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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-11] British Columbia. Supreme Court Mar 11, 1989

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 13216  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MARCH 11, 198 9  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court. In the Supreme Court of British  5 Columbia, Vancouver, this Saturday, March 11th, 1989,  6 calling Delgamuukw versus Her Majesty the Queen at  7 bar.  8 I caution the witness you're still under oath.  9 THE COURT: Counsel may be interested to know that by my  10 calculations this is the 200th day of evidence.  It  11 doesn't of course include the argument days and the  12 chamber days and things of that nature, but far from  13 the record, a long way to go.  All right.  Thank you.  14 Mr. Mackenzie.  15 MR. MACKENZIE:  My lord, there's a correction to the transcript  16 of Thursday, Volume 199, I would suggest be made on  17 page 13126.  18 THE COURT:  Yes.  19 MR. MACKENZIE:  At line 16.  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  That should read "fine fur resources".  It now  22 reads "final furry sources".  23 MR. RUSH:  I think I can agree with that.  24 THE COURT:  Yes.  All right.  Well, we'll make that amendment  25 accordingly.  26 MS. KOENIGSBERG: I think I like it the way it is.  27 MR. MACKENZIE:  28 Q   And the reference to "discreet territories" in that  29 line is d-i-s-c-r-e-t-e as opposed to d-i-s-c-r-e-e-t.  30 Dr. Mills, on Thursday I was asking you questions  31 about your interviews, and on page 13118, Thursday,  32 March the 9th, Volume 199, I asked you "Did your  33 informants provide you with information..."  This is  34 on page 13118, line 47.  "Did your informants provide  35 you with information which contradicted your report  36 today?", and your answer was "No, they didn't.  I  37 based my report on the information they gave me."  38 Do you recall that answer?  39 A   Yes.  40 Q   Well, you'll agree with me, won't you, that there are  41 many passages in your field notes and pieces of  42 information from your clients or from your informants  43 which in fact contradict the report as you've  44 presented it to the court?  45 A   I wouldn't want to agree with that statement put like  46 that.  No.  47 Q   Okay.  Perhaps I — 13217  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   There are some passages perhaps you'd like to put to  2 me, but basically what an anthropologist does is take  3 the total body of information and then weight it in  4 terms of prevalences.  5 Q   Well, can you recall that there was information in  6 your field notes showing non-attendance at the feasts  7 by chiefs?  8 A   Saying that some specific person did not come?  9 Q   Yes.  10 A   I'm not sure.  No.  Perhaps you can draw my attention  11 to the passage.  12 Q   You can't recall that?  13 A   That's saying someone doesn't come to the feasts?  14 Q   Yes.  15 A   Not offhand, but I'm not -- I wouldn't deny that that  16 might have been said, that some chiefs attend more or  17 less often.  The ones that want to maintain their  18 position of authority are obviously the ones that  19 attend, and some people have been given feast names  20 and do not seek to advance themselves in the system as  21 other people do.  They, therefore, are given less  22 weight and listened to less than the ones who are  23 generally in attendance and participate.  24 Q   And can you recall receiving information during your  25 interviews showing occupation of territories without  26 the chief's consent?  27 A   Occupation?  28 Q   Yes.  29 A   No, I can't.  30 Q   Can you recall receiving information -- well, when you  31 say -- am I putting it correctly that you can't  32 recall, or is it better to say that you recall that  33 there is no such information?  34 A   I don't recall at the moment any instances of  35 occupation, no, but if you put a specific example to  36 me, I'll address it.  37 Q   Well, a specific example might be the fact that, as  38 you're aware, that Florence Hall says that Maxan Lake  39 is Tsayu territory?  40 A   I have heard her say so.  41 Q   And you're aware that she says that Tsayu lent Maxan  42 Lake territory to the Laksilyu people?  43 A   That's right.  44 Q   And that territory, Maxan Lake, is now claimed by the  45 house of Hagwilnegh, Laksilyu clan?  46 A   That's correct.  47 Q   Can you agree with me that's an example of use or a 1321?  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 claim to a territory contrary to the chief's  2 permission or without the chief's permission?  3 A   No, not -- on the contrary.  That was the head chief  4 of the Tsayu who granted that and Florence Hall  5 recognizes that.  She sometimes considers whether she  6 would like to ask for it to be restored back to the  7 Tsayu, but she hasn't taken a stand, and she  8 understands that if she wants to that she could do so  9 in the feast hall, but I don't recall her having put  10 in motion such an action.  She acknowledges at the  11 feast that it's being held by Laksilyu.  It's done  12 totally publicly and within the context of the feast  13 and the Wet'suwet'en system.  14 Q   And you know that Roy Morris has a trap line down on  15 Francois Lake?  16 A   I've heard so.  17 Q   And you know that he received that trap line by will  18 from Nora Lee, Matthew Sam?  19 A   His uncle.  20 Q   Yes.  21 A   Yes.  I didn't know that it was by will until the  22 court case; until I saw it in the proceedings of this  23 court case.  24 Q   And you were aware that that trap line is in Gilseyhu  25 territory?  26 A   Yes, his uncle was Gilseyhu.  27 Q   And you are aware that Sarah Layton is Knedebeas?  28 A   I am.  29 Q   You are aware that that territory we're speaking of is  30 Knedebeas' territory?  31 A   Yes, that's my recollection.  And it's also my  32 knowledge that Sarah Layton is aware that Roy Morris  33 is there.  34 Q   And you are aware that Sarah Layton has not given Roy  35 Morris permission to be there?  36 A   I'm not sure of that.  I'm not sure of that.  I never  37 asked her.  38 Q   And you are aware that Sarah Layton and the people in  39 the house of Knedebeas deny Roy Morris' right to have  40 a trap line in that territory?  41 A   No, I wasn't fully aware of that.  No.  42 Q   If that is so, then that constitutes a use of that  43 territory without the chief's permission; correct?  44 A   Yes.  It would -- one would have to look at when this  45 whole transaction took place.  I -- I'm not sure of  46 the dating of whether Sarah Layton was Chief Knedebeas  47 at the time of the -- when the area around Francois 13219  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Lake was given to Roy Morris.  It may be the former  2 Knedebeas that was Knedebeas at that time.  I'm not  3 sure of the facts there.  4 Q   But if Sarah Layton asserts that Roy Morris has no  5 permission to be in that territory, that situation is  6 contrary to the laws as you express them in your  7 report; correct?  8 A   If she hasn't given permission, then he -- or one  9 would have to know who was Knedebeas at the time that  10 the whole transaction took place.  But there should be  11 an understanding between them and, if there's not,  12 then Roy -- if Roy Morris is there truly without the  13 permission, that's a contravention of Wet'suwet'en  14 law.  Yes.  15 MR. MACKENZIE:  I've just handed up a passage from Sarah  16 Layton's cross-examination at -- in the trial.  At  17 page 4058, and at lines 40 and following, there's a  18 discussion of this situation.  And at line 43 Sarah  19 Layton says:  20  21 "My grandmother or myself have never given  22 instructions to anybody else to use that  23 territory.  Roy Morris is of Gitdumden clan  24 and this territory belongs to Knedebeas  25 Gilseyhu.  Matthew Sam was there only as  26 Neg'edeld'es, and his wife Amelia Morris was  27 Gilseyhu and that's why he was allowed to  28 use that area."  29  30 You've told us that -- my lord, first of all, I  31 submit that as the next exhibit.  32 THE COURT:  955-26?  33 THE REGISTRAR: Yes, my lord.  34 MR. RUSH:  My lord, is this being exhibited or is this being  35 just tabbed?  You had tabbed some and there was kind  36 of a mixed category here.  37 THE COURT:  Yes. Well, I think just tabbed.  It's already part  38 of the evidence.  39 MR. MACKENZIE:  Thank you, my lord.  How is your lordship's  40 binder doing?  Is it filled up yet?  41 THE COURT:  No, I've got two or three empty rooms left I think.  42 Yes, I'm down to -- this will be 26, and I have to go  43 to 31 before I'm full.  44 MR. MACKENZIE:  4 5 Q   Yes, my lord.  46 You told us that the law of Neg'edeld'es is that  47 the territory will pass back to the original owners 13220  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 when the son, who was thereby Neg'edeld'es, passes  2 away; correct?  3 A   Right.  4 Q   Yes.  I'm going to suggest to you that Roy Morris's  5 use of that Knedebeas territory is contrary to that  6 law of Neg'edeld'es also; can you agree with that?  7 A   Oh, well, Sarah Layton makes it quite clear that it's  8 without her permission that he is doing something  9 that's not correct.  People do indeed break laws in  10 any legal system.  11 Q   Yes.  And Roy Morris, I think you've already agreed  12 with me, is a high chief in the Gitdumden clan?  13 A   Right.  People in high positions in any legal system  14 also sometimes break the law.  15 Q   Now, in your report you say also that, generally  16 speaking, the names are passed on to -- chiefly titles  17 are passed on to successors within the houses of the  18 chiefs who hold the title or held the title?  19 A   Uh-huh.  I said that, and I explained also that that  20 doesn't always happen that a -- the Wet'suwet'en  21 consider it appropriate to pass a title to someone  22 who's not in their same house if they think that the  23 best candidate for the title is not a member of that  24 house.  I gave the example of Nora Van Tunen in my  25 report as being someone who was given a name from  26 another house by Little Tommy Michell.  27 Q   And you are aware that Roy Morris was from the house  28 of Spookw; born in the house of Spookw?  29 A   Yes, I was, and am.  30 Q   And he took the name of Woos after the death of  31 Topley, Matthew Sam?  32 A   Yes.  33 Q   And you're aware that there's some concern among the  34 Wet'suwet'en people about that?  35 A   There's -- I'm aware that it's occasionally said that  36 the name should eventually pass back into -- from  37 Spookw -- from -- into the house of Woos, but there's  38 no one at the moment who's making any action in that  39 direction.  And I've even heard Roy Morris agree that  40 at some point that that's a possibility of what may  41 happen.  It's almost like a caretaker position now.  42 He didn't immediately take the title.  No one -- there  43 was no person within the house of Woos who was -- who  44 was being put forward or putting themselves forward as  45 an obvious candidate, and therefore he eventually took  46 the role, but yes, it's general knowledge that it may  47 well revert to somebody who's within the matriline of 13221  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Woos, but then again it's not apparent what will  2 happen or that that's an absolute requirement.  3 Q   One of the land claims interviews that you reviewed  4 was that of an interview with Willie Simms; correct?  5 A   Yes.  6 Q   He's a high chief?  His name was Gitem Skaneese;  7 correct?  8 A   Still is.  9 Q   And still is Gitem Skaneese?  10 A   Uh-huh.  11 Q   And you recall that he said that with respect to Roy  12 Morris holding that name, Willie Simms said that name  13 he is holding is not for him.  There are people around  14 that have the right to talk about the name Woos.  Do  15 you recall Willie Simms saying that in the interview?  16 A   Yes, but no one did.  Though there may be people in  17 the matriline, they would have to advance themselves.  18 They would have to take that action.  Certainly it  19 would be entirely in their right to do so, but they  2 0 haven't done so.  21 Q   And just on this, another point on this topic, you  22 actually had a personal interview with Gordon Hall,  23 didn't you?  24 A   I did.  25 Q   And his chief name is Gyologyet, is it not?  26 A   It is.  27 Q   And he is a sub-chief in the grizzly house?  28 A   That's right.  29 Q   And Woos, Roy Morris, is the head chief of that house?  30 A   Correct.  31 Q   Now, Gordon Hall was quite surprised that Roy Morris  32 still had the name Woos, wasn't he, when you spoke to  33 him?  34 A   I don't recall that.  I can't imagine why he would be  35 surprised because Woos sits right beside him at every  36 feast.  37 Q   Yes.  Well, you noted in your notes that Gordon was  38 surprised, and you noted that Gordon said "Does he  39 still have that name?  He belongs to a different  40 house." You recall that passage?  41 A   Now that you mention it it seems somewhat familiar,  42 but -- but again I think that's -- his surprise is a  43 bit surprising itself because he sits next to him at  44 every feast.  He's very hard of hearing and he's very  45 aged, but I'm sure he hears that he -- or knows that  46 he is playing that role.  Could you quote again what  47 he said, Gordon Hall? 13222  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Well, according to your note Gordon said "Does he  2 still have that name?  He belongs to a different  3 house." And you noted that he was surprised.  4 Now, you had a couple of interviews with Roy  5 Morris personally, didn't you?  6 A   I interviewed him several times.  7 MR. MACKENZIE:   Yes.  Several times.  And you recall Roy Morris  8 telling you that he doesn't differentiate or  9 distinguish between the houses in Gitdumden as being  10 different?  11 THE COURT:  Different from what.  12 MR. MACKENZIE:  Different from one another, my lord.  13 THE COURT:  Oh.  14 MR. MACKENZIE:  15 Q   You recall that?  16 A   I think I recall him saying that.  17 Q   Roy Morris, in another one of your conversations with  18 him, told you about -- a little bit about his life and  19 where he was brought up and the fact that he does trap  20 in different areas; is that fair to say?  21 A   I recall his saying where he'd moved in his childhood.  22 Q   And you believe Roy Morris?  He was one of the chiefs  23 that were your informants?  24 A  Well, an anthropologist listens to what is presented  25 before them.  I noted down what he said.  Roy Morris  26 has a certain kind of reputation as a certain kind of  27 person, and one takes that into consideration in  28 listening to what he said.  2 9 Q   And you also had an interview with John Namox?  30 A   I did.  31 Q   And he's Chief Wah tah kwets?  32 A   Yes.  33 Q   And he told you that he had taken over the territory  34 at Macdonell Lake?  35 A   Yes.  36 Q   And you're aware that that lake territory is now  37 claimed by the house of Hagwilnegh?  38 A   I thought that it was agreed that it belonged to the  39 house of Wah tah kwets.  40 Q   And you also went out to Peter Jim's territory at  41 Round Lake with him and some other people?  42 A   I did.  43 Q   Yes.  And Mary Jim was present at that time?  44 A   Yes.  45 Q   And she was speaking about John Namox and she said  46 that he doesn't go to party.  Did she mean -- did you  47 understand her to mean that John doesn't go to feasts, 13223  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 doesn't attend feasts?  2 A   I couldn't speak for what she was meaning.  I can  3 speak to -- from my own observations that John Namox  4 attends feasts regularly.  I've -- I don't recall his  5 ever being absent from a feast.  6 MR. MACKENZIE:   Well, how did you interpret Mary Jim's comment  7 that John Namox doesn't go to party?  8 MR. RUSH:  My lord, isn't that a situation where if the witness  9 is being asked to interpret the context of the comment  10 it ought to be placed before her?  The sentence seems  11 to have been extracted from a passage and it might be  12 of assistance to her.  13 THE COURT:  Yes, I think that's fair, Mr. Mackenzie, if it's  14 convenient.  15 MR. MACKENZIE:  Well, my lord, that passage is found on — it's  16 found in the field notes and the field notes are quite  17 voluminous.  18 THE COURT: But does it really matter very much, Mr. Mackenzie?  19 MR. MACKENZIE:  20 Q   No, my lord.  You also interviewed Sarah Tait, as you  21 have told us before?  22 A   That's correct.  23 Q   And she was telling you about Johnny Mack, who was  24 Chief Kloumkhun?  25 A   I don't recall at the moment.  Maybe you can refresh  2 6 my memory.  27 Q   She told you Johnny Mack has the name, but he doesn't  28 do enough feasting?  29 A   Oh —  30 Q   Do you recall that?  31 A   Johnny Mack was in very poor health.  32 Q   But Sarah Tait told you that, didn't she?  33 A   Yes.  Yes.  But these people take the feast system  34 very seriously and they fault each other if they don't  35 think someone is being active enough, but I think that  36 shows the strength, the concern with the system,  37 rather than anything to the contrary.  38 Q   You also had an interview with Augustine Morris?  39 A   I did.  40 Q   And she advised you that one Barbara Alfred had taken  41 her grandmother's name; do you recall that?  42 A   Yes.  43 Q   That is Augustine's grandmother's name?  44 A   Right.  45 Q   And she advised you "but she doesn't go to feasts, so  46 we have to think about who should take her name".  Do  47 you recall her saying that? 13224  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Yes, I think I have expressed fairly clearly in my  2 opinion report that the people who are considered most  3 responsible by the Wet'suwet'en are the ones that are  4 advanced in names, and it's a very important part of  5 the Wet'suwet'en system to take names away from people  6 who aren't considered to be conducting themselves in  7 such a way or that they should maintain -- be  8 maintained in that position, and this was discussion  9 to that effect.  10 Q   And you also had an interview with Amos Naziel?  11 A   Yes.  12 Q   And he told you that Clarence Dennis was supposed to  13 be Madeek's heir, but he didn't help him with the  14 feasts.  He doesn't involve himself with the feasts.  15 Do you remember receiving that information?  16 A   That's right.  And that's why people, the person who  17 might be the obvious heir in terms of kinship is  18 sometimes passed over.  I expressed that also in my  19 report and he has not become the next Chief Madeek.  20 Some people don't know the ability of leadership to  21 take on such positions, but it would be erroneous if  22 one thought that that meant that the Wet'suwet'en do  23 not consider the feast their central governing body.  24 That is the heart of their laws and institutions.  But  25 some people just simply aren't as skilled and adept in  26 handling positions of responsibility as others, and  27 sometimes they self-select themselves also by not  28 putting themselves forward for such positions.  In  29 this case there was no contest.  I don't think that  30 Clarence Dennis ever sought to take the name.  31 Q   And you were aware from the information you received  32 in your interviews that Sylvester Williams held the  33 name Hagwilnegh before his death?  34 A   Yes, I was aware of that.  35 Q   And you were also aware that Sylvester had put his  36 name on a registered trap line in the territory  37 claimed by Caspit?  38 A   Yes.  In fact, I think you have his testimony on --  39 I've forgotten what the term was.  It was at a  40 discovery, and I had interviewed him also previously  41 to that.  Yes, he was made Neg'edeld'es.  He was  42 raised by Caspit, and so when the system of  43 registering trap lines came into existence, his uncle  44 Caspit made sure that he was registered on that trap  45 line and he was there for some time, and he very  46 formally and officially passed that territory and trap  47 line and trap line registration, all which are to be 13225  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 perhaps kept discrete to the present Chief Caspit, who  2 was Stanley Morris.  3 Q   And you're aware that Sylvester William claimed that  4 territory, and by the way that's Blunt Creek,  5 B-1-u-n-t, claimed that territory as his own territory  6 under oath in this proceeding, this litigation?  7 A   It was his own in the sense that he was officially  8 made Neg'edeld'es, but he has also very officially  9 passed that on to Caspit.  10 Q   Now, do you recall having an interview with Vivian  11 LeCouffe, L-e-C-o-u-f-f-e?  12 A   Not at the moment.  I remember talking to her, but I  13 don't remember the content of the conversation at the  14 moment.  15 Q   And you recall she told you that potlatches are only  16 used for sad occasions like death?  17 A  Well, that's the -- I've expressed in my report that  18 the two prime times of potlatching are for the funeral  19 and then later the memorial or headstone feast of the  20 Wet'suwet'en.  Vivian LeCouffe is a Nuu'tsenii who's  21 married into the Wet'suwet'en.  22 Q   And you're aware that Moses David advised his  23 interviewers at a land claim interview that the house  24 of Goohlaht owns Owen Lake?  25 A   Yes.  He was mistaken in that.  He said that he  26 thought that Goohlaht had placed his son there because  27 he had loved him.  On the contrary, he had -- was  28 simply not understanding that Goohlaht was there at  29 Owen Lake because it was his wife's territory and  30 therefore the territory correctly went to his wife's  31 son who was obviously in the same house.  This is the  32 house of Gisdaywa.  33 Q   Moses David was a very important informant with  34 respect to land claims and ownership of land in the  35 Wet'suwet'en claims area wasn't he?  36 A   He was one of a large number of informants.  37 Q   Well, Jenness also in his 1943 book says Goohlaht owns  38 Owen Lake, doesn't he?  3 9 A   He may.  40 MR. MACKENZIE:   Well, you noted — you reviewed Jenness.  I'm  41 now referring to page 582 in Jenness 1943 which is tab  42 24.  43 THE REGISTRAR: It's in book 2, my lord.  44 MR. MACKENZIE:  Does your lordship have that reference?  4 5    THE COURT:  Yes.  46 MR. MACKENZIE:  47 Q   This is number 2 at the top of the page under the 13226  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 heading "Thin house"?  2 A  What page was it, please?  3 Q   Page 582.  I take it you disagree with Jenness'  4 statement there?  5 A   It seems that he is making the same mistake as Moses  6 David, which is a bit surprising because the one  7 reference we have to an informant occurs through  8 Barbeau quoting Jenness' notes, which you put into  9 evidence I think yesterday, and he was talking to  10 Thomas George, who was Gisdaywa, the chief of this  11 area.  And it was Felix George, his father, whose  12 residence at Owen Lake misled Samooh, Moses David,  13 into thinking that that was the territory of Goohlaht.  14 But it seems to be -- Jenness seems to be under that  15 impression too, but we've heard the testimony of  16 Alfred Joseph.  It was very clear that Goohlaht was  17 there as the husband, as the spouse, of someone who  18 had the rights to that territory which is accepted  19 under Wet'suwet'en law.  20 Q   In your field notes where you set out the ownership of  21 the territories, in your notes you say Owen Lake is  22 owned by Goohlaht, don't you?  23 A   I was just -- at one point I was following this, and I  24 was eventually corrected by Alfred Joseph who  25 explained how the confusion had come about by this  26 Felix George use of the territory in the right of  27 his -- of the spouse of Cecelia George who was in the  28 house of Gisdaywa.  29 Q   You preferred Alfred's information over the other  30 sources which we've discussed?  31 A  Well, he made sense of the whole thing.  Yes.  32 Q   You attended Elsie Hart's funeral potlatch, didn't  33 you?  34 A   I did.  35 Q   And you discovered or knew, as a result of your  36 attendance there, that Elsie Hart had made a will?  37 A   Yes, she had.  38 Q   You also were aware that Elsie Hart did not direct  39 that a feast be held after she passed away?  40 A   Yes.  She felt some conflict over -- over her  41 Pentecostal religion which had some feeling that  42 perhaps feasts were not appropriate.  But she at the  43 same time was very proud of the feast name that she  44 held.  I interviewed her and she talked about that at  45 some length, and it was felt that it was essential to  46 hold a feast despite the fact that she had had some  47 ambivalent feelings in that regard.  She had married a 13227  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Pentecostal minister who was not Wet'suwet'en, and she  2 had deferred, to some extent, to his wishes.  However,  3 it was considered unthinkable by her clan not to --  4 not to commemorate her death at a feast and not to  5 pass on her title, and --  6 Q   Elsie didn't attend feasts, did she, before her death?  7 A  Well, she died so soon after I arrived there that I  8 couldn't say.  9 Q   Now, you also had a discussion interview with Andy  10 George?  11 A   I did.  12 Q   And you were discussing with him the Wet'suwet'en and  13 spirituality and, particularly, questions of  14 reincarnation?  15 A   Slightly.  16 Q   And Andy George told you that that sort of died off  17 after his grandparents passed away.  He said the  18 missionaries quashed all that.  Do you recall him  19 saying that?  20 A   Yes.  He did say that he felt a little uncomfortable  21 about talking about it.  Uh-huh.  It doesn't mean that  22 he stopped thinking that way about it.  And the rest  23 of my interviews show how intact belief in  24 reincarnation is.  25 Q   With respect to the land claims interviews that you  26 have mentioned and have been filed, can you say who  27 were the people that translated those from the  28 original Wet'suwet'en?  29 A   I'm not sure.  I think that Alfred Joseph was among  30 the people, but I don't know.  31 Q   Can you say when the land claim interview tapes were  32 translated and transcribed?  33 A   I -- it was an ongoing process. The idea was that the  34 rest of the tapes would get translated as well, and  35 that never happened.  The time ran out and the rest  36 were never done.  I think that the land claims  37 transcripts that I did read had -- they had been  38 transcribed and translated before I arrived there.  39 Q   It would be, of course, difficult for you to know what  40 conversations or instructions took place between the  41 interviewers and the informants at the time of those  42 interviews taped before you arrived?  43 A  Well, the totality of the interview was there on the  44 tape.  45 Q   You have -- but you wouldn't -- it follows that you  46 wouldn't know what other conversations or instructions  47 took place at the time of the meeting at each 1322?  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 interview, would you?  2 A   No, I don't know.  But you can see from reading them  3 that they -- they present themselves for what they  4 are.  Everything that was on the tape got translated,  5 whether it was extraneous or not.  It was an attempt  6 to -- for the Wet'suwet'en to record -- more than an  7 attempt, it was an accomplishment of recording what  8 was known, and it wasn't as if there was -- there are  9 statements in there that show that some people  10 grumbled about this.  And it wasn't an edited version,  11 nor does it differ from what I found in my own  12 interviews.  I interviewed people myself and I didn't  13 find a lot of contradictions.  My own research  14 validated what was said there, but I also did  15 interview people myself so that I could assure myself  16 of that fact.  17 Q   Now, in your report you have a chapter on the  18 Wet'suwet'en, on the laws of the Wet'suwet'en, don't  19 you?  2 0 A   I do.  21 Q   And at page 170 in your report you say:  "Where a  22 Wet'suwet'en and Canadian law are in conflict the  23 feast system takes precedence."  24 Are you at the last paragraph at the bottom of the  25 page, 170?  26 A   Perhaps that should read "should take precedence".  27 That's what they think, is that it should take  28 precedence.  29 MR. MACKENZIE:   Does your lordship have that reference?  30 THE COURT:  170?  31 MR. MACKENZIE:  32 Q   Yes, my lord, the last paragraph, which reads:  33  34 "Occasionally the existence of two  35 separate systems of jurisprudence, the  36 Wet'suwet'en and the Canadian governments',  37 puts the Wet'suwet'en in conflict with each  38 other.  When this occurs there is unanimous  39 consensus that it is the feast system which  40 takes precedence."  41  42 And Dr. Mills wanted to make, I think, an alteration  43 to that.  44 Now, in your report under the section law as you  45 speak about the law of trespass, and it's fair to say  46 that after several trespasses, after someone had  47 trespassed on a chief's territory three times, the 13229  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  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  chief would be entitled to kill that person?  