well, it's within the -- it's within the framework of  14 the -- of the matrilineal house group ownership.  It's  15 just that -- in terms of the fishing sites, I have a  16 feeling that there was probably a site near each of  17 the villages where people who perhaps had sites at  18 some distance could go for fresh fish and no one  19 raised a fuss about it.  It was a local village  20 fishing spot.  However, if someone came there from the  21 Nass without permission and started to fish, they  22 would be in a lot of trouble with all the villagers.  23 On the case of the -- this case up in Silver King  24 basin is quite interesting because people were allowed  25 to go there on a first come, first served basis to  26 harvest the available resources, but whoever went in  27 first had to pass through the territories of -- of the  28 surrounding land and were expected by all concerned to  29 look after it properly, and if someone else came in,  30 to tell them which would be an area that they could  31 harvest without over-harvesting the species.  And it  32 involved people from the Babine watershed as well as  33 the Bulkley watershed.  But they were -- they were  34 related, and they had adjoining territories and  35 similar clan affiliations.  36 Q   Now, on page 218 of your report you state at the top  37 of that page:  38  39 "The Gitksan and Wet'suwet'en consider that  40 if an area of exceptional productivity is  41 available in their territories the area must  42 be open to the benefit of others.  The  43 species hunted in these two locations were  44 not available in all House territories.  45 These were known to be exceptionally  46 productive areas, with exceptional  47 resources needed by the people for clothing 12055  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 and trade..."  2  3 You refer there to Alfred Joseph.  4  5 "...ground-hog:  fat and pelts; mountain  6 goat:  fat, hides, horn, hair for blankets  7 and skin for drums; and caribou:  hides for  8 clothing and footwear."  9  10 A   It also pertains to berry -- phenomenally productive  11 berry patches too.  12 Q   Okay.  Now, can you explain why you conclude that if  13 there's an area of exceptional productivity the area  14 must be open to the benefit of others?  How does that  15 work?  Why do you come to that conclusion within these  16 matrilineal --  17 A   It's part of the ethic of maintaining your land in a  18 good condition where again you have the balance, the  19 reciprocity.  You mustn't over-harvest, but neither  20 should you under-harvest.  If you don't harvest the  21 useful species, then they realize they're not being  22 appreciated according to the values of the culture,  23 and they will not maintain themselves.  And there is  24 ecological basis for this too in terms of the  25 population cycles and so on, but if there's a certain  26 rate of predation, then the species is kept in a  27 healthy growing condition within its ecological cycle.  28 Q   This is part of the belief system that you're  29 referring to here?  30 A  Well, not the ecological explanation.  That's me.  But  31 the -- it is part of the belief system that you must  32 show your appreciation of those species which are  33 important to you by harvesting them or they'll go  34 away.  35 Q   Is there any parallels with other cultural groups of  36 that kind of belief system?  37 A  Well, I first became aware of it in this instance, but  38 in terms of being in tune with the ecological cycles,  39 it's common right across northern Canada.  But this  40 actual formulation I hadn't heard before I came into  41 the Gitksan-Wet'suwet'en territories.  42 Q   Can you go to page 220, please, the next section on  43 conveyance?  This is called The Conveyance of Property  44 Rights, and you set out your opinion in the first two  45 sentences.  46  47 "The identity and well-being of the Gitksan 12056  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 and Wet'suwet'en House group is indissolubly  2 linked with its fishing sites and its  3 hunting grounds.  These land holdings do not  4 easily change hands."  5  6 And then I'd like to go down a few lines to -- about  7 ten lines down.  It starts at the end of the line:  8  9 "The law according to which Gitksan and  10 Wet'suwet'en govern the ownership of land  11 includes provisions for granting use rights;  12 it does not include the right to ultimate  13 alienation; nor does it allow the owner to  14 destroy the land such that it is rendered  15 unfit for customary use.  A House may  16 occasionally lose its land due to a peace  17 settlement, as will be discussed below, or  18 in post-contact times, when the population  19 of a House became so reduced due to disease  20 and social crises, the members were  21 occasionally unable to pay back funeral  22 expenses for a deceased chief, and thus land  23 could fall into the hands of the House which  24 paid for the burial of the deceased."  25  26 Now, first of all, when you -- first of all, those are  27 your opinions -- that's a fair statement of your  28 opinions with respect to conveyance?  29 A   Yes.  30 Q   And if you -- what were the foundations or what was  31 the basis upon which you came to these conclusions,  32 Doctor?  That is -- I'm focusing specifically -- I've  33 read a large section to you, but specifically on the  34 first two sentences and the sentence that these land  35 holdings do not easily change hands, which is  36 amplified later in your explanation.  37 A  Well, people -- if people maintain their  38 responsibilities to the -- the thinking in the culture  39 is if people maintain their responsibilities to the  40 land and to the other kinship groups through their --  41 their ceremonial exchanges and their feasting  42 exchanges, then they're maintaining their ownership.  43 They can't buy and sell land as we can in our system.  44 The way it is passed is through lines of inheritance,  45 through the matriline.  And it is considered to be  46 illegal and immoral to destroy land.  47 Q   Now, did you -- 12057  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  THE  THE  THE  THE  THE  THE  THE  A  And this is common to many tribal areas, the same  morality with regard to the land and the  responsibilities of owners as found in the whole  matrilineal belt of Central Africa, where the -- if  the land is not well cared for, it's considered that  the people will fall sick, or if the people fall sick,  it means the land is not being looked after.  Well,  there's that relation between looking after your  territory and your well-being in terms of your health  and the well-being of your whole kinship group.  Q   Now, in the -- in the anthropological field why is  this common to the matrilineal kin group, this land  relationship?  A   I don't think it's peculiar to matrilinea beyond what  I said yesterday about how matrilinea has been  correlated with horticultural societies and those that  have -- those hunting and gathering societies which  have a regular wild species to harvest year in and  year out, such as the salmon along this coast.  Q   Now, I'd like to take you to page 221, in the middle  of that page.  I'm sorry, I can -- well, just -- yeah,  I just want to clarify that question.  You say:  "The Gitksan, for instance, say that the land  belongs to them, and at the same time, they  belong to the land."  From your research, would that statement apply equally  to the Wet'suwet'en?  A   Yes.  Oh, yes.  GRANT:  I'll come back to that concept later as you deal  with it later in your report.  COURT:  But, of course, that's common world wide, isn't it?  WITNESS:  We tend to lose sight of it in our society, I  believe.  COURT:  Where we freely buy and sell where there's lots of  land that can be acquired and disposed of?  WITNESS:  Yes.  COURT:  It's common in Europe, common in many countries, is  it not?  