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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-05-17] British Columbia. Supreme Court May 17, 1989

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 14 MR. ADAMS  15 THE COURT  16 MR. ADAMS  16351  Proceedings  1 May 17, 1989  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court. In the Supreme Court of British  5 Columbia, Vancouver, this Wednesday, May 17, 1989,  6 calling the matter of Delgamuukw versus Her Majesty  7 the Queen, my lord.  8 THE COURT: I can't say how much I've missed you all.  Is it  9 convenient to mention the question of scheduling?  10 What do counsel have in mind?  Perhaps I might be  11 permitted to mention something I don't think I've been  12 able to say before.  You're going to call a witness  13 this morning Miss Mandell or Mr. Adams?  Yes, my lord.  And how long will this witness likely take?  In chief he should be a day and a half and we're  17 anticipating the morning to qualify him, and a day and  18 a half, and to finish tomorrow afternoon.  19 THE COURT:  And cross-examination for the rest of the week and  2 0 maybe Saturday?  21 MR. WILLMS:  I anticipate that mine will take two days.  22 MR. MACAULAY: And I may take — I probably will take a half day,  23 perhaps a day.  24 THE COURT: Yes.  That would mean that we couldn't finish this  25 witness this week even if we sat Saturday.  2 6 MR. MACAULAY: That's right.  27 THE COURT:  All right.  And what have you got for next week?  28 MS. MANDELL: Barbara Lane is scheduled starting Tuesday and I  29 understand that she'll be the week.  30 THE COURT:  A four or five day week then?  Will that do it?  31 MS. MANDELL:  That's right, yes.  32 THE COURT: It's thought that will be sufficient including  33 cross-examination?  34 MS. MANDELL:  Yes.  35 THE COURT: And I have to be away on the week of the 2 9th in the  36 Yukon.  What about the following week, the 5th of  37 June?  38 MS. MANDELL:  And that's scheduled, and Susan Marsden is  39 expected to be giving her evidence for that week, my  40 lord, and I understand she will also be the week and  41 it's been agreed between counsel that that ought to  42 conclude her evidence in that time too.  43 THE COURT:  All right.  What I have to mention to counsel, I  44 don't know what you've got scheduled and, if anything,  45 for the week of June 12th, but I have to attend a  46 meeting on the Judicial Council in Ottawa on the  47 Friday of that week.  That's the 15th I think it is. 16352  Proceedings  1 THE REGISTRAR: The 16th is Friday, my lord.  2 THE COURT:  The 16th, I'm sorry, so I have to leave on the 15th.  3 MR. WILLMS: My lord, I should say that if — if there is an  4 expert that my friends are planning to call that week,  5 we're well within the 60 days.  We still don't know  6 who it might be, and I would certainly appreciate it  7 if my friends could indicate --  8 THE COURT:  Are you able to make any statements in that regard?  9 MS. MANDELL: Yes, my lord, I'm aware that the plaintiffs have  10 not scheduled their case after Miss Marsden, and Mr.  11 Rush is wishing to address the court with respect to  12 scheduling sometime at the court's convenience this  13 week with respect to the balance of the trial.  14 THE COURT:  Yes.  All right.  Well, I would be grateful if that  15 could be done as soon as possible because I think  16 everyone will rest easier if they know what is likely  17 to be scheduled or what fate awaits them.  There  18 are -- after the week of June 5th, there's the three  19 day week of the 12th and then there's one, two, three,  20 four, five, six, seven weeks before the end of July  21 that I would like to have counsel's views about as  22 soon as possible.  So when will it be convenient for  23 Mr. Rush?  24 MS. MANDELL:  I believe he'll be in the office in about another  25 hour.  He's been out of town and we can check with him  26 and advise your lordship hopefully after the break.  27 THE COURT:  Yes.  All right.  Or any day this week either at ten  28 o'clock or even at two o'clock or at four o'clock.  29 All right.  Oh, now, the other thing, do counsel  30 suggest that we sit long hours this week and, if so,  31 what do they suggest?  32 MR. ADAMS:  My lord, our picture of it is that the sooner we get  33 this witness completed the better off we'll all be.  34 If there is some prospect of completing this week by  35 sitting long hours, we're quite prepared to do that.  36 THE COURT:  Yes.  Should we plan on sitting until five o'clock  37 then today and tomorrow?  I find it not usually  38 productive to sit late hours on a Friday.  39 MR. WILLMS:  Well, my lord, I — with the estimates that have  40 been given of a day and a half and two days and half a  41 day, that takes four days and doesn't leave any leeway  42 for counsel being inaccurate in their statements or  43 for anything that may arise, and it may be prudent to  44 sit longer.  45 THE COURT:  All right.  Well, let's say that we will take a  46 short break, a very brief break, at four o'clock to  47 give the reporter a break, and then we'll go until at 16353  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1 least five today and tomorrow at least.  All right.  2 Thank you.  Whenever you're ready, Mr. Adams.  3 MR. ADAMS:  My lord, the plaintiffs' next witness is Dr. Robert  4 Galois, G-a-1-o-i-s.  5 THE COURT:  G-a-1-o-i-s.  6 MR. ADAMS:  And he is a historical geographer, as was Dr. Ray,  7 and in some sense is going to pick up the story with  8 where Dr. Ray left off.  You will recall that Dr. Ray  9 gave evidence out of the -- primarily out of Hudson's  10 Bay records dealing with what could be divined in  11 those records about the nature of the Indian economy  12 and society and the impact of the fur trade from a  13 base line of the early 1820's, and what Dr. Galois  14 will do is to give evidence on the economy and society  15 of the Gitksan and Wet'suwet'en in the second half of  16 the nineteenth century as it appears in the  17 documentary record and in the context of interaction  18 with the white economy and society.  19 THE COURT:  I'm sorry, as it appears in what record?  20 MR. ADAMS:  In the documentary record.  21 THE COURT:  Yes.  All right.  22 MR. ADAMS:  And he has produced an opinion report which will be  23 tendered by the plaintiffs, and it essentially surveys  24 the Indian and white economies in the second half of  25 the nineteenth century and its focus is on Gitksan and  26 Wet'suwet'en protest and resistance activities and  27 Indian encounters with non-Indian society, and with  28 that focus he covers a somewhat longer period.  He  29 begins at 1850 and goes until 1927.  30 THE COURT: Oh, you said the second half of the nineteenth  31 century?  32 MR. ADAMS:  Yes.  That is the economic survey portion of his  33 report.  From that background, and in that context, he  34 goes on to talk about protest activities in that  35 period and up to 1927.  36 The plaintiffs call Robert Galois.  37  38 ROBERT GALOIS, a witness called on  39 behalf of the Plaintiffs, having been  40 duly sworn, testified as follows:  41  42 THE REGISTRAR: Would you state your name for the record, please,  43 and spell your last name?  44 THE WITNESS:   Robert Galois, G-a-1-o-i-s.  45 THE REGISTRAR: Thank you.  You may be seated.  46 MR. ADAMS:  My lord, I'm handing up a copy of the witness' C.V..  47 THE COURT:  That will be Exhibit 1030. 16354  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1    THE REGISTRAR: 1030, my lord.  2  3 (EXHIBIT 1030:  Curriculum Vitae of Robert Galois)  4  5    THE COURT: All right.  6  7 EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. ADAMS:  8 Q Dr. Galois, could you look at that document that's  9 been put in front of you and identify that as your  10 C.V.?  11 A Yes, it is.  12 Q And it indicates on the first page under "Academic  13 Qualifications" that you hold a B.A. degree in Honours  14 Geography completed in 1965?  15 A Yes.  16 Q Okay.  And that you hold an M.A. from the University  17 of Calgary completed in 1970?  18 A Yes.  19 Q And that was in geography?  20 A Yes, historical geography.  21 Q Historical geography.  Sorry, did you have something  22 to add?  23 A The thesis was in historical geography.  24 Q And that you hold a Ph.D. from Simon Fraser University  25 that was completed in 1980?  26 A Yes.  27 Q Was that also in historical geography?  28 A Yes.  29 Q All right.  I want to back up a little bit and ask you  30 whether as part of your Honours B.A. you took courses  31 in geography?  32 A Yes.  33 Q And economics?  34 A Yes.  35 Q And economic history?  36 A Yes.  37 Q And politics?  38 A Yes.  39 Q Okay.  And in the course of your course work for your  40 M.A. whether you took courses involving a  41 consideration of man's role in changing the face of  42 the earth?  43 A Yes.  44 Q And in urban geography?  45 A Yes.  46 Q And in statistics?  47 A Yes. 16355  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1 Q   All right.  And your Masters thesis, as is indicated  2 at the very bottom of page 1 of Exhibit 1030, was on  3 the history of gold mining in the caribou?  4 A   Yes.  5 Q   All right.  Covering the period 1860 to 1970?  6 A   Yes.  7 Q   Okay.  And could you just explain please the nature of  8 the research that you undertook in order to write that  9 Masters thesis?  10 A  Are you talking about the types of sources that I  11 examined?  12 Q   Yes.  How did you go about researching the history of  13 gold mining in the caribou?  14 A  Well, fairly standard academic procedures, looking at  15 available literature pertaining to the topic and the  16 area, and then I spent time both in archival research  17 primarily in the Provincial Archives of British  18 Columbia and in Victoria, and I spent sometime in the  19 field in Barkerville, the Barkerville area where they  20 also had a collection of documentary materials which I  21 examined.  22 Q   And your -- in the course of completing your Ph.D. I  23 understand that you audited courses in the history of  24 geographic thought?  25 A   Yes.  I'm -- that's not the exact title, but it was --  26 that was the sort of area.  I can't remember.  27 Q   And in social theory?  28 A  Again, that's certainly not the exact title, but that  29 was the sort of content of the course.  30 Q   Now, I understand that when you began your Ph.D. work  31 originally the project was something different than  32 what it became.  I wonder if you could explain what  33 you started out to do?  34 A   For the thesis?  35 Q   Yes.  36 A   Oh, yeah, I originally intended to do some work on the  37 Maritime fur trader and the Coast Tsimshian and I got  38 a certain amount of way into that when -- well, I  39 guess two things happened:  One, I found out that  40 somebody else, I thought anyway, was doing something  41 very close, there seemed to be considerable overlap,  42 and to some extent my interests shifted into another  43 area.  So I abandoned that and pursued the topic that  44 I eventually completed my thesis on.  However, I did  45 do at least one summer's -- one summer of archival  46 work in the Hudson's Bay Company records, which to  47 tell you how long ago it was were then located in 16356  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1 London.  They've since been transferred to Winnipeg,  2 your honour, and are now available on microfilm.  3 They're much more available now.  So at that point in  4 time it was relatively unusual and difficult to look  5 at the Hudson's Bay records.  Primarily what I went  6 through was the Fort Simpson journals which are a  7 considerable collection stretching over some 40 years.  8 I also did a certain amount of work on the topic in  9 the Provincial Archives in Victoria where they have  10 more material pertaining to Fort Simpson as well.  11 Q   And your Ph.D. thesis was an analysis of the early  12 history of Vancouver?  13 A   Yes.  The sort of making of the social and spatial and  14 cultural landscape, the processes that were involved  15 in that.  I was much concerned with social class and  16 the way that that was expressed upon the landscape and  17 the processes involved in the interaction of class  18 groups, to a certain extent the conflicts that were  19 involved in shaping that landscape.  20 Q   And one of the people sitting on your thesis committee  21 for your Ph.D. was Cole Harris?  22 A   Yes.  23 Q   That's C-o-l-e.  Could you just explain for the court  24 who Cole Harris is?  25 A   He is a professor of geography at the University of  26 British Columbia. He was the editor of the first  27 volume of the "Historical Atlas of Canada", which was  28 published in 1986, to considerable acclaim I think I  2 9 can say.  And I have worked with him on a number of  30 occasions and I'm currently involved in a five-year  31 project with him.  I'm the co-investigator in a  32 project to write a historical geography of British  33 Columbia for the period from the initial contact  34 through to the construction of the Canadian Pacific  35 Railway in the mid-1880's.  36 Q   I'm going to come to that shortly and ask you a few  37 more questions about that.  Could you first explain  38 what the nature of the research was for your Ph.D.  39 thesis?  40 A  Are you talking about the sources again or --  41 Q   Yes.  42 A  Well, it was fairly standard procedures of examining  43 library sources, secondary sources, but a considerable  44 number of primary sources.  I spent more time than I  45 care to remember looking at Vancouver newspapers from  46 1886 through to 1901, plus I spent considerable time  47 in the city archives going through both private 16357  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1 manuscript collections and city records.  2 Q   Now, on the second and third pages of your C.V. there  3 are a number of references under "Publications" --  4 A   Uh-huh.  5 Q   — to the "Historical Atlas of Canada"?  6 A   Uh-huh.  7 Q   I wonder if you could explain very briefly what that  8 project is?  9 A  What the historical --  10 Q   What -- the historical atlas itself and what state  11 it's in today?  12 A  Well, only one has been published.  I contributed to  13 two plates in there.  One concerned -- I forget what  14 the title was now.  The Cordillera of 1785 to 1821 I  15 contributed a graph which dealt with the Maritime fur  16 trade, and I also contributed a map which dealt with  17 the land base fur trade, which included dates and  18 locations of operations of forts and the principal  19 routes that were used in that part of the fur trade.  20 And later I was asked to check some material that  21 had been done by another historical geographer, Conrad  22 Heidenreich -- I think that's H-e-i-d-e-n-r-e-i-c-h,  23 but I wouldn't swear to that -- who had prepared a map  24 on the -- on Native Canada, 1820.  He, however, was  25 unfamiliar with the material for the Cordillera and I  26 was asked by Professor Harris, who's the editor, to  27 check the work that had been done by Professor  28 Heidenreich for that area.  29 Q   What area is referred to by the Cordillera?  30 A   Basically the area from the Rocky Mountains to the  31 Pacific Coast, essentially the area of British  32 Columbia.  33 Q   Okay.  You refer as the first reference on page 3 to  34 page 16 from volume 2, and perhaps before I ask you  35 something about that you could explain what the state  3 6 of volume 2 is at the moment?  37 A  Well, I should -- volume 3 will appear before volume  38 2.1 think volume 3, which covers the period from  39 1890 through to 1960 I think, is due to appear in 18  40 months to two years, and this has been -- it's a very  41 slow process producing an atlas.  Volume 2 has been  42 put on a back-burner and I'm -- the date of production  43 of that is unknown, part of the problem being that the  44 principal editor of that, Professor Gentacore(ph), had  45 severe heart problems and had a quadruple bypass  46 operation which put him out of action for some time.  47 MR. ADAMS:   All right.  I want to show you a map, and this map 1635?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Galois (for Plaintiffs)  In chief by Mr. Adams  Submissions by counsel  has been provided to my friends, my lord.  MR. WILLMS:  Yes, my lord, this map was provided well within the  60 days that facts upon which an opinion is produced  are supposed to be delivered to us and, in fact, it  was just produced last week, and to the extent that it  is supposed to be one of the facts upon which this  witness' opinion is based, I object to its being  marked, and to the extent it represents something  else, like a further opinion of the witness, I object  to it being marked.  MR. ADAMS:  My lord, it doesn't represent either.  It was  provided with a letter that said that it would be  referred to in the course of qualifying Dr. Galois and  that's the only purpose for which it's tendered.  MR. WILLMS:  Well, this is -- my lord, this is bootstrap  qualification.  Here's a document that he prepared  that makes him an expert because he prepared it.  He's  prepared it recently as a result of the work that he's  done in this case.  It wasn't disclosed to us prior to  I think it was last week and I, frankly, in my  submission, it's irrelevant what my friend wants to  use it for.  It's too late and I object.  I'm not sure I have completely captured the issue  which separates you.  You said that what was delivered  in time, the report?  Oh, the report was delivered 60 days ago.  Yes.  This document --  This document only came last week?  Last week.  I believe it was last week, or it may  have been Monday. I can't remember.  We've gotten  quite a few documents.  But it's well within the 60  days and it's well within any reasonable period of  time, and I object.  You say there's some distinction between the  document that's produced and the purpose of  qualification of documents produced for the purpose of  evidence at trial.  My lord, all I'm seeking to do is illustrate one of  the many plates that are listed there in which Dr.  Galois has been involved, and it's convenient to  represent it graphically rather than in two lines in a  C.V..  My friend misstates it when he says this was  produced as a result of work done for this case.  It  was not is my understanding, and I don't seek to rely  on it in any way for this witness' opinion.  I'm  simply trying to provide something accessible to  THE COURT  MR. WILLMS  THE COURT:  MR. WILLMS  THE COURT:  MR. WILLMS  THE COURT  MR. ADAMS 16359  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1 illustrate one part of the C.V. in the process of  2 qualification.  3 THE COURT: I'm not sure I can do justice to the objection.  I  4 wouldn't wish to prejudge --  5 MR. WILLMS:  So I take it my friend just wants to mark it for  6 identification, is that what he's seeking to do?  7 MR. ADAMS:  I didn't come seeking to mark it at all.  I'm happy  8 to have it marked for identification so that it will  9 be known what is -- what was being referred to.  10 THE COURT:  Let's mark it for identification.  1031 A.  11 THE REGISTRAR: 1031 for identification.  12  13 (EXHIBIT 1031 FOR ID: Colour map "Plate"West Coast  14 Fur Trade")  15  16 MR. ADAMS:  17 Q   Dr. Galois, is that the -- a draft of the plate that's  18 referred to under the title "The West Coast Fur Trade  19 1821-1857" on page 3 of your C.V. which is Exhibit  20 1030?  21 A   Yes, it is.  22 Q   Could you just explain what part you had in  23 contributing to this draft plate?  24 A   This is a plate that I did with Professor Ray, and I  25 did the material on the "Principal furs traded by the  26 S.S. Beaver - Outfit 1837", "The movements of Hudson's  27 Bay Company vessels, 1837", "Hudson's Bay Company  28 Trading System 1805 - 1857".  29 Q   Can you just indicate where you are on the map?  30 A   Item -- in the order I've just referred to them they  31 are identified as item E, F and A.  And I also  32 produced item I, item L, item J, item K, and item H..  33 Q   And is it possible to describe briefly the nature of  34 the work that went into those items?  35 A  Well, they vary from one item to another.  For  36 example, the diagram of the annual round of Indian  37 activity at Fort Simpson was based entirely upon  38 archival records which are the Hudson's Bay journals  39 for Fort Simpson between 1852 and 1857.  Other items  40 were based on archival materials, others were based on  41 published materials, sometimes primary sources,  42 sometimes secondary sources.  I'm not sure that I can  43 remember precisely in terms of each one, but it was a  44 combination of primary and secondary sources.  45 Q   The mapping, I'm referring in particular to item A  46 entitled "Hudson Bay Company Trading System"?  47 A   Uh-huh. 16360  — by  that.  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  Did you draw that map?  Well, I sent in a map which contained that  information.  It's then redrawn by the -- at the  the atlas people, so yes, I submitted a draft of  Some -- in some cases items are redrawn and  interpreted somewhat different from the materials that  I sent, but not in that case.  Does your training include cartography?  Yes, I've done some cartographic work.  I've produced  the -- I did all of the cartography involved in my  M.A. thesis and when I was a graduate student I was a  teaching assistant for a course in cartography on at  least two, if not three occasions.  I can't remember.  And I did -- my Ph.D. thesis contained some 20 odd  maps and I prepared all of the material for those  maps.  I didn't do the drafting, but I prepared the  material.  Okay.  Thank you.  And then coming back to page 2 of  your C.V. under the heading at the top "Teaching", you  indicate there that over a number of years, beginning  as early as 1973 --  Uh-huh.  -- and ending so far as  have taught course at U.  Yes.  Including Introductory Cultural Geography, Geography  of Canada?  Yes.  Geography of British Columbia?  Yes.  The Historical Geography of British Columbia?  Yes.  And that you've set a reading course in the Indian  History of British Columbia?  Yes.  :   Okay.  I want to show you one other document, and  this, my lord, is tendered on the same basis as the  map and it was provided to my friends at or about the  same time.  Now just before I come to that document, let me  ask you, on the final page, page 5 of Exhibit 1030,  under the heading of "Awards".  :  I'm sorry, what page?  :  Page 5, my lord.  It's the final page of the C.V..  I'm not yet in the document that I handed up.  :  Oh, I see.  1  Q  2  A  3  4  5  6  7  8  Q  9  A  10  11  12  13  14  15  16  17  18  Q  19  20  21  22  A  23  Q  24  25  A  26  Q  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  MR.  ADAMS  37  38  39  40  41  42  43  THE  COURT  44  MR.  ADAMS  45  46  THE  COURT  47  MR.  ADAMS  this indicates in 1987, you  B.C. and S.F.U.? 16361  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  1 Q   The first item listed there is "SSHRC", which I take  2 it means Social Sciences and Humanities Research  3 Council?  4 A   Yes, it does.  5 Q   Research Grant, and the title there is "Estimates of  6 the Native Indian Population of British Columbia,  7 1840-1881"?  8 A   Uh-huh.  9 Q   Could you explain for the court briefly what is  10 involved in a research project?  11 A  Well, it was an outgrowth of the work that I did in  12 terms of the plate on Native Canada in 1820 for the  13 Historical Atlas of Canada.  That indicated a number  14 of problems in attempting to deal with the documentary  15 sources concerning native peoples in British Columbia,  16 particularly in a demographic sense.  One -- if one  17 wishes to deal with the history of native people in  18 B.C., then we need as clear -- there are a set of  19 basic data that we need that in fact we don't really  2 0 have at the moment.  21 Wilson Duff produced what is still the standard  22 text on this really in the mid-1860's when he went  23 through -- produced a series of maps, of dot maps,  24 dealing with the province as a whole, but he gave no  25 indication really of how he had proceeded, and it was  26 impossible to get from that map to more detailed  27 regional studies.  He had intended to do that, but for  28 reasons that I'm -- I'm not aware of he never did.  29 Anyway, I wrote up a proposal to try and unravel -- to  30 collect and unravel the contents of as many documents  31 as I could collect pertaining to the problem of the  32 historical demography of native peoples in British  33 Columbia for that period.  34 The initial date, 1840, is the approximate date of  35 a set of documents that are called the Hudson's Bay  36 censuses.  