A   In the past, yes.  Q   Yes, in the past.  And you indicate that that was  often done by medicine power?  A   That's what my information was.  Q   Yes.  And -- or by witchcraft?  A   Habo'ts'at.  Q   Yes.  Habo'ts'at.  At page 176 of your opinion you say  that, in your opinion, the recognition of -- at the  bottom of the page 176 you say:  "In my opinion recognition by the  Canadian state of the Wet'suwet'en  jurisdiction would not result in the  restoration of the death penalty for  trespassing."  And that is your view today?  Yes.  Sarah and Tommy Tait told you that people are still  killing each other by spirit power today, didn't they?  I think perhaps we should refer to exactly what they  did say.  MR. MACKENZIE:   This is Exhibit 955-7.  THE REGISTRAR: It's the blue book, my lord.  MR. MACKENZIE:  It's an exhibit that was just put in yesterday.  THE REGISTRAR: Do you have that, my lord.  THE COURT:  Yes, Thomas Joseph.  No, I'm sorry, that's 6.  THE REGISTRAR: It's field notes October 23rd, 1985.  MR. MACKENZIE:  Q   We actually referred to this in our discussion on  Thursday, and you note at the bottom of that first  page of that interview:  "I said I had read a case where someone was  warned not to hunt caribou on someone else's  territory.  He went back anyway and hunted  caribou and he never came back.  The man  whose territory it was used medicine, used  witchcraft to kill him.  Sarah and Tommy  said yes, that happened lots.  People use  medicine or witchcraft to kill others."  And then Sarah described how it was done.  A   Sarah said:  "There used to be lots of Indian doctors like 13230  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 that.  Now not so much.  They still have  2 some.  People learn these things in their  3 dreams.  In their dreams they know what to  4 do.  That still happens today."  5  6 That she was referring to using these powers to  7 kill someone for trespassing isn't explicit in there,  8 but she is saying that yes, Wet'suwet'en still dream  9 and use their powers.  However, I don't think that she  10 is implying that anyone who trespasses will  11 necessarily have that happen to them.  In fact, you  12 know, the consensus of the Wet'suwet'en in general is  13 that it is, as I stated in my opinion report, that  14 they are not anticipating that the death penalty for  15 trespassing is viable, is a viable alternative today.  16 Q   Well, you mention in your report that Jimmy Michell,  17 Emma Michell's brother, was killed for trespassing as  18 late as 1935?  19 A   Yes, I said that was the -- he was accused of having  20 been killed, but -- for having trespassed.  Whether he  21 died accidentally or at the hands of another person  22 has never been determined.  But his sister Emma  23 Michell is quite convinced that there was foul play.  24 Q   And she found out about that death because Jimmy  25 Michell was reincarnated as another person and that  26 person advised her about the killing; is that fair to  27 say?  28 A   No, the first person who told her that there had been  29 foul play was another Wet'suwet'en elder who had  30 overheard the accused speaking and that person  31 reported to Emma Michell what they had heard, and Emma  32 Michell took it seriously and concluded that that  33 allegation was correct.  However, yes, she does also  34 say that her brother has been reincarnated and that  35 that child also says the same thing.  36 Q   And you discovered that or you received that  37 information in detail during your interviews related  38 to the reincarnation project and research project you  39 were carrying out; is that fair to say?  40 A   I think so.  41 MR. MACKENZIE:  Yes.  And at the report page 177 you speak about  42 the "rich tradition of conflict resolution".  It's the  43 last -- the fourth sentence on page 177.  44 THE COURT:  Is that what you intended to say "which would inform  45 their settlement of contemporary grievances" at the  46 end of the top paragraph on page 177?  47 THE WITNESS:   Well, that's what they attempt to do within the 13231  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 feast hall and in the feast system outside of the  2 feast hall is resolve conflicts about territories or  3 marital conflicts or whatever kinds of conflicts by  4 the -- their knowledge of the individuals.  They have  5 the advantage of knowing the parties very well, so  6 that they use this judgment they have about the  7 individuals concerned in -- and they know also how  8 they can -- what kinds of pressures they can apply to  9 the people to make them conform to what they think  10 they ought to do.  11 THE COURT:  I'm just wondering if something is left out of that  12 sentence; inform who?  13 THE WITNESS:  Pardon?  14 THE COURT:  Inform who?  15 THE WITNESS:   Inform the Wet'suwet'en.  They have a rich  16 tradition of conflict resolution which guides them in  17 deciding how to settle grievances is my meaning, my  18 lord.  19 THE COURT:  Thank you.  20 MR. MACKENZIE:  21 Q   Do you make that statement of opinion in view of the  22 evidence that -- in the past and possibly continuing  23 into the 1940's or into the 1930's that the people  24 were being killed for trespassing?  25 A   Yes, I do.  26 Q   And Dr. Mills, are you a member of a Wet'suwet'en  27 house or clan?  28 A   No, I'm not.  29 Q   Now, you mentioned the reincarnation interviews, the  30 reincarnation project, and you say you carried that  31 out between 1985 and 1986 — 1988?  32 A   That's right.  33 Q   And you interviewed many Wet'suwet'en chiefs to find  34 out their experiences with reincarnation?  35 A   Yes.  36 Q   During those interviews the chiefs told you about  37 their -- in addition to their reincarnation  38 experiences, they told you about incidents in their  39 day-to-day lives?  4 0 A   Sometimes.  41 Q   And they -- they told you about their hereditary  42 territories some of them?  43 A   Sometimes. The Wet'suwet'en talk about these things  44 frequently in any kind of context.  45 Q   And -- yes.  And as you say, as you told Mr. Rush on  46 Monday, it's difficult to investigate these sorts of  47 spiritual matters without really becoming involved in 13232  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 the whole culture and society that your informants are  2 in?  3 A   Involved in?  4 Q   Sorry —  5 A   I wouldn't say that that characterizes the situation  6 accurately.  I did research with the Gitksan Indians  7 who didn't know me for whom -- before I was doing any  8 research for any land claims tape on the subject of  9 reincarnation, and I found them equally willing and --  10 to discuss the subject and to give me information.  It  11 wasn't as if the fact that I also did research for the  12 Tribal Council was the reason that they were giving me  13 information.  14 Q   Yes.  What I meant to say was that in conducting these  15 interviews you would in the course receive much  16 information about the society and the culture and the  17 day-to-day lives of the people you were interviewing?  18 A   Yes, of course.  19 Q   For example, you heard during one of your interviews  20 about Helen Nikal's, N-i-k-a-1, experience in Europe  21 with medicine sickness?  22 A   Right.  23 Q   And you have -- in summary she was wearing the  24 head-dress of another house or clan and she felt that  25 that caused her to become ill;  is that a fair  2 6 summary?  27 A   That's correct.  28 Q   And you have referred to that incident in your report?  2 9 A   I have.  30 Q   Yes.  31 A   Yes.  I did indeed undertake this research project on  32 reincarnation outside of the guise of the Tribal  33 Council, but I did indeed include the information that  34 I learned in this capacity as well to inform my  35 report.  36 Q   I'm just putting in front of you a binder containing  37 your interview notes for these reincarnation  38 interviews.  I received these from Mr. Rush this week.  39 I highlighted some passages, but I'm referring now to  40 an interview with Emma Michell apparently -- I'm  41 sorry, with Lillian Lewis apparently done on September  42 30, 1986, and attached to that are several notes, and  43 then there's a passage relating to Helen Nikal going  44 to Europe with the canyon bears, and she had a  45 headache from wearing Thomas George's head piece. She  46 told Leonard's elder sister and she explained they  47 were powerful medicine men.  That's why Helen had 13233  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 terrible nightmares from wearing T.G.'s head piece.  2 So she took it off and they stopped.  And that's what  3 appears in your notes in this interview?  4 A   That's right.  5 Q   Yes.  And that's the passage that you used to prepare  6 the information that is contained in your report on  7 that subject?  8 A  Well, that's part of it.  9 Q   Yes.  10 A   In fact, as you see, I -- the next part that you  11 highlighted here, I quote in my report where she's  12 talking about having been taken to the cremation  13 grounds by Ruth Murdoch and having -- starting to have  14 bad nightmares after that occurrence.  And I included  15 that in my report, yes.  I didn't distinguish between  16 the information that I had gathered in my guise as  17 postdoctoral fellows doing this reincarnation study  18 and the information that I learned vis-a-vis the  19 interviews that I first conducted to inform myself  20 about Wet'suwet'en society before I had the  21 postdoctoral fellowship.  I used, as any  22 anthropologist would, all the information that they  23 had to inform them and make as complete a report as  24 possible.  25 Q   And now referring to an interview that you apparently  26 had with Mr. Cheyenne, C-h-e-y-e-n-n-e, Nikal,  27 N-i-k-a-1, on June 20, 1988?  28 A   That's long after my report was submitted, so it's not  29 relevant to my report.  30 Q   But it is relevant to the opinion that you're  31 expressing today, isn't it, because your opinion as  32 you express today is informed by your continuing work  33 and interviews with the Wet'suwet'en people?  34 A   I don't know what the legalities of that -- of course  35 my total information includes what I learned  36 afterwards.  37 Q   I just wanted to point out that you have a passage  38 here in this -- these interview notes about where  39 Cheyenne tells you about -- he was working in the  40 sawmill, and really gives his -- some of his  41 experiences in working for different sawmills in the  42 Moricetown and the Bulkley and Skeena River area; is  43 that fair to say?  44 A   It is.  45 Q   I point that out as an example of the day-to-day life  4 6 events and facts that came up during the interviews.  47 A   Uh-huh. 13234  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Yes.  2 A   Yes, I think it shows what a phenomenal job of  3 research this report rests on.  This is a -- I have  4 done a lot of research and interviewing, and so that  5 when I said yesterday that the report rests on  6 ethnography, I don't mean to say it just rests on  7 Jenness.  It rests on my own ethnography as well.  I  8 did a lot of interviewing and a lot of research and --  9 Q   And here's an interview or part of an interview on  10 July 11, 1985, with Augustine Morris talking about  11 reincarnation and past memories?  12 A   Yes, this is a topic that people raised.  13 Q   And you included this in the field notes that you  14 disclosed earlier through your counsel?  15 A   Yes, I did.  I -- this was something that Augustine  16 Morris, you know, brought up and I enclosed it with my  17 field notes, and since it was relevant to the question  18 of reincarnation, which I later researched, I also --  19 I think you have it twice now.  I attached it there as  20 well.  21 Q   And here's notes of an interview on June 23, 1988,  22 where Cora Mack -- is that Johnny Mack's -- any  23 relation to Johnny Mack?  24 A   Let me think.  I've kind of forgot who Cora Mack is.  25 Can I refresh myself?  26 Q   Well, just, rather than take up your time, perhaps you  27 can agree that she is a Wet'suwet'en person?  28 A   Yes.  29 Q   Yes.  And she says in this -- in your field notes here  30 that Cora Mack had begun by saying she doesn't believe  31 in reincarnation because she's Christian, and then you  32 write "I asked her to ask Josephine if Josephine  33 believes in reincarnation."  Is that a fair summary of  34 what you say there?  35 A   Uh-huh.  Yes.  That -- I do remember now, and then she  36 came and translated for me.  37 Q   And there's a passage in this set of interview notes  38 dated August 18, 1986, entitled -- or with the word  39 "land claims"?  40 A  May I see that?  41 Q   Yes.  42 A   I see the word land claims.  Let me read the context  43 and see --  44 Q   Perhaps I could assist you.  45 A   I see.  I see.  Sure.  I can assist myself.  46 Q   Yes.  It's because of the time.  47 A   Oh, I see.  Well, did you want to ask me a question? 13235  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Submission by Mr. Mackenzie  1 Q   I just wanted you to agree with me that there is a  2 passage here dealing with claims to land, and desires  3 of people to have land returned, and information about  4 the previous chief's name title holders; is that fair  5 to say?  6 A   Yes, people talk about, you know -- these are things  7 that -- this is August 18, 1986.  As you say, people  8 talk about these topics.  9 Q   And these notes follow an interview dated June 10,  10 1986, with Emma Michell?  11 A   Uh-huh.  12 Q   And this is where you say that the Wet'suwet'en  13 identity is tied to the land and that they have  14 married animals and they are associated with the  15 animals and some of them can enter into the land and  16 the fish and the animals and the space where they  17 confront the forces of the deceased who are continuing  18 medicine fights with the living.  Is that a fair  19 summary of what you write there?  20 A   Right.  I think you've had quite a bit of testimony to  21 that effect from the Wet'suwet'en.  22 MR. MACKENZIE:   Well, my lord, I've just been going through  23 these notes for the purpose -- I wish now to tender  24 these notes as the next exhibit, and therefore make  25 that submission.  26 THE COURT:  For what purpose?  27 MR. MACKENZIE:  Well, my lord, these notes contain detailed  28 information which the witness relied upon in preparing  29 her report.  They contain detailed information  30 relating to the day-to-day lives of the Wet'suwet'en  31 people, their spiritual beliefs, their land claims,  32 and other matters raised in Dr. Mills' report.  And,  33 in my submission, this is analogous to the information  34 that was submitted by Mr. Rush, the voluminous field  35 notes and feast notes, upon which the witness relied.  36 I say that these notes are in the same position, in  37 the same category, of documents as those.  38 THE COURT:  Miss Koenigsberg?  39 MS. KOENIGSBERG: I agree that they can certainly be marked as an  40 exhibit, as documents which this witness appears to  41 have relied upon in preparation of her report.  42 THE COURT:  Mr. Rush?  43 MR. RUSH:  Part of that submission is accurate.  Part of the  44 submission is not.  It's evident that the witness has  45 said that they were notes that were prepared by her  46 after the submission of the report, and if my friends  47 would have permitted me the same courtesy of leading 13236  Submission by Mr. Rush  Ruling by the Court  1 evidence post the submission of the report, I might  2 have thought to develop a submission to your lordship  3 to hear that, but I think that if they're admissible,  4 they're admissible in respect of two lines in the  5 report which is in regard to I think 28 interviews or  6 at least an evaluation of 28 instances involving  7 interviews conducted by Dr. Mills.  And to the extent  8 that these notes refer to those, I really can't object  9 to them.  I think that they're admissible for that  10 purpose.  11 To the extent that they don't, I don't think that  12 they are admissible.  I think that notes that were  13 generated perhaps for another project or other  14 research undertaken by the witness after the  15 submission of the report are not admissible.  That  16 doesn't mean to say that I would adopt the position  17 that they may not ground opinions that the witness has  18 expressed in evidence, and perhaps that's the fine  19 line, is that I don't think that the witness would say  20 that they don't ground her opinions as expressed  21 evidence.  I think that my supposition is that she  22 would say so, yet, on the other hand, there is about  23 half, it would seem slightly more than half, that  24 deals with the underlying facts that go to her report.  25 So I think —  2 6    THE COURT:  Well, I think the convenient way to deal with the  27 matter is to mark them as the next exhibit, but on the  28 understanding that they are admissible only for the  29 limited purpose we have discussed so many times  30 already, and that such ruling could only apply to  31 those that had -- those interviews that had taken  32 place prior to the time of the completion of her  33 report.  As to the balance, it's my view that -- that  34 their admissibility is even more tenuous, and I will  35 allow them to be included just because I think that's  36 the convenient thing to do but, as presently advised,  37 subject to hearing further submissions, I would  38 seriously doubt that they are admissible or that I  39 should -- or that I should take them into account in  40 any way in drawing whatever conclusions I will  41 ultimately have to draw with respect both to the  42 evidence of this witness and to the evidence generally  43 in the case.  The next exhibit number I guess is 95 --  44 THE REGISTRAR: 956.  45  46 (EXHIBIT 956: Notes of interviews by A. Mills)  47 13237  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  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:  956.  Yes.  All right.  How many separate interviews  are there, do you know?  MR. MACKENZIE:  My lord, I wanted to speak to that point.  I'm  not going to be making a submission contrary to what  your lordship has just said.  I just rise to say that  I haven't had an opportunity to paginate or index  these notes and so I can't answer your lordship's  question.  Dr. Mills indicated in her evidence on  qualifications that there were at least 44 interviews.  In my brief look through the notes, there are several  hundred pages of interviews which may or may not  consist of more than 44 interviews.  So, my lord, I'd  ask for the court's leave to remove the exhibit in  order to paginate it and index it and provide copies  to my friends.  THE COURT:  Well, there's no objection to that is there, Mr.  MR.  THE  MR.  THE  MR.  THE  MR.  RUSH:  COURT  Rush?  No.  All right.  It's your copy that you have had marked?  MACKENZIE:  Yes.  COURT:  So you're not taking your friend's only copy?  MACKENZIE:  No, my lord.  COURT:  No.  All right.  You'll have leave to remove it for  that purpose.  MACKENZIE:  Q   Now, Dr. Mills, in June, 1986, as you indicated, you  had prepared a draft opinion; is that correct?  A   Yes.  Q   I want to ask you a few questions about that.  Today  your evidence is that the Wet'suwet'en did not adopt  all their clans, houses, titles, practise of  specific -- of distributing specific resource  territories.  They did not adopt all those things from  the Gitksan.  That is your evidence now?  A   But my evidence is that they arrived at these things  through a very long process of interaction with the --  their neighbouring peoples, including the Gitksan, and  in situ in these conditions that promoted clans, et  cetera.  Q   And it's fair to say that your -- in your evidence  today you have relied upon Dyen and Aberle as a -- as  an important basis for your views in that regard?  A   They are a fairly important basis.  Q   It's fair to say, is it not, that in June, 1986 you  had also considered very carefully the views expressed  by Dyen and Aberle?  A   I reread them after that. 1323?  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   It's fair to say also, is it not, that in June 1986  2 you were aware of Dr. Rigsby's views, opinion, on the  3 progression of the Gitksan up -- the Tsimshian and the  4 Gitksan people -- up the Skeena Valley five hundred to  5 a thousand years ago?  6 A   I'd read his '69 paper.  7 Q   You disagreed with that view?  8 A   I think he did too by that time.  9 Q   Okay.  And you still disagree with that view?  10 A   That's correct.  11 Q   Yes.  And you say that, in your opinion, Dr. Rigsby  12 does not hold that view today?  13 A   That's my understanding.  14 Q   In June, 1986, you had completed over a year of  15 research of the authorities relating to the  16 Wet'suwet'en people?  17 A   Yes.  18 Q   You had conducted many interviews with the  19 Wet'suwet'en chiefs?  2 0 A   I had.  21 Q   You had reviewed many land claims transcripts?  22 A   Yes.  23 Q   And you had by that time had over 20 years' experience  24 of field work and academic work as an anthropologist?  25 A   Correct.  26 Q   In June, 1986, you felt very strongly that you --  27 there was no doubt that the Wet'suwet'en had adopted  28 the system of clans, houses, and titles from their  29 coastal neighbours; is that true?  30 A  Well, if I said so, then I must have thought that.  31 Q   You had concluded that all --  32 A   But these did --  33 Q   Sorry, beg your pardon?  34 A  Would you like to show me where I said that?  35 Q   Oh, yes.  Yes, I will.  36 A   I don't -- I don't recall having made it seem that  37 simple, that it was that simple a borrowing because of  38 the time depth and et cetera.  As I say, I read Dyen  39 and Aberle again afterwards and, in terms of Bruce  40 Rigsby's 1969 paper, obviously he hadn't read Dyen and  41 Aberle at the time that he had written the paper in  42 1969 either, and that's one of the reasons I think  43 that he has changed his position as well.  44 Q   I'll certainly refer you to the places where you say  45 these things.  You had concluded that many of the  46 kungax were Gitksan origin?  47 A   Some of them.  Uh-huh. 13239  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   You had concluded in June, 1986, that the Gitksan  2 brought to the Wet'suwet'en the concept of specific  3 ownership of particular and clearly defined  4 territories and the ownership of those by head chiefs  5 of matrilineal houses?  6 A   If I thought that then, I certainly, after reading  7 Dyen and Aberle and thinking about the situation more,  8 decided that that was far too simplistic a  9 representation.  10 Q   You had concluded and observed that the Gitksan people  11 felt that they conduct potlatch ceremonies correctly  12 and the Wet'suwet'en do that less correctly?  13 A   Yes.  And of course the inverse is true too.  The  14 Wet'suwet'en think that they do it correctly.  15 MR. MACKENZIE:   You had —  16 THE COURT:  I'm sorry.  17 MR. MACKENZIE:  Sorry, my lord.  18 THE COURT:  Was your answer that you thought the Gitksan  19 conducted the potlatch correctly and the Wet'suwet'en  20 incorrectly, or was it your thought that the Gitksan  21 thought that they conducted it properly?  22 THE WITNESS:   The Gitksan thought. The Gitksan thought that the  23 Wet'suwet'en didn't do it quite the way they did and  24 therefore incorrectly, whereas the Wet'suwet'en think  25 that they do it correctly.  2 6 THE COURT:  Yes.  All right.  27 MR. MACKENZIE:  28 Q   In June, 1986, you were also aware of Dr. Rigsby's  29 view that the progression of the Tsimshian people up  30 the Skeena was in response to the stimulus of the fur  31 trade?  32 A  Well, I just reread Dr. Rigsby's 1969 paper and I  33 didn't think that he made that -- even that statement  34 that clear in that paper.  He's -- five hundred to a  35 thousand years ago certainly antedates the fur trade.  36 Q   But you will agree with me that Dr. Rigsby felt that  37 the move up the Skeena had been stimulated by the  38 trade with -- as a result of the trade in furs with  39 the coast?  40 A  Well, if he -- to the extent that he thought that, I  41 certainly don't endorse that.  42 Q   I understand that.  43 A   Right.  44 Q   I don't mean to suggest that you do.  45 A   Good.  46 Q   All I'm suggesting is you were aware that was his view  47 in 1969. 13240  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Right.  Yes.  2 THE COURT:  I'm sorry, that was what year did you say just now?  3 MR. MACKENZIE:  1969.  4 THE COURT:  Yes.  All right.  5 MR. MACKENZIE:  6 Q   And what I mean by that is it was Dr. Rigsby's 1969  7 view that you took into consideration in June, 1986?  8 A   It was one of the things I considered.  9 Q   So as far as June 1986 is concerned, June 1986, if Dr.  10 Rigsby's view were correct, if Dr. Rigsby's view that  11 the move up the Skeena and the Gitksan occupation of  12 the upper Nass and upper Skeena territories was  13 spurred by the fur trade, I'm just asking you to  14 understand I'm saying if that was correct --  15 A   Uh-huh.  16 Q   -- in June 1986 it would follow that the adoption, the  17 wholesale adoption by the Wet'suwet'en of those  18 institutions would also have resulted from the  19 stimulus of the fur trade on the Gitksan?  20 A   Not in the least.  Not in the least.  Let me explain a  21 bit.  Even if the Gitksan hadn't been at their present  22 location, and I don't think that the evidence bears  23 that out at all.  24 THE COURT:  I'm sorry, even if who was not?  25 THE WITNESS:   Even if the Gitksan had not been in Gitksan  26 territory previously, and I don't think that the  27 evidence bears that presumption out in the least.  2 8 That wouldn't mean that the Wet'suwet'en would simply  29 adopt the system of clans, houses, matrilines,  30 territory -- territorial ownership, after a contact  31 period.  The Wet'suwet'en were -- the people existed  32 before the fur trade began.  They were in contact with  33 their neighbours before the fur trade began.  The --  34 their -- the north-west coast people had a system of  35 clans, crests, et cetera, before the fur trade began.  36 The Wet'suwet'en are perhaps part of the original  37 people that helped form that whole complex of clans  38 and houses and territorial ownership that --  39 territorial ownership itself is by clans or matrilines  40 in areas where it's patrilineal.  By patrilines,  41 occurs when you have people in a certain kind of  42 concentration.  You no longer have bilateral bands as  43 you do in the subarctic when there's a concentration  44 of population which occurs in conditions such as  45 having a stable resources base such as the salmon.  46 The fur trade didn't bring the salmon.  The salmon was  47 there, you know, we have evidence, 40 million years in 13241  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 the Bulkley River area.  I'm not saying that people  2 have been there 40 million years, but salmon  3 apparently have been there for 40 million years.  So  4 it would be foolish to think that the people who were  5 living at these salmon rich streams were not in  6 interaction with their neighbours.  I think the  7 portrayal in the kungax of Wet'suwet'en people from  8 the earliest times living at these places in  9 conjunction with other peoples is probably very very  10 accurate and that the -- one of the purposes of having  11 the crests associated with titles is that this formed  12 a kind of fraternity that went across linguistic  13 barriers. The clans intermeshed between these  14 different peoples so that when you have to deal with  15 these neighbouring peoples, you can do so through a  16 mechanism that not only organizes yourself, vis-a-vis  17 where you're living, but vis-a-vis the neighbouring  18 peoples as well.  And we see how this system operates  19 in terms of giving linkages to neighbouring peoples.  20 We know that the Wet'suwet'en were tied into a  21 trade system that involved oolichan on the Nass,  22 resources that were coming all the way from the coast,  23 and this -- the totality of the combination of the  24 ecology, our understanding of human societies, and  25 when you have lineages, the linguistic evidence that  26 suggests that Proto-Athapaskan had lineages, suggests  27 that this -- that the best interpretation is that the  28 Wet'suwet'en were integrated into a system that had  29 clans and within them matrilines called houses and  30 living in houses.  That was integrated to the peoples  31 to their west and to their east, who we now called the  32 Stuart Lake Carrier or Eastern Lake Carrier, long  33 before the fur trade came.  34 MR. MACKENZIE:  35 Q   I understand that's your view today, and you've  36 expressed that eloquently several times this week, but  37 please, I'm asking you about June 1986.  I'm simply  38 asking you, if Dr. Rigsby's view were correct and your  39 view were correct, that would follow that the adoption  40 of the institutions resulted from the fur trade?  