WITNESS:  Well, there's certainly more regulations in terms  of the use -- the use to which an owner can put their  land in Europe than there is here.  COURT:  I'm talking in pre-regulation days.  WITNESS:  Oh, certainly it's true.  It's my understanding of  hunting peoples in northern Europe 3,000 years ago it  looked like a similar type of system. 1205?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  THE COURT:  Eastern Europeans don't sell land as a general rule  or they didn't before regulation arrived?  THE WITNESS:  No.  Well, they also had kinship societies in many  of the rural areas in eastern Europe and through the  Balkans.  Thank you.  THE COURT  MR. GRANT  Q  Now, there's only one other point -- there's one other  point I'd like to deal with here.  The last sentence  on 221 you state that:  "Whereas foodstuffs, tools and luxury items  can be conveyed from one proprietor to  another through feast payments, gift  exchange or gambling - and today, through  buying and selling - the conveyance of  hunting grounds and fishing sites is not  conducted in this manner."  And that is your opinion with respect to the Gitksan  and the Wet'suwet'en, is it?  Yes.  Now, when you list foodstuff, tools and luxury items,  are there other things that would be -- is there  generic category of what you would describe those  things that can be within the context of the Gitksan  system conveyed?  Well, generally it's referred to cross-culturally as  movable property.  But in the perception of the people  today, it includes such items as housing on -- within  the reservation.  It can be disposed of in different  ways.  It doesn't have to follow matrilineal  principle.  Dr. Daly, this is the second time today you've  mentioned gambling.  It hasn't been mentioned before  in this trial, as far as I can recall.  Is it a common  feature of Gitksan or Wet'suwet'en life?  THE WITNESS: It's very common. In fact, gambling is a common  feature of Native life right across the country, and  it's common to hunting societies in many parts of the  world. It's a way of interacting and competing in a  way which will have not repercussions that will lead  to an outbreak of violence.  THE COURT:  What sort of gambling?  THE WITNESS:  Games of chance.  THE COURT:  They don't have dice, but they have something  similar?  A  Q  A  THE COURT: 12059  R. Daly (for Plaintiffs)  In chief by Mr. Grant  21 MR. GRANT  22 THE COURT  2 3    MR. GRANT  1 THE WITNESS:  Similar -- similar procedures, yes.  2 THE COURT:  Is this a way of occupying idle time?  3 THE WITNESS:  It occupies a lot of time, and a lot of goods  4 change hands this way, and there's no repercussions in  5 terms -- you can't lay the blame on the person who  6 ends up with all your belongings.  There are quite a  7 number of accounts of this in the Hudson Bay records  8 among the Western Carrier people, of how they were fed  9 up because they couldn't get these people to go  10 trapping for them because they'd gambled away  11 everything, including their winter clothing, and they  12 couldn't understand the mechanism that was going on.  13 THE COURT:  And is it a current problem with them today?  14 THE WITNESS:  A lot of it today takes the form of bingo.  15 THE COURT:  Yes.  16 THE WITNESS:  It's not really seen so much as a problem.  It's a  17 feature, a component part of the culture complex.  18 THE COURT:  Well, I speak subject to correction, but I don't  19 recall it having been mentioned previously in this  20 whole trial.  I can deal with that now, my lord.  No, I don't need it to be dealt with.  Dr. Daly is going to deal specifically with gambling  24 in the context of his report.  25 THE COURT:  All right.  Thank you.  2 6 MR. GRANT:  27 Q   And we'll come back to it.  28 Going to the next section, Conveyance Through  29 Kinship Inheritance -- this is actually a  30 subsection -- you state at page 222 that:  31  32 "Property rights over territory and fishing  33 sites are organic extensions of Gitksan and  34 Wet'suwet'en genealogical life cycles."  35  36 And then you state:  37  38 "Social harmony,"  39  40 the fourth line from the bottom,  41  42 "demands public recognition of the identity  43 of a certain House with a certain territory,  44 for this configuration of ownership affects  45 the fortunes of all members of the community  46 through networks of kinship and affinity."  47 12060  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Now, you're talking here of -- in that second sentence  2 about the -- excuse me -- the Gitksan and the  3 Wet'suwet'en as well, Doctor?  4 A   Yes.  5 Q   And when you say that social harmony -- why does  6 social harmony demand public recognition of the  7 identity of a certain house with a certain territory?  8 A  What I'm saying is that it's a systemic phenomenon  9 that the fortunes and well-being of one set of owners  10 are dependent on everyone else following in the  11 general contours of the system of ownership and  12 exchange.  No one house can maintain the system in  13 itself.  And, you see, in much of this century there  14 has been a preoccupation by the people with falling  15 numbers, that a lot of houses have -- have experienced  16 a depletion of population.  And the chiefs will  17 meet -- from a whole village will meet and just try to  18 work out how they can repopulate, how -- they have at  19 certain points in this century -- how they can  20 repopulate houses that appear to be dying.  Because  21 it's important for the keeping of the whole  22 interchange.  It can't go on with just one or two  23 houses because the interlinking of the people on the  24 land and the distribution of the -- of the people with  25 the resources over the whole region demands that the  26 whole system be kept in some sort of viable state.  27 MR. GRANT:  On page 223 you do refer to -- and of course  28 yesterday you described the mixed economy, but you do  29 refer here with respect to land purchase, pre-emption  30 and the setting up of enterprises, and you say:  31  32 "Under present-day conditions of the mixed  33 economy, Gitksan and Wet'suwet'en people  34 have engaged in a certain amount of land  35 purchase, pre-emption and the setting up of  36 enterprises like sawmills within the general  37 area of the Gitksan and Wet'suwet'en  38 territories.  It is my understanding,"  39  40 and I take it that means it's your opinion,  41  42 "that these ventures, while conforming to the  43 Canadian legal and economic systems, have  44 been regarded by the people as economic  45 activities which will help them continue to  46 use and enjoy their territories and  47 resources when these territories are under 12061  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 pressure from alternate, and often  2 non-Native users and harvesters."  3  4 My question is why do you say that?  5 MR. WILLMS:  My lord, I rise to object here.  My friend read  6 "understanding" as "opinion."  Now, "understanding"  7 makes sense because -- in the context of this witness  8 repeating what other witnesses have said about what  9 they're doing.  If it's "opinion," it's certainly not  10 an anthropological opinion.  It can't possibly be one.  11 If it's his understanding and it's a repetition of  12 something we've already heard, that's one thing, but I  13 would like to know whether or not that is purportedly  14 an anthropological opinion, because if it is, I'm  15 going to object.  16 MR. GRANT:  17 Q   I'm going to -- I may -- I may have -- my own notation  18 may have misled me there, Doctor.  It may be more  19 correct to say that's an understanding.  That is your  20 understanding; is that right?  21 A   It is my understanding.  At the same time, it's my  22 comment on a general feature of cultural interplay  23 throughout this century among the societies that  24 anthropologists study.  There is the interaction  25 between hierarchical state systems and non-state  26 systems or kinship societies, and they each have their  27 bodies of understanding of phenomena, and there's a  28 certain balance or imbalance of -- of power between  29 the two cultures.  