There are about at least 16 different  37 documents. We don't have the originals, all we have is  38 a transcript that was collected in 1878, and their  39 meaning is far from obvious to anybody looking at  40 them.  That, of course, is part of the problem that  41 Professor Heidenreich had.  And the end date for the  42 project, 1881, refers to the first real census of the  43 population of B.C. which was conducted in that year.  44 There was no federal census of British Columbia in  45 1871.  And I should point out that it's only fairly  46 recently that that material has become available in  47 manuscript form to researchers. 16362  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Galois (for Plaintiffs)  In chief by Mr. Adams  Submission by counsel  And I did some work on that census for another  plate in the Historical Atlas of Canada, volume 2, on  gold rush British Columbia.  I prepared a dot map  showing the Indian population, the Chinese population,  and the white population, for all of the province.  So  that was a sort of coarse attempt at mapping that  data.  That is a sort of useful bench-mark and  stopping point as the first reasonably reliable data  that we have on Indian population.  There are problems  both in interpretation and there are gaps in that,  admissions, et cetera, so it's far from a perfect  document itself, but it is a useful sort of  bench-mark.  You can work back from that in terms of  estimating earlier populations is another use for it.  Q   Could you look now at the document that's headed  "Application for Research Grant"?  Uh-huh.  And I want to ask you first whether that is an extract  from the application for the second SSHRC research  grant listed with the title "Historical Geography of  British Columbia, 1770-1881"?  Yes, it is.  Mr. Adams, I'm sorry to interrupt, but I'm not sure  why we're doing all this.  This is obviously an  interesting project.  Is it connected to the report  that the witness has prepared in some way, or is it --  It's connected, my lord, in the sense of  illustrating that this witness' area of study includes  all the areas that are covered in his report and that,  I have been given notice, is contested.  It is said  that his opinion is beyond his qualifications, and  that's the reason why we're doing this.  I don't  intend to spend a lot of time on this document.  You see, I'm not sure that applying for a research  grant proves very much.  The witness may apply for  something for which he is not qualified either.  I think I can deal with that in his evidence very  swiftly, my lord.  Of course you have the advantage on me.  I don't  know what the issue is between you and your friends,  but I'm not persuaded at the moment that it's useful  for us to investigate the circumstances of an  application he and Dr. Harris made for a research  grant, but I'm completely in the dark.  If you're  satisfied that it's necessary to do this, then I  suppose I should invite you to proceed.  I just wonder  if the issue between you can't be resolved without  A  Q  A  THE COURT  MR. ADAMS:  THE COURT:  MR. ADAMS:  THE COURT: 16363  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Galois (for Plaintiffs)  In chief by Mr. Adams  Submission by counsel  this exercise, but I invite counsel to perhaps narrow  the issue between you.  Has Mr. Adams stated it correctly, Mr. Willms?  MR. WILLMS:  Yes.  There are a number of objections that will be  advanced, and one of them is based on this witness'  qualifications.  And I think my friend should do the  best he can because the qualifications are challenged.  Well, we've got a witness with a Ph.D. in historical  geography, haven't we?  Well, my lord, I have a submission that I intend to  make after cross-examining the witness on his  qualifications as to what his opinion says and what  his opinions are on and --  Well, of course I haven't seen the report so I'm not  in a position to do anything more than speculate, but  I would have thought that having a Ph.D. in history  would be a pretty good leg up to get over the  qualification threshold in the absence of something  more specific or something very specific rather.  I don't want to intrude, Mr. Adams.  Do you think  it's necessary to go further than you've gone and find  out what your friend wants to do in cross-examination?  THE COURT  MR. WILLMS  THE COURT:  MR.  ADAMS:  Q  A  THE COURT:  THE WITNESS:  MR. ADAMS:  Q   Yes  A  Just a couple of details, my lord.  The first one  would be to ask the witness, this grant was applied  for, was it received?  Yes.  The grant was received?  Yes.  A  Q  There was -- the initial application was for five  years.  It was awarded for one year with a request to  re-submit because we -- there was a question about  part of the application concerning hiring a museum  consultant.  The reapplication was sent in last  October, I think, and Professor Harris told me three  weeks to a month ago that we had received the award.  Let me ask you to look at the sixth page of the  extract and it's headed "Part C, Summary of Project"?  Uh-huh.  And I just want to draw your attention to the first  sentence under "Objectives".  It says:  "To research and write a historical geography  of British Columbia from the beginning of  European contact (1770's) to the eve of the 16364  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Galois (for Plaintiffs)  In chief by Mr. Adams  (on qualifications)  railway (early 1880's).  The study will deal  with native and white economies,  settlements, and land uses."  Just stopping there, can you go over three more  pages to what is numbered "2" on the upper right-hand  corner, and you will see an outline there.  And it  goes on from there for the next full page, and the  text there says:  "The book will become clearer as research  progresses.  The following is a preliminary  working outline."  Is that the working outline for the project for  which the grant was received?  A   That's the working outline for the book, yes, which  would be the principal product of the research  proj ect.  Q   Are you familiar with the process for adjudicating  applications of this kind?  A  My understanding is that the applications are sent out  to three qualified reviewers who reply I guess to  SSHRC, and then those -- a decision is made on the  basis of -- in part anyway.  I'm not quite sure of the  decision-making process.  The reviews are sent  unidentified to the applicant.  Q Now, before you began to give evidence this morning  you heard I think me describe the areas of evidence  that it was proposed you should give?  A   Uh-huh.  Q   It was the economy and society of the Gitksan and  Wet'suwet'en in the second half of the nineteenth  century from the documentary record in the context of  interaction with the white economy and society.  And I  said that your opinion gave special attention to  Gitksan and Wet'suwet'en protest or resistance  activities in the period 1850 to 1927?  A   Yes.  Q   Are those interests within the field of historical  geography?  A   They are as I understand it.  Yes.  MR. ADAMS:   Those are all my questions, my lord.  THE COURT: All right.  Thank you.  I suppose this application  should be marked on the same basis as the previous  one, 1032.  THE REGISTRAR: 1032 for identification. 16365  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 (EXHIBIT 1032 FOR ID.:  Application for a research  2 grant)  3  4    THE COURT:  Yes.  Thank you.  Mr. Willms.  5  6 CROSS-EXAMINATION ON QUALIFICATIONS BY MR. WILLMS:  7 Q   Your degrees were all in historical geography?  8 A  My B.A. was in geography social studies.  Both of the  9 theses that I've done were in historical geography.  10 Yes.  11 Q   You've lectured at Simon Fraser University, McGill and  12 U.B.C. —  13 A   Yes.  14 Q   -- in historical geography?  15 A   In aspects of historical geography, yes.  I've -- I  16 just want to make sure.  I'm not sure that I've taught  17 a specific historical geography course at Simon  18 Fraser, but within the courses that I have taught  19 there I've, I think on all occasions, included a  20 significant historical component.  For example, I did  21 a course on the geography of British Columbia and I  22 approached that in a historical manner so that  23 approximately half of the course dealt with historical  24 processes and approximately half of the course dealt  25 with contemporary issues and processes.  26 Q   You've worked since 1984 for the Gitksan-Wet'suwet'en  27 Tribal Council?  28 A   Intermittently.  I've not worked full time from 1984  29 through to 1988.  30 Q   No, you've been a sessional lecturer at Simon Fraser.  31 Was that for one term or two terms in 1985?  32 A  At Simon Fraser all of the courses are for one term.  33 Q   And you taught one term?  34 A   On which occasion?  35 Q   In 1985, how many terms?  36 A   I think that would be one term, to the best of my  37 recollection.  38 Q   All right.  You taught one term in 1987?  39 A   Yes, I think I taught -- that was the last course I  40 taught there.  I think that was the geography of  41 British Columbia.  42 Q   What else have you been doing since 1984.  43 A  What else have I been doing?  I've been working for  44 the -- in part for the Historical Atlas of Canada and  45 I received the SSHRC grant, two SSHRC grants, and I've  46 worked for the Tribal Council.  47 Q   I'm showing you an extract from the Historical Atlas. 16366  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 This is plate 66 that you worked on?  2 A   Oh, yes.  Right.  3 Q   Is that correct?  4 A   Yes.  I worked solely on the second page of this copy.  5 Q   And just to be clear, in your C.V. and in your SSHRC  6 grant application --  7 A   Uh-huh.  8 Q   -- you describe this plate as the Cordillera, but this  9 is what you're talking about?  10 A   Yes.  11 MR. WILLMS:   All right.  My lord, I have a number of documents  12 that I'm -- I intend to mark, and I have a binder that  13 I'd like to put them in.  14 THE COURT:  The first page is not page 66 I take it?  15 MR. WILLMS:  It opens like this, my lord.  It's three pages.  16 It's all one plate.  17 THE COURT:  Oh, I see.  All right.  18 THE WITNESS:   Could I get some water, please?  19 MR. WILLMS:   Perhaps the binder could bear the next —  20 THE COURT: This will be 1033 will be the number for the binder.  21 THE REGISTRAR: Exhibit 1033.  22  23 (EXHIBIT 1033: A.G.B.C. Cross-exam Binder)  24  25 MR. WILLMS:  And the plate could be tab 1, my lord.  2 6 THE COURT:  All right.  27  28 (EXHIBIT 1033-1: Plate 66 - Historical Atlas of  2 9 Canada)  30  31 MR. WILLMS:  32 Q   And on that work, Dr. Galois, the four people who  33 helped make this plate were Drs. Kincaid and  34 Subtles(ph) for linguistics?  35 A   Uh-huh.  36 Q   And you and Dr. Robinson, Dr. Sheila Robinson, for the  37 fur trades?  38 A   Yes.  39 Q   And she did the Maritime fur trade and you did the  40 interior?  41 A   I did the graph pertaining to the Maritime fur trade.  42 She did the trading sites for the Maritime fur trade.  43 Q   So just in terms of your contribution, if you turn to  44 the second page here, you did the plate.  If you look  45 up to plate 66, you did that graph?  46 A   Yes.  47 Q   All right.  And then in terms of the text in the lower 16367  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 left-hand corner, you did the last paragraph of the  2 text?  3 A   Let me think.  This was a somewhat complicated  4 process, as I recall, and there was a good deal of  5 editing that went on in terms of getting something as  6 concise as in fact there.  I think that was -- the  7 last paragraph was primarily my responsibility.  Yes.  8 Q   All right.  9 A   Professor Harris may have edited it down to that  10 precise form.  11 Q   I'm showing you an extract from a letter from you  12 dated December 8th, 1986.  You recognize that this is  13 your writing and it's to Peter Grant; is that correct?  14 A   I'm just reading it.  I can't -- is that a -- I guess  15 that's 1889 the second date in there is it?  My copy  16 sort of truncates a slight part on the right-hand  17 side.  18 Q   Actually I'm only interested -- is this your  19 handwriting?  Yes?  20 A   Yes, it is my handwriting.  21 MR. WILLMS:   All right.  Perhaps 1033-2, my lord?  22  23 (EXHIBIT 1033-2: Letter dated December 8, 1986, to  24 Peter Grant)  25  26 MR. WILLMS:  27 Q   And in this, Dr. Galois, and this is just the first in  28 the last page from this document, you've referred to  29 in the third to the last paragraph draft 6 of your  30 report.  And in the last -- I'm in the first page, the  31 third to the bottom line.  You've got a reference to  32 draft 6 of your report.  33 A   Is that right? Yes.  34 Q   And you've also on the very last page in the middle of  35 the page you've got a little note that says "Galois  36 report draft 5".  And my question to you is, in that  37 reference to draft report, are those drafts of the  38 report that you are going to give evidence on in this  39 court?  Is that what those are?  40 A   No.  They were preliminary materials that I prepared  41 out of which the current report was eventually  42 emerged, shall we say.  43 Q   And in fact in 1960 -- 1986 you had a draft report  44 which you circulated to other experts?  45 A   I didn't circulate anything to other experts at all.  46 Any material that I prepared was sent to the Tribal  47 Council, probably to Richard Overstall, as near as I 16368  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  can remember.  I have no -- I had no real idea what  they did with the material.  They may have circulated  it, but I can't recall giving it to any -- anybody  else.  In your application for research grant, which is  Exhibit 1032 for identification, there is a page which  has relevant or significant publications.  It's the  sixth page in.  Yes.  Right.  All right.  And on these you'll see that there are  three -- the first two items, "The Fur Trade in  British Columbia, plate 16 forthcoming".  You've  described that?  Yes.  There's another -- something forthcoming on the gold  rushes?  Right.  You've got a plate in the Historical Atlas, and we've  marked that already?  Uh-huh.  Another plate in the Historical Atlas, and then you  have:  "This is Our Land, a History of the Gitksan and  Wet'suwet'en Peoples, 1850 to 1900, report prepared  for the Gitksan-Wet'suwet'en Tribal Council, 1987".  Do you have that document?  What I have are a number of drafts, but I gave -- I  gave all of the materials that I had to counsel.  No, but I —  Included in there are all of the draft materials that  I had.  I don't have a sort of -- I don't have -- the  material -- if I can just back up a moment.  The way  that I was doing this was I was sending material to  the Tribal Council in manuscript form.  It was then  typed up there and then it was sent back to me and  then I sort of edited it and it was sent back again.  I don't have a final finished copy of that report as  such, no.  Well, do you have it in any form?  The drafts that -- of that report are in the material  that I handed to counsel sometime ago.  So you don't -- I'm asking you do you have in your  possession, not in counsel's possession, but do you in  your possession anywhere have a report entitled "This  is Our Land, a History of the Gitksan and Wet'suwet'en  peoples, 1850-1900"?  What I have --  :  Excuse me just a second.  My -- in my submission,  1  2  3  4  5  Q  6  7  8  9  A  10  Q  11  12  13  14  A  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  24  25  26  A  27  28  Q  29  A  30  31  32  33  34  35  36  37  38  Q  39  A  40  41  Q  42  43  44  45  46  A  47  MR. ADAMS 16369  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. ADAMS:  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Submissions by counsel  this doesn't go to qualifications.  It may be  cross-examination on the report once tendered, but the  document isn't in front of you, and I am unable to see  how it relates to this witness' qualifications to give  evidence.  MR. WILLMS:  Well, my lord, I'm frankly surprised by my friend's  position since he tendered this SSHRC application and  he tendered plate 66 in support of the witness'  qualifications, and in this SSHRC application there is  a reference to documents we've never seen.  And I  don't think my friend can cherry-pick through the  documents that this witness has produced and have some  of them before the court, ostensibly for the purpose  of qualifying the witness, and then hold some back,  and that's what I'm getting at here.  Yes.  I think, in view of the course of this  examination or of the examination of the witness, it  is competent for counsel to ask to see some of the  things that have been put forward in support of his  qualifications.  Of course if he doesn't have it, he  doesn't have it.  That's what he said.  Well, my lord, what is recorded and all that's  recorded there is that such a document existed.  It  might be possible for my friend to explore whether the  document was submitted in support of the application  and that might put it on a different footing, but in  my understanding that's not what happened, and listing  the existence of the document, in my submission,  doesn't destroy the privilege which is claimed for  these documents.  Well, has privilege been claimed for this document?  Yes.  And there's correspondence between counsel  that Mr. Willms and Miss Mandell have been involved on  this issue.  WILLMS:  My lord, part of the submission I'm going to make,  but I have some more questions on this, is that I'm  having a lot of trouble figuring out where the draft  arguments that privilege is being claimed for end and  where this witness' report starts, and that is what  I'm trying to explore in part now under the  qualification area.  My friend tendered the map on the  fur trade in support of the witness' qualifications.  For some reason my friend does not want the court to  see the other documents upon which I suppose this  witness' qualifications are being advanced, the other  publications that he's claimed credit for and, in my  submission, he's quite wrong to claim privilege for a  THE COURT  MR. ADAMS  MR. 16370  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Submissions by counsel  1 document that an expert has claimed credit for, a  2 published document that he says is relevant or  3 significant, and then we're not able to see it for the  4 purpose of testing his qualifications.  5 THE COURT:  Well, I have to deal with privilege on a different  6 footing.  If the document has been disclosed and a  7 claim for privilege made with respect to it, well,  8 then it seems to me that's as far as I can -- as far  9 as anyone can take the matter, unless you challenge  10 the claim of privilege.  11 MR. WILLMS:  Well, my lord -- and what I'm trying to explore now  12 is whether this is -- this document, there's been no  13 specific claim for this document.  I have received a  14 letter from my friend saying that Dr. Galois did a lot  15 of drafts, but they were all draft arguments, except  16 for the opinion that you got.  Now, that wasn't a  17 draft argument, it was an opinion, and you got it, but  18 everything else he did was a draft argument.  And I  19 know we'll have to deal with that.  I'm just trying to  2 0 find out whether or not this document and the next one  21 "Smouldering Embers" are privileged because you'll  22 see, my lord, the next one we got.  We got the  23 "Summary of Opinion Evidence", we didn't get  24 "Smouldering Embers", we didn't get "This Is Our  25 Land".  I stand corrected.  Apparently there was  26 privilege claimed for those two, but specifically, and  27 that will be dealt with, my lord, but we've got the  2 8 next one down.  29 THE COURT:  The "Summary of Opinion Evidence".  30 MR. WILLMS:  The "Summary of Opinion Evidence" we've got, but we  31 don't have the previous two, and all I'm trying to  32 explore now --  33 THE COURT:  As long as the claim to privilege stands, it seems  34 to me the most you can ask the witness is whether he  35 did prepare these documents and what happened to them.  36 MR. WILLMS:  All right.  37 THE COURT:  Or did he prepare such documents I should say.  38 MR. WILLMS:  39 Q   Those two documents "This Is Our Land" and  40 "Smouldering Embers", you prepared both of those  41 documents?  42 A   Yes, I did.  43 Q   Why did you prepare them?  44 A   That goes back to when I was initially hired by the  45 Tribal Council.  46 Q   Yes.  What were you told to do?  47 A   I was asked to -- I can't remember the exact words, 16371  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 but it was prepare some sort of what I interpreted  2 anyway was a historical geography of the upper Skeena  3 with particular reference to the native peoples, and I  4 was -- as I recall, they were particularly interested  5 in any protest activity.  The report went through a  6 number of drafts, as the letter that you presented to  7 me indicated.  I couldn't tell you how many.  At some  8 point in the process I was asked by counsel I believe  9 to split the report into two separate reports, one  10 dealing with economic issues and one concentrating on  11 the protest activity.  At another point, I can't  12 remember who this was by anymore, I was asked to  13 extend the inquiry beyond 1900 to some suitable ending  14 point, and as a result of work I'd done it seemed to  15 me that 1927 was an appropriate point at which to end  16 my research.  17 MR. WILLMS:   Did the publication entitled "This Is Our Land, A  18 History of the Gitksan and Wet'suwet'en Peoples,  19 1850-1900" relate in any way to the history of the  20 upper Skeena region?  21 MR. ADAMS:  Well, my lord, I understood your comment to be that  22 as long as the claim for privilege stands then my  23 friend could ask if the witness prepared the document  24 and what happened to them, and my friend is examining  25 instead on the content of what still are asserted to  26 be privileged documents.  27 THE COURT:  Oh, I think that what I intended to convey to Mr.  2 8 Willms by my previous comment was that he could do no  2 9 more than determine whether there was such a document  30 and what happened to it, but I would not preclude  31 counsel form finding out if it is -- if it is said  32 that the document -- or is thought by the witness that  33 the document relates to his report, because if he says  34 "It's got nothing to do with my report.  It's on a  35 totally different basis.", then counsel might skip  36 that and go on to something else.  But if he says  37 "Well, it was a draft of a part of my report." well,  38 then counsel may want to pursue the question of  39 privilege.  So I think that the witness is just past  40 his privilege.  41 MR. WILLMS:  42 Q   Did the document "This Is Our Land, A History of the  43 Gitksan and Wet'suwet'en Peoples 1850-1900" relate in  44 any way to the history of the upper Skeena region  45 between 1850 and 1900?  46 A   Yes.  47 Q   Did that document relate in any way to native society 16372  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 or economy in that region?  2 A   Yes.  3 Q   The document "Smouldering Embers, Gitksan and  4 Wet'suwet'en Protests 1850-1927", did that relate in  5 any way to protest actions by the Gitksan or the  6 Wet'suwet'en between 1850 and 1927?  7 A   Yes.  8 Q   And the opinions that you have set out in your opinion  9 report and your "Summary of Opinion Evidence" are  10 opinions that are also set out in the documents "This  11 Is Our Land" and "Smouldering Embers"?  12 A   They would be in part, as -- I mean, those were -- it  13 was in those documents that I worked through the  14 material that I had examined and drew certain  15 conclusions as I then understood the material.  16 Q   And you've carried some of those conclusions forward  17 into your opinion report; correct?  18 A   I'm not quite sure quite honestly.  I mean, it's a  19 while since I looked at that.  I'm not quite sure what  20 the conclusions were at that point in time and how far  21 they may or may not have been carried forward.  What  22 those documents dealt with was, as I say, the  23 substantive empirical material.  24 Q   And the substantive empirical material upon which your  25 opinion is based?  26 A   Yes.  27 Q   When did you do the very first draft of the opinion  28 report that is entitled "Summary of Opinion Evidence,  29 1987" in your SSHRC grant?  When was the very first  30 time you did a draft of that?  31 A   I believe that was in February 1987.  32 Q   All right.  So that that -- that report or that  33 summary was based in part on the work that you'd done  34 in "This Is Our Land" and "Smouldering Embers"?  35 A   Yes.  36 Q   Yes.  What courses in anthropology have you taken at  37 any university level?  