41 A   I didn't ever say in my June 1986 report that it was  42 the product of the fur trade.  4 3 Q   No, you didn't.  44 A   No.  45 Q   No, but you said that you referred to Dr. Rigsby's  46 views.  You disagreed with them?  47 A   Right. 13242  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:   You stated very strongly that there was a  2 complete and wholesale adoption of these institutions  3 from the Gitksan.  Now, that's the view I'm referring  4 to.  5 MR. RUSH:  Excuse me, my lord, I think if my friend -- I have  6 just reviewed the draft, and if my friend is going to  7 make a proposition such as he has, I think it would be  8 courteous of him to place the language before the  9 witness --  10 MR. MACKENZIE:  Well —  11 MR. RUSH:  — as he indicated he would.  12 THE COURT:  Is there any objection to do doing, Mr. Mackenzie?  13 MR. MACKENZIE:  Not at all, my lord.  14 THE COURT:  Well, while you're looking for your place, we'll  15 take the morning adjournment.  16 THE REGISTRAR: Order in court. This court will adjourn.  17  18 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  19  20  21 I hereby certify the foregoing to  22 be a true and accurate transcript  23 of the proceedings herein to the  24 best of my skill and ability.  25  26  27 Tanita S. French  28 Official Reporter  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 13243  A. Mills (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  2 0 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  21  22 THE COURT:  Mr. Mackenzie.  23 MR. MACKENZIE:  24 Q   Now, my lord, in response to my friend's suggestion or  25 request, submission, I have handed up a copy of a  2 6              document entitled Opinion Evidence and dated June  27 1986.  Is that your draft opinion, Dr. Mills?  28 A   Yes, it seems to be.  29 Q   I will refer you to page 51.  The numbers are  30 handwritten on the top left-hand corner, my lord.  31 Does your lordship have that page?  32 THE COURT:  Yes.  33 MR. MACKENZIE:  34 Q   I am referring to a passage about five lines down, my  35 lord, which reads:  36  37 "There is no doubt that the Wet'suwet'en adopted  38 the system of clans, houses and titles from their  39 more coastal neighbours."  40  41 That's the view that you held in June 1986, Dr. Mills?  42 A   Yes.  If you read the rest of the paragraph you see  43 that I'm characterizing the northwest coast against  44 the Athapaskans and I at that time was still thinking  45 of -- to a certain extent I was thinking of the  46 Athapaskan, the Proto-Typical Athapaskans as being the  47 sub Arctic Athapaskans.  Since there are more groups 13244  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 that are sub Arctic Athapaskans that's been a common  2 misperception.  But I think that the concept of the  3 Proto-Athapaskans as being matrilineal and based on  4 Pacific drainage of salmon streams is far more  5 correct.  As you see this is a draft which I didn't  6 consider as my final word, but it indeed did effect me  7 to reread Dyen and Aberle and I think that in thinking  8 about the total portrayal this draft which I prepared  9 rather quickly stands superseded by the draft or by  10 the opinion which I have submitted.  11 Q   I refer you to page 49.  And ten lines down, the  12 second full paragraph reads:  13  14 "The Gitksan brought to the Wet'suwet'en the  15 concepts of specific ownership of particular and  16 clearly defined territories and their resources by  17 the head chief of matrilineally defined houses."  18  19 Was that your view in June 1986?  20 A   I'm -- did you say it was page 49?  21 Q   Yes.  22 A  And which paragraph?  23 Q   The second full paragraph.  24 A   That was obviously what I said in -- whatever the date  25 was, in June 1986.  But I -- after thinking about it,  26 rereading Dyen and Aberle, it seems that the influence  27 in terms of matrilineages doesn't go so simply from  28 the Gitksan to the Wet'suwet'en.  That indeed all  29 these clans have been formed in conjunction with each  30 other.  I haven't, you know, recently reread this  31 report, but I think I probably describe some of that  32 interaction somewhere even in this earlier draft.  Let  33 me just look at the table of contents.  34 MR. MACKENZIE:   Well, with respect, my lord, there is no — of  35 course I have no objection to Dr. Mills qualifying her  36 evidence.  37 THE COURT:  Well, I think it's fair that she should — she has a  38 draft that's connected with the one you've just asked  39 about, she should be allowed to see.  40 MR. MACKENZIE:  I agree, my lord.  41 THE COURT:  She has said something about that.  42 A   Just contained in this report itself you can see the  43 seeds of the later reworking.  This was an original  44 working draft and -- well, I have just lost the pages  45 again.  But in talking about fishweirs and the  46 importance of salmon, you can see the seeds of the  47 final opinion which is obviously the one that I adopt. 13245  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  2 Q   And I refer you to page 46.  At the last paragraph on  3 the page:  4  5 "Many of the Kungax are Gitksan in origin."  6  7 And then it says:  8  9 "Some of them are identical to the Beaver  10 Indians  11  12 So what do you take from that?  And I will just  13 keep -- continue on:  14  15 ".... except that the Wet'suwet'en stories  16 mention features of the coastat culture such as  17 villagers, bent wood boxes, salmon, killer whales,  18 and slaves, while the Beaver ones may have the  19 exact same plot line, but in an interior setting  20 minus these coastal features."  21  22 A   Uh-huh.  Well —  23 Q   And that was your view in June 1986?  24 A   That's what I said in June 1986.  And you can see even  25 in that passage, if you have these people that are  26 sharing a common tradition, I am not sure why one  27 would -- necessarily would say that it was Gitksan in  28 origin.  They may have a common origin or there is --  29 this is -- been speaking indeed the same kind of  30 interplay and mixture and cross-referencing, that is  31 one of the features I think that characterized the  32 interaction between these peoples and that I think is  33 reflected in embryo in this report and better in the  34 draft which I've submitted.  35 Q   And your opinion is that one can determine the history  36 of the Wet'suwet'en from their Kungax?  37 A  Well, we have already gone over that.  I have already  38 said that the Kungax are one source that we look at,  39 that that's one of the sources that anthropologists  40 look at.  You combine it with linguistic information.  41 You combine it  with archeological information.  You  42 combine it with ethnographic information.  I did a  43 survey of all that ethnographic information.  I also  44 conducted ethnography myself which indicated that the  45 clan system is certainly not a thing of the past among  46 the Wet'suwet'en today.  And my opinion is that this  47 is not a reflection of the fact that there is a land 13246  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 claims litigation, but this is the way these people  2 organized themselves.  3 THE COURT:  Dr. Mills, I think you are going to have to go a  4 little more slowly, please.  5 A   I am sorry.  My research among the Wet'suwet'en  6 indicates that the matrilineal system is in place  7 today and that that is not an artifact of land claims  8 litigation but is a reflection of the way that they  9 continue to organize themselves in terms of clans and  10 houses related through a matriline.  And the  11 interviews I conducted, the attendance at Feasts, the  12 genealogies confirm that this is a principle that is  13 very operative among the Wet'suwet'en.  This indicates  14 that also that it's not something that's just a recent  15 overlay.  That it's something that is quite integral  16 to them.  If it were something that were not important  17 to them, it could have easily been changed by the  18 concerted efforts of missionaries, etc., to make them  19 patrilineal, which is one of the concerns of people  20 such as Father Morice, for example.  21 MR. MACKENZIE:  22 Q   And you hold those views and take into consideration  23 the fact that Wet'suwet'en Kungax have the same plot  24 lines as the Beaver and that many of them come from  25 the Gitksan?  26 A  Well, there has been a lot of linguistic -- excellent  27 linguistic work and work into themes and myths in  28 North American Indians and one finds that some of the  29 themes are not -- are pan North American Indians.  Ake  30 Hulkrantz is one of the anthropologists who has done  31 excellent work in this regard.  It shows that there  32 has been a lot of contact between Indian peoples  33 across linguistic categories in many instances.  I am  34 not saying that that doesn't mean that the people  35 don't preserve their own more unique history in their  36 oral tradition.  Obviously the Beaver Indians don't  37 have anything concerning Dizkle, nor do the  38 Wet'suwet'en have the kind of adaawk that the Gitksan  39 have.  But there are themes, yes, that are pan  40 Gitksan, Wet'suwet'en Beaver, Beaver, but many of  41 those themes are also pan North American Indian  42 groups.  43 Q   And I refer you finally to page ten, and the first  44 sentence:  45  46 "'Seventy-five, eighty per cent of our chiefs  47 names are from the Gitksan,' Charlie Austin 13247  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 estimates.  Jenness notes the same, that the  2 majority of the Wet'suwet'en titles are from the  3 Gitksan language, although a number of names are  4 Wet'suwet'en in origin and come from individual  5 dreams or exploits as described below in the  6 section on Crests."  7  8 Now, Charlie Austin gave you that information before  9 June 1986?  10 A   That's what he said.  I quoted in this the final  11 version and as you recall it's one of the statements  12 that I qualified in admitting my final opinion report.  13 And I didn't identify Charlie Austin as the source of  14 it particularly, but I did have a "seventy-five,  15 eighty per cent of our chiefs names are from the  16 Gitksan" in the final report and I qualified that and  17 I think that -- I think that one of the explanations  18 for Charlie Austin's perception is the fact that so  19 many of the titles in that are used by the  20 Wet'suwet'en don't have a meaning that is readily  21 apparent to the Wet'suwet'en and they sometimes assume  22 therefore that they must be Gitksan in origin because  23 some titles are indeed Gitksan in origin.  But in fact  24 linguistic evidence shows that they are of  25 Proto-Athapaskans or early Wet'suwet'en origin, so  26 that the meaning is no longer clear in the title and  27 that since it's not clear, the presumption is perhaps  28 it's of Gitksan origin.  29 Q   Would you like a glass of water, Dr. Mills?  30 A   Thank you.  I am not sure I'll drink it, but it's nice  31 to have it.  32 Q   And Charlie Austin is Chief Kalk?  33 A   That's correct.  He doesn't know Gitksan.  34 Q   He's due to take over the high chief's name,  35 Gitemskanees?  36 A   That's one interpretation.  37 THE COURT:  You say he doesn't speak Gitksan?  38 A   That's right.  He certainly speaks Wet'suwet'en,  39 though.  40 MR. MACKENZIE:  My lord, I have some filings to make, but that  41 concludes my questions subject to the receipt of the  42 materials underlying Ruth Murdoch's report and  43 relating to the interviews she apparently conducted in  44 July/August 1984 and would request leave to file any  45 of that information if my friends, as we requested,  46 provide it to us.  47 THE COURT:  Thank you.  Are you tendering this draft opinion? 1324?  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  No, my lord.  2 THE COURT:  All right.  Well, I would think that — well, I  3 would be glad do hear you on the question.  You have  4 stated your position.  I'll hear from you further on  5 it when you wish to bring the matter up again.  Thank  6 you, Mr. Mackenzie.  7 MR. MACKENZIE:  My lord, I had some filings that I wanted to —  8 THE COURT:  Oh, I am sorry.  I thought you just mentioned that.  9 What do you wish to file?  10 MR. MACKENZIE:  I wish to —  11 MR. RUSH:  My lord, just before my friend goes, again I hope my  12 silence here doesn't indicate that I won't have a  13 submission to make with regard to the Murdoch  14 material.  15 THE COURT:  I would be glad to hear you as well, Mr. Rush.  16 MR. RUSH:  Thank you.  17 MR. MACKENZIE:  My lord, I wish to file some references from Dr.  18 Mills' report.  19 THE COURT:  Are you going to suggest that these be added to the  20 book of cross-examination filings?  21 MR. MACKENZIE:  Yes, my lord.  22 THE COURT:  Yes.  Is there any problem about these, Mr. Rush?  23 MR. RUSH:  Pardon me?  24 THE COURT:  Is there any problem about these?  25 MR. RUSH:  I don't know what they are.  I have to take them one  26 by one, but I assume that they are references to  27 certain passages contained in some of the  28 bibliographic material.  2 9 THE COURT:  Yes.  All right.  30 MR. RUSH:  I just think my friend should in each case indicate  31 whether it's an extract and so on, because I am not  32 familiar with all of this.  33 THE COURT:  Yes.  All right.  34 MR. MACKENZIE:  35 Q   Dr. Mills, I have handed up extracts from Father  36 Morice's 1889 work entitled "the Western Denes - Their  37 Manners and Customs."  Is that a reference that you  38 referred to in preparing your report?  39 A   It is.  40 Q   I've handed up pages 114, 115, 116, 117, 120 —  41 THE COURT:  Well, I don't think we need to have —  42 MR. RUSH:  I just need to know if it's an extract.  43 THE COURT:  Yes, they are extracts.  44 MR. MACKENZIE:  Yes.  45 THE COURT:  All right.  That will be 955.  46 THE REGISTRAR:  28, my lord.  47 THE COURT:  28, thank you.  I am sorry, what was 27? 13249  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE REGISTRAR:  Oh, I am sorry, it is 27, my lord.  2 THE COURT:  Oh.  That's okay.  Thank you.  3  4 (EXHIBIT 955-27:  Extract of document entitled "The  5 Western Denes - Their Manners and Customs")  6  7 MR. MACKENZIE:  8 Q   I have handed up extracts from Emmons, E-m-m-o-n-s,  9 1911 work entitled "the Tahltan Indians."  And did you  10 consult this work in preparing your report, Dr. Mills?  11 A   I did.  12 MR. MACKENZIE:  Next exhibit, please.  13 THE COURT:  Is this the full article?  14 MR. MACKENZIE:  It's an extract, my lord.  15 THE COURT:  All right.  28.  16  17 (EXHIBIT 955-28:  Document entitled "the Tahltan  18 Indians" by G. T. Emmons)  19  20 MR. MACKENZIE:  I am handing up extracts — I have handed up two  21 extracts from Jenness, Mr. Jenness, 1932, "the Indians  22 of Canada."  The foreword of that book has already  23 been put in evidence, my lord, so I would submit as my  24 friend has just suggested that that be included with  25 the exhibit that has already been made the foreword of  26 that book.  27 THE COURT:  All right.  What number is that?  28 MR. MACKENZIE:  Tab 19, Exhibit 955-19.  29 THE COURT:  All right.  That will be placed at the end of tab  30 19.  31 A   I'm not sure why you are tendering this, because this  32 doesn't represent something that I've referred to in  33 my -- I put it in my bibliography, but I would have  34 thought that you were putting things that I had  35 referenced in my report.  36 MR. MACKENZIE:  37 Q   Well, that book, "the Indians of Canada," Mr. Jenness'  38 book, 1932, appears on page 218 of the references  39 cited in your report, doesn't it?  4 0          A   Right.  41 Q   Yes.  42 A   But I'm not sure.  It seems to me strange to have  43 parts out of context presented that don't represent  44 quotes from me.  I'm not a lawyer.  I don't understand  45 these procedures.  But it's -- I'm just wondering if  46 that's a usual procedure.  Perhaps it is.  47 THE COURT:  Well, unless there is any objection, I would allow 13250  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 it to be placed in evidence in this limited way.  In  2 case in argument counsel think that I should refer to  3 it or have it referred to me by reason of the fact  4 that it is mentioned, even if not relied upon, in a  5 report that is in evidence.  6 MR. RUSH:  My lord, I really don't have any quarrel with what  7 your lordship has just said subject to my right to  8 file the rest of the book.  9 THE COURT:  Yes.  10 MR. RUSH:  It seems to me that the witness is expressing that  11 passages are taken from what appeared to be a rather  12 lengthy book up to 368 pages at least where there may  13 be other passages of some interest.  So I just reserve  14 the right to file any supplementary parts of that  15 book.  16 THE COURT:  Thank you.  17 MR. MACKENZIE:  18 Q   I just handed Father Morice's 1928 article, "the Fur  19 Trade In Anthropology."  Is that a reference which you  20 considered in preparing your report, Dr. Mills?  21 A   Yes.  And I think I do cite that one specifically.  22 And I do cite Jenness as well, but not the portions  23 submitted.  24 THE COURT:  All right.  That will be 29.  25  26 (EXHIBIT 955-29:  Document entitled "the Fur Trade In  27 Anthropology" by Father Morice)  28  29 MR. MACKENZIE:  30 Q   I am handing up Father Morice's 1892 article entitled  31 "Are The Carrier Sociology and Mythology Indigenous or  32 Exotic?"  And this is the whole article.  Is that a  33 source that you considered in preparing your report,  34 Dr. Mills?  35 A   It is.  36 THE COURT:  All right.  That will be number 30.  37  38 (EXHIBIT 955-30:  Document entitled "Are the Carrier  39 Sociology and Mythology Indigenous or Exotic")  40  41 MR. MACKENZIE:  42 Q   I am handing up an article entitled -- by Dr. Julian  43 Steward 1941 entitled "Investigations among the  44 Carrier Indians of British Columbia."  Is that an  45 article that you considered in preparing your report,  46 Dr. Mills?  47 A   I think so.  I'm just checking.  Yes. 13251  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  COURT:  Does it start at page 280?  MACKENZIE:  Yes, my lord.  I hand up the whole article.  COURT:  All right.  That will be number 31.  (EXHIBIT 955-31:  Document entitled "Investigations  Among the Carrier Indians of British Columbia).  COURT:  Do you have many more?  MACKENZIE:  Three more, my lord.  COURT:  All right.  I have run out of tabs, but I will —  MACKENZIE:  I will provide your lordship with extra tabs at  the earliest possibility.  COURT:  Well, if it's convenient.  It isn't necessary.  MACKENZIE:  I am handing up an article by Dr. Julian Steward  in 1941 entitled "Determinism -- "  well, I don't  think that you referred to that one.  Sorry.  COURT:  Are you withdrawing that one?  MACKENZIE:  I am withdrawing that one, sorry, my lord.  Q   I am handing up an article entitled "Recording Culture  Changes Among the Carrier Indians of British Columbia"  by Dr. Julian Steward, 1941.  Is that an article that  you took into consideration in preparing your report,  Dr. Mills?  A   Yes, it is.  COURT:  32.  (EXHIBIT 955-32:  Document entitled "Recording Culture  Changes Among the Carrier Indians")  MACKENZIE:  Finally, my lord, I am handing up a excerpts  from a book by Father Morice entitled "the History of  the Northern Interior of British Columbia."  Q   And I understand this is a 1904 book by Father Morice.  This is not a reference in your bibliography, your  references cited, Dr. Mills, but you are familiar with  this work by Father Morice?  A   Yes, I am.  Q   And I have included in this book, in these excerpts a  foreword entitled "Some Early Historians of British  Columbia" written by Walter N. Sage in 1958.  Are you  aware that Professor Sage is a noted historian and a  U.B.C. professor?  A   No, I don't.  I am not familiar with that.  COURT:  I can take notice of that.  MACKENZIE:  Yes, my lord.  Anyway, my lord, this has --  passages at page 8 to 10 really summarize Father  Morice's life and career.  And I would submit that as  1  THE  2  MR.  3  THE  4  5  6  7  8  THE  9  MR.  10  THE  11  MR.  12  13  THE  14  MR.  15  16  17  THE  18  MR.  19  20  21  22  23  24  25  THE  26  27  28  29  30  MR.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  THE  45  MR.  46  47 13252  A. Mills (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 the next exhibit.  2 MR. RUSH:  This one falls into a slightly different category  3 than the others, my lord, in the sense that it's not  4 something that the witness has made reference to.  I  5 am not sure that this is the appropriate way to  6 introduce this.  7 THE COURT:  Well, I have made a note that it's not referred to  8 by the doctor, but it's note -- it's -- the only  9 difference between it being here and being in the  10 library at U.B.C. is that it's convenient to have a  11 copy of it.  Counsel could refer to it in argument  12 even if it hadn't been treated in this way.  13 MR. MACKENZIE:  I have concluded my cross-examination, my lord.  14 THE COURT:  All right.  Thank you Mr. Mackenzie.  Miss  15 Koenigsberg?  16 THE REGISTRAR:  That last article is 955-33, my lord.  17 THE COURT:  Yes.  18  19 (EXHIBIT 955-33:  Article entitled "the History of  20 Northern Interior of British Columbia")  21  22 MS. KOENIGSBERG:  I have departed, my lord, from empty binders  23 and filling them up and I will take the risk in the  24 interest of time of having to pull things out because  25 I don't need to refer to them.  26 THE COURT:  Sounds like the name of what should be a popular  27 song, empty binders.  28 MS. KOENIGSBERG:  It may become very popular, if usage has  29 anything to do with it.  Perhaps we could mark the  30 binder and then it will facilitate referring to the  31 tabs as exhibits.  32 THE COURT:  Yes.  All right.  957 will be the binder number.  33  34 (EXHIBIT 957:  Black binder)  35  36 THE COURT:  But not the contents.  37 MS. KOENIGSBERG:  Not yet.  38  39 CROSS-EXAMINATION BY MISS KOENIGSBERG:  40 Q   Dr. Mills, you have given some evidence thus far about  41 the methods, if I can put it that way, or the  42 methodology you employed in your research among the  43 Wet'suwet'en, and we've talked about participant  44 observation.  That was certainly one of the  45 methodologies that you employed?  46 A   Yes.  47 Q   And the second, if I can put it that way and I don't 13253  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 mean to be exclusive, would be your research in the  2 ethnohistorical literature?  3 A   That's part of it, yes.  4 Q   I'd like first to deal with participant observation.  5 You indicated when I asked you questions, it seems a  6 very long time ago now, I think it was Monday, if you  7 had -- during the conduct of your participant  8 observation if you had been involved in any way in the  9 court process and I believe you told us that you had  10 functioned as a speller, for instance, at examinations  11 for discovery?  12 A   I was a speller also at commissioned evidence.  13 Q   All right.  And you also indicated that you performed  14 a function, I believe your words were, as an interface  15 interpreting what the lawyers meant to the witnesses?  16 A   I had been asked as part of my contract to organize  17 some -- the material that existed to assist the  18 lawyers.  I did that.  19 Q   Yes.  And your words, I believe, on Monday were that  20 you actually performed a function of the if I can call  21 it interpretation or your word I believe was interface  22 between the lawyers and the witnesses?  23 A   Yes.  What did I mean by that?  24 Q   Yes.  25 A   Simply, it seemed that the lawyers weren't  26 understanding what the witness was saying because it  27 was in a phraseology that was obscure.  And my  28 experience, knowledge of literature, etc., could  29 exist, I attempted to help to clarify in some  30 instances.  31 Q   Do you recall attending the examination for discovery  32 of Roy Morris?  33 A   I do.  34 Q   And do you recall that at the conclusion of his  35 cross-examination and before his re-examination you  36 assisted him along with other persons in recalling  37 certain evidence which he later gave?  38 A   I don't think I assisted him in any way.  39 Q   If you would turn to tab one, we have the -- you  40 should have in front of you proceedings at trial  41 Volume 196.  Oops.  Sorry.  At tab one I hope you do  42 have examination for discovery of Roy Morris.  43 A   I do have it.  44 Q   All right.  And if you look at page 56 we have  45 examination by Miss Mandell?  4 6 A   Right.  47 Q   And it says: 13254  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 "Q You said in your your evidence that Rita  2 George was a chief that owned territory;  3 have you had a chance to think about that?  4 A Yes, I had a chance.  It was, guess, they  5 were his territory, there was his -- Rita,  6 can she rightly use Gisdaywa's territory, I  7 should say, on her side is Gisdaywa, talk  8 with her, with her, it was Gisdaywa's  9 territory.  10 MISS MANDELL:  That is it.  11 MR. PLANT:  That is your question.  I do have a  12 question arising out of that.  13 CONTINUATION OF EXAMINATION BY MR. PLANT:  14 Q You said you made a mistake?  15 A Yes.  16 Q Did you talk about this during the break  17 with anybody?  18 A Yes.  19 Q And who did you discuss this with?  20 A Victor.  21 Q I am sorry, could you speak up so the  22 Reporter and I can both get you?  23 A Me and Victor, and what was her name Antonia  24 and Dora Kenny, we discuss that.  25 Q Victor is Victor Jim?  26 A Yes.  27 Q And Antonia is doctor Antonia Mills?  28 A Yes.  29 Q And who was the third person, Dora?  3 0 A     Um-hum.  31 Q Dora who?  32 A Kenny.  33 Q Who is she?"  34  35 And then on with further description of Dora Kenny  36 being a Wet'suwet'en person.  37 THE COURT:  I don't see the mistake there that you are talking  38 about.  39 A   I don't either.  40 MS. KOENIGSBERG:  Sorry, my lord, we didn't — I didn't put it  41 in.  I was -- I can only interpret and I don't think I  42 should do that.  I think the mistake was as to whether  43 Rita George was using the territory or whether it was  44 Rita George's territory or Gisdaywa's territory.  45 THE COURT:  All right.  4 6    MS. KOENIGSBERG:  47 Q   But my question to you is:  Do you recall discussing 13255  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 that problem with Mr. Morris during the break?  2 A  What problem?  3 Q   The problem of his evidence of his having made a  4 mistake as he said.  5 A   No.  6 Q   Did you have discussions with witnesses and  7 specifically Roy Morris during his examination for  8 discovery?  9 A   There was a general -- some kind of general  10 discussion, but any information that I could have  11 added would have come from people like, you know,  12 other people.  It's not as if I'm the source of  13 information.  14 Q   Would Roy Morris have been mistaken that you were  15 participating in assisting him?  16 A   No.  I remember standing with Victor Jim and Dora  17 Kenny, but, you know, it wasn't as if I was in a  18 position to give any -- information that all the other  19 people didn't have to begin with.  The source of the  20 information that I used.  21 Q   If you participated would that have been an example of  22 you assisting in as an interface, if I can put it that  23 way, of understanding between the lawyers and the  24 witnesses?  25 A   No.  I wasn't really referring to this instance at all  26 in which I had an absolutely inconsequential role.  I  27 don't think I said anything.  I was just mostly  28 standing there.  But occasionally I was thinking of  29 the Johnny David commission evidence.  Sometimes what  30 he would say just wouldn't make -- nobody could make  31 hide nor -- understand what he was trying to say.  And  32 then I would try to see if we could correctly  33 interpret what he was saying.  34 Q   Okay.  Do you recall anyone else other than Johnny  35 David whom you helped in this way during their giving  36 of evidence?  37 A   No.  By then the -- it was easier for the lawyers to  38 know what was going on.  39 Q   Now, another thing that you did, as I understood it,  40 was to assist in the preparation of genealogies?  41 A   That's correct.  42 Q   And you said that you attended I believe at the  43 hospital in Prince Rupert when Sarah Layton was in the  44 hospital?  45 A   That's right.  46 Q   And with other persons?  47 A   Right. 13256  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   And that was for the purpose of obtaining evidence  2 from Sarah Layton or information from Sarah Layton  3 regarding the genealogy?  4 A   That was part of the function.  It was the first time  5 I met her.  6 Q   And can you recall whom else you assisted in  7 preparation of their genealogies?  8 A   I -- I assisted -- I think I already mentioned I  9 assisted Florence Hall in the preparation of her  10 genealogy.  I am not saying that I did all of the  11 research involved.  Some was previously done by  12 Heather Harris.  And also chief Wah tah Keg'ht.  13 That's his house.  