And generally the people that  30 anthropologists study are -- they lose their  31 independence or they lose their power.  At the same  32 time, it's not an all-or-nothing situation.  They  33 carry on according to their customary values but in a  34 way that -- that bends with the wind of the pressure  35 from the -- their surrounding society.  So it isn't --  36 it's -- it's my understanding, but it's informed by  37 the whole common scenario that you find in many parts  38 of the world today.  39 Q   I'd like to go to page 225, if I may.  At the -- at  40 the top you deal with -- you provide your opinion  41 regarding this conveyance, and you say:  42  43 "Among the Gitksan and Wet'suwet'en the  44 conveyance of rights to landed property is  45 played out in the arena of succession to  46 office within the House group, or within the  47 broader scope of people united by the 12062  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Daly (for Plaintiffs)  In chief by Mr. Grant  wilnat'ahl/baneeyexgixnay,"  MR.  A   Baneeyexgixnay.  GRANT:  That's w-i-1-n-a-t-  n-a-y,  -h-l-/-b-  a-n-e-e-y-e-x-g-i-x-  "membership, that is, those who by their  kinship ties consider they had a common  history in ancient times.  Positions of  power and influence are filled according to  patterns of kinship.  This system is a major  feature of the exercise of authority over  the affairs of the wilp/yex.  This authority  is strikingly evident in the form of chiefly  management of House territory and the  associated labour force."  And then going on:  "For the Gitksan and Wet'suwet'en, these  rights and duties have involved the  investment of social energy in the  territories, either by concentrating or by  dispersing labour power according to  ecological" --  THE COURT:  Better slow down, Mr. Grant.  MR. GRANT:  Q   I'm sorry.  "...either by concentrating or by dispersing  labour power according to ecological and  technological considerations, so as to  produce the basic material goods needed by  the society."  Now, with respect to this -- this opinion that you  provide here, can you -- or the set of opinions here,  you refer here once again to an investment of social  energy, and you also refer in the previous paragraph  to the chiefly management of house territory and  associated labour force.  Now, can you explain what  you mean by -- why you conclude that this authority is  connected to the associated labour force and what  you're referring to?  A  Associated labour force is the people you're related  to through your lines of inheritance or through 12063  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 marriage and through your father's side, the three  2 possibilities.  Sometimes the father's side and who  3 you marry are the same; sometimes they're not.  The  4 management of house territories, some of the chiefs  5 will quite frankly tell -- quite frankly told me that,  6 "We marry the way we do over the generations so that  7 we keep control of that set of resources which are  8 important to maintaining our way of life and what's  9 become a customary relationship over a number of House  10 groups."  It's in a sense marriage following property  11 relations.  So the management of house territory  12 involves the arrangement, thinking about political  13 ties through channels of kinship, kinship and  14 marriage.  15 Q   I'd like to refer you to page 228.  You state at the  16 top of that page:  17  18 "Members of a Gitksan or Wet'suwet'en House  19 will vie for chiefly names and the  20 managerial authority associated with these  21 names; protagonists can seek the support of  22 members of other, related Houses.  While  23 this process may tend to broaden disputes to  24 include a number of families and Houses, it  25 at the same time diffuses power and  26 authority."  27  28 My question to you:  Is this dynamic, if we can call  29 it that, that you comment on here, is this typical of  30 types of society that's a tribal society?  31 A   It's typical of many tribal societies, typical of  32 hunting bands too.  No, I'll correct that.  It's  33 typical of tribal societies.  34 Q   And what effect does it have in terms of the social  35 control and the social organization within tribal  36 societies?  37 A   It means that the --  38 Q   And I should just refer you to the last two sentences  39 of that paragraph as well where you say:  40  41 "Selection is by no means a matter of simple  42 ascription to office.  It can be highly  43 contested."  44  45 What impact is that on the social organization?  46 A   There's a dynamic -- I'm not -- I'm not clear on what  47 your -- 12064  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   Well, you describe a dynamic here of -- as you say at  2 the end, it can be highly contested within the house  3 group, the succession to chiefly names and authority?  4 A  Well, it certainly is.  5 Q   And you've said now that that is something that you  6 find in tribal societies?  7 A   Yes, yes.  8 Q   What is —  9 A   There's a common misconception by some people that in  10 tribal societies you're born into a position.  There's  11 a number of people who are born into the --  12 potentially born into that position in any kinship  13 system.  In these societies, the Gitksan and  14 Wet'suwet'en, as in many others, there's a process of  15 selection and assessment of the actual personalities  16 as to who -- among those who through blood ties are  17 eligible for the position.  And this is assessed in  18 the course of their life and their growing-up period.  19 Among the Iroquois it was the elder ladies, called the  20 matrons, who made the ultimate selection of who would  21 have the clan chieftainship, and if that person didn't  22 do a good job, he could be recalled by that same body  2 3 of women.  24 Q   Now, if I can take you over to the next section.  25 Maybe I have one thing -- I'm sorry -- on page 228, my  26 lord.  At the bottom of page 228 you state:  27  28 "The public accounting of proprietary rights  29 to land, history, crests and songs reassyres  30 neighbouring House groups that a House's  31 line of succession will not threaten the  32 authority of the surrounding House groups  33 and their chiefs.  This public registry of  34 title and authority before an assembly of  35 high chiefs affirms, in the minds of all,  36 both the legitimacy of succession to the  37 name and transmission of property rights."  38  39 Now, is that opinion and conclusion of yours, is that  4 0 connected to what you commented on, the quote from  41 Drucker that is at page 9 and 10 of the report that  42 you referred to this morning?  43 A   Yes, it's consistent with that.  44 Q   And that's your conclusion, that the Gitksan operation  45 of the system is consistent with what Drucker  46 described for the Northwest Coast generally?  47 A   Yes.  Yes, very much so. 12065  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  Okay.  I'd like to turn you to chapter — or part  2 III.3.b.  3 THE COURT:  I think, Mr. Grant, we'll take not more than ten  4 minutes.  5 MR. GRANT:  Ten minutes.  Thank you, my lord.  6 THE REGISTRAR:  Order in court.  Court will recess.  7  8 (PROCEEDINGS ADJOURNED AND RECONVENED PURSUANT TO A BREAK)  9  10 THE REGISTRAR:  Order in court.  11 THE COURT:  Mr. Grant.  12 MR. GRANT:  13 Q   Thank you, my lord.  Dr. Daly, you have the page 230  14 of your report?  15 A   Yes.  16 Q   The section on Indebtedness and the Forfeiture of  17 House Property.  You say:  18  19 "Land can be forfeited when a House fails to  20 repay the funeral expenses of its chief."  21  22 And I believe examples have been given in evidence,  23 including the transcripts that you've described.  