38 A   I haven't taken courses in anthropology, but I've  39 taught courses in cultural geography which is a  40 very -- which in a sense is a sort of discipline and  41 uses some of the key concepts that are used in  42 anthropology.  43 Q   What courses did you take at any university level in  44 economics?  45 A   I took a course -- two courses as an undergraduate in  46 economics, and I also taught -- took a course in  47 economic history. 16373  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 Q   Well, perhaps you could just describe what kind of  2 economics, is it, just a general -- a review course of  3 macro or micro-economics; is that what you took?  4 A   It was a full year course.  It was a first year review  5 course.  I also took "A" level economics, economic  6 history, at high school in Britain at "A" level.  I  7 don't know if that means anything here, but in some  8 ways it's fairly close to university level.  9 Q   Prior to 1984 did you have an habitual familiarity  10 with any native economies in Canada?  11 A   Habitual?  I'm not sure quite what you mean.  12 Q   Habitual familiarity, something that you dealt with,  13 if not on a regular basis, regular enough so that you  14 could speak with certainty about a native economy and  15 understand it and describe it, prior to 1984?  16 A  Are you talking about in my day-to-day life or are you  17 talking about in academic terms?  18 Q   Let's try academic.  19 A   Oh, okay.  Well, I had certainly done some work on the  20 Coast Tsimshian and that work found its way into the  21 material that was done in part for some of the  22 Historical Atlas material.  23 Q   Fur trade?  24 A  Well, I mean, the fur trade involves the Indians as  25 well, and the material that I did for the fur trade  26 plate, volume 2, contained material on the Coast  27 Tsimshian annual round, which was derived from primary  28 source material in the Hudson's Bay archives.  29 Q   You were -- your Ph.D. thesis started out to be the  30 Maritime fur trade and the Coast Tsimshian; is that  31 what it started out to be?  32 A   I can't recall the exact title, but that was -- it  33 involved the Maritime fur trade and it involved the  34 Coast Tsimshian.  Yes.  I collected some material on  35 the period after the end of the Maritime fur trade  36 which is generally conceded to be about 1725 -- 1825,  37 I'm sorry.  If you look at a diagram of the annual --  38 Tsimshian annual round that I did, you will see that  39 it deals with the period between 1852 and 1857.  40 Q   Now —  41 A  And that was based upon research that I did initially  42 for that tentative Ph.D. thesis.  43 Q   Okay.  Now, other than that research which involved  44 the Coast Tsimshian -- and was that ever published by  45 the way?  46 A   No, it was not.  47 Q   What other research prior to 1984 had you done into a 16374  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 native economy or a native society?  2 A   Let me see.  Well, there was the other material with  3 plate 2 that I talked about.  The materials for volume  4 2 of the Historical Atlas involved me dealing with the  5 1881 manuscript census.  What that involved was  6 identifying all of the Indian tribes in British  7 Columbia, trying to determine where they were located,  8 and that sent me into a variety of DIA materials, a  9 certain amount of ethnographic material.  10 Q   Now, I'm showing you a document entitled "Mapping the  11 British Columbia census 1881".  12 Is this the census that you've just talked about?  13 A   Yes, this is a paper that I've -- well, it was  14 originally a conference paper and then it was  15 subsequently published.  16 MR. WILLMS:   1033-3, my lord.  17  18  19 (EXHIBIT 1033-3: "Mapping the B.C. Census - 1881"  20  21 MR. WILLMS:  22 Q   Now, on page 2 you mention indigenous or native  23 population in the second to the last paragraph and you  24 discuss the fact that the native population was an  25 absolute numerical majority.  But you'll agree with me  26 that there's no discussion of native economy or  27 society there?  28 A  Well, surely population is part of society.  29 Q   Okay.  Well.  30 A  And also part of the economy.  It's difficult to have  31 an economy with no people and no society.  32 Q   Now, in carrying out -- on page 31, after you discuss  33 the Chinese population in the second to last  34 paragraph, you then at the bottom of the page and at  35 the next page discuss the native Indian.  36 Now, is this the discussion that you were talking  37 about a while ago about the investigation that you did  38 while doing this census?  39 A   Yes.  This is reviewing the problems involved in  40 mapping the Indian populations based on the 1881  41 census.  42 Q   All right.  And that was the focus of this, wasn't it?  43 A   That was the focus of what?  44 Q   Of this paper describing the 1881 census?  45 A   It was concerned with the problems of mapping the  46 census.  Yes.  47 Q   This wasn't concerned with the problems of identifying 16375  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  the native economy and society, save and except for  census?  Well —  Was it?  I mean, it was concerned with the problem of  identifying Indian groups.  To do that from a census  was extremely difficult.  What that did was to send me  into a variety of other sources including some  ethnographic sources.  I'm showing you a paper that is referred to in your  curriculum vitae entitled "Ideology and the Idea of  Nature:  The Case of Peter Kropotkin"?  Uh-huh.  And this is a paper which deals with, if I can put it  this way, historical geographical theory?  Yes.  Thought perhaps rather than theory would be a  better description.  :   Tab 4, 1033-4, my lord.  (EXHIBIT 1033-4: Document entitled "Ideology and the  Idea of Nature" R. Galois)  In the conclusion of this paper --  Which page are we on?  Page 13.  Uh-huh.  First of all, what you're doing is in this paper  you're discussing the thoughts, and I think you say it  in the second paragraph, "The paper deals  specifically" --  Sorry, which page are we on?  On the first page.  "The paper deals specifically with  the teachings and thought of the geographer and  anarchist Peter Kropotkin."  And that is what you deal  with in the paper?  I can't read that word, the first word of the second  line.  I'm not quite sure what it is.  I just thought it was teaching, but --  It may be.  I'm just not quite sure.  But, yes, I  mean, it dealt with certainly the activities and with  the writings of Peter Kropotkin.  All right.  And so if we turn to the conclusion at  page 13, you say this:  1  2  3  A  4  Q  5  A  6  7  8  9  10  Q  11  12  13  A  14  Q  15  16  A  17  18  MR. WILLMS  19  20  21  22  23  MR. WILLMS  24  Q  25  A  26  Q  27  A  28  Q  29  30  31  32  A  33  Q  34  35  36  37  A  38  39  Q  40  A  41  42  43  Q  44  45  46  47  "If we would radicalize geography then  one critical item on the agenda must be to 16376  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 radicalize the geographic past.  For it is  2 the current view of geography's past,  3 usually linear and cumulative, which helps  4 to define and legitimize both the geography  5 of the present and the preparation of the  6 geography of the future.  Thus the  7 geographic past becomes but one force in the  8 larger process of determining what are  9 'fruitful' questions or 'worthwhile' topics  10 and methods of enquiry."  11  12 And then you say this:  13  14 "The problem of re-interpreting this  15 history would appear to be divisible into  16 two sets of inter-related tasks; those of  17 re-interpretation and re-discovery."  18  19 And then you, and I won't read it, but then you  20 discuss in the next paragraphs the tasks of  21 re-interpreting and re-discovering.  22 Now, is that the historical geographic approach  23 you brought to your research in this case?  24 A  Well, I'm dealing with rather different sets of  25 problems, and this is a review of geographic thought.  26 What I'm dealing with in the other material is much  27 more an archival research.  It's dealing with where  28 the main problem is the collection of empirical data.  29 Q   Well, maybe I should carry on.  Then you say:  30  31 "Firstly there is a need to re-interpret the  32 geographic tradition in terms of its  33 ideological content."  34  35 A   Uh-huh.  36 Q   Now, is that the approach that you used in reviewing  37 the documents that formed the basis of your opinion?  38 A  Well, I'm not trying to re-interpret the geographical  39 tradition in the documents that I looked at when  40 working for the Tribal Council, no.  And they're not  41 geographic documents as such.  42 Q   Well, wouldn't you call your opinion a historical  43 geographical opinion?  Isn't that --  44 A   Yes.  Yes.  45 Q   Yes.  And isn't this talking about historical  46 geography?  47 A   Yes, it is.  I mean, in so far as there's very little 16377  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 historical geographical writing about Indians in B.C.  2 what I'm trying to do I suppose is to -- how do I put  3 it there -- re-discover.  Is it something like that?  4 Q   On page 14 you at the top of the page --  5 A   I mean, in that the documents haven't been looked at  6 and I'm in the process of re-discovering and adding to  7 the nature of historical geography as it exists at the  8 moment.  9 Q   You say on page 14 at the top:  10  11 "Hopefully the elaboration of  12 Kropotkin's views of nature will provide  13 some of the tools necessary for the twin  14 tasks of re-interpreting the past and  15 restructuring the present."  16  17 A   Yes.  18 Q   Now, just pausing there, is that an approach that you  19 took in looking at the historical documents and the  20 historical record in writing your report?  21 A   I wasn't concerned I don't think with restructuring  22 the present in the work that I did there.  23 Q   You mean to the extent that your work ends in 1915?  24 A   1927.  25 Q   1927.  Now, you conclude just before the quote from  26 Kropotkin --  27 A   Uh-huh.  28 Q   -- by saying:  29  30 "Finally it is clear that if we would  31 radicalize geography then we must radicalize  32 more than geography, and that geography in  33 turn must extend beyond its presented  34 paradigmatic confines."  35  36 And just stopping there.  Did you take a radical  37 geographical approach in your research here?  38 A  A radical geographic approach?  Well, radical in the  39 sense that that type of work had not really been done  40 that much by geographers for B.C. in the sense that  41 radical in that sense means new, I suppose so.  42 Q   And in fact the methodology of Kropotkin and the  43 methodology and the ideology you discuss in this case,  44 is not common among historical geographers is it?  45 A  What methodology are you referring to?  46 Q   Well, the methodology of radicalizing geography that's  47 described in this.  Did you want me to pick out a 16378  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 particular sentence?  2 A  Well, my point in writing this paper was that if one  3 looked at the past -- if one looked at the written  4 histories of geographical thought, Kropotkin was  5 largely absent, and it -- and that was the question  6 that I was dealing with, and it seemed to me that  7 geography would be enriched by encompassing writers  8 and people such as Kropotkin.  9 THE COURT:  Take the morning adjournment.  10 MR. WILLMS:  Thank you, my lord.  11 THE REGISTRAR: Order in court. This court will recess.  12  13 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  14  15 I hereby certify the foregoing to  16 be a true and accurate transcript  17 of the proceedings herein to the  18 best of my skill and ability.  19  20  21 Tanita S. French  22 Official Reporter  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 16379  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 h2 Submissions  2 (PROCEEDINGS RESUMED AT 11:35)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Willms, I'm troubled by Mr. Adams' observation  6 that this does sound more like cross-examination.  7 MR. WILLMS:  My lord —  8 THE COURT:  Than on qualifications.  9 MR. WILLMS:  My lord, I want to deal with that right now, and I  10 don't have any further questions of the witness, if  11 that's of assistance to your lordship.  12 THE COURT:  I see.  13 MR. WILLMS:  But — and I have an argument that I'll deal with  14 after qualifications are completed, and this will come  15 back into that.  16 THE COURT:  All right.  17 MR. WILLMS:  But I do want to make a short submission right now,  18 my lord, as to the documents that were referred to in  19 the documents that my friend advanced in support of  20 the witness' qualifications, and it is my submission  21 that they're obviously -- the drafts are obviously  22 related to the witness' opinion, and in addition to  23 the fact that -- and your lordship, I've marked  24 through the witness his letter of December 1986 where  25 he refers to five drafts.  The witness has given  26 evidence that the first draft of this opinion was in  27 1987 but that the work that he did in the drafts that  28 my friends are claiming privilege for covered the same  29 areas, had the same background, and formed the  30 foundation in part for the opinions that he's giving  31 in court today, and if that wasn't enough, my lord, I  32 have an extract from Mr. Brody's report which has been  33 marked as an exhibit in this action, this is page 29  34 of his report, and there is a reference to footnote 5  35 in the first paragraph from the top of the page, my  36 lord.  You will see the words:  37  38 "For the moment, we can point to the so-called  39 Skeena uprising of the 1880's."  40  41 Now, that whole sentence --  42 THE COURT:  I haven't found that yet.  Page 29?  43 MR. WILLMS:  Page 29, the third line down starting on the  44 right-hand side.  45 THE COURT:  Oh, yes.  46 MR. WILLMS:  47 "For the moment we can point to the so-called 16380  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  (on qualifications)  1 Skeena uprising of the 1880's, the O'Reilly  2 episode of 1891, the petitions to Laurier and  3 deposition to Ottawa alongside the Kispiox Valley  4 road blockade in 1909-10, the things that were  5 said to the McKenna-McBride Commission and the  6 quality of the Loring papers of 1900-1920."  7  8 And this is footnote 5, and if you turn -- I've got  9 page 36 from -- and by the way, my lord, this has been  10 marked as Exhibit 991 by the Plaintiffs.  And footnote  11 5 is described on the next page, "See Galois (1986)".  12 THE COURT:  Yes.  13 MR. WILLMS:  And the similar, although this wasn't marked as an  14 exhibit, my lord.  15 THE COURT:  I'm sorry, but the significance of that —  16 MR. WILLMS:  The significance is, my lord, that 1986 draft is  17 what my friends are claiming privilege for.  I mean we  18 don't have any of that.  The very first document that  19 we've got that has not been claimed as privileged is  20 the summary opinion of February 1987.  21 THE COURT:  Yes.  22 MR. WILLMS:  So we don't even have that.  23 THE COURT:  Yes, all right.  24 MR. WILLMS:  Which is referred to and relied on by Mr. Brody in  25 coming to his opinions.  And my friends claim  26 privilege for that.  2 7 THE COURT:  Yes.  28 MR. WILLMS:  And I also have an extract from the draft report of  29 Dr. Daly which was disclosed to us.  And this is page  30 370 from the draft report of Dr. Daly, and you'll see  31 at the very bottom of that paragraph in the middle of  32 the page, "Galois 1986".  33 THE COURT:  Yes.  34 MR. WILLMS:  Now, my friends have, as Miss Mandell pointed out  35 during my cross-examination, claimed privilege for all  36 of this on the basis that it's just draft argument for  37 counsel.  Now, that's going to have significance  38 later, in my submission, and I don't want to make the  39 submissions now, but it is my submission that they are  40 clearly related to the report and are not privileged.  41 Now, that's -- and they should be produced.  42 THE COURT:  All right, thank you.  Mr. Macaulay.  43  44 CROSS-EXAMINATION ON QUALIFICATIONS BY MR. MACAULAY:  45 Q   Dr. Galois, in drawing your report, this is the full  46 report, it's entitled "The History of the Upper Skeena  47 Region, 1850 to 1927", you relied in part on the 16381  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 examination of the Hudson's Bay Company archives?  2 A   This is the 1850, 1927 report?  Now, it might depend  3 which draft we're talking about there.  4 Q   I'm not asking you about the draft.  Perhaps the  5 witness' counsel could put his report before the  6 witness and it would make it easier?  7 A  Which I'm confused as to which report we're talking  8 about at this point.  9 MR. MACAULAY:  I understand that, that's why I'm suggesting  10 counsel put his report before him.  11 MR. ADAMS:  If my friend is asking about the opinions report  12 which we propose to tender, it lists as sources  a  13 large number of Hudson's Bay documents.  14 THE COURT:  Well, I'm sure that that's what Mr. Macaulay  15 expected you to say, but he's saying he wasn't sure.  16 MR. MACAULAY:  17 Q   All I want to do is draw the witness' attention to the  18 report.  I think the witness quite properly says yes?  19 A  We're talking about the final report?  Yes.  There are  20 references to Hudson's Bay materials in this, mm-hmm.  21 Q   All right.  You rely on the Hudson's Bay materials in  22 connection with some of the opinions you expressed?  23 A   I used Hudson's Bay sources, yes.  24 Q   And you rely on Mr. Downie's reports to Governor  25 Douglas?  26 A   There's one report I think to Douglas anyway.  27 Q   And you rely on Mr. Elwyn's report to the Colonial  28 secretary?  29 A   The September 4th report; is that the one you're  30 talking about?  31 Q   Yes?  32 A   Yes.  33 Q   And you rely on material written by Father Morice?  34 A   To a very limited degree I think in terms of Morice.  35 There may be some citations.  I've looked at so many  36 documents that I couldn't -- it would be difficult to  37 be certain in terms of a particular thing, but I have  38 looked at some Morice material.  Whether that is  39 referred to or not in the report -- if you have a  40 particular reference I would be prepared to accept  41 that it is referred to.  42 Q   And -- well, in order to assist you, and I don't -- my  43 lord, I don't intend to mark this, but the witness can  44 always refer to his source list at page 104.  You will  45 see a source list, the beginning of the source list.  4 6 A   Right.  47 Q   There's reference to Father Morice under footnote 1, 16382  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  A  Q  A  Q  A  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  isn't there?  Right, yes.  And you relied on a memoir written by an old man named  Morison about his early days in the --  C.F. and J.W. Morison, 1919, yes.  Yes.  And that's a transcript of memoir written by a  Mr. Morison, who had worked for the Collins Overland  Telegraph at one time?  Among other things.  It was sort of -- it was  something that it was a memoir that he wrote sometime  after the event, and I think it was transcribed and  possibly edited somewhat by his son.  Right.  And you relied on many documents in the  provincial archives, reports by various government  officials to the Lieutenant Governor and others in  Victoria?  Yes.  And you relied on the Reverend Mr. Duncan's papers?  Yes.  The microfilm at U.B.C. of the Duncan papers,  yes .  And you relied on Sir Joseph Trutch's speeches at  Metlakatla?  I used at least two documents by Trutch, possibly  more.  And you relied on Jenness?  I used Jenness for a few points, yes.  And also on Barbeau?  Barbeau and the Barbeau-Beynon files, yes.  Yes?  You're talking about -- well, there's several things  of Barbeau that I cite.  Are you referring to the  downfall of --  MR. MACAULAY:  No particular —  THE COURT:  I'm sorry, Mr. Macaulay, the reporter didn't get  something?  A   Temlaha, T-e-m-1-a-h-a.  MACAULAY:  Q   Well, look at footnote 6, for instance, you referred  to Jenness and Barbeau in 1973?  That is the downfall of Temlaha.  Right, okay.  And you rely on a diary of Mr. Humphrey?  Yes.  And on the journal of the Reverend Tomlinson, an early  missionary?  I think what that is is the Church Missionary Society  correspondence of which there are letters and material  by Tomlinson.  They're included in that collection of  A  Q  A  Q  A  Q  A  Q  A  Q  A  A  Q  A  Q  A 16383  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 materials.  2 Q   And you rely on the work by Gough, G-O-U-G-H?  3 A   I used that, yes.  4 Q   That's a book, isn't it?  5 A   It is, yes.  6 Q   Called -- do you remember the title?  7 A   "Gunboat Frontier", and there's a subtitle that I  8 can't remember, something about the "Maritime  9 Frontier", I believe.  10 Q   And you rely on reports of federal departments, such  11 as the reports -- the annual report of the Minister of  12 Mines?  13 A   That's a provincial document.  14 Q   Oh, oh, is that provincial?  All right.  And you also  15 rely on narratives?  16 A   I use some of the Barbeau-Beynon files, yes.  17 Q   When you refer to Dan Guxsan narrative, that's the  18 Beynon file, is it?  19 A   Yes.  It should be a number B slash F slash and then a  2 0 number.  21 Q   Right.  22 A  And that's the number included in the code index to  23 the Barbeau-Beynon files of northwest coast materials.  24 Q   Are those what you -- one would describe as oral  25 histories?  26 A   They are oral narratives collected by Barbeau from  27 Gitksan informants, if I remember correctly, between  28 1920 and 1924.  There are also a number of narratives  29 that he collected at that time from white informants,  30 I believe.  31 Q   Well, take a look at your footnote 5.  There are three  32 narratives listed there, Guxsan, Wiget, and Charles  33 Mark?  34 A   Those are narratives collected from Gitksan  35 informants.  36 Q   But are they what you would describe as oral  37 histories?  38 A   They are narratives of events collected by Barbeau in  39 the 1920's, they're accounts -- I mean they are not  40 that different from Morison's document of his  41 activities for the Collins Overland Telegraph.  They  42 were written down a considerable time after the event,  43 and at least partially edited I think by his son.  44 Q   Yes.  But these narratives, these Gitksan narratives,  45 are they about their own lives, or are they about  46 times past before their lifetimes?  47 A   They are about events which happened in 1870, and as I 16384  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 recall, I'm not sure about this, I didn't have  2 complete information on all of them, they were -- some  3 of them were in fact alive at the time.  I couldn't  4 swear to the fact that all of them were.  5 Q   You rely also on excerpts from the Daily Colonist?  6 A   Extensively.  7 Q   And the Victoria Times?  8 A   Yes.  9 Q   And the Nanaimo Free Press?  10 A   In one or two occasions.  11 Q   You rely on reports by a Magistrate Fitzstubbs,  12 letters and reports by a Magistrate Fitzstubbs?  13 A   Yes.  They're materials in the provincial archives in  14 British Columbia, government records there.  15 Q   And also you rely on reports to the Attorney General  16 by Constable Roycraft, Chief Constable Roycraft?  17 A   Yes.  They're in the same archival collection.  18 Q   And you rely on the report of the Royal -- the  19 Commissioners at the Metlakatlah Inquiry of 1884?  20 A   I used that published report on a few occasions, yes.  21 Q   And on a similar report made in 1887?  22 A   Yes.  23 Q   You rely on --  24 A   That's not a similar report, but it's a different  25 report.  26 Q   Different report, but it was about the Indian --  27 A   Deals with the northwest coast, northwest coast  28 Indians.  29 Q   And you rely on Mr. J.A. MacDonald, a publication of  30 1985?  31 A   That's the thesis, yes.  32 Q   It's a thesis.  Who is Mr. J.A. MacDonald?  33 A   James A. MacDonald, I think it was -- it was a thesis  34 completed at U.B.C. I think in 1985.  Last I heard he  35 was teaching at the University of Waterloo.  36 Q   And did you rely on the material from the Methodist  37 Church archives?  38 A   I used the material from the archives in the Vancouver  39 School of Theology, which includes the United Church,  40 which is the successor to the Methodist Church.  41 Q   Well, particularly -- did you particularly consult the  42 material written by the Reverend Pierce of Kispiox?  43 A  Are you referring to his book?  44 Q   No.  I'm referring to his letters to -- for  45 publication in the early part of the century?  46 A   They're available in the library at the Vancouver  47 School of Theology, not in the archives, as I recall. 