And we got information from him.  14 But also from his mother, Madeline Alfred.  I have  15 also stated these things.  16 Q   Chief Wah Tah Keg'ht, you are referring to Alfred?  17 A   Right.  And I also collected some -- helped collect  18 some of the information for Wah Tah Kwets, for John  19 Namox's house.  20 Q   Did you assist Lucy Bazil?  21 A   Lucy Bazil, yes.  She gave quite a bit of information  22 on her about her genealogy and we had not had the  23 names of her children prior to her assist -- filling  24 out some of this information.  Sometimes people would  25 say "I don't remember so and so's children," so then  26 we'd have to wait and get them from that person.  27 Q   And did you assist any of the Wet'suwet'en witnesses  28 in the preparation of their answers to written  29 interrogatories?  30 A   No, I didn't play any part of the interrogatory  31 answers or I didn't -- I wasn't involved at all in the  32 interrogatories.  33 Q   Is it fair to say that you saw one of your functions  34 when you were conducting your participant observation  35 between 1985 and 1987, if we can isolate that time  36 period as being before your final report was, as  37 assisting in the preparation of the land claim  38 lawsuit?  39 A   I -- I was as my contract said that I was to organize,  40 you know, some of the literature for the land claims  41 lawsuit, yes.  Also I should probably say in fuller  42 answer to your previous question about genealogies,  43 that I did assist in collecting information on others  44 as I recall, but I'm -- I think I must have assisted  45 in some of the collection of other information to  46 the -- has never been completed as far as I know.  47 Q   And in the ways in which we have just described your 13257  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 function in assisting a witness and understanding the  2 questions that they are being asked by the way they  3 are phrased and the other way back, the answers to be  4 understood from the witnesses to the persons asking  5 the questions --  6 MR. RUSH:  I think she testified, did she not, if you are  7 summarizing her evidence, that her assistance was with  8 regard to the lawyers, in assisting the lawyers, not  9 the first part of the question that you summarized.  10 MS. KOENIGSBERG:  Well, maybe I can put it to the witness  11 specifically if my friend and I have different  12 interpretations of the evidence.  13 Q   You described assisting the lawyers or questioners  14 during the commission evidence of Johnny David by  15 assisting in making his evidence comprehensible to  16 them, is that correct?  17 A   Yes.  If it wasn't clear to them, they sometimes made  18 reference to me.  19 Q   Okay.  And at times you assisted the witnesses in  20 understanding the phraseology, I believe was your  21 word, of the lawyers?  22 A   No.  I think that was done by the interpreter.  23 Q   You didn't do that?  24 A   No.  That -- no, that wasn't my role.  25 Q   When you used the term "assisting" because of the  26 phraseology of the lawyers, what situation were you  27 referring to?  28 A   Oh, any number of times when there were words that  29 were a complex part of the sort of legal system or  30 not -- not even in usual parlance among Wet'suwet'en  31 as they speak English and so then the people would  32 have to -- the interpreter had a difficult task of  33 trying to make sense of these terms.  34 Q   And you assisted --  35 A   No.  That wasn't —  36 Q   -- in that regard?  37 A   That was -- that -- I don't know Wet'suwet'en, so they  38 had to wrestle with that.  39 Q   Okay.  So do I understand it when you said you  40 assisted with the phraseology you did not mean  41 yourself?  42 A   I did not mean myself?  43 Q   Yes.  44 A   If -- if an answer came back and the lawyers said,  45 "What's going on here?  I can't understand this," I  46 would try to give an indication of what might be meant  47 or what questions they might ask that might make it 1325?  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 clear.  2 Q   All right.  Now, you attended the trial at Smithers  3 some of the time, is that correct?  4 A  A bit of the time.  5 Q   Yes.  And you attended on the day in which there was a  6 demonstration?  7 A   I did.  8 Q   And you participated in that demonstration?  The  9 demonstration specifically was one to attempt to make  10 known to the court how strongly the people felt about  11 the trial staying in Smithers.  Do you recall that  12 demonstration?  13 A   Yes.  14 Q   Yes.  And you participated in that demonstration?  15 A   I think in perhaps in some very minor way.  The  16 context of that was that the Wet'suwet'en had not  17 understood -- I think also the Gitksan had been -- had  18 not -- there had been a misunderstanding so that they  19 had not anticipated that the trial might be moved away  20 from Smithers and one of the things that I had learned  21 over the course of fieldwork with the Wet'suwet'en in  22 particular was that how much they expected the whole  23 proceedings to be like a Feast.  And that they really  24 saw it as having, you know, invited the defendants to  25 a Feast.  And they -- one of the things that happens  26 within the Wet'suwet'en context is when you are  27 invited to a Feast of course you attend and it's an  28 obligation.  It's not an invitation that you can  29 refuse.  And when they learned to their surprise that  30 this was not going to happen, or that the court was  31 not going to be continuing to sit in Smithers, they  32 were really upset, because the whole function of  33 witnessing could no longer be carried out as they had  34 anticipated.  That in their eyes they needed to  35 witness the proceedings to validate them, to  36 understand what was going on also.  And it was -- it  37 was to them a real surprise and the atmosphere was  38 very emotionally charged.  They felt very upset.  And  39 briefly I was caught up in that and I regretted that I  40 formed any part of that, because that's not necessary  41 for my role.  And I, you know, didn't have anything to  42 do with continued protest, for example, at the  43 airport, but I did come to pick up my daughter.  44 Q   Okay.  On November 5, 1985, do you recall attending a  45 Memorial Feast for Moses David?  46 A   Yes.  47 Q   And you made a speech or you spoke when asked to speak 13259  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 at that Feast?  2 A   No.  At a -- I was asked to say something at the  3 memorial service.  It wasn't at the Feast as I recall.  4 I was just at the -- at the memorial -- there was a  5 memorial service in a chapel and I had never attended  6 these services that leads up to the potlatch so I  7 attended that.  8 Q   And in your speech, and you've provided notes and I  9 haven't checked to see if they are in the ones that  10 are with the court, because I don't have the copy that  11 the court was given, but it's November 5, 1985.  When  12 you spoke you identified yourself as, "I am working  13 for the Gitksan-Wet'suwet'en Tribal Council on the  14 land claims case."  15 A   Perhaps --  16 Q   Do you recall that?  Maybe I'll put -- I don't know  17 where you are -- just give you the front page.  You  18 recognize those as your notes?  19 A   I do.  20 Q   And it is with reference to a memorial service for  21 Moses David?  22 A   That's right.  23 Q   Okay.  And it was November 5, 1985?  24 A   That's right.  25 Q   Okay.  On the second page in the first full paragraph  26 you mention that others were called upon to speak and  27 that you spoke?  2 8 A   Right.  29 Q   And I'm reading from the second line, quote -- and I  30 believe you are quoting yourself?  31 A   Yes.  32 Q   "I am working for the G.W.T.C. on the land claims  33 case."  Do you see that?  34 A   Yes.  35 Q   And then you went on to say how you had come to know  36 Moses David?  37 A   Uh-huh.  38 Q   And you recount some meetings you had with Moses  39 David?  40 A   Yes.  41 Q   And at the bottom you say:  42  43 "Moses is no longer in the body so he cannot carry  44 on the land claims work, but from wherever he is,  45 he is looking down and hoping the injustice will  46 end and that it will be on earth as it is in  47 heaven." 13260  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 A  My goodness.  Flowery funeral service speech.  3 Q   Yes.  And it is correct, though, is it not, that in  4 November of 1985 you saw at least as one of your roles  5 that you were a land claims researcher working on the  6 land claims case?  7 A   I was indeed doing research for the  8 Gitksan-Wet'suwet'en Tribal Council on the land claims  9 case.  That was an accurate portrayal.  10 Q   And you were expressing at that time and in that  11 context, that is of the memorial service of Moses  12 David whom you had known, that you were sympathetic  13 with the position of the plaintiffs in the case?  Is  14 that not the meaning conveyed by the last line that I  15 just read?  16 A   Perhaps.  17 Q   Now, I'd like to deal with the bulk of the material,  18 your interviews, if I may.  19 THE COURT:  Miss Koenigsberg, you are not putting that document  20 in.  What was the --  21 MS. KOENIGSBERG:  Oh, I don't know, my lord, if it's in.  22 Because I don't -- I thought my friend had in fact put  23 in --  24 MR. RUSH:  I think it is.  25 MS. KOENIGSBERG:  — the material and I don't have —  26 THE COURT:  It's in somewhere else?  It's not in your binder.  27 MS. KOENIGSBERG:  It's — no.  My basis for not knowing if your  28 lordship has it among your material is that we have  29 had production and my friend didn't provide a copy to  30 us, which would have been rather excessive, of the  31 material that he was putting in to the court.  So my  32 assumption is that you have it.  I don't know.  33 THE COURT:  Well, I don't know if I have it.  34 MS. KOENIGSBERG:  All right.  I didn't —  35 THE COURT:  If I did have it, I don't know where it is.  36 MR. MACKENZIE:  I did make copies of it.  37 THE COURT:  No.  Just what is the phrase?  If I have a note I  38 will know where to look for it.  39 MS. KOENIGSBERG:  The phrase that I just put to the witness?  4 0 THE COURT:  Yes.  41 MS. KOENIGSBERG:  It is the last — it's the first full  42 paragraph on page two of this service note and it is:  43  44 "Moses is no longer in the body so he cannot carry  45 on the land claims work, but from wherever he is,  46 he is looking down and hoping the injustice will  47 end and that it will be on earth as it is in 13261  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 heaven."  2  3 And we will provide a copy that perhaps could be put  4 in the binder as a matter of convenience.  5 THE COURT:  All right.  Thank you.  6 MS. KOENIGSBERG:  I have been provided with copies.  7 THE COURT:  Is this your writing, Dr. Mills?  8 A   It is, yes.  9 THE COURT:  All right.  What do you want to do with this?  10 MS. KOENIGSBERG:  I wonder if it could just be — perhaps it  11 could be part of tab one.  12 THE COURT:  Yes.  All right.  13 MS. KOENIGSBERG:  After the transcript of Roy Morris.  14 THE COURT:  All right.  Do you want that transcript to be marked  15 as an exhibit?  16 MS. KOENIGSBERG:  It's not been —.  Okay.  No, Mr. Rush said he  17 did not mark it and yes, I would like it to be marked,  18 please.  19 THE COURT:  All right.  That transcript, then, the tab one will  20 be 957-1.  And this memorial service notation will be  21 part of that exhibit.  22  23 (EXHIBIT 957-1: Tab 1 of Black Binder, Excerpt from  24 Examination for Discovery of Roy Morris dated April  25 22, 1987 with handwritten note of service of Moses  26 David by A. Mills)  27  28 MR. KOENIGSBERG:  2 9 Q   You conducted many interviews of the informants  30 yourself and I am now referring to those which are as  31 opposed to conducted by other persons upon whom you  32 relied?  33 A   Yes.  34 Q   Do you know how many you conducted?  35 A   How many people or interviews?  36 Q   How many interviews.  37 A   I didn't keep a running tab, no.  38 Q   Did you -- do you know how many people?  39 A   I interviewed all the 12 house chiefs or a spokesman,  40 for example, George Naziel was not in a position to  41 speak and then the people that were indicated by that  42 person as being the next people to interview so that,  43 for example, John Namox said to go and see his brother  44 and his sister and so that those basic interviews  45 included probably about six sub-chiefs and then there  46 were those -- after that there were just -- those were  47 the core of formal interviews, those people. 13262  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   Did you seek to standardize your interview technique  2 at all?  3 A  Well, basically I was asking some of the similar  4 material to each chief, yes.  5 Q   But did you develop a questionnaire, for instance, I  6 mean even in an informal way in which you would  7 attempt to get the same kind of information from each  8 witness?  9 A   I generally asked them, you know, their name, when  10 they received the name, from whom they received the  11 name, in what circumstances if they wanted to describe  12 that, what were the concomitants of getting that name.  13 That was the basic end.  And something about  14 territory.  Those were the -- that was the basic  15 outline.  16 Q   Well, would it be fair to say that you would not have  17 asked as a matter of course each one of the  18 interviewees, in particular each of the head chiefs of  19 the 12 houses or the spokespersons have you attended  20 Feasts this year?  21 A   No.  I was intending to do participant observation at  22 the Feast, so I obtained the information about  23 attendance through that means.  24 Q   All right.  And did you keep a running tally, for  25 instance, so that you would be able to tell if you  26 wanted to know what the percentage of participation of  27 the hereditary chiefs in the Feast was, for instance?  28 A   Certainly.  That's what the notes provide that  29 information, yes.  30 Q   Okay.  And so the only exercise to be done would be to  31 go to your Feast notes and determine who was there?  32 A   One could easily do that and of course one has --  33 Q   Yes.  34 A   Yes.  You know -- from attending the Feast I observed  35 also who was there.  36 Q   Did you attend every Feast that was held during the  37 time that you were in and around Moricetown, a  38 Wet'suwet'en Feast, for instance?  39 A   From the time that I began the research until the time  40 that I wrote my final draft, I attended all the Feasts  41 that didn't coincide with having to go down to  42 Vancouver for a weekend or having some other  43 commitment.  But basically I was attempting to get a  44 representative or not just a sample, but to indeed  45 take notes of the total succession of Feasts.  4 6 Q   Would you have any knowledge -- would you know how  47 many Feasts that you -- that took place that you 13263  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 couldn't attend?  2 A   I think there may have been two or three.  3 Q   So substantially you attended all the Feasts that  4 there were?  5 A  Mostly, yes.  6 Q   Over that -- and that includes just from July of '85  7 until when?  8 A   February '87 basically.  And I attended a few after  9 that as well.  10 Q   Okay.  11 A   But —  12 Q   And in that time period you attended a few Gitksan  13 Feasts?  14 A   That's correct.  15 Q   Was there any other, a group of people whose Feasts  16 you attended as well?  17 A  A group of people?  18 Q   I mean as opposed to Gitksan.  For instance Babine  19 or —  20 A   I attended one Feast as I said before at Babine Lake.  21 Q   Okay.  22 A   No.  It was at Burns Lake, but -- sorry.  It was at  23 Burns Lake.  24 Q   Are you referring to the All-Clans Feast?  25 A   No.  I am referring to a Funeral Feast that I attended  26 there.  27 Q   At Burns Lake, but a Feast which we would characterize  28 or which you would characterize as being a Babine as  29 opposed to Wet'suwet'en Feast?  30 A   No.  It was more Wet'suwet'en Feast, but being held at  31 Burns Lake.  32 Q   All right.  33 A  And I also attended the All-Clans Feast at Burns Lake.  34 Q   Okay.  35 THE COURT:  What do you think, Miss Koenigsberg?  Is it a  36 convenient time for lunch?  37 MS. KOENIGSBERG:  Yes.  38 THE COURT:  All right.  39 MS. KOENIGSBERG:  I am sure it's a burning question for everyone  40 how long I think I am going to be and I would say I  41 would not be more than an hour.  42 THE COURT:  Oh, well, I hadn't dreamed of asking such a  43 question.  Could we return the compliment and suggest  44 an hour for lunch?  Is an hour sufficient?  45 MR. RUSH:  I think so, yes.  46 THE COURT:  All right.  Shall we come back at 1:30 then.  47 13264  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  2 ADJOURNMENT)  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein to the best of my  7 skill and ability.  8  9  10  11  12 Laara Yardley,  13 Official Reporter,  14 United Reporting Service Ltd.  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 13265  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2  3  4  5  6 (PROCEEDINGS RESUMED PURSUANT TO LUNCH RECESS)  7  8 THE REGISTRAR: Order in court.  9 THE COURT:  Koenigsberg.  10 MS. KOENIGSBERG:  11 Q   Dr. Mills, we were on the topic of interviews and  12 interviewing, and you may recall that in Mr.  13 Mackenzie's cross-examination he asked you about the  14 Murdoch -- Ruth Murdoch's report, and I believe your  15 evidence was that you have reviewed the draft of that  16 report?  17 A   That's right.  18 Q   And you were aware from that draft that there were, I  19 think, 20 interviews with hereditary chiefs that had  20 been conducted by Miss Murdoch and researchers under  21 her supervision; is that correct?  22 A   Right.  23 Q   And if I understood you correctly, you said that you  24 did not consult those interviews, but that you went to  25 speak to Miss Murdoch and found out who had been  26 interviewed and then interviewed them yourself; is  27 that correct?  28 A   I'm not sure -- I read her report.  29 Q   Yes.  30 A  And whether the interviews were attached to the report  31 I'm not -- I can't recollect.  I went to see Ruth  32 Murdoch.  Yes.  33 Q   My understanding from your earlier evidence was that  34 you had not reviewed the interviews which were  35 recorded by Miss Murdoch?  36 A   I'm not sure at this point whether I reviewed -- I  37 know -- I can definitely recollect that I reviewed her  38 report.  Whether the interviews were contained in the  39 report, I don't know.  40 Q   In the report, a copy of which has been provided to  41 us, there are no interviews as such.  Let me just show  42 you this report and ask you if -- it's a copy of it,  43 and ask you if that is what you reviewed?  44 A   This looks like what I reviewed.  Yes.  45 Q   And I don't believe there are any transcripts of  46 interviews in that report, am I correct?  47 A   That's right.  But she does include little excerpts. 13266  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   Yes.  2 A  And I did see those.  3 Q   Yes.  Okay.  Now, with that to maybe refresh your  4 memory, are you unclear at this time whether you  5 obtained the actual interviews?  6 A   Right.  I'm not sure if that was contained in one that  7 I received the interviews as well, or just the one --  8 Q   In your earlier evidence you mentioned that you had  9 obtained information from Miss Murdoch, and then --  10 about who had been interviewed, and then had gone and  11 interviewed them yourself; do you recall that?  12 A   Right.  13 Q   And in your -- I think that was in reference to the  14 fact that in your draft there are a couple of  15 references, or at least one that I can recall, in  16 which you say you attribute a quote to Ruth Murdoch  17 interviews and later you put personal communication in  18 your final report?  19 A   That's right.  Those were the instances when I then  20 went to the -- her original source and asked them  21 if -- if they had indeed said this and -- yes.  22 Q   And at this point you simply can't help us as to  23 whether you relied in any way by having read and  24 absorbed the interviews themselves?  25 A   That's right.  26 Q   Why would you have felt it necessary to interview  27 someone who had been interviewed by Miss Murdoch in  28 order to confirm the -- a specific piece of evidence?  29 A   It wasn't as if I was doubting that Ruth Murdoch had  30 indeed done the investigation, but simply just to hear  31 it myself at firsthand.  32 Q   Now, I'd like to move to the topic of some of the  33 ethnohistorical material that you've indicated, and  34 you, if I can put it this way, have been critical of  35 Mr. Jenness as an anthropologist in two ways:  One,  36 that he didn't provide adequate information about who  37 his informants were and other information relating to  38 his informants; and two, that he allowed himself to  39 insert his own value judgments, if I can put it that  40 way, or the use of pejorative terms in interpreting  41 what he observed; is that a fair summary of your  42 criticism of his work?  43 A   Not bad.  44 THE COURT:  I'm sorry, you agreed?  45 THE WITNESS:   Not bad.  Yes.  4 6    THE COURT:  Not bad.  Thank you.  47    MS. KOENIGSBERG:  Dealing with the issue of his interpretation 13267  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 and -- in your evidence you described it this way.  2 And this is -- I'm not sure what volume it is, but  3 it's page 12956 and it must be about Volume 199 maybe,  4 and it's just your particular -- sorry, Volume 197.  5 THE COURT: 12956.  6 MS. KOENIGSBERG:  12956, that's correct, my lord.  7 THE COURT:  Yes.  8 MS. KOENIGSBERG:  9 Q   And about line 16 you've discussed the things that --  10 how valuable his contribution was in terms of  11 collection and what a valuable account it is, and that  12 you were concerned with he doesn't give enough detail  13 in a number of areas.  And then you say:  14  15 "The other place where he is less than  16 perfectly professional is in -- sometimes in  17 his interpretations.  He allows himself to  18 make rather pejorative interpretations of  19 the Wet'suwet'en which a modern  20 anthropologist would not make.  For example,  21 he infers that the Wet'suwet'en are all  22 somewhat mentally unbalanced.  That's not a  23 statement that contemporary anthropologists  24 would make."  25  26 And you recall giving that evidence?  2 7 A   I do.  28 Q   And elsewhere, for instance, in your report, I think  29 in reference to the same point, I think your words are  30 something like "He demonstrated a profound inability  31 to appreciate their world view, the world view of the  32 Wet'suwet'en, in reference to his referring to them as  33 mentally unbalanced."  34 A   That could perhaps be an accurate quote.  35 Q   And the place in Jenness where he makes that comment I  36 believe is at page 576, and that's in Volume 2, tab  37 24?  38 A  What page was it again?  39 Q   Page 576.  And 576 is his discussion, and he has just  40 given us a detailed account of a ceremony of -- can I  41 put it a Shamanistic ceremony or a medicine sickness  42 ceremony, which he has been asked to witness by the  43 Wet'suwet'en and which he has taken notes of; is that  44 the correct context?  45 A   Right.  46 Q   And he goes on to say:  47 1326?  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 "The performance just described dissipates  2 all doubts concerning the reality of the  3 kyan..."  or kyan?  4  5 A   Kyan.  Uh-huh.  6 Q  7 "...maladay among the Bulkley Indians, for  8 clearly the morbid condition of each woman  9 was neither fictitious nor consciously  10 self-induced, although Old Sam deliberately  11 provoked a temporary paroxysm.  It would  12 seem reasonable to conjecture that the  13 Indians, generally speaking, are somewhat  14 unbalanced mentally.  They believe that the  15 world around them is full of supernatural  16 beings or forces that are constantly  17 interfering in human affairs, and they  18 readily fall victims to their  19 hallucinations. The notion of a supernatural  20 force or forces lurking in the mountains  21 that may strike them down at any moment  22 induces a condition of periodic hysteria.  23 Since kyan is supposed to be most active in  24 the evenings when darkness begins to close  25 in, it is at that time that auto-suggestion  26 brings on the first signs of hysteria.  The  27 blowing of Old Sam's whistle was the spark  28 that ignited the smouldering fire; the women  29 became frantically hysterical, but in a  30 manner conditioned by their beliefs and by  31 the many cases of hysteria they had seen  32 previously.  The beating of the drum and  33 planks, the rhythm of the music, checked  34 their frenzy in its first stages, and  35 gradually governed all their movements until  36 they danced, swayed their bodies, and moved  37 their limbs in perfect time with the slow  38 and measured notes.  Mrs. Felix' leadership  39 in the dance also helped to bring them under  40 control; and the hysteria was forced to  41 express itself in slow rhythmic movements  42 until the patients became physically  43 exhausted and their minds cleared.  During  44 periods of normality they encountered no  45 social barriers or restraints, and incurred  46 no feeling of inferiority, because they  47 believed their malady unavoidable and fully 13269  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 expected permanent cure.  So in time (some  2 cases, the Indians say, require 3 years),  3 they might well outgrow the mental and  4 pathological conditions that induced the  5 hysteria and become fully normal again."  6  7 Is it fair to say that that passage, the entirety  8 of which I just read, is the context, if I can put it  9 that way, for his saying that it would seem reasonable  10 to conjecture that the Indians, generally speaking,  11 are somewhat unbalanced mentally?  12 A   This is the context in which he makes the statement,  13 however, my statement that today an anthropologist  14 would not make that statement stands.  Since Jenness'  15 time there has been a whole development of medical  16 anthropology.  There's been very good studies of  17 healing processes in non-western worlds.  There have  18 been studies of various and sundry forms of possession  19 rights that happen around the world and the -- there  20 have been a whole development of psychological  21 anthropologists and psychiatrists' interest in  22 anthropology, and yes, this statement would not stand  23 at all today.  24 Q   Well, I'm not asking really about whether it would be  25 accepted psychiatric or even anthropological theory  26 that the behaviour which he is observing means that  27 people -- that those people are mentally unbalanced.  2 8 My question is the value-judgment which we impute to  29 him from his use of this word must be seen in the  30 context of his description of people in the grip of  31 induced hysteria made particularly viable, as he  32 describes it, by the belief in the supernatural and  33 the -- and hallucinations and their effect; isn't that  34 a fair way to judge his value-judgment?  35 A  Well, there were many anthropologists who observed  36 scenes like this who did not make these kinds of  37 statements before and at the same time as Jenness.  I  38 don't change my estimation.  I was fully aware of the  39 context in which he made the statement.  4 0 Q   Yes, but would you agree with me that making  41 value-judgments, as he is doing, he is assessing what  42 he is seeing as a good anthropologist telling you in  43 detail the basis for his conclusion; that's true,  44 isn't it?  45 A   It's perfectly acceptable for him to describe what he  46 has seen.  47 Q   Yes. 13270  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A  What I'm saying is not acceptable in modern  2 anthropology is making the final statement that he  3 makes.  4 Q   That's right.  The value-judgment?  5 A   Right.  That's what I stated.  6 Q   By the use of a descriptive term which has pejorative  7 connotations?  8 A  Mentally unbalanced is a strong term.  9 Q   Yes.  10 A   Uh-huh.  11 Q   Which has pejorative connotations?  12 A   Yes, it does.  Uh-huh.  13 Q   But that's a foible which many anthropologists fall  14 prey to, isn't it?  15 A  What is a foible?  Which -- would you define the  16 foible?  17 Q   Using conclusions or descriptions that have a  18 value-judgment in them in describing what they say?  19 A   It's not -- it's not what one is trained to do as an  20 anthropologist.  21 Q   In your report at page 91 you're describing and just  22 not completing but describing the imposition, if I can  23 put it that way, by Father Morice in this instance of  24 his Christian world view on the Wet'suwet'en Indians;  25 is that a fair summary of what you are describing  26 here?  27 A   Yes.  28 Q   And in that description in the first not full  29 paragraph, but the first paragraph about the -- well,  30 just taking the first full sentence:  31  32 "Recognizing that their chiefs were important  33 to them, Morice sought to supplant the feast  34 system by appointing his own set of chiefs  35 whose authority he backed up with policemen  36 and informants, following the insidious  37 system invented by Durieu."  