And  24 then you state at the bottom of that same paragraph,  25 fifth line up:  26  27 "If the repayment of these expenses is not  28 forthcoming, then the father's House, or any  29 other House which assumed the burden of  30 paying the funeral costs, may fall into a  31 situation where it can take possession of  32 the land.  This usually occurs when a House  33 is severely under-populated or  34 impoverished."  35  36 Now, going over to the next page, you refer to  37 Thomas Wright's description in which he talks about --  38 in his commission evidence about his grandchildren, if  39 they didn't have the money, they wouldn't get the  40 land.  And then you say -- this, I understand, is your  41 opinion.  42  43 "'Getting the land' as a result of providing  44 funeral expense money is getting, at most,  45 use rights to that land until it is  4 6 redeemed.  If the land..."  47 12066  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Now, I'll stop there for the moment.  Why do you  2 conclude that what is given is use rights until the  3 land is redeemed?  4 A   Because there's a matter of gradation involved.  As I  5 said before, it's a system of ownership between a  6 number of groupings, and if everyone is going to  7 forfeit on their land if they go into debt, the system  8 becomes highly imbalanced, so this -- what I have  9 described here as losing land due to indebtedness,  10 it's a long period of negotiation, and the other --  11 the side that is in debt is given opportunities to get  12 out of debt and so on.  It's not a cut-and-dried  13 thing, but the ultimate result may be that the land  14 stays in the hands of -- of the creditor and comes to  15 be known as their land after some generations.  16 Q   Okay.  That is actually what you state in the next  17 sentence, where you say:  18  19 "If the land is not redeemed, according to  20 the Gitksan law, it may become part of the  21 holdings of the House which paid the funeral  22 costs . "  23  24 Now, why do you conclude that?  On what basis do you  25 conclude that?  26 A   That's on the basis of evidence in -- commission  27 evidence, and chiefs' testimony, and what I've learned  2 8 in the community.  29 Q   I see.  Okay.  Now, is this feature of what you say  30 that -- as you've described, if the debt isn't repaid,  31 you get use rights of the land until it is redeemed,  32 is that something that would be unique to the Gitksan  33 and Wet'suwet'en, or is that something you would find  34 in tribal societies more generally or hunter/  35 gatherer -- hunter/gathering tribal societies?  36 A   I'm not sure.  I certainly have learned how it works  37 in -- under these conditions.  I'm not sure how common  38 it is elsewhere.  39 Q   Is there any parallels or analogies in the Iroquois  40 situation?  Or is their land tenure and conveyance --  41 A   It's a different system.  42 Q   Now, is there any parallels with other Northwest Coast  43 cultures from your research of the ethnography of the  44 other Northwest Coast groups such as the coastal  45 Tsimshian or the Nishga?  46 A   Yes, they have -- it's -- my understanding is they  47 have the same system -- 12067  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   Okay.  2 A   -- throughout that general region.  3 Q   I refer you to page 232, where you refer to Temlaham,  4 the land of plenty.  This is one of the series of the  5 Beynon adaawks, that is, the adaawks collected by  6 Beynon?  7 A   Um hum.  8 Q   And where you said that:  9  10 "Another example of this type of  11 forfeiture" --  12  13 and you've gone through, before that, a number of  14 examples given by Jessie Sterritt and by Olive Ryan.  15  16 "Another example of this type of forfeiture,  17 involving not land, but a chiefly name, is  18 cited by William Beynon from the lower  19 Skeena Tsimshian village of Gin'adoiks..."  20  21 You give the citation.  22  23 "Beynon notes that a chiefly name can be  24 taken publicly in a feast, from a debtor who  25 has steadfastly refused to acknowledge his  26 debts and pay them."  27  2 8 And then:  29  30 "By way of example he gives the Frog Clan  31 name of Sa'edzan,"  32  33 that's S-a-'-e-d-z-a-n,  34  35 "which became a Wolf name as a result of  36 non-payment of a longstanding debt by the  37 Gin'adoiks,"  38  39 that's G-i-n-'-a-d-o-i-k-s,  40  41 "Frogs.  The Wolf Clan subsequently  42 threatened to give the name back to the  43 Frogs, thereby doubling both their shame and  44 their indebtedness.  The threat was intended  45 to coerce the Frogs to hold a feast and  46 redeem their name, their crest, and the  47 honour of the Ganeda (Frog) Clan as a 1206?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 whole."  2  3 Now, what I'd like to ask you about that is what do  4 you mean when you say that -- that it's a threat for  5 the Wolf Clan to give the name back to the Frogs?  6 A   It's a threat to the -- to the Frogs.  7 Q   Why?  8 A   Because they -- they are then put in a position of  9 receiver -- of -- I won't use receivership because  10 that has a different meaning in our society, but they  11 become net receivers of favours from another group.  12 They're doubly in debt this way because they're being  13 given -- first of all, they lost their land because  14 they didn't pay the funeral expenses.  15 Q   In this case a name.  16 A   Oh, sorry, a name in this case.  17 Q   Yes.  18 A  And then they didn't -- when they didn't redeem the  19 land under those conditions, there was discussion  20 about giving -- actually giving them back their land.  21 Now, it would make sense from the -- the position of  22 the creditor.  This -- sorry, it's the name here.  23 They would have given it back, the name, and the  24 system would have carried on ostensibly, but these  25 people would have been doubly shamed because they  26 would have been indebted twice.  Favour had been paid  27 to them or something had been given to them twice  28 without any return, and they would have fallen in  29 stature even lower than they -- than they were by not  30 redeeming this name.  31 Q   And is this something you find in kinship societies?  32 A   Yes.  33 Q   That -- that the gift and the return is a feature of  34 the society?  35 A   Oh, yes.  Yes, very much so.  It's the -- the form of  36 social interaction and economic exchange quite often  37 takes -- it takes the form of gift giving and giving  38 of hospitality.  And people keep close account of what  39 is given and what is received, even though they may  40 not -- may say they don't.  They may say that the  41 whole system generally balances out, but there's a  42 very careful reckoning on what has been given and what  43 has been repaid over time.  44 Q   Now, I'd like to refer you to the next paragraph  45 there, where you state that:  46  47 "The House which, on such a rare occasion, 12069  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 would make such a seizure is required to  2 announce publicly, in a feast, what action  3 it has taken.  If the defaulting" --  4  5 and here you're talking about a House which takes over  6 control of the land when it's not redeemed --  7 A   Yes.  8 Q   --lass ume.  9  10 "If the defaulting House is to redeem its  11 land, it must pay its debts with interest by  12 means of a feast.  Normally this is done  13 swiftly.  If the debt is not paid it might  14 indicate that the House is waning in power  15 and strength, and does not have the manpower  16 to clear its debts."  17  18 Now, does this opinion that you're talking about here  19 apply to the Gitksan and to the Wet'suwet'en?  20 A   It does.  And it still goes on today.  This was the  21 preoccupation of the House of Tenimget after they  22 incurred funeral expenses when the previous Axtii  23 Hiikw passed away.  They worked very, very hard to --  24 there are many other examples, but this is one I know  25 quite well.  They worked very, very hard to prepare to  26 repay those debts as -- in as short a time as possible  27 so that there would be no gossip about how their  28 standing in the community was waning or not up to the  29 scratch that it had been under during the leadership  30 of the previous chief of that house.  