16385  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 Q   Did you rely on them?  2 A   I used some letters extracted from the Missionary  3 Outlook.  I think that that's what you're referring  4 to.  5 Q   And how about Dr. Wrinch's(?) letters, did you refer  6 to them at all, Dr. Wrinch of Hazelton?  7 A   I don't think I did, as far as I can recall.  I may  8 have read some at one time.  I think there are letters  9 in the Missionary Outlook, but he didn't arrive on the  10 Upper Skeena, as I recall, until sometime after 1900.  11 Q   Well, I can tell you, it was in the year 1900.  12 A   Thank you.  13 Q   How about Loring's reports to Mr. Vowell, his  14 superior?  15 A   I used the Babine Agency material extensively, yes.  16 Most of that was written by R.E. Loring, who was the  17 Indian agent for the Babine Agency from 1889 until  18 1920.  19 Q   And you referred also to the Omineca Herald?  20 A   Yes.  21 Q   And you relied on Mr. Maitland-Douglas' journal?  22 A  Mr. Maitland-Dougall.  23 Q   Or Dougall, I'm sorry.  24 A   He was the chief constable at Hazelton.  25 Q   Yes?  26 A   For two or three years, 1909 to 1911, I think.  27 Q   And you relied on his -- some of his journal entries?  28 A   I used his journal and some of his correspondence,  2 9 which was included in various government record  30 categories.  31 Q   And you relied on material produced by the friends of  32 the Indians of British Columbia?  33 A   Yes.  34 Q   And on some of Mr. O'Meara's correspondence?  35 A   There's a considerable volume of O'Meara's  36 correspondence contained in various RG-10 files, and I  37 used that, yes.  38 Q   I'm just -- I'm just reading from your actual list of  39 acknowledged sources, witness.  And you also relied on  40 letters from the Reverend Raley?  41 A   R-A-L-E-Y, yes.  42 Q   To the Reverend Endicott and to Loring?  43 A   Yes.  Those were the Raley papers in the provincial  44 archives.  45 Q   Well, we have been given eight very large volumes of  46 documents, hundreds if not over a thousand, and you  47 consulted -- I'm suggesting to you you consulted a 16386  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  vast variety of historical material in developing your  opinion?  I consulted considerable quantity of documents, yes.  I have no idea what quantity.  I'm not sure I want to  find out either.  :  Don't worry, I'll do that for you.  Thank you.  uAY:  Did you interview yourself any of the hereditary  chiefs?  No.  I did not.  My mandate, if you will, was to  consult written documents.  Who chose the title, "This Is Our Land", the title of  the book?  That was my choice.  That was your choice?  Yeah.  And that is a reference to the position of the  plaintiffs in this action regarding the land they live  in?  I can't remember exactly how that one came about.  I  must have -- I mean this is what, I can't remember  when I first used the title, let alone quite where it  came from.  Now, I'm going --  The second title I know is a quotation from a letter  by the Reverend Field in about 1888 or 1889.  That was the Anglican Minister?  He was the Anglican missionary at Hazelton from --  well, I'm not sure, the mid 1880's for sometime  onwards.  Now, you -- when you were being examined by counsel  earlier this morning you made several references to  the Historical Atlas of Canada?  Yes.  And you gave evidence that you contributed to plates  to the text of that work?  I contributed to plates in -- well, when they all  appeared it would be in all three volumes, yes.  Now, when you handed your material in, was it material  that had been vetted by the tribal council?  I'm sorry, I don't follow.  Well —  What material are you talking about?  Material you were going to contribute to the  Historical Atlas of Canada?  Which material, all of that material?  I mean there's  1  2  3  A  4  5  6  THE COURT  7  A  8  MR. MACAU  9  Q  10  11  A  12  13  Q  14  15  A  16  Q  17  A  18  Q  19  20  21  A  22  23  24  25  Q  26  A  27  28  Q  29  A  30  31  32  Q  33  34  35  A  36  Q  37  38  A  39  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  A 16387  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 an enormous amount of stuff.  It predates -- I mean I  2 was doing stuff for the Historical Atlas from 1981.  I  3 wasn't employed by the tribal council until 1984.  4 Q   Well, how about 1987, did you --  5 A   1987?  6 Q   Did you submit the text that you were to contribute to  7 the Historical Atlas of Canada to the Tribal Council  8 for approval?  9 A  Which?  I mean which one are you talking about?  10 Q   I don't know which one, I'm asking you whether you in  11 1987 --  12 A   I'm trying to figure out which -- I mean this -- I  13 don't know, there's eight or nine plates, and I'm  14 trying to sort out which volume and then which plate  15 that you are discussing at the moment.  16 Q   Well, I can't tell you.  I'm not discussing any  17 particular plate or any particular text, all I'm  18 asking you is if before you submitted any text in 1987  19 to the editors --  20 A   1987?  Oh, I think I'm with you now.  We're discussing  21 plates 2 or 3.  22 Q   I don't know.  2 3 A   In volume 3?  2 4 Q   Mm-hmm.  25 A   On territorial evolution.  26 Q   Did you submit that material to the Tribal Council for  27 approval?  28 A  What I did was, this is quite a long story, do you  29 want me to go into the background of it all?  But what  30 that plate includes is a map of the Gitksan and  31 Wet'suwet'en tribal territories.  32 Q   Yes?  33 A  Which was prepared by the Tribal Council under their  34 auspices.  I had nothing to do with the authorship of  35 that at all.  When I was working for the Historical  36 Atlas for volume 3, part of my sort of mandate, shall  37 we say, was to suggest to the associate editor themes  38 that could be covered in terms of British Columbia.  39 What I did was to alert him to the mapping material  40 which was being prepared by the Tribal Council and ask  41 him if he thought it was appropriate for inclusion in  42 some format within the Historical Atlas.  Subsequently  43 he got back to me and said yes, and we worked out that  44 it would be placed in conjunction with some mapping  45 that I did based on the pre-emptive map I think of  46 1922 or '23 of the Bulkley sheet, I forget what the  47 number is, 3 something or other, which I prepared, 16388  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 which was essentially indicating the land's status  2 taken from that map.  Subsequently it was decided, I  3 guess by the editorial board of the Historical Atlas  4 to include those two maps in a plate which dealt with  5 the territorial evolution of Canada.  There was a text  6 to accompany the two, the Gitksan -- the map of the  7 Gitksan-Wet'suwet'en tribal territories and the map  8 that I drafted based on the pre-emptive series.  I out  9 of -- I think I sent a copy of that to the Tribal  10 Council, being as it was their material that was being  11 included, and I felt that if they didn't think it was  12 an appropriate forum or format for their materials  13 then they should be advised early on what the total  14 context was and be in a position to withdraw the  15 material if they so chose.  16 Q   How long have you been associated with the  17 Gitksan-Wet'suwet'en Tribal Council?  18 A   I was hired I believe in the spring of 1984, somewhere  19 around then.  I can't remember exactly, it's quite  2 0 sometime ago.  21 Q   Did you make a proposal to Richard Overstall in 1983?  22 A   Not that I remember.  23 Q   For a historical research project?  24 A  Maybe it was 1983, I can't remember.  My recollection  25 of what happened, I was working on this plate with  26 Professor Ray on the Historical Atlas of Canada,  27 volume 2, the fur trade plate, and he approached me  28 and asked me if I would be interested in doing some  29 research for the Gitksan-Wet'suwet'en Tribal Council.  30 Q   Professor Ray approached you?  31 A   Yes, yes.  32 Q   And didn't you and Mr. Keith Ralston and Professor Ray  33 make a joint submission for a historical research  34 project?  35 A   There was some sort of a meeting, yes.  I can't  36 remember when it was, I don't remember whether it was  37 '83 or '84, but there was a meeting, yes, and there  38 may have been a proposal out of that, I honestly can't  3 9 remember.  40 Q   Well, I haven't got photocopies of this, my lord, but  41 I'm going to refresh the witness' memory about the  42 date.  I'm showing the witness a document dated August  43 25th, 1983, and it refers in the first sentence to a  44 meeting of August 19th, '83?  45 A   Yeah.  This would have been written by Professor Ray.  46 Q   Did you never see it?  47 A   I probably have seen it, yeah.  It's my scribble on 16389  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 it.  2 Q   That's your handwriting on it?  3 A   Yes, yes.  4 Q   And so you didn't -- you and Ralston and Professor Ray  5 made a proposal to the Tribal Council in August of  6 1983?  7 A   Yes.  8 Q   And was that proposal acted on by the Tribal Council?  9 A   I was hired to do some historical research, yes.  I  10 mean if that's the conclusion, I mean I can't remember  11 whether I was hired exactly, but I presume it was at  12 some point subsequent to that meeting.  13 Q   And did you work with Ralston and Professor Ray on  14 your project?  15 A   I didn't really work with them, no.  16 Q   Did you exchange drafts, information?  17 A   There was some exchange, yes, quite -- how much I  18 can't remember, with Professor Ray anyways.  I don't  19 think Professor Ralston actually wrote anything.  I  20 wrote a fairly short report, I guess that was sometime  21 in '84, and Professor Ray wrote some sort of a report,  22 I guess it was in '84, I can't remember, and I think  23 he saw mine during that process, and I believe that I  24 saw his somewhere in that period.  I'm afraid I can't  25 be more precise than that at this point.  26 Q   Is that the report entitled "This Is Our Land", the  27 1984 report?  2 8 A   I can't remember what it was called anymore.  If you  29 have a copy there and that's what the title is, I'm  30 prepared to accept that.  31 Q   No.  I haven't got a copy of it.  32 A   Oh, well, I don't, as far as I know, have a copy.  I  33 haven't sort of -- it was a very short report.  I mean  34 it was based on a very preliminary survey.  I worked  35 for, I don't know, three months or something, it was a  36 fairly superficial piece of work.  37 Q   Now, in your report, the one you have sitting before  38 you --  39 A   The one I have here?  40 Q   You draw certain conclusions from historical  41 documents; is that right?  42 A   Yes.  43 Q   And we've just seen the historical documents you've  44 consulted, you thought it was proper to consult.  It  45 was a wide variety of documents?  46 A   Yes.  47 Q   You didn't confine yourself, for instance, to just the 16390  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 Colonial Dispatch or something like that?  2 A   I tried to find whatever was relevant.  3 Q   From whatever source you could locate?  4 A   Yes.  That's fairly standard academic procedure, I  5 believe.  6 Q   Right.  And on your reading this material, one of the  7 conclusions you came to was that the missionaries were  8 responsible for the application of a narrow version of  9 Victorian morality to Indian cultures?  10 A   That has a familiar ring to it, yes.  11 Q   And you reached the conclusion that the missionaries  12 working together with the government officials,  13 federal government officials, sought to transform the  14 Gitksan and Wet'suwet'en cultures?  15 A   That was certainly one of the objectives of the  16 missionaries, yes.  They were, after all, there to  17 proselytize, which was to change the indigenous  18 culture.  19 MR. ADAMS:  Excuse me, my lord, in my submission we're into the  20 substance of the witness' opinion again.  I submit  21 this can't have anything do with his qualifications,  22 it's an examination of how he came to the opinions he  2 3 came to.  2 4    MR. MACAULAY:  25 Q   I'll come back to the qualifications now.  When did  26 you take your undergraduate degree?  27 A   I completed it in 1965, I believe.  28 Q   And when did you complete your Master's thesis?  29 A   In 1970, I believe.  30 Q   Did you stay in university continuously between 1965  31 and 1970?  32 A   No.  My B.A. degree was in England.  33 Q   Yes.  When did you come to this country?  34 A   1967, I believe.  35 Q   And when you came here did you start in right away at  36 university?  37 A   University of Calgary, yes.  38 Q   So you were in University of Calgary for how long?  39 A   Two years and a bit -- two years, I think.  40 Q   And what university did you go to after that?  41 A   Simon Fraser.  42 Q   And you were there in 1970?  43 A   Yes.  44 Q   And then after 1970 how were you employed?  45 A  Variously as a teaching assistant, I think I got a  46 certain amount of support for -- there was a  47 President's grant, I think I received the 16391  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 equivalent -- there were a number of things in terms  2 of -- what were they called -- very sort of short  3 research projects that I did through the faculty at  4 Simon Fraser.  5 Q   And how long did you continue at Simon Fraser doing  6 short reports, being a teacher's assistant and --  7 A   I left there in 1979, I guess.  8 Q   You spent --  9 A   I worked one or two other things.  I did on -- worked  10 for a short period on a pipeline inquiry.  11 Q   Was that in the Northwest Territories?  12 A   No.  It was in north -- the area that I was concerned  13 with was northeastern British Columbia.  14 Q   For whom were you working when you did the work on the  15 pipeline inquiry?  16 A   I think it was CD. Shultz and Company.  17 Q   How long did you spend at that?  18 A   It was a relatively short period, three, four months,  19 something like that.  It may have been spread out over  20 a longer period, but that was sort of the full time  21 equivalent or something.  22 Q   And you finished your Ph.D. thesis in what year?  23 A   1979 the oral was, I believe.  24 Q   Yes?  25 A  And then it was submitted for graduation, I guess this  26 would have been May 1980.  27 Q   Now were you with one department at Simon Fraser  28 through all these years from 1969 to '79?  29 A   I was registered as a graduate student in the  30 geography department at Simon Fraser, yes.  31 Q   And after you -- 1979, when you left Simon Fraser,  32 what did you do?  33 A   I went to McGill University and I taught there for one  34 term.  35 Q   What did you teach?  36 A   Two urban geography courses, one urban historical  37 course and one introductory urban course.  38 Q   So your subject was cities, was it, towns?  39 A   I was concerned with the processes which shaped the  40 landscape primarily in urban areas, but I didn't  41 restrict myself to that.  I was concerned, for  42 example, with landscape gardening, the work of  43 Capability Brown and various other landscape gardeners  44 who shaped the landscape over a much broader area, I  45 mean in rural areas as well as completely urban  46 situations.  And that was a historical course.  47 Q   Capability Brown was a famous -- 16392  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 A   British landscape gardener, yes.  He's responsible for  2 the development of this sort of British style of  3 landscape gardening with a very sort of informal  4 appearance as contrasted to the French geometric style  5 of say Versailles.  6 Q   You mean such as at Starhead?  7 A  Where?  8 Q   Starhead?  9 A   Starhead?  I think that was -- correct me if I'm wrong  10 on this; that was a British garden in the French  11 style; is that correct?  12 Q   That was Capability Brown, and it was far from the  13 French style.  And after your stint at McGill what did  14 you do?  15 A   I returned to Vancouver.  16 Q   Yes?  17 A  And I worked as a sessional instructor at Simon  18 Fraser, and I was approached by Professor Harris to do  19 some work for the Historical Atlas of Canada, and it  20 commenced my association, shall we say, with the  21 Historical Atlas of Canada, which I believe was in  22 1981, as far as I can recall.  23 Q   And were you on a salary basis, insofar as the  24 Historical Atlas of Canada was concerned?  25 A   I was paid on a sort of salary basis, but what it  26 involved was completing a sort of set of work so that  27 the payment came -- it was sort of a three-month  28 period, and the assumption was that I would complete a  29 chunk of work on the basis of that payment, yes.  30 Q   How long did you work on the Historical Atlas of  31 Canada on that basis?  32 A   It would be very difficult for me to say.  I worked  33 sort of intermittently and I was paid intermittently  34 from I think 1981 through to 1985.  I mean it happened  35 sort of by bits and pieces.  I was hired initially to  36 do the material for the plate that was presented to me  37 earlier.  After I completed that I was approached to  38 do some material I believe for volume 2.  Part of the  39 way through that I was approached to do some more  40 extensive work for volume 3, and I was approached to  41 do some more work for volume 2 and I was approached to  42 do some more work for volume 1.  I have no idea of  43 precisely how long I was employed in the sense of  44 being paid during that period by the Historical Atlas  45 of Canada.  4 6 Q   Well, from the time of your return to Vancouver from  47 McGill — 16393  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 A   Yes.  2 Q   Until the end of 1985, was that your principal  3 occupation, that is the work --  4 A   I was also employed as a sessional instructor both at  5 Simon Fraser and at U.B.C. during that period.  I  6 believe that's the period where I was acting as a  7 replacement for Professor Harris in teaching his  8 full-year course on the historical geography of  9 British Columbia.  Now, he was away for two years, I  10 did it for one year, and then I was approached by the  11 chairman of the department and asked if I would do it  12 for a second year, and I may have taught in that -- I  13 think I did teach sometime in that period at Simon  14 Fraser University as well.  15 Q   Did you teach geography at Simon Fraser during that  16 period?  17 A  All the courses that I taught were geographical  18 courses.  19 Q   Yeah.  And did the courses cover all of British  20 Columbia?  21 A  Which courses?  22 Q   Well, you've talked about the course that you did as  23 the locum tenant for Professor Harris?  24 A   That course dealt with the historical geography of  25 British Columbia from the point of contact through to  26 1929.  27 Q   It wasn't restricted to any particular part of British  28 Columbia?  29 A   No.  It was historical geography of British Columbia.  30 Q   All right.  Now, from 1985 to the present time what  31 has been your principal occupation?  32 A   I have worked for the Gitksan-Wet'suwet'en Tribal  33 Council, I have taught at least one course at Simon  34 Fraser, I have received money from Social Sciences and  35 Humanities Research Council.  36 Q   For what?  37 A   For the work that I submitted in the proposal -- in  38 the proposals, sorry.  There are two different  39 proposals.  One was the work on the historical  40 demography of the native peoples of British Columbia  41 1840 to 1880, and the other has been the work -- the  42 project that I'm currently involved in with Professor  43 Harris concerning the historical geography of British  44 Columbia from the point of contact through to the  45 construction of the Canadian Pacific Railway.  46 Q   When did you start work on the first mentioned one  47 involving the native Indian population of British 16394  R. Galois (for Plaintiffs)  Cross-exam by Mr. Macaulay  On qualifications  1 Columbia?  2 A   I think it was late 1987.  3 Q   And did you work for one year at that?  4 A  Well, work got interrupted, shall we say.  I didn't --  5 I would like to have worked for a year straight at  6 that, but it didn't happen that way.  I was doing work  7 for the Tribal Council I believe in that period.  8 MR. MACAULAY:  Those are my questions, my lord.  9 THE COURT:  Thank you.  10 MR. MACAULAY:  On qualifications.  11 THE COURT:  Mr. Adams, re-examination?  12  13 RE-EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. ADAMS:  14 Q   I think I have one question, my lord.  Doctor Galois,  15 Mr. Willms asked you sometime ago with reference to  16 the article about Kropotkin and you talked about the  17 radical or otherwise nature of your approach, and you  18 said it was radical in the sense that that type of  19 work was not done by other geographers or had not been  20 done by other geographers in B.C.  My question is has  21 it been done by other geographers with respect to  22 other areas?  23 A   Other geographers have looked at the whole issue of  24 culture, contact and culturation, yes.  25 Q   Is that something that's unusual for historical  26 geographers to be interested in?  27 A   No.  I guess I mean perhaps one of the best known of  28 all historical geographers is Professor Sauer, who  29 founded the geography department at Berkeley,  30 University of California in Berkeley, and his book is  31 called the 16th Century Spanish Man, in which what he  32 does is strays through the exploration and the  33 meetings, exploration of early explorers in the  34 southern part of the United States and their  35 encounters with native peoples.  36 Q   S-A-U-E-R?  37 A   S-A-U-E-R, yes.  38 MR. ADAMS:  I have no other questions.  Thank you.  39 THE COURT:  All right, thank you.  Mr. Willms.  40 MR. WILLMS:  My lord, there are three grounds advanced in  41 respect of the opinions contained in the report of Dr.  42 Galois that my friend says that he is going to tender  43 in the opinions of his report.  And my friend has  44 alluded to two of them already.  And first, many of  45 the "protest" opinions, and there is a discourse on  46 protest, are related to federal criminal law, the  47 application of which is not an issue in this action. 16395  R. Galois (for Plaintiffs)  Re-exam by Mr. Adams  On qualifications  1 In other words, they are descriptions of protests of  2 the application of federal criminal law, there is no  3 claim in this action that federal criminal law does  4 not apply to the Plaintiffs.  Second, Dr. Galois  5 expresses opinions which are beyond his stated  6 qualifications concerning the economy and society of  7 the Gitksan and the Wet'suwet'en.  And third, the  8 opinion contains interwoven mixtures of opinions of  9 the general merits of the questions, questions of law,  10 argument in the guise of opinion evidence, and  11 opinions based on Dr. Galois' inferences from facts.  12 And it's my submission that the report and his  13 opinions are so inextricably bound together with the  14 admissible and inadmissible that you can't separate  15 them.  16 Now, the first issue that my friend raised is that  17 of protest, and I have set out an extract from the  18 report that my friends say they will seek to tender.  19 And so Dr. Galois says that he was asked to develop an  20 opinion on the nature of Gitksan and Wet'suwet'en  21 resistance in their encounters with non-Indian  22 society, therefore this opinion considers Gitksan and  23 Wet'suwet'en protest actions during the period 1850 to  24 1927.  Now, your lordship, and I would be grateful if  25 my friend would hand up a copy of Dr. Galois' report,  26 because this might go a little more quickly, but --  27 and then I can deal specifically, my lord, with what I  28 mean at the top of page 2.  2 9    THE COURT:  Thank you.  30 MR. WILLMS:  If you turn to page 3 of Dr. Galois' opinion  31 report, the report that my friends are seeking to  32 tender, Dr. Galois on page 3 in the middle paragraph  33 says that:  34  35 "An essential part of this opinion --"  36  37 And it is essential to his opinion, that's conceded:  38  39 "Was to develop an appropriate conceptualization  40 for the term "protest"."  41  42 Now, just skipping the next line, the report  43 continues:  44  45 "The basic feature of protest is the component of  46 opposition to the action of some other party; in  47 the present context, Gitksan and Wet'suwet'en 16396  R. Galois (for Plaintiffs)  Re-exam by Mr. Adams  On qualifications  1 opposition to white actions viewed as  2 unacceptable."  3  4 And then he sets out:  5  6 "Protests can be envisaged as taking a variety of  7 different forms which, in turn, may be arranged in  8 a continuum."  