38  39 A   Do you know what the Durieu system is?  40 Q   Oh, I'm sure I would find it as insidious as you do,  41 but that would be my value-judgment, as it is yours;  42 isn't that true?  43 A  Well, I'm not sure what -- I think perhaps one should  44 describe what the Durieu system is, and I didn't go  45 into that here.  46 Q   Well, is that really relevant to my question?  I'm not  47 asking you to justify the use of the word insidious. 13271  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 I'm asking you to agree with me that that is a  2 pejorative word that has a pejorative meaning and it  3 conveys your judgment that the system imposed was  4 treacherous or deceitful or whatever the connotations  5 that are attached to the word insidious, and there's  6 no question that your description of the imposition by  7 means which -- by any means, really, of Morice's world  8 view, can be described valutively as insidious, that  9 it is a value-judgment, is it not?  10 A   I would like to describe -- make clear what the Durieu  11 system was so that you -- because you have said it's  12 important to see the context in which Jenness used the  13 word mentally unbalanced, so therefore I should  14 juxtapose that with a description of the Durieu  15 system.  16 Q   Well, let's just take the context in which you  17 actually use the word.  18 A   I see it.  The Durieu system was a system --  19 MS. KOENIGSBERG:   No, if we can, and I think that — and I  20 really do this in the interests of time.  21 MR. RUSH:  Well, I think the witness -- excuse me, the witness  22 indicates that contextually by reference on page 91  23 that for her observations on the same page it would be  24 of assistance to know what that system is about.  25 THE COURT:  Well, I'm not sure, Mr. Rush.  It seems to me that  26 it is open to the witness to say I do not agree that  27 the use of the word insidious is a value-judgment.  If  28 she says that, then it's up to counsel to say whether  29 we pursue that further.  If she says it's not a  30 value-judgment, then it seems to me that counsel will  31 have to approach the matter differently or to leave it  32 alone.  I don't think we have to know what the system  33 is until we know if counsel are agreed or if the  34 witness agrees with counsel that it's a  35 value-judgment.  We've gone as far as counsel wants to  3 6 go at the moment.  37 MS. KOENIGSBERG:  38 Q   Yes.  One could go on at some length I'm sure in  39 describing it, even in saying that it involved "backed  40 up with policemen and informants", et cetera, but my  41 point is a simple one.  Is the word insidious -- does  42 the witness agree that the word insidious embodies a  43 value-judgment and is pejorative, however fitting it  44 might be?  45 A   It probably does imply some value-judgment.  Yes.  46 Q   And you would agree with me that it is a pejorative  47 word? 13272  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A   Yes.  2 Q   And that you could describe everything involved that  3 Father Morice did, even everything that Durieu did,  4 and convey whatever the reader would see from that  5 without using the conclusory word insidious?  6 A  And let them draw their own conclusion, yes.  It was a  7 shorthand way of not going into the whole issue.  8 Q   But you would agree with me that the best anthropology  9 describes, and when it draws conclusions does not use  10 pejorative value-judgment words?  11 A   I think anthropology can't avoid making  12 value-judgments at many points because it's often  13 dealing with people's values.  Perhaps it would have  14 been advisable to describe in greater detail what the  15 Durieu system was in this particular instance,  16 however, I don't think that that characterizes the  17 rest of my report in a substantial way.  18 MS. KOENIGSBERG:   I agree.  I don't think I would find too many  19 words like that in your report.  But I would not find  20 very many comments like "mentally unbalanced" in that  21 context in Jenness, would I?  22 THE COURT:  Well, he didn't say "mentally unbalanced", he said  23 "unbalanced mentally".  24 MS. KOENIGSBERG:  I'm sorry, "unbalanced mentally".  25 THE COURT:  I'm not sure if there's a difference.  2 6    MS. KOENIGSBERG:  27 Q   I don't find many of those in Jenness, do I?  28 A   There aren't a large number.  29 Q   Now, I'd like to turn to, if I can put it this way,  30 the topic of the social structure as you have  31 described it of the Wet'suwet'en and, if I can, define  32 social structure as meaning, and I believe this is how  33 you have -- would describe it, as including the  34 houses, clans, matriline and crests being the most  35 significant features of the social structure?  36 A   That's fine.  37 Q   And there really have been two issues that have  38 emerged from your report about which we need to  39 concern ourselves and with which you have concerned  40 yourself, and that is whether that social structure as  41 defined is substantially borrowed and, second, and  42 partly at least separate, is the time depth of that  43 social structure.  Is that a fair summary of the two  44 issues that have been raised?  45 A   Those are two issues raised.  Yes.  46 Q   And it would be fair to say that you have changed your  47 opinion, at least from June of 1986, as to whether the 13273  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 social structure was substantially borrowed, and we  2 saw that in, for instance, page 51 of your draft  3 opinion in which you at that time said there was no  4 doubt that it was substantially borrowed?  5 A   That's correct.  6 MS. KOENIGSBERG:  And the ethnography in relation to your  7 opinion on that subject has been canvassed, and I  8 don't purport to canvass it again, but I would like to  9 just look briefly if we could at your informants and  10 interviews, the other part of the basis for your  11 opinion.  12 At page 119 of your report you tell us that there  13 are 12 chiefs.  14 THE COURT:  What page, 119?  15 MS. KOENIGSBERG:  119.  16 THE COURT:  Yes.  17 MS. KOENIGSBERG:  18 Q   In the first paragraph.  There are 12 house chiefs and  19 those are 12 of the highest names?  2 0 A   Uh-huh.  Yes.  21 Q   And 12 sub-chiefs; correct?  22 A   Yes.  23 Q   Yes.  And what would the source have been of that  24 count?  25 A   The source would have been the interviews with the  26 chiefs and I think perhaps before the lunch break I  27 may have said eight, but that's not an issue.  2 8 Q   No.  29 A   The source was the chiefs themselves.  I went  30 initially to the head chief and asked him questions  31 and then he would typically advise me who to go to see  32 after that in his house.  33 Q   Okay.  And would your interviewees have said to you  34 there's one person with the highest name, that's the  35 head chief or hereditary chief, and in whichever case  36 it is there is one sub-chief?  37 A   Did they say one sub-chief?  Typically they would --  38 basically, yes.  39 Q   And is it fair to say that whatever was said to you,  40 that putting it this way would be a low level  41 inference on your part, that is, you don't have the  42 interviewee saying to you precisely one chief, one  43 sub-chief?  44 A   That's right.  45 Q   All right.  And on page 121 to 123, you've set out a  46 table in which you show us the chiefs in most cases  47 with the chief and the sub-chiefs? 13274  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A   That's right.  2 Q   And what would be the source of this information in  3 this form, and if it's easier we could break it down  4 if we take it one at a time because I take it it  5 wasn't sort of one person who had this overview?  6 A   Not necessarily.  7 Q   So would it have been Leonard George who would have  8 told you that he was the house chief and that  9 Tsaybaysa -- and I'm not even going to try the next  10 one -- were the sub-chiefs?  11 A   That's correct.  12 Q   And so on?  Would it have been the person that you  13 have ascribed to the house chief's name who then would  14 have told you whether there was a sub-chief and who  15 that sub-chief was?  16 A   Yes.  17 Q   And I don't mean to -- well, that's fine.  18 A   Except, you know, for George Naziel.  Perhaps that's  19 what you were starting to say.  20 Q   I was just going to say in some cases there was a  21 spokesperson if you were unable to interview the head  22 chief?  23 A   That's right.  24 Q   Now, at page 114 of your report in the second full  25 paragraph you say:  26  27 "The orientation of the Wet'suwet'en  28 towards their territories and the short  29 amount of time spent in the summer houses  30 that give their names to the matrilines,  31 combined with the fact that all the houses  32 in a clan together host the feasts that take  33 place when a house member dies, means that  34 clan rather than hosue was and is the most  35 frequently used marker of Wet'suwet'en  36 identity."  37  38 You then go on to give further reasons why that  39 would be the case.  40 A   Yes.  41 Q   Is it fair to say that you are here summarizing your  42 observation from the interviews that Wet'suwet'en  43 chiefs and other persons often don't express detailed  44 knowledge of what houses belong to what clans or even  45 what house they belong to, but tend to refer when  46 asked to identify themselves where they belong to  47 their clan? 13275  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A  What I'm referring to is that if one asks a person who  2 they are, they will typically give their English name,  3 sometime then their chief's name if they have one, and  4 then their clan first, rather than their house;  5 whereas among the Gitksan a person is much more likely  6 to give their house before their clan.  7 Q   Would you agree with me that it is to be observed in  8 the collected information, both that you have  9 collected and from trial transcripts, that many  10 Wet'suwet'en chiefs or persons holding chiefly names  11 do not know all of the chiefly names, for instance, in  12 their own house?  13 A  All of the titles within their house?  14 Q   Even the high chief names.  15 A  My experience was they usually know the high chiefs'  16 names and they particularly know the names that are --  17 the ones that are most familiar to them are the ones  18 that are held by relatives, and they have to search  19 their memories for ones that are held by people that  20 are less closely related to them.  21 Q   Was it your observation that some don't know the names  22 in their house?  23 A  Well, in my interviews people know the names --  24 usually know the names within their house, but the  25 most important ones are the ones that they know the  26 best.  27 Q   Okay.  So you couldn't agree with me that house names  28 and chiefly names would not be -- would frequently not  29 be known or remembered by informants or interviewees?  30 A   They typically knew the head chief's name.  There  31 was -- I found some confusion over the Owl House and  32 the Sun House since those had merged so long ago, and  33 also in the Madeek House and the Grizzly House.  There  34 was more confusion there.  I think I expressed that in  35 the table that was on some page, that often they would  36 use those names interchangeably.  37 Q   And would you agree that there was a problem in the  38 house -- well, the Sun House is Smogelgem?  39 A   That they have combined the -- sometimes the sense of  40 owl house --  41 Q   No, I'm sorry, Smogelgem is the Sun House?  42 A   Yes.  43 Q   And did you find confusion or lack of knowledge about  44 the names in Smogelgem's house, that belonged to  45 Smogelgem's house?  46 A  Whether they belonged to Smogelgem's house or  47 Kloumkhun's house, is that what you mean? 13276  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   In one instance, yes.  2 A   Yes.  As I said in my report, that these houses have  3 merged to such an extent that often the individuals  4 aren't clear about the distinction between Smogelgem's  5 house and Kloumkhun's house in terms of names.  6 Q   Let's just take one example.  Dealing with Smogelgem,  7 and we have one source for knowing at one point in  8 time the names in Smogelgem's house, and that's  9 Jenness at page 494, and I think I have that in the  10 tab.  That will be tab 3.  And if we use Jenness at  11 least as a starting point, at the point in time in  12 which Jenness collected this information, we are given  13 the names held in Smogelgem's house.  There are four.  14 And we do that, if I understand this correctly, by if  15 we look under "Combined Laksamshu and Beaver Phratrie,  16 Clans: A, Sun House", he then sets out the seating at  17 the feast; is that correct?  18 A   That's right.  19 Q   And then he lists the names and gives them the  20 symbols, A, B, or C, and A being Smogelgem, we get  21 "Smogitkyemk".  And is that Smogelgem to your  22 knowledge?  23 A   Yes.  Uh-huh.  24 Q   And we find, is it, "Gutseut"?  25 A   Right.  2 6 Q   And "Amgyet"?  "Amgyet"?  27 A   Right.  28 Q   And "Skokamlaxa" is given as an X because he had no  29 proper seat --  30 A   Right.  31 Q   -- at that time?  32 A   Uh-huh.  33 Q   And those are then names, one assumes important names,  34 in the house of Smogelgem at the time that Jenness  35 collected this information?  36 A   Right.  37 Q   Do you recall the year approximately when he collected  38 this information?  39 A   1924, '25.  I think that was a misprint in the Barbeau  40 that said 1922.  41 Q   Yes.  Right.  And then the next tab is the affidavit  42 and the interrogatory of Leonard George who is today  43 Smogelgem?  44 A   Right.  45 Q   And if you look at question 32, which is on page 8,  46 and is the last page in the tab, he identifies the  47 "other chiefs in my house".  Do you see that? 13277  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A   Yes.  2 Q   And he gives "Tsaibesa" and "Gooh'tseawh"?  3 A   Yes.  4 Q   And tells us who holds those names?  5 A   Right.  6 Q   And would the "Gooh'tseawh" that we have there, the  7 name he is saying Andrew George holds, correspond do  8 you think to Gutseut?  9 A   Yes.  10 Q   Okay.  So we have an overlap there of chiefly names of  11 two, with the ones that Jenness has given us?  12 A   Yes.  13 Q   And Amgyet and Skokamlaxa are not named by Leonard  14 George as being in his house?  15 A   Right.  16 Q   Okay.  17 A   I see that.  Uh-huh.  18 MS. KOENISGBERG:   Okay.  And then if we look at the next tab —  19 THE COURT:  He adds one does he?  2 0 MS. KOENIGSBERG:  21 Q   I'm sorry, and he adds Tsaibesa, yes, who was not a  22 name attributed to that house in 1924, '25 by Jenness?  23 A   That's right.  24 THE COURT:  Well, what about Gooh'tseawh, G-o-o-h-'-t-s-e-a-w-h?  25 What does that equate to?  26 THE WITNESS:   That's the "A2 Gutseut".  27 THE COURT:  "A2 Gutseut"?  28 THE WITNESS:   Yes.  2 9 MS. KOENIGSBERG:  30 Q   My lordship couldn't follow my pronunciation.  31 Volume 155, and this is the evidence of Antoine Tom is  32 the next tab, and Antoine Tom holds a name in  33 Smogelgem's house?  Sorry, you know that?  34 A   No, I don't.  35 Q   Well, he's giving evidence about the chiefly names in  36 the house of Smogelgem, and it starts at page 9957 and  37 the question is at line 32.  38  39 "Q   All right.  Now, Mr. Tom, I am moving on to  40 another area.  I just want to go through  41 some of the names we went through yesterday,  42 which are chiefly names in the House of  43 Smogelgem, and I want to make sure that I  44 have got them right and I am talking about  45 chiefly names.  46 A   If you speak to me about the chiefs, you  47 going to ask me about it, I will tell you 1327?  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 again.  2 Q   All right.  Your name G'ee Yeah Ghun or..."  3  4 -- and Mr. Holland kindly pronounced it.  And that's  5 spelled in the transcript G-'-e-e Y-e-a-h G-h-u-n.  6  7 "...that's a chiefly name?  8 A   Yes, that's a chiefly name."  9  10 And then so we have him holding a chiefly name in  11 the house of Smogelgem you will agree?  12 A  Well, I've never heard Smogelgem say that Antoine Tom  13 was in his house.  14 Q   So that's news to you?  15 A   Right.  16 Q   Okay.  And is that because Leonard George didn't tell  17 you?  18 A   Leonard George didn't say that, and Antoine Tom, whom  19 I met is, as my understanding was, that he is in the  20 same clan but in an extension into the Babine Lake  21 people and so that it was only by -- through the  22 Babine Lake extension that he would be considered in  23 the house of Smogelgem, just as a Wet'suwet'en may --  24 would have links to other clans in other areas.  25 Q   So Antoine Tom, to your knowledge, is what, is a  26 Babine Indian?  27 A   That was my understanding, yes.  28 Q   But in the same clan and, by his evidence, in the  29 house of Smogelgem in Babine?  30 A  Well, linked.  Linked in this.  31 Q   Yes.  That would be another house that would be in  32 both Babine and Wet'suwet'en?  33 A   It would be the same clan and they would have  34 different -- typically I would expect different house  35 names among the Babine, but, as I say, I didn't do  36 field work among the Babine.  37 Q   You wouldn't have reason to doubt Antoine Tom's word  38 particularly given under oath would you?  39 A   No, no, I'm saying this is the way the clan system  40 works.  41 Q   Right.  42 A   That you can relate yourself to other people through  43 this mechanism.  That's one of the ways it works.  44 Q   Okay.  Sorry?  45 A   But I was under the impression that Antoine Tom would  46 in general have called himself a Babine rather than a  47 Wet'suwet'en.  That was my understanding, but I could 13279  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 stand corrected.  I'm not -- you know if -- but I  2 think that what he may be saying here is that his  3 relation to the Wet'suwet'en would be through the  4 Smogelgem house.  5 Q   Okay.  Well, whatever his actual affiliation is he is  6 giving evidence about his understanding of the chiefly  7 names in Smogelgem's house?  8 A  Well, it seems that's what he's been asked.  9 Q   Okay.  Let's see what he knows.  He goes on and says  10 that there's another name in that house.  It's  11 question 43.  "And the name Johnny Dominic had, Ghel  12 Yii"  G-h-e-1, new word, Y-i-i, is a chiefly name.  13 And he then gives another name held by Johnny Dominic,  14 G'wis-da, G-'-w-i-s-d-a.  And he says that is also a  15 chiefly name.  And over to the next page, he gives the  16 name at line 4.  "There is another name, which Mr.  17 Holland you will have to help me with, Goo'tseawh?"  18 And that's the name we've seen before; correct?  19 A   Yes.  20 Q   And he says the "name Goo'tseawh comes from Babine and  21 whoever does good always receives that name."  And  22 then:  23  24 "Q   All right.  Well, just to make sure, my  25 understanding is that this name is held by  2 6                   Andrew George and it could be my  27 pronunciation, but can you tell me what the  2 8 name held by Andrew George is?  29 A   Tsaibesa."  30  31 "A   Yes, he holds that name."  32  33 I think he gives some more names here.  34 A   Did you want me to comment?  35 Q   Do you have something to --  36 A  Well, Andy George is quite clear these other names,  37 Ghel Yii and G'wis-da, are names that are like held  38 held by Babine people now rather than the Wet'suwet'en  39 and, as I was saying, these clans do form the function  40 of linking people across these groups so that there  41 are links, but this would be an example of that  42 linking mechanism.  43 Q   And, sorry, I thought there was one more in here that  44 he gave.  Yes, it's about line 43.  45  4 6 "A   You mentioned all the names in -- from  47 Babine that are Laksamshu clan.  I know an 13280  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 elderly woman in Babine who has a chief  2 name, Diit nee."  3  4 So he's saying in Babine the name Diit nee is in  5 the house of Smogelgem?  6 A   He says Laksamshu clan here.  7 Q   Yes, I'm sorry, but I guess you would have to read  8 perhaps the whole thing, but if you do I think you  9 will get the sense that we are in the house of  10 Smogelgem?  11 A   Right.  Again, what he's doing is demonstrating this  12 linking mechanism of the clans across these groups of  13 the Wet'suwet'en and the Babine.  Both are, you know,  14 discrete people, but they do link through these clans,  15 and he's linking it through also the house of  16 Smogelgem.  17 THE COURT:  D-i-i-t, new word, n-e-e.  18 MS. KOENIGSBERG:  19 Q   And then if we turn over to the next tab we have Mary  20 Joseph.  Do you know Mary Joseph?  21 A   Yes.  22 Q   She's a Wet'suwet'en?  23 A   Right.  24 Q   And she holds a name in the house of Smogelgem?  25 A   Right.  26 Q   And she here is going to -- this is the  27 cross-examination on an affidavit out of court so it  28 has no volume number, December 7th, 1988.  Beginning  29 on page 2, line 16:  30  31 "Q   Do you have a sister called Elsie?  32 A   Yes.  33 Q   And what is her name?  34 A   Skokum Laxha.  35 Q   What's her last English name, sorry?"  36  37 And they go through her other name there.  And  38 then next -- so Skokum Laxha is identified as a name  39 in the house of Smogelgem by Mary Joseph?  4 0 A   Right.  41 Q   And then at line about 22 or 3:  42  43 "Q   And you hold the name of Skokum Halyte?"  44  45 That's S-k-o-k-u-m, new word, H-a-1-y-t-e.  46  47 "A   Yes, Skokum Halyte. 13281  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   And were you given that name at a feast.  2 A   Yes.  3 Q   And when was that feast?  4 A  When my grandmother passed away, Elsie took  5 the name Skokum Laxha, and she held Skokum  6 Halyte, and that was when they gave me the  7 name Skokum Halyte."  8  9 And then further down at line 45:  10  11 "Q   Now, is Skokum Halyte, that is a chief's  12 name in the house of Smogelgem?  13 A   Yes."  14  15 So we have Skokum Halyte given as a name in  16 Smogelgem's house?  17 A   Right.  18 Q   And then over to the next page:  19  2 0 "Q   And Skokum Laxha is a chief's name in the  21 house of Smogelgem?  22 A   Yes.  23 Q   What are the other chiefs' names in the  24 house of Smogelgem?  25 THE INTERPRETER: She says there is lots of names  2 6 but couldn't recall them all at the moment.  2 7 MR. FREY:  28 Q   Okay.  Well, I'm only interested in chiefs'  29 names in the house of Smogelgem, and are  30 there any more that you can recall today?  31 A   It was my grandmother's brother who was Gus  32 ded'a lak'."  33  34 G-u-s, new word, d-e-d-'-a, new word, 1-a-k-'.  35 And so we add that one to our list of names in the  36 house of Smogelgem.  And then on down line 16:  37  38 "A  And Louie Tommy's wife who was Mis a d'ai."  39  40 M-i-s, new word, a, new word, d-'-a-i.  And then:  41  42 "A   There is quite a few of them but them are  43 the ones that I knew of."  44  45 And then just a little bit further down she  46 recalls another, line 32:  47 13282  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 "A   Sun and the grouse.  I just remembered that  2 Waadii..."  3  4 W-a-a-d-i-i.  5  6 "    ...was my -- he was my uncle who passed  7 away."  8  9 "Q   Is that another name in Smogelgem's house?  10 A   Yes."  11  12 And then:  "When did Leonard George become  13 Smogelgem?".  And I believe that those are all of the  14 names that she gave as belonging to the house of  15 Smogelgem.  So they were Skokum Halyte, Skokum Laxha,  16 this bruiser here, Gus ded'a lak'?  17 A   Gus ded'a lak'.  18 Q   Gus ded'a lak', Mis a d'ai?  19 A  Mis a d'ai.  20 Q   Mis a d'ai?  21 A  Well, that's how I've heard it said.  22 Q   And Waadii.  And we have an overlap there with Jenness  23 with Skokum Laxha, and no overlap with Leonard George,  24 and if we want to leave out Antoine Tom because that  25 confuses the issue because some of the names that he  26 gives are only in Babine, we then have Mary Joseph  27 with four names not given by Leonard George, and would  28 you agree with me that there would be not necessarily  29 then general agreement among the persons holding  30 chiefly names in the house of Smogelgem as to what the  31 chiefly names are in Smogelgem?  32 A   No, I'm -- I don't.  I think that Leonard George  33 obviously hadn't put his mind even to the feast hall  34 because if he had imagined the -- all the feast names  35 there, of the people sitting there, he would have  36 remembered Mary Joseph and her sister and Gus ded'a  37 lak', who is Roy Morris' wife, and her brother.  I  38 think -- I'm not sure whether he meant that head chief  39 and the sub-chief who hold territory in answer to his  40 question, or why he only mentioned those two names.  41 Q   We can't take it at face value that he believed that  42 those were the chief -- the hereditary chief names in  43 his house?  44 A  Well, he may have been thinking of it in terms of the  45 ones who had control of territory, you know, the  46 head -- the head chief and the sub-chief which were  47 the most important ones.  He's certainly aware that 13283  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 these other people are in his house.  I mean, they all  2 are arrayed right beside each other in the feast hall  3 and contribute together for the feasts and act as a  4 body when a member dies, et cetera.  5 Q   Okay.  We can go through the same exercise for  6 Knedebeas, but I wonder if you would agree with me  7 that there might be differences in the descriptions of  8 the chiefly names in the house of Knedebeas?  9 A  Well, I'm not familiar with the differences, but you  10 could lead me through them if you like.  11 Q   Okay.  Tab 7 we begin with Jenness?  12 A   Right.  I might just comment again that that name  13 Amgyet which --  14 Q   Sorry, yes?  15 A   That the name Amgyet, which appears in the Jenness, is  16 the one that's held by Tommy Tait, but he has  17 basically passed it on to one of Roy Morris' sons  18 who's the son of Gus ded'a lak'.  19 Q   And that's in the house of Smogelgem?  20 A   It's -- there's -- now there's a process of the  21 Kloumkhun house and the Smogelgem house are not so  22 completely clearly differentiated as Jenness says,  23 that there have been a severe population decline and  24 the two are rather amalgamated.  25 Q   Okay.  26 A   So Amgyet acts rather within the house of Smogelgem,  27 but the house of Kloumkhun and Smogelgem function  28 together in the feast hall.  2 9 Q   And you'll agree with me that Leonard George didn't  30 seem to acknowledge that name as being a chiefly name  31 in his house or a hereditary chief's name in his  32 house?  33 A   I don't think that it's a question of his not  34 acknowledging those as the names, it's just his  35 mentioning only the head chief and the sub-chief in  36 his house.  He's never not acknowledged them as  37 chiefs, to my knowledge.  I mean, he works with them  38 in the feast hall regularly.  39 Q   Okay.  If we look at Knedebeas in tab 7, page 492 of  40 Jenness, we have the "Gilserhyu Phratry"?  41 A   Yes.  42 Q   And I'll just perhaps read them out and you can  43 correct me if I get it wrong.  Knedebeas is the head  44 chief.  We then have attributed a name that looks like  45 Agabel's, A-g-a-b-e-1-s, or "Anabel's"; do you see  4 6 that, "A4"?  4 7 A   "A4".  Yes. Q  "Nustel"?  A  Right.  Q  "Weii",   W-  A  Right.  13284  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2  3 Q   "Weii", W-e-i-i:  4  5 MS. KOENIGSBERG:   "Mas'gibu", M-a-s-'-g-i-b-u, "Gulta"',  6 G-u-1-t-a-', and "Mistu's", M-i-s-t-u-'-s.  Those are  7 the names that Jenness attributes as the chiefly names  8 in the house of Knedebeas?  9 THE COURT:  Have I missed it?  Where do you find Knedebeas on  10 this list?  I don't see it.  11 MS. KOENIGSBERG:  Sorry.  12 THE COURT:  I'm sure it's there somewhere.  13 MS. KOENIGSBERG:  Yes, I'm just — it's "Al" and it's spelled  14 N-e-t-i-p-i-s-h.  15 THE COURT:  Oh, yes.  16 MS. KOENIGSBERG:  17 Q   And would you agree with me that is a different  18 spelling of Knedebeas?  19 A   That's correct.  2 0 THE COURT:  Thank you.  21 MS. KOENIGSBERG:  22 Q   Now, if we look at the next tab, tab 8, we have Sarah  23 Layton's interrogatory where she is asked on page 8,  24 question 32, to identify the other chiefs in her  25 house, and she identifies three:  "Noostel",  26 "Thladen", T-h-1-a-d-e-n, and then "Yahult'a",  27 Y-a-h-u-1-t-'-a.  Do you see that?  2 8          A   I do.  29 Q   And she, by my best reckoning, and I certainly defer  30 to you, in comparing it to Jenness I see an overlap of  31 two, but I couldn't find an overlap for the other two,  32 Thladen — is it Thladen and Yahult'a?  33 A   The Alb is the same as this strange transliteration,  34 Yahult'a, and Thladen I'll find it here somewhere.  