31 Q   Is that -- do you recall if that's reflected in your  32 interviews with the Tenimgyet House group?  33 A   I believe it is.  34 Q   Okay.  35 A   It was in the discussion with Art Mathews and his  36 parents in August of '86.  37 Q   Could you refer to tab 24 of the blue book, Volume 1,  38 please, page 2, the middle paragraph, where he starts  39 off:  40  41 "Geoffrey Morgan who was Axti Hiix died  42 about this time last year."  43  44 This is a discussion with Art Mathews Jr.; is that  45 right?  46 A   Yes.  47 Q 12070  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  A  10  11  Q  12  13  A  14  Q  15  16  A  17  MR.  GRANT  18  THE  COURT  19  20  MR.  GRANT  21  THE  COURT  22  MR.  GRANT  23  24  THE  COURT  25  MR.  GRANT  26  Q  27  28  A  29  30  Q  31  A  32  33  34  35  Q  36  37  38  39  40  41  42  A  43  44  45  46  47  "We had the funeral that his father's side -  Wilksi Witxw - paid for.  That's our  way.  We paid off most of the debt after  that at the funeral feast.  The rest of the  debt we'll wipe out with the gravestone  feast this fall.  We don't like staying in  debt to anyone."  Yeah.  You said, "father's side - Wilksi Witxw," but  it's, "his father's side - our Wilksi Witxw."  I'm sorry.  Thank you.  That's -- he was referring to  Geoffrey Morgan's father's side?  Yes.  Do you recall what group that was offhand?  It's all  right.  It's slipped my mind.  It's okay.  Now, you were --  Where's the part you were reading from, Mr. Grant,  on page 2?  At tab 24.  Yes, I have that, page 2.  Page 2, the middle paragraph starting, "Geoffrey  Morgan who was Axti Hiix died," that middle paragraph.  :  Yes.  Now, is there any -- do you recall if there was  further discussion about that?  Well, he -- Art Mathews, Tenimgyet, invited me to the  feast to see how they paid it off.  Yes.  And I attended that.  And then afterwards they said,  "Well, our name is clear, and we're out of debt.  We've paid back.  We're satisfied with the way things  are. "  Now, you -- I believe there's three interviews with  Art Mathews, Tenimgyet, in your interview notes, tab  23, 24, and 25, and why did you decide to interview  and work with Art Mathews Jr. and his house group in  your research?  In other words -- or I'm asking you  this to go to the general question as to why you --  how you selected people.  I -- like anthropologists generally do, you ask around  the community, when you're interested in a certain  feature of the culture, who knows a lot about it, who  is a specialist, and then in addition to that you  ask -- you observe and ask about people who are  perhaps not in the know to get some sort of 12071  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 comparison.  And one of the people that was suggested  2 when I -- when I went to the fish camp at Ankii iss  3 down at Kitwanga, I asked there who in the local  4 village would be a good person to talk to about the  5 seasonal round and the use of the land in that area,  6 and one -- as an example of one of the western  7 villages because I was living in -- in Gitanmaax or  8 Hazelton, which is on the eastern -- among the eastern  9 villages, and it -- someone at the fish camp suggested  10 I talk to the Mathews family.  In fact, that night,  11 after going to the fish camp, I went down the road to  12 Terrace.  Coming back it was very late at night.  I  13 asked the driver -- we were in the middle -- it seemed  14 to me we were in the middle of nowhere -- "What are  15 those lights across the river?"  And he said, "Well,  16 that's the Mathews family fish camp at Wilson Creek.  17 And they -- they're camped there all summer every  18 summer.  They have -- they're fishing there in a big  19 way, and they've -- they've been there for a number of  20 years, and they've put up fish in the traditional  21 way."  So that again inspired me to get to know this  22 family.  23 Q   You didn't select Art as a person because he ended up  24 being a witness?  25 A  Well, I didn't know who was going to be a witness at  26 that point.  27 Q   Okay.  I mean a witness in this trial.  Now, as his  28 lordship referred to yesterday, and as you know, Art  29 Mathews Jr. is -- I think he's a foreman at the  30 Kitwanga sawmill --  31 A   Yes.  32 Q   -- Westar?  You're aware of that.  33 Well, I'd just like you to -- and his lordship was  34 asking you about this question of the market economy  35 and the subsistence economy yesterday.  And while  36 we're on the point of Art Mathews Jr. and him as your  37 informant, can you explain how -- if Art Mathews works  38 full time at the mill and yet he was one of your main  39 informants and you were advised he was important in  40 terms of the seasonal round, how do those two concepts  41 work?  I mean, how does that -- it appears to me to be  42 a contradiction?  43 A  Well, it's a very hard working family.  And I said  44 to —  45 THE COURT:  Well, I'm sorry, Mr. Grant, I don't see the  46 contradiction, so you're going to lose me unless you  47 make the contradiction plain. 12072  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT  2  Q  3  4  5  6  7  8  9  10  11  12  A  13  14  15  16  17  18  THE  COURT  19  20  21  22  MR.  GRANT  23  THE  COURT  24  25  26  MR.  GRANT  27  Q  28  29  30  31  A  32  33  34  Q  35  A  36  37  38  39  40  Q  41  42  A  43  44  45  46  MR.  GRANT  47  Okay.  It may be my framing of the question, my lord.  Can you explain how Art Mathews Jr., who  apparently to me, apparently to an outsider I should  say, is fully involved in the market economy -- I  shouldn't say to me, I led his evidence of course --  is fully involved in the market economy through his  work and yet you say that what he is is he's fully  involved in a subsistence economy, not using  subsistence in a negative term but as you defined it  yesterday?  Can you explain that?  Well, he's a member of the contemporary society and  has many strands in his economic and social life.  His  whole family does, and they're extremely hard working.  I was -- I was saying to his father one day, "You've  been doing all this fishing all summer and tomorrow  morning you're going" --  :  Mr. Grant, I really don't think I have to hear all  of this hearsay.  Isn't this pure hearsay?  It's  almost conversational.  What's the basis for its  admissibility.  :  Well, okay, I'll —  :  Research is one thing, but you're getting into  conversations about individuals, it seems to me, which  goes well beyond research.  Okay.  What did you conclude in terms of the Art  Mathews family group, including Art Mathews Jr., as to  their involvement with the subsistence and market  economy?  They're heavily involved in both, and they're both  strands of their overall economy and their overall  involvement in their community.  And how are they involved in the subsistence economy?  They hunt, and they fish, and they pick berries.  They  utilize their land in ways which use modern technology  but ways which are consistent with the past.  They're  very active in the feasting system and in the village  politics and the band council and 101 other ways.  And is that reflected in the interviews that you had  with Art Mathews and with his family?  I think so.  Although when I started, I was  emphasizing the use of land and the annual cycle, but  it became pretty obvious that he was involved in many,  many things.  :  Possibly at this point it's appropriate to put in  for the purpose of methodology, my lord, those three 12073  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  tabs, 23 to 25.  And what I would propose is to put in  the balance of those notes, and I have no objection to  putting in all of the notes from tab 6 to 41 under one  number with lettering or under separate numbers,  whatever is most convenient, but I would be tendering  all of these notes for -- as the methodology of Dr.  