9  10 The key part of that, my lord, is viewed, because --  11 and I'll come to this in more detail in a moment --  12 but time and time again it is the why, it is the  13 rationale, it is the underlying theory of the protest  14 that is the substance of the opinion, and not the  15 what, not what is going on, which usually in terms of  16 what, my lord, all that would take is the production  17 of the document.  I searched the archives, it's a  18 document from the Indian chiefs to the lieutenant  19 governor saying "We don't like this", and I looked at  20 that, and there it is.  But that -- the opinions go  21 far beyond that.  They involve this witness saying why  22 the protest is being carried out.  So -- and as I  23 said, I'll deal with that a little bit in greater  24 detail, but that is the foundation, my lord.  That  25 paragraph and that definition of protest is the  26 foundation for this opinions -- this witness' protest  27 opinions, and it contains with it the why.  Now, just  28 going back to my argument, my lord, which I hand up,  29 on page 2 I've set out the allegations in the  30 pleadings which appear to perhaps put protest in issue  31 at all.  In the statement of claim the Plaintiffs  32 allege that they've never ceased to assert their  33 aboriginal title, ownership and jurisdiction, and  34 right to possession.  And in the amended Defence this  35 defendant denied that assertion and then pleaded  36 affirmatively, and this is from paragraph 39(b) of the  37 further amended statement of defence, that:  38  39 "The Plaintiffs and their ancestors having  40 knowledge of the said exercise of sovereign  41 jurisdiction have on many occasions too numerous  42 to particularize, acquiesced in this Defendant's  43 sovereign jurisdiction."  44  45 There is no allegation of acquiescence in the Federal  46 government's exercise of soveriegn jurisdiction.  It's  47 this Defendant's by seeking and receiving benefits, 16397  R. Galois (for Plaintiffs)  Re-exam by Mr. Adams  On qualifications  1 licences, grants and protection.  Now, that, my lord,  2 that's an affirmative allegation.  First of all, in my  3 submission, it does not involve protest.  In other  4 words, it's an allegation that the Defendants say we  5 can show that licences were sought and obtained, that  6 benefits were sought and obtained, grants were sought  7 and obtained, but it doesn't call protest into issue  8 at all.  But the further proposition, my lord, is that  9 neither Defendant in this action, in my submission,  10 nor the Plaintiffs have put protest respecting the  11 application of federal criminal law in issue.  It's  12 not in issue.  Now, and I think I've pretty much  13 summarized what I say in the bottom of page 2 there,  14 my lord.  And over to page 3.  And if I can just pick  15 up again on page 3 in the middle paragraph, and what I  16 suggest there, my lord, is that to the extent that he  17 describes protest actions respecting the application  18 of the criminal law, and renders opinions on those  19 protests, they do not relate to any matter in issue in  20 the action and are not dissimilar to Mr. Morrell's  21 theories of the future management of the fishery,  22 which were properly rejected by your lordship.  23 Carrying on, his opinion purports to discuss "protest"  24 actions as factual incidents which Galois, the  25 witness, as a historian, or I should say I suppose  26 historical geographer, can discover, and it's one  27 thing, as I said earlier, to point to a document and  28 say "Here's a document that describes an event in the  29 history of this region".  It's quite another to then  30 get into what it is that the document purports to  31 represent, the why of the document.  I mean that is  32 something that in my submission is for your lordship,  33 or at very best, as I say at the bottom of the page,  34 perhaps an anthropologist, perhaps someone who because  35 there is a different culture at work has a background  36 to describe what perhaps you or I or a jury would not  37 understand from simply reading the document, but  38 that's for an anthropologist, my lord, and as I say  39 later on, we've heard from lots of anthropologists and  40 ethnographers and linguists in this action about the  41 culture, and it's not for this witness, in my  42 submission, because he has no expertise to explain the  43 why of protest.  Now, I have on page 4 of the  44 argument, my lord, listed the pages in the second  45 paragraph where protest of criminal actions, and this  46 is not to be exhaustive.  I mean the discussion of the  47 protest actions carries on after these pages, but on 16398  R. Galois (for Plaintiffs)  Re-exam by Mr. Adams  On qualifications  1 each page a discussion commences about some other  2 protest to the arrest of Kitwancool Jim, for example,  3 or to the arrest of the murderer of Yoemans, to the  4 application of federal criminal law in this  5 jurisdiction, which is not challenged by the  6 plaintiffs in this action.  Now, my lord, I've set out  7 the legal basis --  8 THE COURT:  Perhaps before you turn to that we should take the  9 afternoon adjournment, Mr. Willms, if you don't mind.  10 MR. WILLMS:  Thank you, my lord.  11 THE COURT:  Or luncheon adjournment rather.  We'll resume at two  12 o'clock, please.  13 THE REGISTRAR:  Order in court.  14  15 (PROCEEDINGS ADJOURNED AT 12:30)  16  17 I hereby certify the foregoing to be  18 a true and accurate transcript of the  19 proceedings herein transcribed to the  20 best of my skill and ability  21  22  23  24  25  26 Graham Parker  27 Official Reporter  28 United Reporting Service Ltd.  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 16399  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Mr. Willms.  5 MR. MACAULAY: My lord, before we start again I — in  6 cross-examination I believe I asserted that Capability  7 Brown was the author of Starhead.  8 THE COURT:  Yes.  9 MR. MACAULAY:  We had a scholarly debate on that, and I wish to  10 withdraw that assertion and say that it's not known.  11 THE COURT:  All right.  12 MR. MACAULAY:  Suspected, but not known.  13 THE COURT:  We accept your apology, Mr. Macaulay.  14 MR. ADAMS:  My lord, we've had an opportunity to consult Mr.  15 Rush and want to propose that he address the matter of  16 scheduling at the end of the day tomorrow.  Apparently  17 he's in court elsewhere tomorrow.  18 THE COURT:  Yes.  All right. The end of the day tomorrow?  19 MR. ADAMS:  That's what we're suggesting.  2 0 THE COURT:  Which at the moment is around five o'clock.  Yes.  21 MR. ADAMS:  Secondly, I wonder if Dr. Galois might have leave to  22 be in the gallery while this debate goes on.  23 THE COURT:  Yes.  Sure.  Willms, you're on page 4?  24 MR. WILLMS: I was on page 4, my lord, and I just pointed out the  25 pages where criminal law is referred to, protest  26 respecting criminal law.  2 7 THE COURT:  Yes.  28 MR. WILLMS:  And then if your lordship could turn in the report  29 to page 95 and on, Dr. Galois poses and then answers  30 seven questions, and I think that they are indicative  31 of why for the two reasons that I've advanced in  32 respect of protest actions.  The first is "What forms  33 of protest action did the Gitksan and the Wet'suwet'en  34 employ?", which involves in my submission an  35 assessment of protest as defined by Dr. Galois, that  36 is, the why, describing what is going on rather than  37 just taking the document.  38 And I don't propose to read his answers here, my  39 lord, but just to highlight, page 96, the second one  40 is in the middle of the page:  "How did the forms of  41 protest change over time?"  He answers that at the top  42 of page 98.  He poses the question:  "What issues  43 generated Gitksan and Wet'suwet'en protest actions?",  44 and then based on the evidence that he's reviewed, he  45 answers that.  46 Over to the next page on page 99, he poses the  47 fourth question to himself:  "When and where did these 16400  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 issues arise?" Not when did the protests happen that  2 he's describing, but when and where did the issues  3 which generated the protests arise.  4 On page 100, item 5, "Against whom were the  5 Gitksan and Wet'suwet'en protest actions directed?"  6 Page 101, item 6, "What were the objectives of these  7 protest actions?", and then finally at page 102, the  8 last question he poses and then answers:  "What were  9 the results of these actions?"  10 And so taking those questions that he has posed  11 and then answered in his conclusion, and he comes up  12 to those throughout his report, he deals with them  13 again and again and again in various forms in his  14 report, but that takes me back, my lord, to my  15 submission at page 4 which is:  First, an expert's  16 opinion is only admissible if, and to the extent that  17 the opinion will "furnish the court with scientific  18 information which is likely to be outside the  19 experience and knowledge of a judge or jury.  If, on  20 the proven facts, a judge or jury can form their own  21 conclusions without help, then the opinion of an  22 expert is unnecessary."  23 And the Saanichton Marina case, my lord, was a  24 case where a witness named Dr. Lane was not allowed to  25 give evidence about what historical documents meant in  26 the context of that action and -- well, my lord, the  27 cite is there and it's in the book that I handed up  28 earlier, and Mr. Justice Meredith's reasons for not  29 hearing the evidence, but he said -- and I'm  30 paraphrasing -- but he didn't need the help of Dr.  31 Lane to construe those documents.  The documents he  32 could read himself.  And here Dr. Galois, instead of  33 limiting himself to saying here's a protest document,  34 says what is the issue behind the document?  When did  35 the issue arise?  Who were they focusing the protest  36 against?  What was the meaning of the protest?  It's  37 not an opinion that is a historical opinion, it's an  38 opinion on protests.  So that's the first part.  39 The second part, as I've alluded to earlier and I  40 deal with on page 5 of the argument, is that it's  41 respecting criminal law.  Most of the opinions are  42 derived from protest actions respecting the  43 application of criminal law where descriptions are  44 made as to certain events that happened when people  45 were arrested for murders and things like that, and in  46 my submission the plaintiffs have not put criminal law  47 in issue in this action.  There is no allegation that 16401  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 criminal law does not apply to the plaintiffs.  So  2 that if I can call Dr. Galois' opinion a two-part  3 opinion, that, in my submission, deals with the  4 protest aspect of it.  5 On page 6 of the argument, my lord, the second  6 part of Dr. Galois' opinion is the economy and society  7 opinion, and he does express opinions respecting the  8 economy and the society of the Gitksan and the  9 Wet'suwet'en.  Now, Dr. Daly and Dr. Mills have given  10 evidence about that.  We've heard linguistic evidence  11 about society.  We've heard anthropological,  12 archaeological, linguistic evidence about culture and  13 society and economy as well.  14 Now, Dr. Galois is, and I have "an historian"  15 there, my lord, in the second paragraph, and that  16 should be changed to a historical geographer, but in  17 my submission it makes no difference.  When he uses  18 the word economy he does not use the word economy in  19 any technical or scientific sense in the opinion.  He  20 uses it just the way anyone else would use the word,  21 you know, what's the economy like today.  Is the Bank  22 of Canada rate up or is it down.  That is not anything  23 that your lordship needs assistance on from the  24 witness.  25 And what I've done, my lord, is I have set out  26 some extracts from page 6, and what Dr. Galois has  27 done in his report is purports to say what the white  28 economy and society is.  You'll see he's describing  29 white perceptions of the northern Cordillera in  30 respect of the fur trade and the gold rush.  31 At the top of page 7 he says that "the whites who  32 entered the Skeena and Bulkley rivers were transients,  33 birds of passage", and then looks at some documents,  34 and then says that the documents "permit the  35 description of some basic features of Gitksan and  36 Wet'suwet'en economy and society during these years.  37 The most basic and fundamental point is that the  38 whites who entered the upper Skeena region encountered  39 an operating and functional society".  40 Well, that's one of the issues in this action, my  41 lord.  That's one of the issues before your lordship,  42 and that's why your lordship has heard all of the  43 evidence that has been tendered in that respect.  44 Now, I've summarized page 8, my lord, and I don't  45 think it's necessary to turn to it, but there are  46 descriptions from the documentary record of trade and  47 descriptions of the trade that existed and access to 16402  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 resources that existed at the time.  2 And then at the bottom of page 7 Dr. Galois then  3 starts talking about the established practices are the  4 established Gitksan and Wet'suwet'en practices.  Here  5 he's putting on his anthropological hat and concluding  6 that this is a description of the Gitksan and  7 Wet'suwet'en practices in society.  And then he  8 interprets a historical event with Downey proffering  9 small gifts, and then interprets that that can be a  10 request under customary Gitksan law.  11 Now, that's fine at the end of the day for my  12 friends to hand up to your lordship Dr. Galois'  13 argument with references to all the documents that my  14 friends are going to mark or will be submitting, and  15 the argument is already ready-made.  But that's not  16 something that a witness can give opinion evidence  17 about.  Now -- and, my lord, I have further extracts  18 respecting economy and society on pages 8 through 10,  19 but in each instance there is something like from a  20 white perspective, from the white economy, the native  21 economy, the traditional resource base of the Gitksan  22 and the Wet'suwet'en, the traditional culture of the  23 Gitksan and Wet'suwet'en, non-traditional activities,  24 economic activities, all of which, my lord, in my  25 submission, since this witness is not an economist and  26 in my submission can't describe white economy any more  27 than you or I can describe white economy, not in any  28 scientific or legal or technical sense, but in the  29 sense that it's used every day.  Similarily, his  30 description of traditional society, traditional  31 Gitksan and Wet'suwet'en society, we've heard about  32 that from the anthropologists, and he's not an  33 anthropologist so he can't give opinions about what's  34 traditional and what isn't traditional.  And he does.  35 Now, the economic conclusions, my lord, are set  36 out and I have gone through to page 10 of the argument  37 that I've handed up to your lordship, but there's a  38 reference near the bottom to pages 20 to 23 of the  39 opinion report.  4 0    THE COURT:  What page are you on?  41 MR. WILLMS:  I'm on page 10 of my -- the argument, my lord, and  42 you'll see at the bottom I have a reference to pages  43 20 to 23, and it would be convenient to just look at  44 the conclusions.  Once again, it's the questions that  45 Dr. Galois asks himself in the report which he then  46 answers, and at page -- at page 20 of his report --  47 THE COURT:  Sorry? 16403  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 MR. WILLMS:  It's page 20 of the report, my lord.  Okay.  He  2 asks and answers five questions at the conclusion of  3 the economy section.  The first one is "What was the  4 nature of the white economy in society in the upper  5 Skeena region up to the end of the nineteenth  6 century?"  And, in my submission, my lord, there's no  7 economic basis for his opinions on the white economy,  8 and he is not describing anything different than the  9 economy as we all, I suppose, understand it.  It's not  10 legal, scientific, or technical.  11 The next one is at the top of page 21 where he  12 says -- he poses the question:  "What were the  13 processes by which the white economy and society  14 developed in the second half of the nineteenth  15 century?"  Once again, my lord, he's not an economist.  16 He's had some undergraduate economics courses, but  17 there's nothing special or scientific or technical  18 about this analysis.  The documents are there and my  19 friends can make an argument about it and so can we,  20 but the witness is of no assistance.  He's got no  21 special expertise to help your lordship on that.  22 The third item is "What features of Gitksan and  23 Wet'suwet'en economy and society are described in the  24 documentary record for this period?"  Now, that is  25 one, my lord, where a partial opinion could come from  26 this witness, and that is, if this witness was asked  27 to assume what Gitksan and Wet'suwet'en economy and  28 society was and then look for it in the documentary  29 record and then bring out that documentary record, in  30 my submission that would be admissible.  Then you've  31 got somebody who has searched a historical record to  32 look for a particular thing.  But he has to assume it.  33 He doesn't know it, and he can't find it, because he's  34 not qualified to find it.  Now, it's broader than  35 that.  He finds it as well.  36 On page 22, my lord, and I'm just completing --  37 I'm on the report.  Page 22 of the report are the  38 fourth and fifth economic questions that are answered  39 by Dr. Galois.  The fourth one:  "What changes in  40 Gitksan and Wet'suwet'en economy and society occur  41 during the second half of the nineteenth century?"  42 That must involve anthropology, my lord, and it must  43 also involve economic background.  The witness doesn't  44 have that.  Before 1984 he did some work on the  45 Historical Atlas and some census work, but he doesn't  46 have any anthropological background and, in my  47 submission, economics in undergraduate courses is 16404  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 insufficient to allow him to give opinion evidence  2 about changes in native economy.  3 The fifth one is:  "What evidence is there of the  4 continuity and persistence of the core elements of  5 Gitksan and Wet'suwet'en economy and society during  6 these years?"  Now, apart from the fact that this is  7 pure argument here and isn't opinion at all, but  8 putting that to one side, once again, the  9 anthropological requirement to underly that opinion --  10 that's why Dr. Daly gave his opinion about Gitksan  11 economy and society.  Dr. Mills did the same.  -- from  12 an anthropological perspective, an ability to describe  13 something which may not be familiar or within the  14 common stock of knowledge.  But from Dr. Galois'  15 perspective he has no special expertise to describe  16 this at all, other than he read some documents.  17 Now, just turning back to my argument, my lord, at  18 page 10, at the bottom what I submit there is that the  19 opinion must be within the stated qualification of the  20 expert or uniquely within his special skill.  There is  21 nothing in the evidence of this witness on his  22 qualifications which would uniquely or specially  23 qualify him to give evidence about Gitksan and  24 Wet'suwet'en economy, to give evidence about white  25 economy, to give evidence about changes to Gitksan and  26 Wet'suwet'en society.  He's an historical geographer.  27 Now, one point, and I anticipate my friends may  28 touch on this because this is similar but not the same  29 as an argument that I advanced in respect of Dr. Ray,  30 but it's not the same argument, and I deal with that  31 in the middle of page 11.  And that was this:  The  32 historical documents that Dr. Galois reviews were  33 primarily written by one European to another and they  34 are documents at large.  They were not, as with Dr.  35 Ray, whose evidence was heard subject to objection,  36 but at least speaking for Dr. Ray's area, it was a  37 narrow area.  He looked at Hudson's Bay records and  38 used those Hudson's Bay records and his experience in  39 using Hudson's Bay records, which he had had before he  40 looked at these records, and his evidence was put  41 forward on that basis to assist your lordship.  42 Dr. Galois here purports to give evidence on  43 economy and society using history at large.  Newspaper  44 clippings, and I'm not going to repeat them all, but  45 my friend Mr. Macaulay pointed out to the witness  46 during his cross-examination on qualifications the  47 variety of documents that Dr. Galois looked at to come 16405  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 to his opinion.  And it's my submission that whereas  2 Dr. Galois may be able to assist your lordship by  3 saying why he looked in a particular area, what  4 documents he found, and to what issue he thinks they  5 relate in respect of economy and society, history at  6 large is not a competent scientific discipline for  7 opinion evidence in a court of law because history at  8 large is the subject of -- that's why historians at  9 large, the Pierre Burtons of the world, can write so  10 many books on both sides of any particular issue.  And  11 it's not something, in my submission, that this  12 witness can assist your lordship with.  13 Now that, my lord, takes me through to the end of  14 the objection to the economy and society portion of  15 the opinion.  Now, the final series is from page 12 on  16 and this, if I can -- if I can put it this way, my  17 lord, and I'm not going to read through -- I've  18 itemized some instances, but the instances -- there  19 are greater instances throughout the opinion report  20 where what Dr. Galois has done is has directed his  21 opinion to the general merits of a particular issue,  22 some of the issues the very issues before your  23 lordship.  He's expressed opinions which are really  24 not based on stated facts or a hypothesis, but just  25 opinions in the air.  26 You'll see starting at the bottom of page 12 a  27 couple of references to Gitksan law, what Gitksan law  28 is.  He then talks about, on page 13, in discussing  29 the Skeena war or uprising, the culmination of one  30 phase in the dialectic of Indian protest and white  31 response; describing the conflict as originating in  32 the operation of a central feature of the Gitksan  33 cultural system; describing somebody being shot in  34 accordance with Gitksan customary law, you know, and  35 it carries on like that, my lord.  Page after page  36 after page in the opinion are Dr. Galois expressing  37 general opinions, opinions at large, expressing views  38 as to the merits of particular things that took place,  39 looking at a particular situation and saying, well,  40 that fits into Gitksan customary law, and I can  41 explain that, or looking at another document and  42 saying well, gee, I can explain why that document says  43 that, you know.  It's because of a bunch of other  44 things that went on, all of them opinions, which  45 either are matters that are brought to this court for  46 a decision or are not requiring any expertise  47 whatsoever especially in analysing some of the 16406  Submission by Mr. Willms  Re-exam by Mr. Adams  On qualifications  1 documents from the -- from Loring, from the Indian  2 agent.  They all speak for themselves.  3 That does bring me, my lord, though, to one point  4 which, in my submission, my friend's position helps  5 me, and that is the point -- and there are numerous  6 occasions in the report where the opinions are really  7 argument disguised as opinions.  I mean, it's properly  8 counsel's brief at the end of the day.  And, my lord,  9 this is a letter from my friend of May 16th, 1989,  10 after we'd asked for some of the drafts that the  11 witness described in his evidence on qualifications.  12 It's the fourth paragraph where my friend advised me  13 that:  14  15 "With respect to your request for drafts, we  16 advised you in my letter of May 12th in item  17 38 that we claimed privilege with respect to  18 the legal brief for counsel and drafts.  Dr.  19 Galois has no drafts of the report prepared  20 and distributed to the defendants and to be  21 submitted to the court, however, Dr. Galois  22 did prepare a report for counsel's legal  23 argument and several drafts exist with  24 respect to this aspects of his work.  As  25 mentioned previously, privilege is claimed  26 with respect to these documents."  