35 THE COURT:  There was six on Jenness' list and there's only  36 three on Sarah Layton's list.  I'm sorry, there's four  37 on Sarah Layton's list.  38 MS. KOENIGSBERG:  Yes.  Well, there's seven counting Knedebeas  39 on Jenness'.  4 0 THE COURT: Seven?  41 THE WITNESS:   I don't see it.  42 THE COURT:  Yes.  Seven.  Sorry.  43 THE WITNESS:   I don't see Thladen listed on Jenness.  44 MS. KOENIGSBERG:  45 Q   I'm sorry, which one was it that you thought there was  46 a correspondence too?  47 A  Well, there is between the third one. 13285  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   Thladen?  2 A   No, that's the second one.  The third one, Yahult'a,  3 it looks like on -- in Sarah Layton's interrogatory,  4 if that's what this is.  5 Q   Alb, Gulta', G-u-1-t-a-', you would say it probably  6 corresponds to Yahult'a, Y-a-h-u-1-t-'-a?  7 A   Uh-huh.  Yes.  8 Q   So that leaves us with a non-overlap of five?  9 A   I don't see the Thladen though, right.  The -- what  10 she has given is an incomplete list. This is rather  11 typical of people who -- from a -- not necessarily  12 give the absolute total account in a sort of senseless  13 kind of way.  Weeliih is held by a relative of hers  14 who she recognizes certainly as being in her house.  15 There's -- I think she referred to her in her  16 testimony as well.  17 Q   Okay.  Let's look at the next tab, and that is the  18 evidence of Warner William.  He holds the name Nustel?  19 A   Right.  20 Q   And that's of course in Knedebeas' house?  21 A   Yes.  22 Q   And he is the sub-chief as you have it?  23 A   That's right.  24 Q   And in his cross-examination he gives us the names in  25 the house of Knedebeas, if you look on page 3 at line  26 27:  27  2 8 "Q   And can you tell me the names of the other  29 chiefs in Knedebeas' house?"  30  31 That's after "Knedebeas is the head chief".  32  33 "A  Weeliih."  34  35 W-e-e-1-i-i-h.  36  37 "Q   And who holds that name today?  38 A  My eldest sister."  39  40 And then just skipping down to line 41:  41  42 "A   Yeah.  Knedebeas is our head.  Lt'at'en..."  43  44 L-t-'-a-t-'-e-n.  45  46 " sister, Doris."  47 13286  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A   Right.  Well, that corresponds to Sarah Layton's  2 number 2.  3 Q   Oh, yes.  4 A   Uh-huh.  Right.  5 Q   And those are all the names I can tell you are given  6 by Warner Williams as being in the house of Knedebeas.  7 And we see a match-up then with Sarah Layton with the  8 exception of Weeliih which she omitted, and we don't  9 seem to have a number of them that were were listed by  10 Jenness; is that --  11 A  Well, I have —  12 Q   Sorry?  13 A   -- put in evidence my list of the names in the house,  14 I don't have it before me, but some of these people  15 have given names to their children as well, who would  16 also then be chiefly titles that appear in this house.  17 Q   Yes.  18 A   But as -- they're more junior names and so these are  19 the ones that are least likely to be referred to when  20 a person just asks who are the chiefs.  They generally  21 respond by the head chiefs.  22 Q   My point here is that at least when asked, in I think  23 what you would agree is a straightforward way, to list  24 the names of the chiefs in the house, we have in two  25 houses, both in Smogelgem and Knedebeas, an example of  26 people not corresponding a hundred per cent in what  27 those names are.  And without making assumptions about  28 what they must have meant, which may be perfectly  29 valid, we are left with recording what they say and  30 seeing that they don't correspond; would you agree  31 with that?  32 A   I think that Sarah Layton's evidence was in court that  33 Catherine Michell, who has the name Weeliih, is in her  34 house.  Now, I don't know that she gave her chief's  35 name in her evidence, but she certainly identified her  36 as a person in her house and her brother -- no,  37 Weeliih's brother, Catherine Michell's brother, gives  38 her chief's name, Sarah Layton then I would agree  39 didn't give the full roster of names in the house.  40 She just gave the ones that came to her mind.  41 Q   Okay.  Let's move on to what I would call a perceived  42 difficulty from the interrogatories and from other  43 evidence that hereditary chiefs don't always know  44 where the territory is which is ascribed to their  45 houses; would you agree that that occurs?  46 A   Could you lead me to --  47 Q   Well, we can take the example of Goohlaht.  On page 2 13287  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 of your report you're describing Dizkle, and without  2 going back to Jenness and looking at the specific  3 story, you say on page 2:  4  5 "From the earliest time they depict the  6 Wet'suwet'en sharing a salmon fishing  7 village with the Gitksan and other  8 Athapascan Dizkle, four miles up  9 the Bulkley River from the present site of  10 Hagwilget.  There, the Wet'suwet'en, like  11 these other peoples, lived in large named  12 cedar plank houses presided over by a head  13 chief.  The territory around the village is  14 described as belonging to Goohlaht, a  15 particular Wet'suwet'en chief, whose people  16 had the sole prerogative to use it."  17  18 And we have other references of course to Dizkle  19 and Goohlaht holding the territory around Dizkle; is  20 that correct?  21 A   Right.  22 Q   And if we pause there and digress very slightly, in  23 between your draft report and your final report there  24 are four slightly different descriptions of where  25 Dizkle is.  It's 4 miles up from the Bulkley River  26 we've just seen, 12 miles from Hagwilget, which is on  27 page 65, 12 miles from Hazelton, page 22 of your  28 draft, and on page 43, 4 miles east of Hazelton.  And  29 I think you're there reflecting a variety of sources  30 of where Dizkle is; is that correct?  31 A   Right.  That's an approximation.  32 Q   Is there a best source from your interpretation?  Is  33 there a best description of where Dizkle should be?  34 A  Well, I'd like -- I'd have to go back and look and see  35 where I got those -- it's really a question of 12 or 4  36 miles and --  37 Q   Well, Hagwilget and Hazelton wouldn't be exactly the  38 same, would they?  39 A   No, but they're not far from one another.  40 THE COURT: How come -- we've got page 2, page 22, page 43 --  41 MS. KOENIGSBERG:  42 Q   I'm sorry, page 65 from the final report.  It's 12  43 miles from Hagwilget was my note.  Not a whole lot  44 turns on it, other than there are a few miles of  45 territory in which I suppose it would make some  46 difference, but if -- there's no accepted, as far as  47 you know, version of where Dizkle is? 132?  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A  Among the Wet'suwet'en you mean?  Oh, it's a spot  2 that's called Mosquito Flat in English and an  3 identifiable spot.  I don't think I've clocked it on  4 the speedometer and that might be the source of some  5 confusion.  If I had, it would have been in kilometres  6 rather than miles, but the spot that the Wet'suwet'en  7 refer to, that general area, is considered to be the  8 area of Dizkle.  9 Q   And do you know if it's -- if Mosquito Flats is 4  10 miles or 12 miles from either Hagwilget or Hazelton?  11 A   I'm sorry, I really don't -- couldn't accurately tell  12 you which it is.  13 Q   And do the Wet'suwet'en today say which it is, 4 miles  14 o r 12 mi1e s ?  15 A   I don't think that distinction is -- no, I'm not sure  16 that I could accurately say that they state one or the  17 other.  I've probably got the two different ones from  18 different --  19 Q   Well, at least one is from Jenness?  2 0 A   Uh-huh.  21 Q   Whose informants were Wet'suwet'en, but we don't know  22 who?  23 A   Right.  24 Q   And in your case you don't have a specific reference  25 or specific informant who said to you it's 12 or 4  26 or --  27 A   I don't recall one.  The 12 may be reflecting  28 kilometres.  I'm not sure.  29 Q   Well, in any event, today if we take 12 or 4 miles, if  30 we take the area from Hagwilget or Hazelton, up to  31 about Moricetown, you know that the Gitksan claim most  32 if not all of that territory today; is that correct?  33 A  All the way up to Moricetown?  34 Q   Almost to Moricetown?  35 A   I'd have to look at the map to be sure.  36 Q   How far short would your estimate be of Moricetown?  37 A  Well, Porphy Creek is some distance from Moricetown.  38 Quite a distance.  39 Q   How many miles approximately?  40 A   I don't know in terms of miles.  41 Q   Okay.  You know that Djogaslee and Spookw claim  42 territory in the area which would be attributed to  43 Dizkle?  44 A   I'm not really familiar with their claims.  45 Q   Okay.  And Lucy Namox is Goohlaht today?  46 A   That's right.  47 MS. KOENIGSBERG:   And she swore an affidavit in which she 13289  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 described her territory, and without going to the  2 maps, unless my friend Mr. Rush has a problem with my  3 putting this to you, she described her territory, and  4 that's at tab 10, and it's -- there are a couple of  5 affidavits here.  It's 59 (c) where she's asked "What  6 are the boundaries of your House's territories?", and  7 she says "See maps which are attached to Schedule  8 ' B ' " .  9 And then if you look, she's there giving evidence  10 on behalf of Samooh, but over in the next tab -- or  11 not tab, but just within that tab, there's a second  12 affidavit of Lucy Namox, Goohlaht, in which she again  13 says in answer to 59 (c) "What are the boundaries of  14 your House's territories?"  "See Schedule 'B'".  And I  15 will tell you that Schedule 'B' maps describe  16 territory in the south of the claim area around  17 Francois Lake, Ootsa Lake, and Owen Lake, I think, but  18 not very far north in the claim area.  Certainly  19 nowhere near as far north as Moricetown.  20 If that is accurate, that is, that if you accept  21 that Lucy Namox did not describe the territory of  22 Goohlaht as being near the southern part of Moricetown  23 or anywhere near Moricetown, then we would have  24 Goohlaht claiming, at least by her affidavits, the  25 territory anywhere near the site described as Dizkle?  26 MR. RUSH:  I'd have to say, my lord, that if my friend is going  27 to use a composite attempt to describe Goohlaht's  28 claim, she ought to summarize the evidence of Alfred  29 Mitchell which explains that territory north and west  30 of Moricetown in which he did speak to that issue  31 directly.  32 MS. KOENIGSBERG:  Well, there is no question that subsequent to  33 Goohlaht saying what her territory was, Alfred  34 Mitchell described a territory of Goohlaht near  35 Moricetown, however, if one looks at that description  36 it would be right around Moricetown.  It does not go  37 all the way to Hagwilget and does not -- well, the  38 difficulty with this is that we don't have yet the map  39 of the territories.  40 MR. RUSH:  Excuse me —  41 THE COURT:  What do you mean we don't have it?  42 MR. RUSH:  You have the map that was tendered for Alfred  43 Mitchell's testimony.  44 MS. KOENIGSBERG:  Oh, that's true, but —  45 MR. RUSH:  And that describes the territory that's involved and  46 that is -- if you're trying to summarize the evidence  47 of where that territory is, and I think there is an 13290  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 issue as to whether or not it encompasses the ancient  2 village of Dizkle, then I think that should be put to  3 the witness.  4 MS. KOENIGSBERG:  Well, I'm not attempting to describe  5 everything that has been claimed on behalf of Goohlaht  6 in the trial to date. I -- for the purpose of my  7 question and this witness Lucy Namox's evidence is --  8 THE COURT:  Is that she has territories to the south.  9 MS. KOENIGSBERG:  10 Q   And I acknowledge that not only has Alfred Mitchell  11 given evidence, but other persons have which is  12 different from Lucy Namox's, and I wasn't even going  13 to go into the difference as another problem, but  14 let's -- just dealing then with Lucy Namox's evidence  15 that Goohlaht does not have territory anywhere near  16 Moricetown, we then have the problem of the  17 description of Goohlaht having territory at Dizkle and  18 in the village of Dizkle, and Lucy Namox today or  19 recently in the last couple of years describing her  20 territory as in the southern part of the claim area?  21 A  My understanding was -- I see what you've put before  22 me, but -- that she is very clear that the name Caspit  23 falls within her house and that currently the area  24 of -- that is in the Dizkle area is held by Caspit  25 who's a sub-chief within the house of Goohlaht.  26 Q   Well, she doesn't describe that, you'll agree with me?  27 A   She's just describing the southern area.  I see that,  28 but I —  29 Q   That's right.  30 A   But I have -- I know that she acknowledges Caspit as  31 the sub-chief in her house.  She does so at the feast  32 and in general.  33 Q   And is it your evidence that Caspit has territory at  34 Dizkle?  35 A   In that general area.  Right.  36 Q   Roughly where?  37 A   I think it's to the -- I think it's to the south of  38 the Bulkley River, but I'm -- I'd have to look at a  39 map to be assured.  40 MS. KOENIGSBERG:   Well, let me show you one.  41 THE COURT:  Are you going to be long?  42 MS. KOENIGSBERG:  Longer than I thought I was going to be, my  43 lord.  I don't have an awful lot more, but it's going  44 a little more slowly.  45 THE COURT:  I think it's time we adjourned for a few minutes.  46 THE REGISTRAR:  Order in court.  This court stands adjourned for  47 a short recess. 13291  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2  3  4  5  6  7  8 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS)  9  10  11 I hereby certify the foregoing to  12 be a true and accurate transcript  13 of the proceedings herein to the  14 best of my skill and ability.  15  16  17 Tanita S. French  18 Official Reporter  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 13292  A. Mills (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  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 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  36  37 THE COURT:  Miss Koenigsberg.  38 MS. KOENIGSBERG:  39 Q   Dr. Mills, without belabouring this point, maybe you  40 you can just point on the map and I will try to  41 describe for the record you say Caspit's territory.  42 The blue part on here is the -- I think it is Exhibit  43 5.  If that's too hard to see, do you want to see the  44 underlying map?  45 A  Would that be easier to see?  Well, I would defer to  46 the map makers and I think Marvin George is going to  47 give testimony.  He's the one who has worked on this. 13293  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 But I thought that it was that there was a Caspit  2 territory in the vicinity of the Bulkley River  3 upstream from New Hazelton.  But I would defer to  4 Marvin George to describe the Caspits.  5 MR. RUSH:  Just to point out, my lord, the map that was shown to  6 the witness is not the map that was in respect of this  7 territory that was introduced and tendered in evidence  8 in respect of Alfred Mitchell's testimony.  It appears  9 to be Exhibit 5, an overlay.  10 MS. KOENIGSBERG:  Just back up a moment here.  11 Q   If we go back after that exercise to your description  12 on page 114 of your report that the clan rather than  13 the house is the most frequently used marker of  14 Wet'suwet'en identity.  I think those are your words.  15 And you have given some reasons why you believe that  16 to be so.  Would you agree with me that one reasonable  17 interpretation is that house structures or houses as  18 political units are relatively new to the  19 Wet'suwet'en?  20 A   No.  I give my analysis in my opinion report.  I  21 wouldn't say that houses were in the least new.  22 Houses are a sub group of clans.  Clans seem to be  23 very ancient.  A house is simply the most basic unit  24 within a clan.  So, no, I wouldn't see that as being  25 of recent origin at all.  2 6 Q   Okay.  And my question is that I know that you have  27 stated that you don't believe them to be new, but I'm  28 just asking you if you accept that houses are not the  29 most frequently used marker, but in fact clans and  30 clan membership is the most frequently -- is the most  31 frequently used as the way to describe affiliation by  32 a Wet'suwet'en person, that a reasonable  33 interpretation of that could be recency, and I take it  34 your evidence is that would not be a reasonable  35 interpretation?  36 A   No.  37 Q   Okay.  I'd like to move on to a different area.  And  38 that is your description of the Feast.  And one of its  39 features today and in the past is if I can call it  40 conflict or dispute resolution?  41 A   Right.  42 Q   And it is your opinion that that is one of its  43 functions?  44 A   Yes.  45 Q   And you cited as one instance of that, although you  46 cited others, Roy Morris' evidence regarding the  47 threat of having to -- of the cost of holding a Feast 13294  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 prevented at least one couple from separating.  2 Instead they reconciled?  3 A   Yes.  4 Q   And would you agree with me that the threat of the  5 cost of divorce proceedings in white culture has an  6 influence on how often people get involved?  7 A   I really don't know much about that cost and whether a  8 legal consideration of cost restrains people from  9 separating.  But the point here is that this system  10 has a mechanism for people who are in close contact  11 with both parties to know whether reconciliation is  12 likely to be feasible or not.  That's an obvious  13 advantage of a kin group kind of society.  So that the  14 head chiefs can intervene and decide whether in a  15 particular instance of marital breakdown it's worth  16 trying to effect a reconciliation or whether in fact  17 the best course of events would be to allow the  18 parties to remain separated.  19 Q   Did I misunderstand you earlier that it was the cost  20 of the Feast that -- the threat of having to have a  21 Feast and the cost of that Feast was attributed as the  22 reason for the reconciliation?  23 A   The fact -- I don't think you perhaps completely  24 misunderstood me, but perhaps you didn't completely  25 understand me either.  The couple was told that if  26 they didn't -- the concept was that if it was worth  27 getting this couple back together, if there should be  28 a reconciliation, then one means to effect the  29 reconciliation would be to say that they would have to  30 hold a Feast, a Shame Feast basically is what it would  31 be, a Shame Feast if they remain separated.  However,  32 in the context where the head chiefs knowing the  33 individuals involved think that the -- that there is  34 no reconciliation possible, then they would not hold  35 out this threat.  They would not say you must  36 necessarily have to have a Shame Feast, because they  37 would recognize that it would not be a useful thing to  38 bring the two parties back together.  39 Q   So leaving aside the knowledge of people, that is  40 whether there is any possibility of reconciliation, is  41 it your evidence that it's a surprise or unique to the  42 Wet'suwet'en people that the cost of not reconciling  43 might have a positive effect on reconciliation?  44 A   I have never said that it was a surprise, no.  And  45 I --  46 Q   Is it unique?  47 A   I hadn't really thought that the proceedings or the 13295  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 expense of divorce was considered a prime deterrent in  2 our society, but perhaps that's a useful way of  3 looking at it.  4 Q   Well, certainly in your life's experience it wouldn't  5 be surprising to hear that voiced, however much of an  6 effect it may have, that it might be voiced?  People  7 in North American society might say it's too expensive  8 to get a divorce?  9 A   I am not familiar with that expression or it hasn't  10 been my experience to hear many people saying that,  11 but I don't deny that it might be said.  12 Q   If you accepted that it is a mechanism or an expressed  13 reason for reconciliation in white culture and if it  14 is as you have described a mechanism described as  15 being used by Roy Morris in this instance, how would  16 you know whether that concept was borrowed or not from  17 the neighbouring white culture?  18 A  Well, the Feast system is the mechanism that the  19 Wet'suwet'en are familiar with for working out  20 different kinds of conflicts now.  21 Q   Well, I am just asking you if you will --  22 MR. RUSH:  I think she should answer the question.  23 MS. KOENIGSBERG:  Well, I will allow her to, but I really would  24 like to be able to be sure that we can get a  25 responsive answer.  So if I can just direct her and  26 she can say whatever she likes.  27 MR. RUSH:  Well, so far there is no indication --  28 THE COURT:  Well, we have wasted all this time now.  You can  29 answer the question now.  There is no way of  30 straightening or unscrambling this.  31 MS. KOENIGSBERG:  32 Q   My question to you is:  If cost as a threat, whether  33 it be cost of the Feast or cost of divorce  34 proceedings, if cost as a threat is the concept which  35 causes people to reconcile or reconsider  36 reconciliation in both white culture and among the  37 Wet'suwet'en, how do you know if it's borrowed by the  38 Wet'suwet'en, not the Feast, the concept of the cost  39 of the Feast?  4 0 A   You'd have to evaluate to what extent the Wet'suwet'en  41 were in a position to know that that was a feature of  42 the white system and to how they would have learned  43 that and to what extent it impinged on their  44 understanding of how things work and their reality.  45 My understanding is that that's not something that  46 they have thought about a great deal or has been a  47 part of their experience so that they haven't had a 13296  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 lot of a tradition of experience of learning about the  2 costs involved in divorce.  That's my evaluation of --  3 Q   Okay.  So if I understand you then, if divorce in a  4 court of law was not an experience of the Wet'suwet'en  5 people, then you would reasonably conclude that they  6 had not borrowed that concept?  7 A   Yeah.  Well, yes, one would evaluate the instances of  8 familiarity or experience in court of law divorce  9 versus the number of times they had experienced or  10 heard of the other kind of mechanism for dealing with  11 this kind of situation.  12 Q   And you don't at this point have any knowledge about  13 how many Wet'suwet'en people have had divorces through  14 the court system?  15 A   I couldn't give an accurate, very accurate figure, but  16 I could certainly say from my interviews with chiefs  17 that marital disputes are one of the things that they  18 move in on swiftly and right away.  They are the first  19 sort of buttress or the first mechanism that is --  20 comes into play in trying to address this kind of  21 problem.  And I don't think -- that's something that  22 they describe from their childhood as being part of  23 their tradition.  24 Q   Yes.  But you don't know how many have ever gotten  25 divorced?  26 A   I couldn't give you a figure, no.  27 Q   Now, at page 85 of your draft report you describe --  2 8 and you don't have to turn to it.  I think you know  29 this rather well.  You may turn to it.  30 A   Okay.  31 Q   But it is the Jimmy Michell instance that you are  32 giving there of the death of Jimmy Michell and the  33 belief that he was murdered and you say on page 86 --  34 A   Let's see.  That doesn't seem to be my page 85.  My  35 page 85 is about Feasts.  36 Q   I am sorry, it's in your tab 14 and it's your draft  37 report.  38 THE COURT:  Where are we now, tab what?  39 MS. KOENIGSBERG:  Tab 14.  Sorry, my lord, tab 14.  40 Q   It's just the extract from your draft report dealing  41 with Jimmy -- the Jimmy Michell and of the Feast on  42 page 86, second page in and you have already given the  43 evidence about what happened in the views of the  44 community.  But the second full paragraph down you  45 say:  I think you mean "this":  46  47 "In this case there was no possibility of making 13297  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 peace through a Kus ceremony"  2  3 That would be a Feast Eagle Down type of ceremony,  4 would it not?  5 A   Uh-huh.  6 Q  7 "because the accused parties did not admit to  8 having killed Jimmy Michell, either because they  9 hadn't or because they did not want the white  10 authority to step in and prosecute them for  11 murder."  12  13 And so on.  It's your evidence that the Feast cannot  14 function as a dispute resolver unless all parties are  15 agreed on the fault involved, is that correct?  16 A   It's a mechanism in which also fault is attributed and  17 accepted or disclaimed as well.  It's not as if it  18 starts -- necessarily starts at a consensus.  It aims  19 to end up at a consensus.  20 Q   You assume, I take it, not having knowledge or not  21 having interviewed Jimmy Michell?  22 A  Well, he is deceased.  23 Q   That's right.  That the reason he did not admit to  24 having killed --  25 A   He's the victim.  26 Q   I am sorry.  He's the victim.  That the persons who  27 are accused of having killed him didn't admit to it  28 because they did not want the white authorities to  29 step in and prosecute them for murder or because they  30 didn't kill him?  31 A   Right.  32 Q   There are other alternatives, are there not?  33 A   Yeah.  They are all dead as well.  I am not sure if  34 this passage picks that up.  35 Q   There are other alternatives?  36 A   Pardon?  Besides --  37 Q   Yes.  They don't wish to bear the blame for having  38 killed him?  39 A   Right.  40 Q   Now, finally, if we can turn to another historical or  41 ethnohistorical source which you cite and that is the  42 Ogden journal.  And I am not going to go through every  43 tab, you'll be glad to know.  It's tab 41, Volume 3.  44 THE COURT:  Sorry, tab 41 of what?  45 MS. KOENIGSBERG:  Volume 3.  4 6    THE COURT:  Oh, yes.  47    MS. KOENIGSBERG: 1329?  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q   And it's page 44 that I'd like to ask you about.  I'm  2 sorry, it's page 43 that I'd like to start with.  And  3 you have given evidence that you reviewed and  4 evaluated this work called "the Tale of Western  5 Caledonia"?  6 A   Right.  7 Q   Attributed to Mr. Ogden?  8 A   Right.  9 Q   And his name doesn't appear.  It's not attributed in  10 the published work, correct?  11 A   Right.  12 Q   And you evaluated and referred us to the description  13 of what is obviously from the description Moricetown?  14 A   Right.  15 Q   And to the cedar houses?  16 A   Yes.  17 Q   On each side.  But just above that in the first full  18 paragraph --  19 A   The one beginning "after traversing"?  2 0 Q   Yes.  And about beginning with "On the morrow," that's  21 the fourth line down.  22 A   Uh-huh.  23 Q  24 "... the sun did not find us lingering; and by  25 noon we arrived on the hills which overlook the  26 romantically situated village of Hotset",  27  28 which is Moricetown?  29 A   Pardon?  30 Q   You believe that to be Moricetown?  31 A   Hotset is a word that means village.  32 Q   Yes.  33 A   If this is the part that goes on and describes the  34 overhanging cliffs with the chasm and the river going  35 over and the bridge, then that's the one, yeah.  36 Q   Okay.  37  38 "It was in all probability owing to the heat of  39 the day that we found all quiet, the only signs of  40 life being a few children, and half a dozen curs,  41 lazily rolling in the grass.  A loud woop from our  42 Indian companions, however, made our approach  43 known, and immediately all was animation; crowds  44 upon crowds of naked savages pouring out of the  45 huts, and clamorously repeating the cry of 'netta!  46 netta!' the word expressive of Europeans, by which  47 the quality of their visitors was announced. 13299  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Formed into Indian file, myself leading the  2 column, we descended into the plain adjoining the  3 lodges."  4  5 And then begins the description of the 28 cedar plank  6 houses.  When you reviewed this manuscript, did you  7 come to any conclusion or attempt to interpret who  8 were the people who formed the crowds upon crowds of  9 naked savages pouring out of the huts?  10 A   By huts I would assume that he meant the lodges  11 because he described the lodges.  12 Q   Well, when we read this, is that a reasonable  13 assumption given that we now are moving "formed into  14 Indian file, myself leading the column, we descended  15 into the plain adjoining the lodges.  Of these there  16 were twenty-eight."  Would you agree with me he's  17 distinguishing the huts at some distance from the  18 lodges that are 28 in number?  