Daly and the notes upon which he relies.  THE COURT:  Well, all right.  Which numbers, tabs 6 to?  MR. GRANT:  6 through 9, and 10 and 11 are already marked as  exhibits, and 12 through to 41.  THE COURT:  All right.  Well, I don't see why they can't be  given one number and a dash and the tab number, so I  think 893 is next.  THE REGISTRAR:  894 is next, my lord.  893 is the map.  MR. WILLMS: My lord, it's just a formality, but the witness, I  think, should be asked to confirm for the record that  he made each and every one of those notes.  THE COURT:  All right.  Is that correct, Dr. Daly?  THE WITNESS:  Yes, that's correct.  THE COURT:  All right.  Now, this will be 894, is it?  THE REGISTRAR:  894.  THE COURT:  894, tabs 6 to 9 and 12 to 41.  (EXHIBIT 894 -TABS 6-9 AND TABS 12-41 IN WITNESS BOOK I)  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  And the numbers they'd have would be the tab  numbers, my lord?  Yes.  Now, just one moment.  Okay.  I don't have anything -- oh, yes, I do.  Yes.  Sorry, my lord.  No, it's all right.  Okay.  In page 235 of your report, Doctor, you  Gitksan and the Wet'suwet'en, and you say  conclude in the middle paragraph:  refer to the  you  'Neither Gitksan nor Wet'suwet'en suggest  that land can be irrevocably alienated for  unpaid debts.  However the two cultures view  such forfeitures slightly differently.  The  Gitksan regard such a payment (a lifetime's  use of a territory) as a pledge that the  other side will redeem in public, with a  quantity of goods and services as soon as  possible, so as to free their territory of  use by outsiders. 12074  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 For their part, the Wet'suwet'en will  2 announce that a territory goes to the person  3 who paid the expenses.  It is understood  4 that this person possesses that territory  5 only during his or her lifetime, and that  6 the payment which they have made consists of  7 rights to the wealth of the chief's  8 territory for a generation.  The  9 Wet'suwet'en do not regard this as a form of  10 pledging, but rather, they view it as an  11 actual form of repayment when the House is  12 unable to make sufficient payments in any  13 other way."  14  15 Then you say:  16  17 "This example brings to light slight cultural  18 differences."  19  20 And you go into a description of an example.  Now, did  21 you -- I believe this relates to a Gitksan and a  22 Wet'suwet'en house, this example that you're referring  23 to?  24 A   Yes.  25 Q   Now, can you just explain what -- how you learned of  2 6 this example and --  27 A  Well, it wasn't a question of learning of an example.  28 I was trying to work out this whole thing about  29 whether or not land was alienated when the debts  30 weren't paid and what were the perceptions from the  31 two parties invovled.  32 Q   Okay.  How did this incident come to your attention?  33 A   I can't recall now whether it was from the commission  34 of Jessie Sterritt or a discussion I had, but anyway,  35 she mentioned that her uncle used to trap down south  36 or south-west of Houston.  37 Q   Now, her uncle was a Gitksan?  38 A   Her uncle was a Gitksan --  39 Q   Okay.  40 A   -- trapper, quite a well-off trapper.  He was very  41 successful in trapping and hunting and in fishing.  42 Q   Who was -- do you recall his name?  43 A   Daniel Skawil, S-k-a-w-i-1.  And so I talked -- I  44 went -- I went to visit her, and the substance of what  45 I said is in these interviews or what I found out was  46 from her perspective.  She stated that --  47 Q   Maybe what you can do is just explain what the 12075  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 circumstances were now?  What was the --  2 A   Chief Knedebeas from the -- one of the Frog Clans from  3 the Wet'suwet'en territory had died, and his -- at  4 his -- it was during the fishing season, and there  5 were a lot of people away, and there -- there was  6 nobody to step in from the father's side to pay the  7 funeral expenses, according to Wii'goob'l, Jessie  8 Sterritt, and her uncle, being of the same clan, the  9 Frog Clan, among the Gitksan and having some ties  10 through -- because they're a family from Gitanmaax,  11 they're close to the Wet'suwet'en territories, and  12 they've been interacting over the years, he stepped in  13 and paid the funeral expenses.  14 Q   Um hum.  15 A   In the course of that funeral feast the Knedebeas  16 family stood up and thanked him for his payment, and  17 they awarded him what they call their trapline, their  18 hunting territory and the -- the trapping rights on  19 it.  And when he was getting old, he was thinking over  20 all of his outstanding business, and one of the things  21 was what to do with this trapline which he had -- she  22 wasn't sure how much he had used it but that he had  23 had the rights to it.  And he told her that she  24 should -- as she was going to be responsible for  25 sorting out his business as a nametaker and a senior  26 member in that house -- this was the combined House of  27 Wii'goob'l and Gyetm galdoo -- that the best  28 arrangement would be for someone from the House of  2 9 Knedebeas to come and make a funeral payment to  30 support their burying of him when he was deceased and  31 then Jessie or some other chief would stand up and  32 say, "Okay.  The matter is closed.  We give back  33 your -- we unredeem your land and give you back the  34 land.  You've made a payment to our feast, and the  35 matter is closed."  36 Q   Yes.  37 A   But nobody came to that funeral feast from the House  38 of Knedebeas, and so Jessie was -- she's very old now.  39 She considers the matter is closed because she doesn't  40 want any bad feelings or animosity with -- between the  41 houses and between the two peoples, but she felt that  42 somehow it wasn't finished.  So I then got in touch  43 with the present Knedebeas, Sarah Layton, and I asked  44 her about this situation, was this considered to be  45 outstanding business of her house, that they hadn't  46 redeemed the funeral expenses, and she said no, it  47 wasn't, and she wasn't informed of this when she 12076  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 acceded to the name.  I said, "Well, why would that  2 have been?"  She said it's the -- it's the rules of --  3 according to the rules of the Wet'suwet'en, the matter  4 was already settled because you -- you -- if someone  5 doesn't -- if you don't have the money and the goods  6 to repay the funeral expenses that your father's side  7 had or others who stepped in had paid, then you give  8 them your -- your land, but you give it to them for  9 that generation, and then when they pass on, their  10 heirs are supposed to stand up in their funeral feast  11 and say, "We give this back."  12 Q   Without a repayment?  13 A  Without a repayment.  So those were the two  14 perceptions of the situation.  15 Q   So the Gitksan -- was what each -- was what Jessie  16 said about that example consistent with other research  17 you did and other findings you have about how the  18 Gitksan —  19 A   Yes.  Well, this was consistent with the way people  20 had been explaining it to me, that it wasn't an  21 irrevocable alienation of the land by paying the  22 funeral expenses and not -- not paying back in one  23 generation.  24 Q   And in your research with respect to the Wet'suwet'en,  25 was what Mrs. Layton described to you consistent with  26 how the Wet'suwet'en have described that --  27 A   Yes.  28 Q   -- in other cases?  29 A   Yes, yes.  In some cases the land, it doesn't go back.  30 It is retained and gains -- it becomes recognized as  31 the land of the -- of the person who paid the original  32 debt, or his house.  33 Q   Okay.  