27  28 The witness gave evidence, my lord, that the  29 documents for which my friend has claimed privilege  30 contain opinions which have carried through to his  31 final report, refer to and were based on the documents  32 which were carried through to his final report; that  33 the very first draft, as he calls it, of the opinion  34 in this case was made in 1987, notwithstanding the  35 fact that in 1986 other experts received what was  36 called Dr. Galois's report of the day.  37 And it's my submission that my friends have to  38 make up their mind.  Is it argument, in which case Dr.  39 Galois' evidence should not be led.  I mean, if this  40 is argument, this is counsel's legal brief, Dr. Galois  41 should not be giving evidence.  If my friends are  42 serious that these are opinions that are being led,  43 then the position that they're taking with respect to  44 those other documents has no foundation.  I mean, it's  45 one or the other.  There's no -- based on the evidence  46 of the witness, there's no clear break where all of a  47 sudden his argument hat goes off and his opinion hat 16407  Submission by Mr. Willms  Submission by Mr. Macaulay  On qualifications  1 comes on.  It carries right through.  So on this one,  2 my lord, I say it's argument and I say my friends  3 confirm that all that Dr. Galois has done is he  4 started drafting arguments for my friends and  5 continued drafting them up to the present day, and  6 that's what is being tendered.  And when you read the  7 document, it's argument.  8 Now, what I suggest, my lord, and I suggest this  9 at the bottom of page 19 and over to page 20, and I  10 submit, that Dr. Galois may be entitled to proceed in  11 the same fashion that Mr. Morrison proceeded, that is,  12 he can describe the documents that he located and to  13 what issue in his opinion they relate.  If the witness  14 has some difficulty determining the issue that the  15 document relates to, I'm sure my friends can help him,  16 but then we will have a method of cataloguing these  17 documents so we know at the end of the day where they  18 relate.  And of course there's no difficulty with my  19 friends at the end of the day filing Dr. Galois'  20 argument as argument, as their argument, but it's my  21 submission that the so-called opinions expressed in  22 Dr. Galois' report are inadmissible whether they come  23 in in the written form or the oral form.  24 And, my lord, I've just summarized the three  25 arguments on page 20.  I'm not going to repeat that,  26 but it is my submission that not only is the report  27 inadmissible in its present form or in any reasonably  28 close form, but also that the opinions expressed in  29 it, and I've highlighted some of the questions that  30 Dr. Galois posed for himself and then answered, those  31 opinions are inadmissible, and Dr. Galois, if my  32 friends wish, can identify the documents that he found  33 when he was looking, for example, for protests, but  34 that's as far as he can go.  35 THE COURT: Thank you.  Macaulay.  36 MR. MACAULAY: May it please your lordship, I have two  37 submissions, brief submissions, to make.  One concerns  38 Dr. Galois' qualifications.  He is a historical  39 geographer.  He has spent his long academic career in  40 the geography departments of the universities.  The  41 very term imports perhaps some competence in a very  42 narrow aspect of history and maybe also that imports  43 some competence in economic questions dealing with  44 geography.  But there is no evidence of any experience  45 that would give us much comfort insofar as  46 sociological and anthropological matters are  47 concerned.  There is a -- that question about his 16408  Submission by Mr. Macaulay  1 qualifications.  2 In addition to the extent that he is a historian,  3 to use the ordinary sense of the word, he is a  4 generalist.  He is no specialist.  He is not like Dr.  5 Ray who told us during -- when he was being qualified  6 that he, Dr. Ray, above all others, was the -- had  7 expertise in the Hudson's Bay Company records, and in  8 fact he confined his evidence to interpretation of a  9 very narrow slice of those records, that is, the  10 records from 1822 to 1828 at Fort Kilmaurs.  Dr.  11 Galois cast a lot broader net than that, and at a  12 certain point your lordship has to decide -- this  13 doesn't go just to weight, but to qualifications --  14 has to decide whether the qualifications are too thin  15 in the sense that they're too diffuse.  16 Dr. Galois does not have a degree in history.  He  17 has never served in the history department.  He has  18 come to history laterally just in the last few years  19 after he made a proposal in late 1983 to the  20 Gitksan-Wet'suwet'en Tribal Council.  That's the first  21 evidence we have of any sort of historical endeavour  22 on his part.  23 MR. ADAMS: My lord, that's not accurate.  He gave evidence that  24 he had contributed to the "Historical Atlas of Canada"  25 beginning in 1881.  26 MR. MACAULAY: That's not a history, that's a geography book with  27 some notes on it, with not very profound comments on  28 it, insofar as I could have looked at that Historical  29 Atlas.  30 The other submission I have to make concerns the  31 limits on the witness' ability to express opinions.  I  32 have said that he has no -- he has not given any  33 evidence anyhow of any particular expertise in any  34 particular area or field of history, unlike Dr. Ray  35 and unlike some other historians who become expert in  36 a particular field.  So he's not in a very good  37 position to tell your lordship what the circumstances  38 are surrounding a particular historical document.  39 He's taken his historical documents all over the  40 place.  It would take a very very accomplished and  41 experienced historian to cover such a broad field as  42 he has attempted to cover, insofar as the historical  43 sources are concerned, and he covers a -- the better  44 part of century too, which is a very broad field too.  45 The broader the field, the greater the expertise has  46 to be, and that just isn't there, my lord, and I raise  47 the question whether he has the expertise in order to 16409  Submission by Mr. Macaulay  1 be able to tell your lordship, here are the  2 significant documents on a particular issue, and here  3 are the dangers in looking at any given document out  4 of context because of the surrounding circumstances.  5 Some of the opinions I think reflect what I have  6 to say.  One of the opinions is that, and I put this  7 to him, missionaries and government officials sought  8 to transform the Gitksan and Wet'suwet'en cultures.  9 That is one of his opinions and it's found at page 23  10 of his report.  Well, that is the kind of opinion that  11 the witness ought not to be allowed to express.  I'll  12 give you another example, and I put this to the  13 witness.  At page 12 he says that the missionaries  14 applied a narrow version of Victorian morality to  15 Indian cultures, and that this was expressed most  16 clearly in the opposition to the feast system.  And  17 it's the broad and eclectic search through all manner  18 of records that has led him to that conclusion.  19 He does not say I, as a historian, have made it my  20 business to study the missionaries of British  21 Columbia, or the Anglican missionaries of British  22 Columbia, or the Methodist missionaries of British  23 Columbia, or the Catholic missionaries of British  24 Columbia, or a combination of perhaps two of them.  25 And I can tell your lordship on the basis of my very  26 broad experience in that field and intense study over  27 a period of many years, and after having written on  28 the subject and participated in academic debates, that  29 this is so -- that this is the conclusion that ought  30 to be drawn from this set of facts of history.  31 Another -- at page 57 there is another example of  32 another opinion that he ought not be allowed to  33 express.  He says on that page that first "the feast  34 was undergoing a number of formal changes,".  Now,  35 that is within the province of the anthropologist.  36 "but contemporary and subsequent reports indicate that  37 Loring," that's an Indian agent, my lord, in the late  38 nineteenth century "on the latter points, was guilty  39 of wishful thinking."  40 THE COURT:  Where are you reading, Mr. Macaulay?  41 MR. MACAULAY: Page 57 of the report, my lord.  He says in the  42 middle paragraph:  43  44 "The situation concerning the feast  45 changed little during this period.  46 Missionary opposition continued, most  47 dramatically in a second conflagration of 16410  Submission by Mr.  Submission by Mr.  Macaulay  Adams  1 ceremonial regalia at Hagwilget."  2  3 And then at the bottom of that paragraph he  4 comments on Loring's wishful thinking.  He's not  5 qualified to make those -- to draw those conclusions,  6 so that really my submission is that because of the  7 diffuse nature of the materials he draws on, because  8 of the questions that may be raised about his  9 qualifications and experience, that Dr. Galois is not  10 going to be able to assist your lordship on any -- on  11 historical matters in this trial.  12 THE COURT:  Thank you.  Mr. Adams.  13 MR. ADAMS:  My lord, my friend Mr. Macaulay seems to be saying  14 that historical geographers, or at least this  15 historical geographer's, opinions about the period for  16 which we've proposed to give evidence are dealing with  17 something too complicated for him to deal with.  And  18 my friend Mr. Willms seems to say that he's going to  19 be asked to deal with something too simple to require  20 any expertise, and I submit simply that that -- those  21 can't both be right.  22 Now, the first point my friend Mr. Willms made was  23 that the opinion deals with the application of federal  24 criminal law and that that --  25 THE COURT:  I don't need to hear you on that, Mr. Adams.  I  26 think, although I should say this:  I think Mr.  27 Willms' point there may well be right, but to the  28 extent that the report amounts to an attack on  29 criminal law, I would have no difficulty in  30 disregarding that part, and if that's all their worth,  31 the objection, I would not sustain it.  I'm more  32 concerned about the other branches of your friend's  33 submission.  And I don't think I need to hear you on  34 the question of criminal law.  I tell you, however,  35 and give you a chance, if you wish, to try and  36 persuade me to a different view.  37 You see, you have the benefit.  I haven't read the  38 report, but to the extent that the brief examples Mr.  39 Willms and -- well, I think Mr. Willms pointed out to  40 me there seems to be there a suggestion that these  41 protests were prompted by putative criminal conduct,  42 and to the extent that they are it seems to me that I  43 would have to treat them as nothing more than protests  44 which have no force and effect.  It's as if a citizen  45 today were objecting to the law of murder.  That's the  46 law, and it doesn't help to know that the objector  47 thought that the law was a bad one or that 16411  Submission by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS  THE COURT  MR. ADAMS  THE  MR.  COURT  ADAMS  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  there's some special consequence to flow from his  objection as compared with anyone elses.  There is no  attack in this whole lawsuit, as far as I can see, on  federal jurisdiction.  No.  And all I say is that the report is not about  protests about federal jurisdiction.  For example,  suppose that the protest is about the coming of  surveyors to lay out a reserve acting under provincial  auspices.  Somebody complains, resists, assaults the  surveyors, then my friend says the protest involves  criminal law, where it may well be, and the opinion  characterizes that as a collision between the  imposition of a land law, a provincial land law, and a  protest about the imposition of that law.  The fact  that the criminal law is invoked to express the  protest is quite beside the point in the opinion as  far as characterizing it as protest.  Well, as I've said, I don't propose to rule against  the report on that ground anyway, so you have a  partially open door there.  All right.  The second thing my friend Mr. Willms  says is that -- let me divide it into two parts.  He  seems to be saying in part that a historical  geographer can't talk about these things because  that's not within their expertise and that covers  the -- beyond the stated qualifications side of it.  And then on the other side he says that, as I  understand him, even if he could, shouldn't be allowed  to in a court.  So I want to deal first with the first side of  that, that is, what is involved.  What are the topics  that it's competent for a historical geographer to  address.  And in that connection I want to provide  your lordship with an extract which has now managed --  there it is.  Thank you.  And this is simply an extract from two chapters out  of an scholarly work on "Historical Analysis in  Geography".  And the second page of the extract -- and  I'm sorry that the photocopying cut the page numbers  off.  The second page?  The second page of "Contents" --  Yes.  -- will indicate something about the range that  historical geographers think historical geography  covers, that is, developments in history and economic 16412  Submission by Mr. Adams  1 history; regional cultural and perception analyses;  2 chapter 6, exploration, immigration and the frontier;  3 rural and urban settlement evolution; the agricultural  4 landscape; transportation, industrial and urban  5 landscapes; population and social analyses.  6 The two extracts I want to bring to your  7 lordship's attention are in chapters 5 and 6, and  8 chapter 5 begins on the third page of the extract that  9 I've handed up under the chapter titled "Regional,  10 cultural and perception analyses".  And the particular  11 passage -- well, first of all, on the third page of  12 the chapter there is a large table that takes up the  13 entire page.  14 THE COURT:  Yes.  15 MR. ADAMS:  And what that is is a review of historical regional  16 studies, and what I want to draw to your lordship's  17 attention is on the far right of that table is  18 "Principal Approaches", and what that does is simply  19 illustrate the variety of approaches that historical  20 geographers apply. And your lordship will see that it  21 includes landscape reconstruction, regional and local  22 studies, there's emphasis to -- there's reference to  23 cultural emphasis, landscape history, landscape  24 history primarily related to post-aboriginal  25 occupation, the evolution of the cultural and economic  26 landscape, chronological discussions of social and  27 economic change in six regions, human -- I'm now down  28 in the second half of the table -- human response to  29 the physical land uplift; human as agents of landscape  30 change, landscape evolution; analysis of changing  31 geographies and forces contributing to change.  There  32 are two references to economic change.  Geography used  33 to give depth and fullness to historical events;  34 emphasis on periods and process of geographical  35 change; and so forth.  36 And then immediately following that table there is  37 a heading within the chapter called "Historical  38 Cultural Analyses", and on the next page following  39 that there is a sub-heading on the left-hand side  40 called "Contact, transfer and acculturation".  41 THE COURT:  Sounds to me like geography has emulated the example  42 of the Court of King's Bench and is constantly  43 expanding its jurisdiction.  44 MR. ADAMS:  Well, that's partly the point, my lord, is that a  45 historical geographer is not a rigid respector of  46 disciplinary boundaries and --  47 THE COURT:  Well, no one wants to be. 16413  Submission by Mr. Adams  1 MR. ADAMS:  But it's able to -- its practitioners are able to do  2 their work in all these areas, and this is the  3 discipline that this witness, in my submission, is  4 qualified to give opinions.  5 So under that heading there are two passages --  6 three passages I'd like to refer your lordship to  7 immediately under the heading:  8  9 "The movement of culture groups from a home  10 environment to a new environment results in  11 landscape change in the new area.  These  12 changes result from at least two factors.  13 First, it may be the case that  14 characteristics of the home culture are  15 transferred from one environment to another  16 both during and after the physical movement  17 of people.  This is certainly a major factor  18 in most movements out from Europe to the  19 expanding colonies of the seventeenth  20 century onwards.  Second, contact with  21 cultures in or adjacent to the new  22 environment is likely to result in the  23 acceptance of previously unknown culture  24 traits which affect landscape evolution."  25  26 Again, this is typically the case in any culture  27 contact situation.  28 And then half-way down that same page where I just  29 finished reading there is a paragraph beginning "For  30 the historical geographer."  And it says:  31  32 "For the historical geographer these  33 issues of culture transfer from one  34 environment to another and the consequences  35 of culture contact, whether it be between  36 immigrant groups or between an immigrant  37 group and an aboriginal population, have  38 proved intriguing."  39  40 And there's a discussion.  And the next sentence  41 following:  42  43 "According to Fried" F-r-i-e-d "there are  44 three possible consequences of a contact  45 situation involving groups with differing  46 levels of technology."  47 16414  Submission by Mr. Adams  1 And he sets out annihilation of the aboriginal  2 group, gradual process of transformation, and  3 incorporation of the aboriginal group.  4 And then over the page about two-thirds of the way  5 down there is a paragraph that begins "One factor",  6 and then two, four, six, eight lines into that  7 paragraph this author says:  8  9 "Certainly land, and attitudes toward land,  10 have often proved to be a major conflict  11 issue between groups, and Hornbeck concluded  12 that research should focus on 'understanding  13 and coping with the larger differences of  14 resource interpretation and use'.  More  15 general studies of contact have tended to be  16 ordered over longer periods of time and have  17 provided overviews of cultural change."  18  19 And then the second extract is on the -- begins on  20 the next page following from chapter 6, and that is  21 entitled "Exploration, immigration and the frontier".  22 And the very first sentence of that chapter says:  23  24 "Accounts of the emergence of human  25 landscapes in areas of new settlement  26 characteristically proceed by first  27 examining the details of exploration,  28 contacts with existing aboriginal groups,  29 immigration trends and the related evolution  30 of a frontier economy and society."  31  32 And then over the page there is a specific heading  33 "The role of aboriginals" at the bottom left, and  34 there it says:  35  36 "The significance of native populations for  37 both exploration and, indeed, for subsequent  38 landscape change has been little studied.  39 The in-movement of Europeans has typically  40 been seen as a major cultural break, a  41 revolutionary change, rather than as one  42 part of an ongoing process.  Recent  43 literature, however, has emphasized the  44 aboriginal groups as explorers and the  45 incoming European groups as being much  46 dependent on existing regional knowledge.  47 Further, the aboriginal groups were 16415  Submission by Mr. Adams  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  effective settlers with the European  contribution being imposed upon existing  land use."  And then skipping down to the final paragraph,  final full paragraph on that page:  "European penetration of new lands was  not a penetration of unoccupied or untouched  environments.  The frequent conflict  situations which developed are a clear  indication of the widespread distribution of  natives and of their attachment to and  exploitation of particular areas."  And it goes on from there.  What I submit your  lordship can take from that is that the very subjects  of Dr. Galois' opinion are certainly the subjects of  historical geographical inquiry, and that's all that I  say.  THE COURT:  But surely one can't say use a bootstraps argument,  can he, and just say well, the whole world is my  oyster and therefore I can give opinions on anything.  MR. ADAMS:  That's not what the plaintiffs say, my lord.  They  say that there is a recognized field, which I take it  is not disputed, that this witness is a scholar in  that field, and that this is the material to which  that field pays attention.  It's not unlimited.  For  instance, it has been suggested I believe by my friend  Mr. Macaulay that he's not competent to give an  anthropological opinion.  I accept that.  He doesn't  purport to give an anthropological opinion.  He  doesn't claim anthropological qualifications.  But the  plaintiffs do say that he's a competent historical  geographer and entitled to give opinions within his  field.  Now, what I've characterized as the other side of  my friend's objection, that is Mr. Willms' objection,  is that well, even if that's the field, it can't be  done here.  And I have two responses to that.  One is  that the characterization urged upon you by the  defendants as to what it is a historian does and can  do, even at the level of what doing history is, is  misconceived.  And then the second response, which  I'll come to, is that when historical geographers and  historians have come to this court in this case what  they have done is something very like what the 16416  Submission by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  plaintiffs are seeking to have this witness do.  Dr.  Ray is the perfect example of that.  He did, through a  limited range of documents in a short time period,  something very like what the plaintiffs ask Dr. Galois  to do in his opinion.  Yes, there are more documents.  Yes, it covers a longer period, but the nature of the  inquiry is not different.  And to come back to my second point, in which I am  urging on your Lordship that the defendant's view of  what history is is misconceived, I want to refer your  lordship to an extract of a publication, and this is a  book to which I believe Professor Jackson referred to  you in the discussion on the admissibility of oral  histories.  But what I ask you to take from this is  that it sets up and deals with, from a historian's  point of view, the position of the defendants that  somehow history is a bunch of unconnected facts and  somebody can come and tell you that they're all in the  documents, but then they have to stop.  In my  submission, they aren't any help to you as historians  if that's all they can do, and in fact nobody, no  historian, no academic of any kind, engages in that  kind of inquiry.  And the particular references I want to make begin  on page 8 of this extract which is the entire first  chapter of this.  :  Page 8 did you say?  :  Page 8.  And I'm beginning on the second full  paragraph towards the bottom of page beginning "The  nineteenth century".  "The nineteenth century was a great age for  facts. 'What I want', said Mr. Gradgrind in  Hard Times, 'is Facts.... Facts alone are  wanted in life.'  Nineteenth-century  historians on the whole agreed with him."  And then going over to page 9 and about half-way  down you'll see the name "Bertrand Russell" and then a  sentence beginning "The empirical theory".  "The empirical theory of knowledge  presupposes a complete separation between  subject and object.  Facts, like  sense-impressions, impinge on the observer  from outside and are independent of his  consciousness. The process of reception is 16417  Submission by Mr. Adams  1 passive: having received the data, he then  2 acts on them."  3  4 And then there's a reference to the Oxford Shorter  5 English Dictionary, and it says -- well, perhaps I  6 should read the sentence:  7  8 "The Oxford Shorter English Dictionary, a  9 useful but tendentious work of the empirical  10 school, clearly marks the separateness of  11 the two processes by defining a fact as 'a  12 datum of experience as distinct from  13 conclusions'.  This is what may be called  14 the commonsense view of history."  15  16 And I pause to say that, in my submission, this is  17 the defendant's view of history.  18  19 "History consists of a corpus of ascertained  20 facts.  The facts are available to the  21 historian in documents, inscriptions and so  22 on, like fish on the fishmonger's slab.  The  23 historian collects them, takes them home,  24 and cooks and serves them in whatever style  25 appeals to him."  26  27 And then going over to page 10, Professor Carr  28 poses the question three-fifths of the way down "What  29 is a historical fact?", and he identifies that as a  30 "crucial question", and then on page 11 a little more  31 than half-way down there's a sentence beginning "It  32 used to be said" on the right-hand side.  33  34 "It used to be said that facts speak for  35 themselves.  