19 A   That wasn't -- isn't and wasn't my interpretation, no.  20 Q   So when he says huts, he's referring to the cedar  21 lodges?  22 A   I think so.  I had read it that way.  23 Q   I see.  And then he says:  24  25 "Of these there were twenty-eight, of large size,  26 each of them affording accommodation, on an  27 average, to six or seven families.  The village  28 was divided into two, by the course of the river,  29 which at some distance above and below was of  30 considerable breadth."  31  32 And so on.  And then we have the description of the  33 graphic and dramatic description of a dramatic  34 landscape, the Moricetown area.  When we go over to  35 the next page on page 44 the first full paragraph:  36  37 "I had time to cast but a very cursory glance at  38 the general features of the scene, when we were  39 met, on the confines of the village, by the  40 principal inhabitants, headed by their chief,  41 'bearded like the pard,' as were a great many of  42 his retainers.  The attire of these magnates was  43 ludicrously incongruous, and I had some trouble to  44 suppress a smile as I offered my hand to each in  45 succession, a symbol of which they had learned the  46 meaning from their neighbours."  47 13300  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 You think that might be the Nishga or did you?  2 A   I would imagine it probably is, yes.  3 Q  4 "Accustomed as I had been to the extravagancies of  5 an Indian toilet, I was scarcely prepared to  6 witness such grotesque refinement as I found  7 displayed by the beaux of Hotset, whether they  8 strutted up in gaudy shreds of worn-down finery  9 combined together in the most indescribable  10 confusion of lines and forms, or, less diffuse in  11 their tastes, paced soberly forwards in suits, or  12 half-suits, of shabby genteel vestments which  13 might have graced the purlieus of Monmouth-street.  14 One grim-looking fellow stood eminently  15 conspicuous in a scarlet coat, unaccompanied by  16 that nether appendage which a delicate spectator  17 might have deemed necessary to decorum; while  18 another, his nearest neighbour, rejoiced in a  19 regimental coat of the Sappers and Miners, and the  20 very decorous adjunct of a half-worn pair of  21 corduroy trousers!  The whole of these fineries, I  22 must add, by the way, had evidently been assumed  23 for the occasion, as one of great state, and it  24 seemed only charitable to ascribe the little  25 discrepancies I have mentioned to the hurry of  26 their toilet."  27  28 He then goes on:  29  30 "It may occasion some surprise that savages who,  31 as I have said, were perfect strangers to the  32 sight of Europeans, should possess so many  33 articles indicative of a commercial intercourse.  34 To explain this, it is only necessary to state  35 that the river affords a communication between  36 these unsophisticated races and the Indians  37 inhabiting the coast and its mouth, known by the  3 8 name of -- "  39  40 Probably Tsimshian?  41  42 " -- Through this channel, a constant barter of  43 furs in exchange for articles of European  44 merchandize procured from the traders by the  45 Chyniseyans, is carried on, upon a scale of  46 magnificence of which the example cited must  47 suffice." 13301  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 If we stop there and take his I suppose amusing  3 description of the finery, he is describing, is he  4 not, the obvious use and status of European clothing  5 which have by his description been obtained through  6 trade?  7 A   Yes.  8 Q   And would you agree that looking at this as a journal  9 that we could reasonably conclude from it as a source  10 of historical information that European clothing was  11 an item of trade and one sought after as a status  12 item?  13 A   It seems that they were enjoying putting on these  14 clothes, yes.  This was after the fur trade had begun  15 obviously.  16 Q   Oh, yes.  This is in the -- sometime in the middle of  17 the 1800s, was it not?  18 A   1820s.  Towards the 1820s, yes.  So Harmon had already  19 established a post in the Eastern Carrier.  20 Q   Yes.  21 A  And there were -- there were trades going on at the  22 coast as well.  23 Q   Yes.  And he's describing the trade from the coast  24 from his point of view as the major source of this  25 finery?  26 A   He seems to, uh-huh.  But you should see, you know,  27 the scale is a scale of magnificence is not  28 necessarily how one would describe the peak of the  29 items of clothing that he has described.  30 Q   I am sorry?  31 A   I think he's being a bit facetious when he says scale  32 of magnificence.  33 Q   Yes.  Or is it fair to interpret that he's being  34 descriptive of the joie de vivre with which it is  35 worn?  36 A   Perhaps.  37 Q   Can we just go back now to page 43 and deal with this  38 issue of the huts and let me just ask you one further  39 question about this.  If the description of the huts  40 and the people coming out of the huts is a description  41 of something different from the cedar lodge, cedar  42 lodges which are described as 28 and of neat  43 construction, I think, if that is different would that  44 suggest anything to you?  45 A  Well, for one thing, it would suggest a much greater  46 population than people have presumed.  28 lodges with  47 each one holding six to seven families and if you 13302  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 consider an average size of a family being perhaps  2 five, then you've got a larger population than anybody  3 would ever have suggested before.  But you are sort of  4 suggesting that there are cedar plank houses and in  5 addition what he is referring to as huts?  6 Q   Some little distance away, yes.  That's how I read it  7 and I wondered how you would interpret it, if that  8 were the case.  If the huts are of such a construction  9 that they are discernable as quite different from the  10 cedar plank houses, that is they are huts as opposed  11 to nicely constructed cedar plank houses of large  12 accommodation, are they descriptive of a different  13 culture?  14 A  Well, from that amount of information one couldn't  15 make a very valid inference.  If the huts were used  16 for storage, for example, or had some particular  17 purpose, I wouldn't want to make a large inference on  18 the basis of this description.  I hadn't thought that  19 the huts were referring to anything other than the  20 lodges, that it was again a term that he was using to  21 describe the lodges as well.  22 Q   And if those huts housed people who are not dressed in  23 finery or otherwise and there are many of them being  24 described as crowd upon crowd as opposed to the  25 obvious chiefs and sub-chiefs that we hear described  26 coming out of the cedar lodges, would that indicate a  27 clear ranking?  28 A   That's -- this -- the -- my understanding of ranking  29 among all northwest coast peoples is that there is not  30 a differentiation into such discrete classes that you  31 have an upper class that stays in the longhouses and  32 then these paltry people who are sort of shoved out  33 into a kind of slum-like situation.  The people who  34 are the highest rank are the head of a lineage that  35 includes all the people that are related to them.  36 Everybody falls within a matriline.  Everybody falls  37 within a house.  You live in the house of the people  38 that you are related to and the head chiefs may have  39 more prestige, but it's not as if there is this kind  40 of slum next to resplendent kind of situation.  That's  41 never been the way that anyone has ever characterized  42 any part of the northwest coast or the interior as far  43 as I can recollect in all of the anthropological  44 literature.  45 Q   You have never heard the description of slaves or even  46 commoners not sharing in the lifestyle of the nobles?  47 A   Oh, slaves are a special case.  The slaves are 13303  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 typically people who have been given, captured either  2 in raids or are given as peace bonds when they are  3 trying to reach some kind of a settlement of a  4 dispute.  And the commoners are the people who haven't  5 attained the high names, but they all fit within  6 lineages, be they patrilineages as in the more  7 southerly northwest coast peoples, or matrilineages as  8 happens from the Tsimshian north.  9 Q   Well, would you agree with me, then, that if the  10 description that we are given here is a description of  11 huts as distinct from cedar plank houses and in a  12 slightly different location, albeit close by, that  13 that is not a description of a Wet'suwet'en village  14 which accords with anything that you know about its  15 culture?  16 A   No.  I have never heard any description like this at  17 all.  18 Q   The last area I'd like to ask you about has to do with  19 the prophet Bini.  And your evidence as I have  20 understood it about Bini is that one of the things for  21 which he is renowned and his significance to the  22 Wet'suwet'en people revolves around his prophetic  23 attributes, in particular his going off somewhere,  24 coming back and prophesying the elements of  25 Christianity to come, is that correct?  26 A   Yes, it is.  27 Q   And the belief that he simply had a vision or that he  28 came to this prophecy not as a result of having  29 visited or seeing and experiencing missionaries, but  30 rather having had it come to him as a vision before  31 the missionaries?  32 A   That's the tradition, yes.  33 Q   And you would agree with me that it might be a  34 reasonable interpretation of what happened if we were  35 looking at it in terms not of its -- how it fits into  36 the belief system, but whether it is -- whether there  37 are accurate accounts or not historically that it  38 would be a reasonable interpretation that Bini in fact  39 went off to the coast, was gone for a period of time  40 and came back having experienced the missionaries?  41 A  Well, the missionaries found that they didn't have an  42 avenue in the coast.  The oblates attempted to go to  43 the coast and they were very summarily dismissed.  So  44 the avenue that the missionaries took then was then up  45 through the interior of the province.  46 Q   Would you agree it is possible that Bini may well have  47 had contact with Russian Orthodox priests who 13304  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 proselytized among the northern coastal regions of  2 Alaska?  3 A   I doubt that he had gone anywhere near there, but  4 it's -- I don't know exactly the dates at which  5 Russian Orthodox priests arrived and how extensive  6 their missionizing was.  7 Q   I am just going to ask you if you have seen or know of  8 a book called "They Call Me Father.  Memoirs of Father  9 Nicolas — " is it Coccola?  10 A   I think so.  Coccola, or something.  11 Q   Yes.  12 THE COURT:  How do you spell that, please?  13 MS. KOENIGSBERG:  14 Q   C-o-c-c-o-l-a.  15 A   No, I have not seen this book.  16 Q   It's edited by a Margaret Whitehead.  Had you ever  17 heard of her?  She is a historian at University of  18 Victoria.  19 A   No, I haven't heard of her.  20 Q   It is her thesis in her book which is found at page 27  21 of the introduction, and I will just read it out to  22 you, and it's found at tab 16:  23  24 "The northern Carrier had their own prophet, an  25 Indian called Bini, who, after disappearing from  26 his community, returned with knowledge of prayer,  27 the sign of the cross, repentance, and salvation.  28 Bini may well have had contact with Russian  29 Orthodox priests that proselytized among the  30 northern regions of coastal regions of Alaska."  31  32 And there is a footnote for that and it says:  33  34 "A detailed study of the profit movement can be  35 found in Rumley, 'Reactions to Contact and  36 Colonization'".  37  38 A   Leslie Spier is the greatest authority on the prophet  39 tradition and movement.  40 Q   Yes.  But do I at least understand you that you  41 haven't examined the historical record, if I can put  42 it that way, to determine if there is an explanation  43 for Bini's prophesying other than his having received  44 this in a vision?  45 A  Well, my -- the accounts that I give in my own report  46 show that there was someone who was in this prophet  47 kind of stance that was among Harmon's people.  I 13305  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  never said that Bini had -- could have had no contact  whatsoever with any of these concepts.  No, that  wasn't what the intention of describing Bini at all.  Harmon was a Christian himself.  I am sure that he may  have told many people about the sabbath and many  practices.  If you thought that I was saying that  there could be no possibility of Bini having ever  learned about any of these features through any means,  that would be a misinterpretation.  Q   Okay.  So you would accept that that is a possibility  and that is something for other ethnohistorians to  corroborate or not?  A   I don't think it's terribly significant one way or the  other.  I myself am not aware of how many Russian  Orthodox priests there were at what particular time  period, but obviously there were missionaries in North  America and in all kinds of different areas and word  could travel from one group to another group to  another group to another group.  I wasn't presuming to  imply anything other than that.  KOENIGSBERG:  Okay.  Thank you.  Those are all my questions.  Perhaps we could now delete from the book, though,  things which I have not referred and --  COURT:  All right.  KOENIGSBERG:  I think it begins at tab 11 and that should be  discarded.  A  Maybe I could just finish that answer a little bit  more just to say that Bini, however, was accepted as  an important prophet by the Wet'suwet'en because he  incorporated this extraneous body into a world view in  a way that was comprehensible to the Wet'suwet'en.  KOENIGSBERG:  Q   Yes.  I understood that from your report.  A   I wasn't sure you did.  KOENIGSBERG:  Tab —  COURT:  Take out tab 11?  KOENIGSBERG:  Tab 11, tab 12, tab 13, tab 15.  And I'll just  check --  COURT:  There is a number of sub tabs in 15.  You are taking  them all out?  KOENIGSBERG:  It's all of them, my lord.  COURT:  Yes.  KOENIGSBERG:  Tab 2, it just happens to be something that I  referred to but which was put in by my friend, Mr.  Mackenzie.  You can take it out.  COURT:  Tab 2?  KOENIGSBERG:  Yes.  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  MS.  22  23  24  THE  25  MS.  26  27  28  29  30  31  32  MS.  33  34  35  MS.  36  THE  37  MS.  38  39  THE  40  41  MS.  42  THE  43  MS.  44  45  46  THE  47  MS. 13306  A. Mills (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 THE COURT:  All right.  2 MS. KOENIGSBERG:  Tab 9 — sorry.  That was in.  Okay.  That's  3 it, my lord.  So that leaves tab 1, it's the discovery  4 of -- excerpt from the discovery of Roy Morris to be  5 marked tab --  6 THE COURT:  We already have that as 957-1.  7 MS. KOENIGSBERG:  Okay.  That's fine.  8 THE COURT:  All right.  9 MS. KOENIGSBERG:  Tab 3, if you —  10 THE COURT:  You want it 957-3?  11 MS. KOENIGSBERG:  Yes.  12  13 (EXHIBIT 957-3: Tab 3 of AG Canada book, Phratries)  14  15 MS. KOENIGSBERG:  Tab 4 is Leonard George affidavit and  16 interrogatory answer.  If that could be marked.  17 THE COURT:  Yes.  That will probably be number four.  18  19 (EXHIBIT 957-4:  Tab 4 of AG Canada book, Leonard  20 George affidavit and interrogatory)  21  22 THE COURT:  Number five will be 957-5, 957-6, 957-7, 957-8,  23 957-9, and 10.  24 MS. KOENIGSBERG:  And then 12.  25 THE COURT:  And 14, I think.  26 MS. KOENIGSBERG:  I am sorry, that's right.  2 7 THE COURT:  And I think 16.  And 16.  28 MS. KOENIGSBERG:  And 16, yes.  29  30 (EXHIBIT 957-5:  Tab 5 of AG Canada book, transcript  31 extract Nov. 30/88, Antoine Tom)  32  33 (EXHIBIT 957-6:  Tab 6 of AG Canada book, transcript  34 extract Dec. 6/88, Mary Joseph)  35 (EXHIBIT 957-7:  Tab 7 of AG Canada book, Gilseyhu  36 Phratry)  37  38 (EXHIBIT 957-8:  Tab 8 of AG Canada book, Sarah Layton  39 Affidavit and interrogatory)  40  41 (EXHIBIT 957-9:  Tab 9 of AG Canada book, transcript  42 extract Dec. 8/88, W. William)  43  44 (EXHIBIT 957-10:  Tab 10 of AG Canada book, Lucy Namox  45 affidavit and interrogatory)  46  47 (EXHIBIT 957-14:  Tab 14 of AG Canada book, 3 pages 13307  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 from draft report A. Mills June 1986)  2  3 (EXHIBIT 957-16:  Tab 16 of AG Canada book, "They Call  4 Me Father" N. Coccola)  5  6 THE COURT:  All right.  All right.  Thank you.  Re-examination,  7 Mr. Rush?  8  9    RE-EXAMINATION BY MR. RUSH:  10 Q   I wonder if the blue book, that's Provincial  11 defendant, placed before the witness, could now be  12 placed before the witness again.  It's Exhibit 955,  13 Madam Registrar.  I am asking that the witness refer  14 to Exhibit 955-5.  This is an extract from the Ruth  15 Murdoch report, Dr. Mills, and I would ask you,  16 please, to look at what is marked as page two and the  17 second full paragraph which says in part:  18  19 "This project involved using archival photographs,  20 physical 'on-the-ground' evidence, and talking to  21 the Moricetown elders to locate, identify, and map  22 sites of historic smokehouses, drying racks, cache  23 houses, and other places of historic or  24 prehistoric significance in the Moricetown Canyon  25 area."  26  27 Those -- yes, were those objectives of Ruth Murdoch's  28 investigations among the Wet'suwet'en as you  29 understand them to have been the objectives of this  30 report?  31 A   Yes.  32 Q   And you were referred to a passage on page four by Mr.  33 Mackenzie and in particular the second part of the  34 major paragraph on page four beginning:  "While the  35 Bulkley Carrier".  Do you see that?  36 A   Yes, I do.  37 Q   I'd ask you to read the few sentences in advance of  38 that.  39 A   Beginning at the beginning of the --  40 Q   Yes.  Beginning with "Moricetown," and I would ask you  41 when you do, is there a relationship between those  42 sentences and the portion that Mr. Mackenzie read to  43 you?  44 A   There certainly is relation.  45 Q   What is there, if -- can you --  46 A   She is describing what Jenness and Morice have said  47 about the Bulkley River Carrier.  They are the source 1330?  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 for the sentences that Mr. Mackenzie put to me.  2 Q   I see.  Thank you.  Would you please now turn your  3 attention to Exhibit 955 -- it's becoming shorter all  4 the time -- 24.  Your attention was drawn by Mr.  5 Mackenzie to an interview that was conducted by  6 Leonard George and Alfred Joseph on August 26, 1981 of  7 Mary George and Gloria George and in particular on  8 page two, over to page three of that interview you  9 were directed to portions of the interview that are  10 apparently attributed to Gloria George.  Do you recall  11 that?  12 A   Yes, I do.  13 Q   And my question to you, Dr. Mills, in respect of the  14 other interviews that you have conducted in your  15 reading of other transcripts of interviews with  16 hereditary chiefs, are Gloria George's views expressed  17 in this interview typical or atypical of the  18 Wet'suwet'en hereditary chiefs whom you have  19 interviewed?  20 A   They are atypical of the Wet'suwet'en hereditary  21 chiefs.  This is not -- I have never heard anyone else  22 evincing this particular idea that Gloria George gave  23 in this extract.  24 Q   All right.  Would you look over, please, to page three  25 and after the portion read to you by Mr. Mackenzie  26 there is a reference in the middle of the large  27 segment that's attributed to Gloria George  28 beginning -- do you see about ten lines down, "And  29 then we should be working with the Haisla," do you see  30 that?  31 A   Yes, I do.  32 Q   And I am just referring this passage, two sentences to  33 you:  34  35 "And then we should be working with the Haisla  36 people, they are our most western neighbours, then  37 way down there we work with the Chilcotins."  38  39 Do you understand the Haisla people or the Chilcotin  40 people to be Carriers?  41 A   No, no.  She is making a rather globle kind of  42 statement.  43 THE COURT:  Remind me what is the area of the Haisla?  44 A   They are Gardnor Channel area.  45 THE COURT:  All right.  Thank you.  46 A   They are some of the most northern Kwakiutl, my lord.  4 7    MR. RUSH: 13309  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 Q   Now, Mr. Mackenzie also referred you to a draft of  2 your opinion which was done in June of 1986 and this  3 has been marked as Exhibit 957.  I wonder if that  4 could be placed before the witness.  5 MR. MACKENZIE:  My lord, I don't think that was marked as an  6 exhibit.  7 THE COURT:  No, it wasn't.  8 THE REGISTRAR:  No.  9 MR. RUSH:  Oh it wasn't.  I marked it as an exhibit.  I'm sorry.  10 Just getting ahead of myself, my lord.  11 MR. MACKENZIE:   May have marked one page from that as an  12 exhibit, my lord.  13 MR. RUSH:  Well, in any event, this document wasn't, my lord,  14 and I am going to refer the witness to the document.  15 Q   And you were directed to certain passages of this  16 document and they were read to you, Dr. Mills,  17 particularly in reference to the question of the  18 statement that was said to be attributed to you that  19 certain of the institutional features of the  20 Wet'suwet'en people, namely the matrilineal system,  21 the clan, the house and the discrete territories were  22 borrowed from the Gitksan or their Tsimshian  23 neighbours and certain passages were read to you and I  24 would like to draw your attention first to two  25 passage -- two other passages which weren't read to  26 you from your draft report and one of these appears on  27 page 21.  I'd like to refer you to that page and would  28 ask you if this was your opinion as of the date of  29 this draft report in June of 1986.  My lord, it's the  30 first full paragraph, the full paragraph and I suppose  31 the only paragraph in its entirety on the page and I  32 quote, Dr. Mills:  33  34 "In my opinion the Wet'suwet'en system including  35 ranked titles associated with ownership and  36 control of specific territories has been in place  37 for a very long time, probably at least two  38 thousand years.  The Wet'suwet'en kungax, which  39 are discussed at greater length below, describe a  40 village with plank long houses led by chiefs with  41 ranked titles from the beginning of their history.  42 Far from having adopted the Gitksan system of  43 ranked titles recently in response to the fur  44 trade, as Kobrinsky suggests (1973:i) I see the  45 existence of the system of clans, crests, and  46 ranked titles as being as old as the people  47 themselves, and see the fur trade period as 13310  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  A  14  Q  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  THE  COURT  32  33  MR.  RUSH:  34  THE  COURT  35  MR.  RUSH:  36  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  THE  COURT  43  MR.  RUSH:  44  THE  COURT  45  MR.  RUSH:  46  Q  47  A  coinciding with a period of population decline and  territorial expansion.  Epidemics introduced by  contact with Europeans reduced the Wetsuwet'en to  a third of their previous numbers. (Note 1).  At  the same time smallpox effectively wiped out the  Carrier to their south, which allowed the  Wet'suwet'en to expand, around 1838, into  territory previously held by a distinct subgroup  in that direction.  (see Jenness.)"  Now, I ask you, Dr. Mills, was that your opinion at  that time in June of '86?  It was.  And that I'd ask you now to turn to page 47 and again  I would ask that you look to the first full paragraph,  and I will read you the first and second of this on  this page, and I quote:  "Kobrinsky interprets the Wet'suwet'en use of  Gitksan titles and the relative lack of use of the  Gitksan adaawk associated with these titles as  evidence that the Wet'suwet'en adopted the Gitksan  elements of titles associated with ownership of  specific territories, recently in response to the  fur trade, when ownership of territories would  give one rights to harvest valuable fur bearing  mammals.  However there is strong evidence that the  system of titles associated -- "  :  Mr. Rush, I am sorry, was this not all read?  I have  got it all underlined.  It was, my lord.  :  Or did I just read ahead and mark it?  You may have read ahead and marked it.  I don't  recall my friend reading it and --  :  Well, you are welcome to read it if you wish.  Well, I don't want to be redundant, my lord, but I  simply want to draw the first two paragraphs to the  witness' attention and ask her if that was her opinion  at the time in June of 1986.  :  Well —  And I won't complete the reading.  :  All right.  That's my question to you, Dr. Mills.  Yes.  I don't recall the second paragraph was read, 13311  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 but I think it is telling that the fur trade did not  2 produce a system of clans, houses, etc., in other  3 places in North America.  For example, all of the  4 Athapaskans in the sub Arctic area entered into the  5 fur trade, but the fur trade alone can't produce that  6 whole system or it certainly didn't.  7 Q   Thank you.  Set that aside, my lord.  I'd like pages  8 21 and 47 to be marked of that report and I'll provide  9 you with two of those pages in a separate tab.  10 THE COURT:  All right.  11 MR. RUSH:  Thank you.  And I'd like that to be the next exhibit,  12 if that could be, whatever the number is, Madam  13 Registrar, please.  14 THE REGISTRAR:  It will now be 958.  15 MR. RUSH:  Thank you.  16 THE REGISTRAR:  Would you tell me the number of the pages?  17 MR. RUSH:  Yes.  They are 21 and 47 of the draft.  18 THE COURT:  What's the number, please?  19 THE REGISTRAR:  It will be 958, my lord.  20  21 (EXHIBIT 958:  Page 21 and 47 from Draft Report, A.  22 Mills)  23  2 4 MR. RUSH:  25 Q   You were asked a question by Miss Koenigsberg as to  26 whether or not you had assisted Lucy Bazil with  27 respect to her genealogy and I took your answer to  28 have been that you had obtained information with  29 regard to the genealogy.  And, Dr. Mills, I thought  30 there was some confusion in the question and the sense  31 in which you took the question and -- can you clarify  32 whether you assisted Lucy Bazil in respect of the  33 drafting of the genealogy of her house or did you  34 gather information which was used for the genealogy?  35 Can you say in which sense that you used that  36 language?  37 MS. KOENIGSBERG:  Well, I object to — I think that's quite  38 leading and improper re-examination.  39 THE COURT:  Well, it was certainly leading.  40 MR. RUSH:  Well, it's leading because it flows right out of the  41 question and the fact of the matter is that my friend  42 used the word "assist" and the witness used the  43 word -- she took steps to gather information and I  44 think that the two weren't meeting.  45 A   Oh, I see.  Yes.  Maybe I did.  46 MS. KOENIGSBERG:  She now sees.  47 THE COURT:  Put the question again.  I don't think the form of 13312  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 the question really is too significance.  2 MR. RUSH:  3 Q   You were asked about assisting Lucy Bazil with regard  4 to her genealogy and my question simply to you is:  5 When you were asked the question, in what sense did  6 you take the meaning of the word assist?  7 A   I see.  I took information from Lucy Bazil.  She  8 became the repository of the information, not me, and  9 recorded it.  I had also previously recorded other  10 genealogical information for the house in which she  11 falls and had been told to ask her about her children  12 and their marriages, because she was the one who would  13 know.  14 Q   You were asked about a speech which you made at the  15 memorial service for Moses David and you agreed that  16 you had made a speech there and I think you agreed  17 with Miss Koenigsberg that the comments that you made  18 might indicate that you were sympathetic with the  19 position of the plaintiffs.  And my question to you is  20 this:  Did your sympathy with the injustice you  21 perceived expressed by Moses David affect your opinion  22 in a way which would prejudice your neutralities?  23 MS. KOENIGSBERG:  I object to that question.  Surely that is a  24 question for your lordship to decide.  25 THE COURT:  Well, the ultimate resolution of that question is  26 mine.  But I am not sure the witness can't say that  27 her heart is pure such as is the case.  She may not  2 8 even agree with Mr. Rush that her sympathy went more  29 than ordinary honest emotion.  I think -- I think it's  30 of limited and perhaps doubtful value, but I don't  31 think it's something that can't be asked.  But be  32 careful you don't get the wrong answer, Mr. Rush.  I  33 don't think you will, but --.  34 MR. RUSH:  35 Q   Shall I restate the question?  