I'd like to refer you now to the -- to the next  34 section, which deals with property conveyance as  35 compensation, and you say another example under which  36 land may be transferred revolve around peace  37 settlements, xsiisxw in Gitksan, that's x-s-i-i-s-x-w,  38 and hlene gya deet k'es in Wet'suwet'en, h-1-e-n-e one  39 word, g-y-a second word, d-e-e-t third word, k-'-e-s  4 0 fourth word.  41 Now, you -- in the course of your research,  42 including your review of evidence of witnesses, you  43 have seen the -- in the course of the adaawk and your  44 interviews and the review of transcripts of commission  45 and trial evidence, you have seen descriptions of  46 examples of this kind of conveyance?  47 A   Yes, it's a frequent occurrence in the oral -- oral 12077  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 accounts, in the adaawk.  2 Q   Can you account for why it would be such a frequent  3 occurrence in the adaawk?  4 A   Because the adaawk registers important events and --  5 such as invasions and animosities in the settlement of  6 enmities.  It's a recording of important events, and a  7 peace which comes at the end of a period of war is  8 certainly one of those events.  9 Q   Okay.  Now, I'd like to refer you to page 242, where  10 you describe a number of examples, and at page 242 you  11 state:  12  13 "Xsiisxw is an institution for effecting  14 peace agreements and compensation over a  15 widespread area in the culture area known as  16 the Northwest Coast, precisely because it is  17 intertwined in the web of kinship and  18 intermarriage.  This web, in turn, links  19 Houses within and between societies.  20 Xsiisxw also articulates with the feast  21 system which exists across the region."  22  23 What do you mean by that statement, that it  24 articulates with the feast system which exists across  25 the region?  26 A   Part of the settlement of a dispute is that the  27 disputants come together in a feast.  One -- they have  28 actually two feasts.  One is hosted by one of the  29 disputants and then the second one by the other  30 disputant.  And they exchange -- they exchange a lot  31 of gifts, and they might even exchange a personnel so  32 that they effect a marriage between them so you create  33 a kinship link which binds the -- because the children  34 of that link will then be related to the two disputant  35 peoples.  And they can be from quite distant areas.  36 This is then -- they are then brought before the  37 assembled groups at the end of this ceremony and eagle  38 down or swan's down is sprinkled over them, and once  39 this is done, the matter is closed and cannot be  40 reopened again.  So it's a cessation of hostilities.  41 There's no possibility of reopening it, at least not  42 on that issue.  43 Q   And you say this is -- I'm sorry, I'll read the next  44 sentence.  You say:  45  46 "As the Houses within a culture (area)  47 interact on the basis of a common set of 1207?  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 rules" --  2  3 I'm sorry.  4  5 "As the Houses within a culture interact on  6 the basis of a common set of rules, so do  7 Houses at the territorial boundaries, which  8 share a border with other peoples."  9  10 And is this what you're explaining with respect to the  11 Xsiisxw?  12 A   Yes.  13 Q   Why it is a regional phenomenon?  14 A  Well, it's used internally, within the societies as  15 well -- as well as between them.  16 Q   And you -- there's been examples provided to the Court  17 of where it's been used?  18 A   Yes.  19 Q   I'd like to now turn you to the next major section of  20 this chapter, which is Stewardship and Management,  21 page 245, my lord, and it states there at the top:  22  23 "Management is used here to refer to the  24 directing and implementing of activities  25 which are part of the rights of ownership of  26 territory.  Management entails the direction  27 of human activities and relationships  28 vis-a-vis the property in question.  Many of  29 these relations and activities are economic  30 in nature, or at least they possess economic  31 features.  Stewardship, on the other hand,  32 is used to refer to the manager's  33 responsibility, to the fact that he is not a  34 free agent, but rather he must answer for  35 his actions to the social group he  36 represents, and to the territory which he  37 manages."  38  39 And that is your opinion?  40 A   Yes.  41 Q   And you also, of course, define some of the terms  42 there.  Now, is this a cross-cultural comment up to  43 this point?  44 A   Yes, it is.  45 Q   Okay.  And it's an anthropological description of  4 6 management?  47 A   It's used by anthropologists, yes. 12079  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  When you say cross-cultural comment, you mean it can  2 apply equally to --  3 THE WITNESS:  That's right.  4 THE COURT:  — to other cultures?  Thank you.  5 MR. GRANT:  6 Q   It's a term the witness used this morning, my lord.  7 Then under the first sub-category, Land Management, A  8 Question of Competition and Reciprocity, you start by  9 saying:  10  11 "The Gitksan... say that the land belongs to  12 them, and also, that they themselves belong  13 to the land."  14  15 A   The Gitksan and Wet'suwet'en.  16 Q   I'm sorry.  17  18 "The Gitksan and the Wet'suwet'en say that  19 the land belongs to them, and also, that  20 they themselves belong to the land."  21  22 And then going over to page -- you then refer to Dan  23 Michell.  And then on page 246 you say:  24  25 "The relationship between the land and its  26 owners is that of reciprocal interaction,  27 not at all unlike the relationship that  28 carries on between two founding clans in a  29 village, or between two matricentric House  30 groups linked through men who are the  31 fathers to one group and chiefly brothers  32 and mothers' brothers to the other."  33  34 And you then say -- you quote Mr. Michell, who says:  35  36 "'It was handed down to us by our forefathers.  37 And we are brought up in those territory  38 where we know that we belong to the land and  39 the land belong to us.  That is one way of  40 putting it, and all the resource in it we  41 are entitled to it.  And that is why we are  42 taught to respect the land and everything  43 that's in it.'"  44  45 Now, with respect to that first opinion at the top of  46 that page, can you explain to his lordship what you  47 mean by reciprocal interaction? 12080  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 A  Well, I've already used the term quite a bit in the  2 last three days, but what I'm indicating here is the  3 isomorphic nature of the relationship that people  4 perceive between their group and their land, being  5 it's isomorphic with the type of relationship between  6 groupings.  It's of a give-and-take relationship, a  7 reciprocal relationship.  You give to the land, you  8 take from the land.  You eat from the land, and  9 ultimately you feed the land with your bones.  10 Q   And is that what you mean by isomorphic?  11 A   Yeah.  Well, isomorphic means parallel or roughly  12 equivalent in structure.  13 Q   Okay.  Now, at the beginning of this section you  14 talk -- you say -- your heading you've put is Land  15 Management, A Question of Competition and Reciprocity?  16 A   Yeah.  Well, this statement, "The Gitksan and the  17 Wet'suwet'en say that the land belongs to them, and  18 also, that they themselves belong to the land," this  19 is something I had a lot of trouble reconciling.  You  20 interview someone like Martha Brown, who would say  21 both that "I own this land, and what are these people  22 doing on my land?"  At the same time she would say,  23 "Nobody owns the land," or, "The land owns us," or,  24 "We belong to the land.  We're wedded to the land."  25 So which is true?  Well, the fact of the matter, in my  26 estimation, is that they're both true because they  27 refer to two different things.  There's the -- the  28 ownership of the land is a body of rights vis-a-vis  29 between people, and then there's this -- this  30 attitude, reciprocal attitude between the people and  31 the land within -- within the -- the grouping, the  32 ownership grouping.  