This is, of course, untrue.  36 The facts speak only when the historian  37 calls on them: it is he who decides to which  38 facts to give the floor, and in what order  39 or context."  40  41 He goes on to quote somebody saying that:  42  43 "...a fact is like a sack - it won't stand up  44 till you've put something in it. The only  45 reason why we are interested to know that  46 the battle was fought at Hastings 1066 is  47 that historians regard it as a major 16418  Submission by Mr. Adams  historical event.  It is the historian wh  has decided for his own reasons that  Caesar's crossing of that petty stream, the  Rubicon, is a fact of history, whereas the  crossing of the Rubicon by millions of other  people before or since interests nobody at  all. "  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  And then on to the top of page 12 in the second  line:  "The historian is necessarily selective.  The  belief in a hard core of historical facts  existing objectively and independently of  the interpretation of the historian is a  preposterous fallacy, but one which it is  very hard to eradicate."  But, Mr. Adams, isn't he writing there for the  purposes of discussion or a debate within the  historical community?  Indeed he is.  He's not writing there for the world of lawyers and  judges who have to deal with the rules of evidence.  That's true, my lord, but what he is illustrating,  in my submission, is that you could not do anything  very useful as a historian if you were confined to the  first half of what Carr says is that false separation  between facts and conclusions.  And I think that can  be illustrated out of some of the material in this  case.  You see that the mischief that I see from that is  that if a historian can practise his trade or his  profession in the juridical world, he can provide  facts say from documents, and to the extent the  documents are valid, his facts are established, and  then he can tell the court what the facts mean and he  can say they mean anything, and that policy problem  leads us to say no, that isn't good enough for the  rules relating to admissibility.  What you do is you  weigh the facts before the judge and he's got the  piece of paper that allows him to say what the  conclusions are or what the analysis is.  My lord —  If it was otherwise, you could always get historians  on both sides of the question, couldn't you?  Usually  you can.  I don't say that with respect necessarily to 16419  Submission by Mr. Adams  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  historians, but for various things you can usually get  one to say that the consequences of eating grass is to  expand at a certain rate and others will say no, it  contracts at a different rate.  You can always get  somebody to say something different.  Don't we have,  as a policy of protection, have to say we'll let the  judge decide what the consequences or what the  analysis is?  You give us the facts, ma'am, and we'll  work it out.  MR. ADAMS:  My lord, the point I ask you to draw from Carr is  that the facts are not strictly separable from the  conclusions about A, what they are, and B, what they  mean.  THE COURT: Well, isn't that really counsel's role then to argue  what they are and persuade the judge to the right view  and not the province of the witness?  MR. ADAMS:  The alternatives, in my submission, are either that  we bring as witnesses qualified people in these  disciplines who go beyond ferreting things out of the  archives and saying this might interest you, and are  equipped to talk about what happened and to whom and  under what circumstances and how was this document  constructed and what might you take from it, all  without telling you what you must conclude in a legal  sense.  What you get if you don't admit the evidence  of such people is counsel getting up at the end of the  day, after all the documents have poured in, and  asserting the same kinds of things without any  opportunity for you to test how far am I able to  believe that?  How far does that conform to the  practises of the people whose professional academic  business it is to sift documents and draw conclusions?  And it's my submission that yes, that's a  time-consuming difficult process, but in the search  for what went on and what was its significance, it's  preferable to go the first way than the second.  THE COURT: Well, I have another problem for you, Mr. Adams. I'm  going to take the adjournment, but I'll state it first  and you can deal with it when we come back, and that  is, as I have gathered up to now, the witness is going  to tell me about a period from, what is it, the 1850's  to 1927?  MR. ADAMS:  Shall I answer that now or later?  THE COURT:  Is that right.  MR. ADAMS:  He covers that period, but on a thematic, very  thematic, basis.  THE COURT:  Because — 16420  Submission by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS:  He couldn't do otherwise in what now amounts to a  day of evidence.  THE COURT:  Because the real question is what was the situation  at the time of contact, isn't it?  The rights were  already settled by the time you got to the 1850's  weren't they?  MR. ADAMS:  That —  THE COURT:  At least in one view?  MR. ADAMS:  That's for your lordship to decide.  THE COURT:  In one view the evidence is, is the evidence  necessary at all?  And they might have protested to  the skies in the 1850's or they might have stood mute,  but would it make any difference?  MR. ADAMS:  As I understand the pleadings, my lord, an ongoing  acquiescence is pleaded.  THE COURT:  Well, I'm quite happy to have facts laid before me  as to show that there was no acquiescence, but your  friend isn't objecting to that.  But, anyway, we'll  resume this in a few minutes.  It's time for the  reporters to change anyway.  Thank you.  THE REGISTRAR: Order in court. This court will recess.  (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter 16421  Submission by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED AT 3:20)  THE REGISTRAR:  THE COURT: Mr  MR. ADAMS  Order in court.  Adams.  My lord, I want to take up the question that you  posed before the break to the effect that wasn't it  all over as far as the fixing of rights at contact, is  the way I understood your question.  And I would refer  your lordship to a number of the pleadings, that is  the Plaintiff's plead in paragraph 72 that is referred  to in my friend's argument at page 2, that the  Plaintiffs have never ceased to assert their  aboriginal title, ownership and jurisdiction in right  of possession, and so forth.  And that pleading of  course is denied.  The Defendants plead acquiescence,  and that's set out in paragraph 39(b) also of page 2  of my friend's argument.  And finally, in their  paragraph 34 the provincial Defendant pleads that the  Plaintiffs voluntarily gave up to the Crown by  requesting and accepting reserves, and this witness'  evidence goes both to the particular events  surrounding the establishment of the reserves and to  the historical context of those events, and the  Plaintiffs submit that it is indeed for you to  determine whether there was an effective assertion of  legal rights or anything that could be characterized  as voluntary or involuntary or whether acquiescence as  a matter of law was present or absent, and in my  submission, Dr. Galois' opinion does not attempt to  answer those questions.  It attempts to draw from the  documentary record a useful synthesis of material that  bears on that question, and in support of the point  that a synthesis is not only helpful to your lordship  but necessary in the enterprise of acting as  historical geographer, Dr. Galois refers to an event  that I will refer to for shorthand as the Kispiox raid  in approximately 1909, when a police force travelled  to Kispiox and arrested a number of Kispiox Indians,  and come to the details in due course.  But if my  friend is right about what a historian can and can't  usefully say, Dr. Galois wouldn't be able to  characterize that as a common action of the people who  took part in it, because that would be an  interpretation of the fact they all went together to  Kispiox, and he wouldn't be allowed to call it a raid  because that would be an interpretation of what the 16422  Submissions  1 significance of that event was, and my estimation is  2 simply that in light of the passages from Carr that  3 I've referred your lordship to, that can't be right.  4 THE COURT:  Well, the other can't be right either though, Mr.  5 Adams, when you're dealing with a problem as vast as  6 this one.  There has to be a line drawn somewhere.  If  7 it's admissible, the Plaintiff is entitled to call  8 evidence -- this case might never close.  9 MR. ADAMS:  My lord, that's not the way the case has gone, it's  10 not the way the plaintiffs have presented their case.  11 What they propose to do in their case is spend, as I  12 estimated this morning, a day and a half of evidence  13 covering what they wish to bring to your lordship's  14 attention out of this opinion.  15 THE COURT:  The trouble is it's the way these reports are  16 written, they're so long and they're so filled with  17 detail that they are almost in terrorem, they almost  18 make arguments on admissibility unmanageable.  What's  19 wrong with the way we proceeded with Mr. Morisson?  20 MR. ADAMS:  I want to come to that, my lord, because I want to  21 refer you to a passage out of Mr. Morrison's  22 transcript that will illustrate that he did things  23 that were very like what my friends say it's  24 impossible for this witness to do.  And I have a  25 reference for that.  26 THE COURT:  Well, I'm not sure you need to bother with that,  27 because I think that we have to proceed that way.  My  28 answer is that I can't rule on this report at this  29 time, I've never seen it, and Mr. Willms has given me  30 some examples that I haven't been able to read it, but  31 it seems to me that I ought to mark the report as an  32 exhibit for identification and we ought to go on with  33 the evidence.  As I have said already, I won't rule it  34 includes an attack on the criminal jurisdiction of  35 Canada anyway, because -- because I can disregard  36 that, and I think you say that's not what it says  37 anyway, so that's not a problem.  I think there's a  38 real problem with the breadth of the jurisdiction of  39 the historical geographer claims, and I may have to  40 decide that on the policy question, but I don't think  41 I can do it now.  I think we have to -- we have to  42 come to grips with the report by putting it before us  43 and in the form that I mentioned, and that's for  44 identification, and I think you start calling your  45 evidence and we deal with individual problems as they  46 arise.  I can't see any other way to do it.  I don't  47 think a historical geographer can take it unto himself 16423  Submissions  1 and all the other disciplines in the various social  2 sciences identified, nor do I think he can be confined  3 just to saying "I found this document, I won't even  4 pretend to say what's in it, here it is, I think it's  5 significant" and then leave it like that, and we  6 didn't confine Mr. Morrison that way, he got in I  7 think most of what he wanted to say.  He had some  8 difficulty mainly because -- just because the field is  9 so vast, but I think we have to proceed the way I've  10 just described.  Do you have any problem with that?  11 MR. ADAMS:  I have none whatever, my lord.  12 THE COURT:  Let's get going then.  13 MR. ADAMS:  I've been prepared all day to proceed that way.  14 THE COURT:  To the extent it's necessary, I'm neither finding  15 for or against the objections that's been made.  I'm  16 reserving on the question subject to the objection and  17 we will mark it the next exhibit for identification.  18 You will have to remind me to deal with it at some  19 later date at the end of the witness or end of the  2 0 evidence.  21 MR. ADAMS:  My lord, I wonder if we can break briefly, because I  22 now have document binders to organize.  23 THE COURT:  All right.  24 MR. WILLMS:  Just so I'm clear how we're going to proceed here,  25 because it's one thing to just have the opinion report  26 marked for identification and then later on it either  27 goes in or it doesn't, but during the course of the  28 opinions the same issues are going to arise, and I  29 would -- subject to your lordship's views, I would  30 rather not be popping up all the time saying this fits  31 under the objection that I already made, and if your  32 lordship wants to hear the evidence and rule later on  33 all of the objections, that is to the vive voce  34 opinion evidence he -- as well as to the documentary  35 opinion evidence, I'm just uncertain as to whether  36 that's what your lordship is proposing here.  37 THE COURT:  I think that I'm going to have to deal with this  38 report as a whole, although it may end up that I'll  39 say some of it's admissible and some isn't.  I don't  40 think you have to make the objections seriatim as we  41 go along.  You've made them and I reserved on them.  42 MR. MACAULAY:  And my objection is essentially qualifications,  43 really.  To summarize, I'm saying he's a geographer,  44 and this Atlas he talks about, for instance, shows  45 Gitanmaax in 1750.  Well, the historical record to  46 that, we say it wasn't there in 1750.  He may say "Oh  47 yes, it was" and give his reasons, but what we're 16424  Submissions  1 saying is this isn't geography at all, that report --  2 he's not qualified at all, he's like a blacksmith  3 talking about dentistry.  4 THE COURT:  Well, I'm not sure it's quite that bad, Mr.  5 Macaulay.  I think that we all have made the  6 occasional mistake in our lives.  I don't think a  7 mistake of that kind is going to rule out his  8 evidence, and I'm sure you're not suggesting that.  I  9 think that the witness has enough qualifications just  10 with a Ph.D. to embark on this subject, whether he's  11 allowed to go very far or whether -- depends on what  12 it is he's saying and what other objections I hear.  13 But I think we ought to proceed as the way I've  14 described it.  I'll be ready to proceed.  15 MR. MACAULAY:  We'll hear about the connection about geography  16 and missionaries.  17 THE COURT:  If you feel you have to object again at that time  18 I'll be glad to hear you, Mr. Macaulay.  19 THE REGISTRAR:  Order in court.  Court will recess.  20  21 (RECESS TAKEN AT 3:30)  22 (PROCEEDINGS RESUMED AT 3:43)  23  24    THE REGISTRAR:  Order in court.  2 5    THE COURT:  Mr. Willms.  26 MR. WILLMS:  My lord, I have one point which arises out of the  27 possibility that the report may ultimately be marked  28 as an exhibit, and that is something that was alluded  29 to in cross-examination.  I'm asking for production of  30 the document "This Is Our Land, The History of the  31 Gitksan and Wet'suwet'en Peoples", "Smouldering  32 Embers, Gitksan and Wet'suwet'en Protests", those are  33 both documents that are referred to in the S.S.H.R.C.  34 grant that my friend claimed privilege for.  I'm also  35 asking for production of the 1986 Galois report that  36 is referred to in Mr. Brody's report.  It was my  37 understanding that when something was cited by a  38 witness that we would be entitled to mark it at any  39 time, any reference cited by a witness, so I'm asking  40 for that as well.  There can be no privilege attaching  41 to that.  And I'm also asking for the five drafts  42 referred to in Exhibit 1033-2, which is Dr. Galois'  43 letter to Peter Grant of December 8th, 1986, and my  44 submission, my lord, is simply that it's clear from  45 the evidence of Dr. Galois that these drafts formed  46 the basis for his opinion, that these drafts contained  47 opinions which carried through into this opinion that 16425  Submissions  1 they're based on the same documents, and that they can  2 not be protected by counsel brief at this stage, and  3 I'm seeking production of them.  4 THE COURT:  Mr. Adams?  Well, I suppose I should ask Mr.  5 Macaulay if he has any submissions.  6 MR. MACAULAY:  I have no submissions, my lord.  7 THE COURT:  Thank you.  8 MR. ADAMS:  My lord, Miss Mandell has been dealing with this in  9 correspondence, and I wonder if she could address you?  10 THE COURT:  Yes.  11 MS. MANDELL:  My lord, I could deal with it this — at this  12 time, although it may be a situation where your  13 lordship would see yourself as required to have a look  14 at the documents which are in issue, and they're  15 voluminous.  I can advise your lordship that the work  16 which Dr. Galois prepared with respect to the  17 Plaintiff's case takes on two separate forms, and I've  18 made reference to them in my letter of May 16th, which  19 my friend has already put before your lordship.  With  20 respect to --  21 THE COURT:  I don't think so, has he?  22 MS. MANDELL:  This is his — there was.  23 THE COURT:  Have I seen — oh, yes, yes.  24 MS. MANDELL:  Dr. Galois has prepared for counsel a voluminous  25 document which has undergone a number of drafts where  26 the actual documents which will be used by counsel in  27 final argument have been -- passages have been  28 separated and they've been woven together.  At least  29 Dr. Galois' final version of it has been woven  30 together for counsel, and this will appear and be used  31 by counsel in the preparation of the final -- of the  32 final legal argument, and this -- I might advise your  33 lordship that this branch of Dr. Galois' work is  34 voluminous and there's been many drafts generated with  35 respect to it.  Now, in addition to that, Dr. Galois  36 has been directed by the Plaintiffs to separate out,  37 for the purposes of testifying, opinions with respect  38 to certain of the materials which have been prepared  39 by him for the purposes of assisting counsel and  40 creating an understanding of the period, and that  41 report has been delivered to my friends in time, and  42 has been now here the subject of debate, and of course  43 there can be no question but that some of the opinions  44 that are going to be put before your lordship are  45 referenced with respect to the work done for the  46 larger report, but the larger report is claimed by  47 counsel to be privileged as it is the synthesis of the 16426  Submissions  1 work and it does reflect how the documents in the end  2 of the day may be organized by counsel in the  3 preparation of final argument.  Now, we claim  4 privilege with respect to that, and --  5 THE COURT:  Even though it's been given to somebody else who's  6 incorporated it as a source of -- as a citation in his  7 report?  8 MS. MANDELL:  Well, with respect to the references made by Dr.  9 Brody and Dr. Daly, the sections which have been  10 referenced by them are included in the report which my  11 friend has.  There's nothing that's not in it.  All  12 the facts and the references are therein included.  13 However, with respect to the body of the  14 documentation, and your lordship will see that there  15 is some 580 documents bound up for the purposes of  16 support for the few opinions which Dr. Galois is  17 given.  The manner in which those documents will be in  18 the end of the day strung together is the subject  19 matter of the report which counsel claims privilege  20 with respect to it.  Now, I might say that in addition  21 there's other documents from -- as I understand it,  22 from the Plaintiff's list which Dr. Galois has also  23 made reference to in his larger report, but the  24 opinions with respect to those documents are not  25 before your lordship and are not the subject of  26 testimony or will not be the subject of testimony.  27 THE COURT:  Well, Mr. Willms has to know whether these documents  28 are going to be made available to him before he  29 cross-examines.  It seems to me that the only way to  30 manage that would be to -- it would be to have you  31 examine him now on whatever information you want to  32 put before me in this area, or you've got to find an  33 affidavit pretty quickly so that the matter can be  34 dealt with that way, but it's got to be before Mr.  35 Willms has to cross-examine.  36 MS. MANDELL:  An affidavit with respect to documents?  37 THE COURT:  I don't want to force you into a box, Miss Mandell,  38 but whoever is dealing with it wants to file an  39 affidavit, it's got to be done quickly.  On the other  40 hand, if material you want to be put before me for the  41 purpose of supporting your claim of privilege can be  42 done through the witness, it may be the best thing  43 that he be examined on that issue right away,  44 cross-examined, and if I have to look at the documents  45 I can look at them.  Seems to me anything else isn't  46 going to get an answer before Mr. Willms has to  47 cross-examine. 16427  Submissions  1 MS. MANDELL:  Excuse me.  My lord, we will have to consider our  2 position.  The difficulty which your lordship presents  3 for us is that it's not in Dr. Galois' court to know  4 what use will be made by counsel of which of the  5 documents that he has made available to us, and in the  6 order that he has, and it's in that respect that  7 privilege is claimed with respect to counsel's brief.  8 THE COURT:  Well then, I will have to have — well, I'm not sure  9 what I need.  It's up to counsel to tell me what I  10 need before me.  It may be that it can be done on the  11 basis of statements of counsel.  Perhaps the Defendant  12 also will have something to say about that.  13 MR. WILLMS:  Well, I don't think I can say much more, my lord,  14 than it is absolutely inconceivable that the very  15 first draft of this witness' report is the summary  16 that we got in 1987, that is just beyond the realm of  17 conception.  It had to be based on some documents  18 which preceded it.  The documents which preceded it  19 are the documents that Dr. Daly referred to and that  20 Mr. Brody referred to, and it is -- it frustrates  21 completely the Phillips Barratt decision, and in my  22 opinion, the earlier ruling by your lordship.  If  23 counsel can come in here and say "Oh, that part is our  24 argument" but then he changed his hat, even though we  25 didn't hear any evidence of that, and switched to an  26 opinion giver, and so we can keep all of the drafts  27 upon which his opinion is based because that's just  28 going to help us, and frankly, my lord, I don't know  29 what affidavit my friends could file, I don't know  30 what evidence Dr. Galois could give which would extend  31 and maintain a claim for privilege to those documents,  32 especially the document referred to by Mr. Brody in a  33 report that my friends marked as an exhibit.  34 THE COURT:  Well, it is conventional in these matters when a  35 claim of privilege is challenged for there to be an  36 affidavit.  I'm not sure that -- and that was the  37 reason why I mentioned that a moment ago.  On  38 reflection, I'm not sure that an affidavit is  39 necessary.  It may be that I have all the information  40 I'm going to get in this matter and there may be some  41 submissions made, unless counsel wants to do anything  42 else.  It may be that I want to read these documents  43 or look at them and see whether they're privileged or  44 not.  I don't see any way of resolving it.  I don't  45 suppose they're even here.  46 MS. MANDELL:  My lord, they're voluminous, we're talking  47 probably upwards of 4,000 pages.  That is all the 1642?  Submissions  1 drafts combined with the -- in total.  There's -- it's  2 a large body of material.  3 MR. WILLMS:  Well, my lord, I would be content as a starting  4 point, and certainly it would probably be of  5 assistance if your lordship were to look at three only  6 documents:  "This Is Our Land", I don't know how long  7 that is, "Smouldering Embers" -- not all the drafts of  8 each one, but the most recent draft of "This Is Our  9 Land", the most recent draft of "Smouldering Embers",  10 and the document that Mr. Brody referred to in his  11 report as "Galois 1986".  Those -- unless my friend  12 says that each one of those is 4,000 pages, maybe they  13 are, I don't know, but that would be a starting point,  14 and only then, depending on what your lordship might  15 rule in respect of those two -- three documents, would  16 we then go into the past to what preceded those three  17 documents.  18 THE COURT:  Well, as I said in an earlier occasion, none of us  19 are entitled to be overwhelmed by anything that looks  20 at -- if I have to look at those documents this  21 evening or tomorrow evening I suppose that's what we  22 have to do.  