36 A   Could you?  37 Q   My question is:  Your expression of sympathy with the  38 injustice that you perceived expressed by Moses David,  39 did you feel that that compromised your position in  40 the gathering of research in respect of this opinion  41 and the giving of the opinion that you have?  42 A   No.  I have done the best job I could have,  43 interpreting all the data available from all sources,  44 including my own research and I have attempted to make  45 an accurate portrayal.  I don't think anything but an  46 accurate portrayal could advance any cause at any  47 time.  I have read the literature and reviewed it and 13313  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 the logistic evidence, the archeological evidence, the  2 ethnographic evidence and conducted my own research  3 and the opinion which I have made is based on that as  4 a professional anthropologist.  5 THE COURT:  Excuse me, Mr. Rush, where did we file the funeral  6 speech?  7 MR. RUSH:  That was a good question, my lord.  I looked for it  8 myself just a moment ago, but I am sure my friend will  9 produce it to you.  10 MS. KOENIGSBERG:  I thought we put it behind the tab of tab 1,  11 Roy Morris.  12 MS. RUSSELL:  Yes.  13 THE COURT:  Yes, indeed we did.  Yes.  957-1.  14 THE REGISTRAR:  Yes.  15 THE COURT:  Or a part of it.  Thank you.  16 MR. RUSH:  17 Q   Dr. Mills, you were referred in Jenness to Jenness tab  18 24, volume 2 of the plaintiffs' documents, to a  19 passage at 576.  This is the passage in which you  20 cited or referred us to and then it was -- you were  21 examined by Miss Koenigsberg on this and the passage  22 is simply, and I quote:  23  24 "It would seem reasonable to conjecture that the  25 Indians, generally speaking, are somewhat  26 unbalanced mentally."  27  28 You were referred to that and Miss Koenigsberg then  29 referred you to your opinion report at page 91 in  30 which you make reference to the insidious system  31 invented by Durieu, D-u-r-i-e-u.  Now, my question to  32 you is the judgment which you made of Morice on page  33 91 of your report the same or different in quality or  34 in any way and how would it be if it were the same or  35 different to the quote of Jenness or the judgment made  36 by Jenness on page 576?  37 A  Well, Jenness is making some -- a value judgment about  38 the Wet'suwet'en based on his experience there.  That  39 seems to me to be coloured and -- or of a value  4 0 judgment that today would not be made.  To call the  41 Durieu system insidious I think would be generally  42 accepted by anthropologists today.  The Durieu system  43 was a system started by Father Durieu, oblate Father,  44 and there the concept was that the best way to get  45 native peoples to become Christians was to treat  46 anything that seemed to be unchristian very severely  47 by putting people in stocks and whipping them and 13314  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 beating them and doing this in public and in front of  2 people, in front of the church and sometimes leaving  3 them there for very long periods of time and  4 inflicting a lot of humiliation on them.  And this was  5 done for potlatch activities or for anything that  6 seemed to be was judged as inappropriate by these very  7 strict standards that they had.  And though some  8 qualities of that kind of treatment may have  9 characterized western tradition at some time, I am  10 aware that white people use stocks in some situations  11 too.  The way that it was carried out was unlike  12 anything that had been experienced in western society  13 and I think now the general concensus is that it was  14 really quite cruel and it added to as I have given  15 without any value judgments whatsoever Morice's  16 description of what he told the Wet'suwet'en about how  17 they could expect to be damned for any of their  18 activities and what that meant and that they could  19 expect to die also, to die -- first of all, die and  20 then be damned.  And I'm sure the threat of being  21 damned is not only used to Wet'suwet'en, but the  22 threat of being killed is not usually one or I am not  23 aware that it's one that has been commonly used.  And  24 it seems to me that insidious is perhaps not too  25 strong a word to describe the Durieu system.  It was  26 obviously not one that is condoned today.  27 Q   All right.  Dr. Mills, you were referred to a number  28 of tabs by Miss Koenigsberg with respect to the names  29 of the Wet'suwet'en hereditary chiefs and sub-chiefs.  30 And did you in the course of your research undertake a  31 listing of these names?  32 A   Yes, I did.  I did, and I think that it's really worth  33 pointing out that these interrogatory names are not a  34 good representation of what the chiefs know.  That  35 Chief Smogelgem, for example is fully aware of the  36 other chiefs in his house.  He can name them.  I think  37 that in that particular instance he was just thinking  38 of the ones that were territory holding.  Those are  39 the most important ones and the other ones come under  40 their jurisdiction.  In the case of Sarah Layton, she  41 obviously just wasn't recalling all these people who  42 where she is very closely related to and knows very  43 well Catherine Michell.  She would not have wanted to  44 exclude by any stretch of the imagination and I have  45 gathered the names that these people know that they  46 have given to their children, the list is more  47 complete than what they gave in the interrogatories. 13315  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 Q   All right.  2 A   It doesn't represent the totality of their knowledge.  3 Q   All right.  I'd like the witness to be shown Volume 1,  4 tab 6.  5 THE REGISTRAR:  That's Exhibit 919.  6 MR. RUSH:  7 Q   This is Exhibit 919.  I'd ask the witness to look at  8 the sixth page in.  9 A   Tab 6, you said?  10 Q   Tab 6, yes.  The sixth page in.  11 A   This one is this.  12 Q   Yes.  And the handwritten at the top of this page, if  13 we have the right page, my lord, is what appears to be  14 "Laxts' aamishyu."  Is that correct?  15 A   Yes.  That's supposed to be a phonetic spelling.  16 Q   Is this -- are those handwritten words yours?  17 A   Yes, they are.  18 MS. KOENIGSBERG:  Excuse me, my lord, I am going to object.  My  19 friend put this material in in his direct-examination  20 and he asked her about her collection of her names and  21 my cross-examination was not about the names that she  22 collected.  23 THE COURT:  Not about the names —  24 MS. KOENIGSBERG:  That she collected.  We had already had  25 evidence about the names that she collected.  26 MR. RUSH:  I think the point here, my lord, is from whom did she  27 gather these names.  28 MS. KOENIGSBERG:  Well, in cross-examination she gave her  29 evidence about why she expected that the other -- the  30 sources which were put to her were not representative  31 of her relationship with the same people and her  32 asking questions.  33 A   One thing that does seem to be relevant, though, is  34 that —  35 THE COURT:  Excuse me, I am going to have to deal with this  36 matter first.  37 A   I am sorry.  38 THE COURT:  If you don't mind.  Well, Mr. Rush, I am disposed to  39 draw a line that isn't too fine at this stage.  But  40 what is the answer to your friend's objection?  You  41 put this material in and you examined on it and then  42 your friend asked a few questions about it.  But you  43 have visited this subject.  44 MR. RUSH:  Well, in the sense that it's been identified by the  45 witness as information gathered from sources within  46 the Wet'suwet'en community and hereditary chiefs.  But  47 I thought the point of the cross-examination on this 13316  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  THE COURT  MS.  THE  MS.  MR.  THE  MR.  THE  subject was the particular informants and the  particular names which those informants gave.  And I  am drawing the witness' attention to this list only to  elicit from her which of the informants that she  interviewed were ones that provided the underlying  information which she recorded here.  And —  I think there is a distinction in the nature of the  examination and the cross-examination what I am  attempting to elicit here.  The document doesn't show who the informants are?  Not on its face, no.  Although I concede to my  learned friend that the witness did indicate that she  gathered the information as a corpus in this  particular tab from hereditary chiefs and others in  the community.  Well, I think that I am going to allow you to ask  the question and the simple question that is who were  the informants, but I wouldn't allow you to embark  upon an extensive examination on this material that  you have already examined on.  KOENIGSBERG:  I would rise to point out that I did ask the  witness from whom she obtained the information about  names which was in the tables and I assume -- and who  she interviewed and she told us the chiefs.  COURT:  Yes.  KOENIGSBERG:  I think we have that evidence.  RUSH:  I'm prepared to narrow and tailor my question all the  more.  COURT:  Yes, all right.  RUSH:  In light of what Miss Koenigsberg said.  Q   Dr. Mills, when you were asked by Miss Koenigsberg  from whom you obtained the information as to the  chiefs' and sub-chiefs' names in the house of  Smogelgem, did you have the names that she was  referring to that are in this -- the next three pages  starting on this page marked "Laxts'aamishu" in mind  at the time of your answer?  A   I think she asked me how I got -- did she ask me how I  got these names?  Q   No, she didn't.  She asked a more general term as to  how you got names with reference to the names of the  house of Smogelgem.  COURT:  In your report.  A   Oh, that's right.  She was asking about a different  thing.  The way I got the names -- now is your  question how I got these names? 13317  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1 MR. RUSH:  2 Q   Yes.  That's —  3 A   Oh, I asked a number of the people in the houses and I  4 asked in the Feast if the people sitting in these  5 chairs set out for this house had names and I was told  6 the names by the individuals themselves or their  7 parents and so that the people would have been Leonard  8 George, Andy George, Jimmy George, all these people.  9 And I noted Nezperce appeared in Jenness and wasn't  10 identified in a name being currently held.  It is.  I  11 think Tsa hay'11 appeared in Jenness.  One could go  12 through and see we didn't get a very good or a very  13 accurate impression of how many of the names in  14 Jenness were being held today by cross-referencing it  15 to the documents that I was put by Miss Koenigsberg.  16 But this is I'd say the complete, more complete list.  17 And you notice Waddie also appears here.  That was  18 another one that was in Jenness.  19 Q   Yes.  Thank you.  20 A   To do a real analysis of Jenness versus the names  21 held, you would have to use this list versus Jenness  22 rather than those -- the ones that I was presented.  23 Q   All right.  Dr. Mills, I want to turn -- ask you to  24 look at tab 16 which is has been marked as the last  25 tab in my learned friend Miss Koenigsberg's black  2 6 document book.  27 A   I see.  28 Q   The tab is the extract from "They Call Me Father,  29 Memoirs of Father Nicolas Coccola" and you were  30 referred to the passage on page 27 and I am not going  31 to read it again.  It begins in the middle of the  32 page, "The Northern Carrier."  And my question to you  33 is:  Do you know of any evidence ethnographic,  34 historical or any evidence which supports the  35 hypothesis that's advanced in those two sentences?  36 A  Well, I've -- Sapir describes all the features except:  37  38 "Bini may well have come into contact with Russian  39 Orthodox priests who proselytized among the  40 northern coastal regions of Alaska."  41  42 There is evidence that Sapir reviews the Carriers had  43 some contact with Plateau Indians who had adopted a  44 prophet movement very early, actually before  45 missionaries arrived in that area.  Sapir -- Spier,  46 not Sapir, S-p-i-e-r is the authority on the prophet  4 7 movement. 13318  A. Mills (For Plaintiffs)  Re-exam by Mr. Rush  1  Q  2  A  3  4  5  6  7  8  9  10  11  Q  12  13  14  15  16  17  18  19  20  21  22  MR.  macke:  23  24  25  THE  COURT  26  27  28  29  MR.  RUSH:  30  31  32  THE  COURT  33  MR.  RUSH:  34  THE  COURT  35  A  36  MR.  RUSH:  37  THE  COURT  38  39  40  MR.  RUSH:  41  Q  42  43  44  A  45  46  Q  47  A  And the Plateau Indians meaning whom?  The Flathead Nezperce, the area, it's the area  that's -- it's very southern B.C. into the State of  Washington and the interior region.  But I have  never -- I had not previously seen a reference to  Russian Orthodox priests or I have never heard that  Bini himself travelled to the area and was influenced  by Russian Orthodox priests.  I've forgotten -- I used  to know a great deal about Father Coccola, but I would  have to review it to remember.  He was a missionary.  Dr. Mills, I'd like to refer you to the Stem List  introduced by in the evidence of Dr. James Kari.  You  gave in your evidence in answer to a question from Mr.  Mackenzie that the Wet'suwet'en word for land was  yeunta and I want to ask you -- I'd like to direct  your attention to Exhibit 873, which is the Stem List  of Dr. Kari, and I'd particularly ask you to refer to  the entry under 842 and I would ask you if you can if  you have any comment about his reference to the word  yen, y-e-n, as it relates to your evidence that yeunta  refers to land.  JZIE:  I object to that, my lord, as not being proper  re-examination.  It doesn't arise out of my  cross-examination.  :  Aren't we into the question where territory was  transposed for traplines in the minutes of the  Moricetown All-Clans Feast in April 1986 I think, or  7?  I take it that's —  Yes, that's right.  And the witness' evidence with  regard to the Wet'suwet'en word for land meaning  yeunta.  :  How did she spell yeunta, y-e --  Well, she --  :  Y-e-u-n-t-a, wasn't it?  Yes, I did.  In the transcripts it's spelled y-u-n-t-a.  :  Yes.  Well, I think it arises out of the  cross-examination, Mr. Mackenzie.  You may proceed,  Mr. Rush.  So just if you will look at that entry of Dr. Kari's,  can you comment on that with regard to your reference  to the word yeunta as meaning, in English, land?  Yes.  That's the same term that the Wet'suwet'en used  for land.  Yes.  I referred in my report to a land that means -- a word 13319  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. Mills (For Plaintiffs)  Re-exam by Mr. Rush  THE  MR.  THE  MR.  MR.  THE  MR.  Q  A  Q  COURT  RUSH:  Q  A  Q  A  Q  A  Q  COURT  A  RUSH:  Q  A  A  RUSH:  COURT  RUSH:  THE  THE  THE  MR.  THE  MR.  that means people living on the surface of the earth.  Okay.  It's from the same root.  Yes.  Has Dr. Kari given a meaning for yen?  Yes.  Is that what you  I am asking you to look --  It says land, ground, floor.  mean?  Yes.  That's right.  Under the entry, that entry what does it --  It says land, ground, floor and that's the one I  referring to.  Yes.  And the number of that entry again?  842?  That's right.  I will defer to his  you  And how is that spelled?  Y-e-n.  He spells it y-e-r  spelling.  But in terms of your spelling and his, are  referring to the same word?  Yes.  Thank you very much, Dr. Mills.  Those are my  questions, my lord.  All right.  And I have one other brief matter, my lord, is that I  indicated at the end of my direct-examination that  there was an article that I hadn't obtained as at that  time, that I had reserved a number for and I forget  the number and maybe Madam Registrar can assist here.  But it was -- it was a reference that Dr. Mills had  made on a number of occasions in her opinion to Father  Morice.  It's the 1930 reference and I have now  obtained a copy and I would like to make that -- I'd  like to hand that up and have it as an exhibit.  954 reserved.  we reserved that number, have we?  We reserved a number for it.  REGISTRAR:  COURT:  Oh,  REGISTRAR:  RUSH:  954.  REGISTRAR:  RUSH:  Right  THE COURT  But you haven't put it in a tab.  My recommendation to that count, my lord, is  to place it behind tab 9 in Volume 1 and I'll provide  you with another tab divider.  All right.  Exhibit 954.  And you are suggesting  place it where? 13320  A. Mills (For Plaintiffs)  By the court  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 REGISTRAR:  I need one.  MR. RUSH:  Pardon?  THE REGISTRAR:  I need one.  THE COURT:  Placed behind where?  MR. RUSH:  It should become I think tab 10, behind tab 9 in  Volume 1 of the plaintiffs' document.  MR. MACKENZIE:  This looks like the book that was in our office,  my lord, so recently.  MR. RUSH:  Yes, that's right.  The loan card has Mr. MacKenzie's  name on it.  THE COURT:  All right.  MR. RUSH:  Thank you, my lord.  THE COURT:  Yes, all right.  That will be tab 10 of Exhibit 1,  Exhibit 954.  All right.  Dr. Mills, I just have two very simple questions  and I am not sure whether I should trouble you with  them or not.  But are you able to tell me what you  perceive as the principal differences in the social  organization of the Gitksan and the Wet'suwet'en?  A  A lot of those differences I think flow out of the  fact that there are -- there is one large congregation  of Wet'suwet'en in the summer for the summer salmon in  the earlier times or that became divided between  Hagwilget and Moricetown.  But a lot -- some of the  differences arise from the fact that the Gitksan have  a number of different villages.  So that you have  quite a different situation where you have discrete  villages and the chiefs in those particular villages  having territories around those villages and then  their being linked altogether.  Whereas with the  Wet'suwet'en you have the peoples living in basically  one, sometimes subdivided into two villages and then  going out into their territories for the wintertime,  but the territories being controlled by the head  chiefs of the people who controlled -- had --  controlled the resources of the salmon at summer run.  THE COURT:  All right.  What about — what about cultural  differences relating to social organization, do you  see any difference between the adaawk of the Gitksan  and the kungax of the Wet'suwet'en?  Is there any  difference between the organization chart of the clans  and the houses, that sort of thing?  A  Well, they are specific, each one to each person.  THE COURT:  Yes.  A   The adaawk of the Gitksan have a somewhat different  nature from the kungax, the oral tradition of the  Wet'suwet'en.  There is some similar features as well. 13321  A. Mills (For Plaintiffs)  By the court  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  But as I express in my report, the oral tradition of  the Wet'suwet'en doesn't have to pertain to so many  different, well, villages, for example, because there  is basically only one or two Dizkle in Moricetown, so  it's the -- instead of the reciting of a whole story  about the founding of a specific house and a specific  place that becomes the significant part in taking a  title, it's just the title itself, validated by  sometimes the story of how it's been transferred or  held and a song that is used as the validating process  for the title or for the crest.  THE COURT:  You haven't mentioned gambling whereas Dr. Daly put  some considerable emphasis on it.  Is it a common  social phenomenon with the Wet'suwet'en?  A   Today it's not.  Certainly --  THE COURT:  It's not?  A   Pardon?  THE COURT:  It's not?  A   No, no.  Gambling games, stick games were frequent  throughout North American Indians.  They were  generally used when people would be congregating  together and it's a feature that's found in the sub  Arctic as well and -- but I don't even recall Father  LeJacq complaining about gambling.  He was concerned  about dancing, feasting and debts that people were  incurring to the traders.  Are you surprised to find so many like Ogden writing  that the masses came out of the huts naked? Had their  level of civilization not progressed beyond that at or  just after the time of contact?  I don't know how to take that phrase altogether.  Indians typically didn't go without any clothes  whatsoever.  It's very difficult to interpret a phrase  like that.  They typically did wear some clothing.  Especially in winter, but also in summer.  THE COURT:  I've heard -- I have an impression that I am hearing  perhaps the best side of these people, which is  understandable, but you haven't said anything about  wars .  A  Well, I referred to this in the kun --  THE COURT:  They are mentioned from time to time?  A   Right.  In the kungax.  They are described.  And I  describe in my report that they have the -- in fact  the origins begin usually with people at these village  sites where salmon comes and the village being divided  by two, and often there will be a conflict and one  side will wipe out the other or there will be one lone  THE COURT  A 13322  A. Mills (For Plaintiffs)  By the court  1 survivor.  2 THE COURT:  Would you call them war-like?  3 A   Those incidents?  4 THE COURT:  Well, the people generally?  5 A  War-like.  Well, they certainly depict raids or these  6 kinds of battles and from those circumstances  7 re-establishing a village sometimes, you know, people  8 coming -- coming up to do battle or -- and then  9 instituting the features of feasting to settle -- as a  10 way of settling this situation when, as it said in the  11 kungax, the chief says, "I have been killing too many  12 people.  We have to stop there.  We have to make some  13 kind of resolution."  And that's when the people are  14 invited to a Feast and then settle down and  15 re-establish the village.  16 THE COURT:  There is a suggestion of slaves.  Did the  17 Wet'suwet'en take slaves?  18 A  Where did the suggestion of slaves come from?  19 THE COURT:  Oh, I am not sure.  I saw it in some of the  20 material.  21 A   Yes, there is.  But Sats'aan is in one instance  22 described as being -- having been a slave.  And, yes,  23 sometimes in this -- in the context of raids between  24 different peoples, a slave, a person from the other  25 side might be taken back as the kind of hostage called  26 a slave.  In fact, I think if you look at the stem  27 list on the Rigsby/Kari stem list, it gives a very  28 interesting etymology for slave which I wouldn't want  29 to quote without looking at it.  30 THE COURT:  Well, is slavery a common feature of their social  31 organization or was it more in the nature of an  32 occasional hostage?  33 A  An occasional hostage.  It wasn't a common feature at  34 all.  35 THE COURT:  There is even a suggestion in one of the pieces of  36 literature about cannibalism.  Was that a feature of  37 the Wet'suwet'en in any way?  38 A   There has never been any suggestion that there was  39 ever any concept of cannibalism among the  4 0 Wet'suwet'en.  41 THE COURT:  I saw the word somewhere in —  42 A  Well, there is the slight implication.  I think -- I  43 guess it comes in with the talking about these healing  44 societies that travelled up the coast.  The concept is  45 that there was a movement of healing societies that  46 moved from Coast Salish up through to the Haida and  47 through to the Tsimshian that had some concept of 13323  A. Mills (For Plaintiffs)  By the court  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  cannibalism, and cannibalism does feature in a lot of  the winter ceremony of the Kwakiutl people, but it  seems to be this metaphorical cannibalism.  It's this  idea that a person is overcome by some kind of a  supernatural or spiritual force and has to be tamed.  He comes -- typically he would enter into the  longhouse through the roof, come down in this very  dramatic presentation during their winter ceremonials  and go around and might fain to bite people; be  considered a cannibal monster.  In other words, a  person who had terrible powers until he had to be  tamed.  And this was a major feature of the winter  ceremonials as described by Boas.  THE COURT:  All right.  Thank you.  Can you suggest any other  principal distinction between Gitksan and Wet'suwet'en  apart from the ones we've heard such as language?  I  have noted that.  But anything else of any  significance that stands out in your mind as a  distinction between the two groups that are before me?  A   That's a good one.  Well, the distinction of  dispersing in the wintertime for the Wet'suwet'en  meant that instead of having the big ceremonials in  the houses in the wintertime as the Gitksan did, their  experience was more -- was in the wintertime being out  in the territories on these fish lakes more largely.  THE COURT:  Yes.  A  And it changed to a certain extent the nature of the  ceremonial system, because it was not -- wintertime  was not the time of congregation as it was for the  Gitksan.  It was a time of dispersal and the time when  they congregated was the summertime and that was the  time when they held the Feasts and particularly in the  past.  THE COURT:  All right.  Thank you.  Is it accepted  anthropological wisdom that this whole claimed area  was covered with ice during the last ice age?  A   I think that -- I think -- I would imagine that there  is some expert that's more knowledgeable in this area.  THE COURT:  Have you assumed that to be the case?  A But yes, the concept is that the Skeena watershed area  would have been largely glaciated at the height of the  ice age, yes.  THE COURT:  Do you have a theory as to where these people came  from after the retreat of the ice?  A   Or where they were when the ice was at its greatest?  THE COURT:  Yes.  Do you subscribe to the refugiam theory or  something different from that? 13324  A. Mills (For Plaintiffs)  By the court  1  A  2  THE  COURT  3  4  A  5  6  7  8  9  THE  COURT  10  11  12  13  14  15  16  A  17  18  19  20  21  22  23  24  25  26  27  28  THE  COURT  29  30  31  A  32  33  34  THE  COURT  35  A  36  37  THE  COURT  38  A  39  THE  COURT  40  A  41  THE  COURT  42  A  43  44  THE  COURT  45  46  47  MR.  RUSH:  Pardon?  :  Do you subscribe to the refugiam theory or something  different from that?  I wish I really could say with any more exactitude  than what's probably been put before -- to you before,  but people must have just gone wherever they could  have.  There is thought to be an ice recorder in the  Yukon, places, other places.  :  But you have been working in anthropology for 20  years or so or more.  I am just saying do you have a  theory that you regard as more probable than others as  to what happened as to where these people were or  their ancestors were or the early inhabitants of the  territory during the period when it was covered with  ice?  The one thing that I might add that seems to be  emerging from the picture is that some of the these  linguistic groups that you have represent times when  these people may have been together and in even  earlier times and so that the linguistic affinity  between the Tlinget and Athabaskan languages, and  Sapir even suggests Haida, may represent a time before  the ice age when these people were living in -- were  basically the Proto-Proto-Proto-Athapaskans and that  they just accommodated themselves to different places  in different ways.  But I can't more exactly pinpoint  where they went, no.  I wish I could.  :  What is the contemporary thinking in the  anthropological world as to how long this area was  covered with ice?  Well, it was periodically covered by ice.  At ten --  thousands of years ago was -- it was pretty -- had  receded considerably.  :  Yes, but --  But that I think the figure is 12,000 years that it  had.  :  It was covered with ice for 12,000?  Well, that was the whole peak of the coming and going.  :  Yes.  But I may need to be stand corrected on that.  :  All right.  There have been a series of ice ages that have come  and gone.  :  Yes.  All right.  Thank you.  Do counsel wish to ask  anything arising out of this interesting discourse I  have had with Dr. Mills?  Nothing from me. 13325  A. Mills (For Plaintiffs)  By the court  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  MS. KOENIGSBERG:  No, thank you.  THE COURT:  All right.  Thank you, Dr. Mills.  You are excused  from further attendance if you wish.  You are welcome  to stay if you want.  (WITNESS ASIDE)  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  So we will adjourn until a week Monday  And the next witness is estimated to be  All right,  at 10:00 a.m  for one week.  Or, yes, I think the best part of the week.  And I take it if it's less than that you won't be  wanting to start the next one until the following  week.  The following week, that's correct.  All right.  Well, I wish you all a pleasant  interlude.  (PROCEEDINGS ADJOURNED UNTIL MONDAY, MARCH 20, 1989 AT  10:00 A.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.  Laara Yardley,  Official Reporter,  United Reporting Service Ltd.


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