And then you get the whole  33 philosophy of caring for the land and being cared for,  34 and the metaphors of the land being our mother and so  35 on, this sort of thing.  And the chief must pay  36 attention -- that's one of his responsibilities of  37 ownership, is to pay attention to that relationship as  38 well as to the relationship with the other owning  39 groups.  40 Q   You state at the bottom, and maybe this -- of page 247  41 and the top of page 248 as follows:  42  43 "The world view of those living close to  44 nature in a non-centralized, kinship  45 society, reflect the basic reciprocal  46 principle which governs day-to-day social  47 relations in the society itself.  On one 12081  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 hand, nature's life force is seen to nurture  2 the people; on the other, nature exacts its  3 price from the people, its life force  4 feeding in turn, upon the people and their  5 society, consuming them, causing death so as  6 to nurture rebirth.  The House group's  7 proprietary representative, its leader or  8 chief, exercises a reciprocal stewardship  9 vis-a-vis the land, and at the same time, a  10 proprietary right toward this land vis-a-vis  11 the claims of other groups or nations.  On  12 one hand, the land is dealt with as a  13 property object between two potentially  14 competitive groups."  15  16 Those being the groups -- the human groups; is that  17 right?  18 A   That's right.  19 Q  20 "As such it is subject to ownership.  On the  21 other hand, the land is non-property when it  22 is viewed in terms of the people's  23 relationship to the life force in the  24 natural world."  25  26 And that is your conclusion as a result of your  27 research?  28 A   Yes.  29 MR. GRANT:  Okay.  30 THE COURT:  What are the two potentially competitive groups  31 you're talking about there?  32 MR. GRANT:  At the top of page 248, my lord?  33 THE COURT:  Yes  34 THE WITNESS:  Well, there's always potential competition within  35 the house groups as to who -- who is going to accede  36 to the -- to the name.  It can be handled in an  37 alternating way, that one family at one time and  38 another at another.  Sometimes there is only one  39 lineage within the house group.  So there's room for  40 competition there.  And there's also --  41 THE COURT:  You said between two potentially competitive groups.  42 Are you assuming that there's always two lineages or  43 there's always two competitors for a chiefly name?  44 THE WITNESS:  No, no, no.  But there's a range of possibilities  45 as to who the new leader will be after someone passes  46 on.  47 THE COURT:  Could we strike out the word "two" there and have 12082  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 the same meaning?  2 THE WITNESS:  Where?  3 THE COURT:  Top line on page 248.  4 MR. GRANT:  "...the land is dealt with as a property object  5 between two potentially..."  6 THE WITNESS:  Yes, that's right, you could take out the word  7 "two."  8 THE COURT:  Take out "two."  All right.  That's fine.  Thank  9 you.  And the competitive groups there then would be  10 within the houses?  11 THE WITNESS:  Within the houses or sometimes between the houses.  12 THE COURT:  Or are you talking here about between the plaintiffs  13 and defendants?  14 THE WITNESS:  No.  15 THE COURT:  No.  All right.  16 MR. GRANT:  We'll leave that to you, my lord.  17 THE COURT:  All right.  Thank you.  18 MR. GRANT:  19 Q   Now, I'd like to refer you -- just a second.  This is  20 what you concluded regarding that apparently  21 contradictory statement that you've referred to that  22 people make?  23 A   Yes, yes.  24 Q   Yes.  Now, you go on to say at the bottom of page 248,  25 the top of 249, after quoting -- referring to  26 Hanamuxw's evidence, you say:  27  28 "Ownership rights to land entail competition  29 and conflict management in relation to other  30 people - we must remember that it is the  31 rights and not the land which are protected  32 and conveyed, and not the land itself."  33  34 Why do you conclude that it is the rights and not the  35 land which are protected and conveyed?  36 A   This is the anthropological understanding of  37 ownership.  It's bodies of rights which are the  38 subject of ownership, which are vested in the property  39 between the peoples.  And this is reinforced by what  40 the elders among the Gitksan and Wet'suwet'en -- the  41 way they regarded their relationship to the land  42 itself.  It's very clearly in my eyes that it's the  43 body of rights concerning people that they are  44 concerned with.  The land itself -- you can't own  45 land, you can't own air, you can't own fish, but you  46 own the rights of access to them in specific places  47 and contexts. 12083  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1 Q   Okay.  Going on:  2  3 "At the same time, ownership in such  4 societies entails a responsibility to care  5 for that which is owned.  Management and  6 stewardship in such societies require a  7 blend of ownership and tenantship,  8 aggressive control and careful respect.  The  9 resultant interweave of competitiveness and  10 rights to ownership, with respectful  11 reciprocation, is manifest in many features  12 and institutions of Gitksan and Wet'suwet'en  13 culture.  14 The exercise of jurisdictional authority  15 by the House chief constitutes both  16 stewardship and executive management."  17  18 Now, can you exemplify or explain what you mean by:  19  20 "The resultant interweave of competitiveness  21 and rights to ownership, with respectful  22 reciprocation, is manifest in many features  23 and institutions of Gitksan and Wet'suwet'en  24 culture"?  25  26 What are you referring to there?  In other words, can  27 you just explain how it's manifest?  28 A   I'm sorry.  29 Q   And if you're referring to things you have already  30 said, you can --  31 A   I'm sorry, I was thinking of my last answer,  32 ruminating, so I wasn't paying close attention here.  33 Q   Just look at that sentence on the top of page 249.  34 "The resultant interweave..." it starts.  35 A  Well, I think I've already been discussing this most  36 of the day.  37 THE COURT:  It's the interweave that's manifest?  38 THE WITNESS:  Yes.  3 9    MR. GRANT:  40 Q   Okay.  That's what you see in all of these different  41 features of the society?  42 A   Yes, yes.  43 Q   Okay.  44 A  A replication of the same quality of relationships.  45 Quality or type of relationship.  4 6    THE COURT:  What do you think, Mr. Grant?  Do you think we  47 should adjourn? 12084  R. Daly (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  GRANT  COURT  GRANT  COURT  MR. GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  REGISTRAR  a .m  I think —  It's almost time.  If it's a convenient time to break, my lord.  All right.  Thank you.  And do counsel think we will  sit tomorrow afternoon late or tomorrow evening, or  what do you want to do?  I just want to advise your lordship that, as I had  indicated yesterday, this was one of the longest  chapters.  Some of the chapters I'm going to be very  brief with, some sections of it.  Yes.  Although I'll explain to you why it's there and  leave it to your lordship.  Yes.  But —  Well, I don't need to know now.  I'd like to see how we go tomorrow, if I could.  Yes, all right.  Well, counsel should consider what  they want to do, that is, stay until 6:00 or 6:30 or  do they want to take a break and come back at seven  o'clock.  Oh, you're available longer than till 5:00 tomorrow?  Yes.  Thank you, my lord.  We'll raise it in the morning.  All right.  Thank you.  Ten o'clock.  Order in court.  Trial will adjourn until 10:00  (PROCEEDINGS ADJOURNED AT 5:00 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Leanna Smith  Official Reporter  United Reporting Service Ltd.


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