You don't have them here, I'm sure?  23 MS. MANDELL:  No.  24 THE COURT:  Well, I think that I will rest up this evening and I  25 think you will have to produce them for me tomorrow,  26 and I'll look after them as best I can.  Thank you.  2 7 Mr. Adams.  28 THE COURT:  The report will be 1034 for identification.  29 THE REGISTRAR:  Thank you.  30  31 (EXHIBIT 1034 FOR IDENTIFICATION - Report by Dr.  32 Galois)  33  34 MR. ADAMS:  Dr. Galois, I wonder if you could look at the first  35 page of your opinion report.  My lord, perhaps before  36 we get too far along I should explain a number of  37 things about the materials we're going to have to deal  38 with in the course of Dr. Galois' evidence.  On the  39 bench are eight volumes of documents which are tabbed.  40 There is a table of contents to those volumes which  41 isn't there yet, it will be copied tonight and made  42 available first thing in the morning.  It has been  43 made available in its last draft, one to my friends,  44 and what it does is simply to follow through in order  45 everything that Dr. Galois cites in his opinion  46 report, and when something is cited a second time it  47 stays wherever it was first cited, so that with any 16429  Submissions  1  2  3  THE  COURT:  4  5  6  MR.  ADAMS:  7  8  9  THE  COURT:  10  MR.  ADAMS:  11  12  13  THE  COURT:  14  MR.  ADAMS:  15  16  17  THE  COURT:  18  MR.  ADAMS:  19  20  21  22  23  THE  COURT:  24  25  MR.  ADAMS:  26  27  THE  COURT:  28  MR.  ADAMS:  29  THE  COURT:  30  31  MR.  ADAMS:  32  THE  COURT:  33  MR.  ADAMS:  34  35  36  37  38  39  THE  COURT:  40  41  MR.  ADAMS:  42  43  44  45  46  47  THE  COURT:  luck everyone of the documents he cites has a unique  number and a unique tab.  Mm-hmm.  I come to 32 on page 49 is a report, I  should be able to turn to tab 32, it may not be in  tab —  No.  It won't be until you have the table of  contents with the assigned tab numbers that you will  be able to refer to them like that.  Oh, it's the index is a table of concordance, is it?  What it does is -- well, the best way is to show you  by example.  If you look at page 23 of the opinion  report, you will see a list of sources.  Yes.  The opinion report is in two parts.  One is the  general economic material, the larger second part is  the resistance protest material.  Yes.  Those numbers that appear in the opinion report are  footnote numbers.  What we have done is go through  those -- for instance, if you look at footnote 1 you  will see reference to Fort Simpson Journal, June 21st,  1837, and then succeeding references.  I don't see where footnote 1 is referred to in the  text though, is it?  It's right under "Sources" on page 23, that number  1.  Yes.  But that's not a footnote to the text, is it?  Yes, it is.  But not to a specific place in the text, just to the  whole of the text, is it?  Maybe I can find the footnote.  It's --  I see there is a footnote here somewhere earlier.  Yes.  On page 6 of the opinion report there is a  footnote 1 towards the bottom of the page.  The  structure of this report is that a passage of material  appears, then a footnote, then the supporting sources  for the passage preceding the footnote appears, and  often you will see it's multiple.  All right.  Well then, why wouldn't -- wouldn't  footnote 1 be tab 1?  Because that would be in some cases a very fat tab  and it would be impossible to get around in it, so  what we've done is assign a number to each of the  references in order, so that under that footnote 1  there are at least one, two, three, four, five, six,  seven, eight tabs.  I see, all right.  Thank you. 16430  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  MR. ADAMS:  And then to make life even more complicated, the  footnotes start again at the end of part 2 of the  report, and that starts on page 104.  That doesn't  affect the numbering, it's still consecutive through  the report.  Yes, all right.  But the footnotes start over.  Yes.  And the pages where the references are found and the  footnote numbers will all be identified on the table  of contents to the books of documents along with a  whole bunch of information about whether a document  has been exhibited already, whose document list it is  on, and so forth.  THE COURT:  Thank you.  EXAMINATION IN CHIEF BY MR. ADAMS:  Q   Dr. Galois, I had you at page 1 of your opinion  report.  A   Yes.  Q   And towards the bottom of the page you say:  "The specific questions which this opinion  addresses are as follows."  And there follows a list of questions, and for the  moment going over onto page 2, I want to confine you  to the first five of those, that is the subjects of  part 1 of the report.  And so that has you launched on  the enterprise of saying something out of the  documents about the nature of the white economy and  society, processes for change in that economy and  society, features of Gitksan and Wet'suwet'en economy  and society, changes in that economy and society, and  then continuity and persistence.  And what I want to  ask you is having set yourself or been set that  enterprise, how do you as a historical geographer go  about answering questions of that nature, and how did  you -- to write this report?  A  Well, part of the challenge and problem of writing  that sort of report is knowing what sources exist.  When I undertook this work I already had considerable  background in the archival sources of material  pertaining to the historical geography of British  Columbia for this period.  I had a working  bibleography on -- from the work that I had done when  I started on a Ph.D. concern with the coast Tsimshian 16431  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 and the maritime fur trade, and the land-base fur  2 trade.  So in part I used that basic set of  3 information that I had indications of the sources.  4 Some of the material I could follow up at U.B.C, but  5 the principal location for undertaking historical  6 research in the province, in my opinion anyway, is the  7 provincial archives in Victoria.  So I would visit  8 there and then consult the various bibleographic  9 guides, finding aids, et cetera, to guide myself to  10 the primary sources.  I also engaged in a certain  11 amount of reading of secondary sources that were  12 pertinent to the time and place, and I interpreted  13 place in a fairly broad fashion for the early period  14 that I was considering.  15 Q   And how did you get from the raw material, if I can  16 put it that way, of the documents to the opinions that  17 you express in part 1 of your report?  18 A  Well, it was a slow process of trying to sort of  19 collate and synthesize the relevant material that I  20 collected.  One reads a great deal in the way of  21 documents that are not directly pertinent to the point  22 to the area at issue.  One has to sort of read a great  23 deal very often to get a relatively small amount of  24 information, and it's a question then of sort of  25 compiling that in some sort of coherent manner.  26 Q   And is it part of the process to evaluate the sources?  27 A   One's continually evaluating the sources, yes.  I mean  28 more sources that you have in a sense about particular  29 events or incidents or descriptions of locations, the  30 more secure one can be about making statements about  31 it.  So one is in a sense -- well, one always has  32 questions about any particular given source, it's very  33 difficult to sort of generalize I think any particular  34 source what has to be viewed within its context, and a  35 given source may be useful or reliable on certain  36 points and unreliable on others.  37 Q   How do you make a judgment like that?  38 A  Well, it's a function of whatever -- what else one has  39 read that pertains to a specific point, preferably in  4 0              primary documents.  41 Q   Why are primary documents preferable?  42 A  Well, they are, generally speaking, in historical work  43 one refers whenever possible to primary documents,  44 because they have been through one less filter than  45 secondary sources.  46 Q   What is it that you refer to as a primary document?  47 A  Well, there are various different kinds of -- it's an 16432  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 original document from the time that you're  2 discussing, it's one that is ideally from participants  3 or observers of that; the distinction being comparing  4 with sort of secondary scholarly works which attempt  5 to synthesize the primary materials.  6 Q   I wonder if you could turn to page 6 of your opinion  7 report.  And you say there under the heading A, new  8 approaches?  9 A   Yes.  10 Q   That:  11  12 "An examination of Hudson's Bay Company records  13 indicate that the white economy and society  14 maintained only a marginal and indirect presence  15 in the upper Skeena area from the 1820's through  16 to the end of the 1850's."  17  18 A   Yes.  19 Q   And then in footnote 1 you cite a number of things  20 that appear at tabs 1 through 4, 6 through 10, 11 and  21 those were Fort Simpson's journals, Brown's 1822 to '3  22 report, Fort St. James journal, and 1823 Fort Fraser  23 journal.  Without taking you through those documents,  24 what is it -- what's the nature of the information  25 that you find there that indicates that there is a  26 marginal and indirect white economy and societal  27 presence?  28 A   The Hudson's Bay posts were located either outside  29 Gitksan-Wet'suwet'en territory or -- except for in the  30 case of Fort Connolly, on the very margins of that.  I  31 think the sources that I cite in terms of the Hudson's  32 Bay Company journals are referred to in direct  33 connections between neighbouring groups and the  34 Gitksan and Wet'suwet'en, and I think there may be one  35 or two cases where Gitksan or Wet'suwet'en visited  36 Fort Kilmaurs, Fort St. James and Fort Fraser.  37 Q   When was the Hudson's Bay post at Hazelton  38 established?  39 A   1866.  It was closed in 1868.  40 THE COURT:  The Hudson's Bay post at Hazelton?  41 A  Well, it was Aquilgate(?) is the correct designation  42 in the Hudson's Bay company records.  There is some  43 uncertainty as to its precise location.  As far as I  44 can determine, the most probable location would be at  45 Mission Point, which is located on the south bank of  46 the Skeena River just a little to the west of the  47 mouth of the Bulkley, but as I say, the -- there are 16433  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 contradictory descriptions in the historical record.  2 Q   And then on page 7 -- well, let me follow that up for  3 a moment.  You say it was open from 1866 to '68?  4 A   Yes.  5 Q   And then closed?  6 A   Yes.  7 Q   And when was there a post in the area next opened?  8 A   In 1880 the Hudson's Bay Company purchased a store  9 from a merchant called W.J. Walsh, who had been  10 operating there for some -- well, I'm not sure exactly  11 how many years, but for a number of years had operated  12 a store in Hazelton which participated both in the fur  13 trade and in the provisioning trade for miners who  14 passed through on their way to the gold fields in  15 Omenica.  16 Q   At the bottom of page 7 of your opinion report you  17 first refer by way of footnote, and in fact in the  18 text in the middle paragraph:  19  20 "A variety of journals, diaries, correspondence,  21 and maps, together with newspaper accounts --"  22  23 And you say something about that, and then you say:  24  25 "The same documents also permit the description  26 of some basic features of Gitksan and Wet'suwet'en  27 economy and society --"  28  29 My first question is what is it that you look to in  30 documents of that kind to tell you that you're seeing  31 a description of basic features of those economies and  32 societies?  33 A  Well, one doesn't come into those sorts of issues  34 completely blind, one has some background of reading  35 in sort of in the secondary literature, which provide  36 indications of how our hunting and gathering societies  37 and economies operate, and one finds in those sorts of  38 documents indications of those basic activities,  39 hunting, gathering, fishing and collecting.  4 0 Q   And what in the documents that you cite do you look to  41 for the opinion at the bottom of page 7, that the  42 whites who entered the upper Skeena region encountered  43 an operating and functional society?  44 A  Well, there's a series of sort of interchanges with  45 native peoples in the area, trade, exchange of  46 commodities, hiring native peoples to facilitate white  47 in moving around the area.  I mean the -- the 16434  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 geographic knowledge of whites in the early period, I  2 gather we're speaking 1850 to 1929 to this point.  3 Q   Yes.  I'm in the first section of your report that  4 you --  5 A   Yes.  They were important as sources of geographic  6 information, which implies that they had knowledge of  7 the area.  Indian names were used by whites for the  8 various different features.  I believe there's sort of  9 descriptions of elements of the society, references to  10 chiefs, for example, and there's quite a complex  11 description of some trade routes.  For example, the  12 grease trails and the various facilities surrounding  13 that which link the upper Skeena with the lower Nass.  14 There's an excellent description by Chismore, for  15 example, and he takes to the -- this is in 1870, he  16 takes to the apparent age of both of the trails and  17 the surrounding facilities.  18 Q   Let me just ask you -- sorry?  19 A   The other point too is I've looked at the documents by  20 Brown, which point to an operating society in the  21 1820's, and I know of nothing in the interval that  22 suggests that the situation has changed so  23 dramatically that there was no longer an operating  24 society in the 1850's.  25 Q   And that would be the Brown report of 1822 and '3?  26 A   That's the description of the Babine district, yes.  27 MR. ADAMS:  Yes.  My lord, that is exhibited as Exhibit 964-5,  28 and it's also -- well, it would be tab 6 under  29 footnote 1 part 1 of this opinion report.  30 THE COURT:  964-5?  31 MR. ADAMS:  32 Q   Yes.  Professor Ray, and was referred to extensively  33 by him, and I don't propose to go on with it at all.  34 At the top of page 8 in the same paragraph you say:  35  36 "The principal features of the settlement pattern  37 can be discerned."  38  39 A   Yes.  40 Q   And your footnote there, amongst other references, is  41 to a publication that appears as Downie to Douglas,  42 and that's at tab 25 of volume 1, and I wonder if that  43 could be put in front of the witness, please.  Now,  44 before I get you too deeply into that, let me ask you  4 5 who Downie was?  46 A  Major Downie, I believe he was -- well, he came to  47 British Columbia from California.  He was, shall we 16435  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 say, a -- well, a mining prospector.  If one does any  2 research in the history of British Columbia or in the  3 1860's, particularly anything to do with prospecting  4 and gold mining, Major Downie becomes a familiar  5 figure, a familiar name.  He prospected in a  6 considerable number of different places within the  7 province, one of which of course was the upper Skeena,  8 and the document that we have before us refers to his  9 journey through that area.  But he also visited the  10 Queen Charlottes, he was also involved in some  11 prospecting I believe in Knight Inlet, Jervis Inlet,  12 he -- for a time he was operating I think in the  13 Caribou, probably in the mid 1860's.  I can't remember  14 the details offhand, but he's a familiar enough figure  15 involved in the whole process of exploration in terms  16 of mineral wealth of the province.  17 Q   Are you aware of why in 1859 he would be writing to  18 Governor Douglas?  19 A  As I recall, Downie had put together an expedition in  20 1859, this is following the 1858 gold rush, and that  21 produced an explosion of sort of activity and the  22 whole process of the spreading out of people examining  23 a whole set of different areas of the province for  24 primarily for placer gold deposits.  Major Downie  25 organized an expedition, I think he received some  26 finances from the Colonial government.  He wasn't --  27 at least in my -- as far as I can recall, employed by  28 them, but he was, shall we say, subsidized to some  29 extent, and he proposed making a journey up the Skeena  30 River.  I should point out that in 1825 there had been  31 some small amounts of gold brought into Fort Simpson  32 by some Coast Tsimshian Indians, and there had also  33 been a mini gold rush on the Queen Charlotte Islands  34 in 1851, 1852 and part of -- Downie intended also to  35 examine the Queen Charlotte Islands.  He spent very  36 little time, if any at all, time there as matters  37 transpired.  38 Q   And I take it he -- did he travel to the Skeena area  39 and is this document the result?  40 A   Sorry.  He travelled up the Skeena, yes, to the forks  41 of Skeena, where he noticed the village at the forks  42 of Kittamarks, I believe he calls it.  He then hired  43 two Indians and travelled on the trail to Babine Lake  44 along the Susqua Valley, travelled down Babine Lake  45 where he met Gavin Hamilton on his way from Fort  46 Kilmaurs, which is located at the -- where it had been  47 in 1822, but it was only operated in the winter 16436  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1  2  3  4  5  6  Q  7  A  8  9  MR.  ADAMS  10  11  12  13  14  15  THE  COURT  16  MR.  ADAMS  17  18  19  THE  COURT  20  21  MR.  ADAMS  22  Q  23  A  24  THE  COURT  25  A  26  MR.  ADAMS  27  28  29  30  THE  COURT  31  A  32  MR.  ADAMS  33  Q  34  35  A  36  37  Q  38  A  39  40  41  42  43  44  45  46  Q  47  months, as I recall.  Gavin Hamilton was on his way up  to the outlet of Babine Lake to trade fish from the  Babine Indians there, as in fact was the custom of the  Hudson's Bay Company going back to the establishment  of Fort Kilmaurs in 1822.  At this point you  Sorry.  He then carried on to Fort St. James, where  this report was written.  :  You cite Downie's report at tab 25 for the  proposition that the principal features of the  settlement pattern can be discerned.  I would like to  take you to page 16 of tab 25.  And the pages, my  lord, are not numbered and it will be a matter of  counting in.  :  16?  There's a change --  :  It's the fourth page in.  There's a change in the  apparent nature of the text, and it's the fourth page  in from that change.  :  Yes.  Starting "From here up to the village of"  something.  Yes, that's the page?  Kittamarks.  :  Kittamarks?  How do you read that?  It's K-I-T-T-A-M-A-R-K-S.  :  Now, I want to draw your attention on that page to  the first full paragraph, where it says "From the  village of", and just ask you to read a line or two  there.  :  I don't want -- where is this?  From here?  Here the Indians came down --  No.  The first full paragraph beginning "From the  village".  Am I in the wrong place?  "From the village of  Kittcoonca"?  Right there.  "From the village of Kittcoonca the prospect  of gold is less below here.  A man could make  about one dollar a day.  What is back in the hills  that looks so well I cannot say, and we have not  time to go and prove them as the season is getting  advanced."  Let me stop you there and just ask you if you're able  to identify the village that's referred to there? 16437  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 A   I take that to be a reference to Kitwanga, as I  2 recall.  3 Q   Is the order of this document that Downie's proceeding  4 upriver?  5 A   He starts out from Fort Simpson and proceeds up  6 further, yes.  7 Q   If you go down the same page you see two further  8 paragraphs, and one beginning "From this place to the  9 village of", and then there's a --  10 A   "From this place to the village of Kittsagathala,  11 K-I-T-T-S-A-G-A-T-H-A-L-A.  12 Q   And do you identify that with a place?  13 A   I take that to be Kitsegukla.  14 Q   And going over the page, at the bottom of the page,  15 three lines from the bottom, the paragraph at the very  16 bottom?  17 A  18 "The lands gets very low to the north when we pass  19 here until we get up to the forks or the village  20 of Kittamarks.  Here the canoe will stop.  I sent  21 the Indian up to the village of Augelgeth for two  22 Indians."  23  24 Q   And were you able to identify those two places?  25 A   I take that to be Hagwilget.  26 Q   And the place before?  27 A   I take that to be Gitanmaax.  2 8 Q   Mm-hmm.  And then going over two more pages, eight  29 lines from the top, you see a line beginning "is the  30 Indian village" and a name and then along the  31 bottom --  32 A  33 "Is the Indian village Kispiyacks along the bottom  34 runs See an past the Indian village Allagasomdaa,  35 further up is the Indian village Kitthathraths  36 still on See An river.  The Indian says we have  37 not far to go now."  38  39 Q   The place name that's five lines from the bottom of  40 that paragraph, can you identify that, K-i-i-s-p --  41 A   I take that to be Kispiox.  42 Q   And then there was a name that I think we will have to  43 spell, which is A-L-L-A-G-A-S-O-M-D-A-A.  Is that how  44 you read that, three lines from the bottom of the  45 paragraph?  46 A   Yes, Allagasomdaa.  47 Q   Are you able to identify that in a place? 16438  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1  A  2  3  4  THE  COURT  5  A  6  7  8  9  10  11  12  13  14  15  Q  16  17  18  A  19  20  Q  21  22  23  24  25  26  27  28  29  A  30  Q  31  A  32  MR.  ADAMS  33  THE  COURT  34  A  35  THE  COURT  36  A  37  38  THE  COURT  39  MR.  ADAMS  40  Q  41  42  43  44  A  45  46  47  There's some uncertainty in the historical record on  that point.  I think other sources suggest that it was  in fact a fishing village.  :  I'm sorry?  Other sources suggest that one possibility was that it  was in fact a fishing village, the other that it was  an old version of Kisgegas.  I should point out that  Downie himself didn't visit these -- any of these  three places, he's obtaining information from Indian  sources, whereas the villages up as far as Hagwilget  were places that he did himself visit.  So one can  feel more secure about the identification of those  places than the points above Gitanmaax, which he did  not himself visit.  Finally on this passage, the place name on the second  line from the bottom of the paragraph beginning  K-I-T-T, are you able to identify that?  My supposition there is that it is -- it's a reference  to Kisgegas.  Now, you go on on page 8 of the opinion report to say  in the first full paragraph that:  "Fishing, hunting and trapping, and gathering  berries were the foundation of the economy."  And then you have a footnote 6, and let me take you  first to tab 28.  That's a publication entitled "The  Pioneer Telegraph Survey of British Columbia"?  Yes.  By Leech, L-E-E-C-H?  Peter J. Leech.  :  If you go to page 23 --  :  This is August of 1899?  That's when it's published, my lord.  :  '99, is it?  That's when it's published, but it is an account of a  journey that was undertaken in 1867.  :  Oh, yes, yes, right.  I wonder if you could just have a look at that page  and draw out the passages that contribute to your  conclusion that fishing, hunting and trapping, and  gathering berries were the foundation of the economy?  Well, Leech at this point was undertaking some  explorations for the Collins Overland Telegraph.  He's  making a journey, as I recall, from the Nass to the  upper Skeena, and he makes reference to a number of 16439  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  ADAMS  Q  A  villages there:  Kispiox, Kuldoe, Kisgegas, and he  meets particularly, as I recall, a party from  Kisgegas, and there are a series of references there  to them either hunting for caribou in particular, and  he is also fed caribou meat and also dried salmon too,  and there's also a reference to a cache, I believe, of  Caribou meat.  Q   And then back in tab 25, the report from Downie to  Douglas, and nine pages from the back, my lord, it's  probably the easiest way to reach it, and it's a page  that has Nass Glee, N-A-S-S G-L-E-E on the upper  left-hand corner.  A   Nass Glee.  MR. ADAMS:  Just one second until we are all there.  THE COURT:  What is that?  L-E-E or L-E-E-O-N?  A   I take that to be See an, which is the name that  Downie uses to describe the Skeena River.  Is Nass Glee a place name?  It's a reference to a village, I take to be a Babine  village on the Babine River somewhat above the outlet  of Babine Lake.  Q   And I want to direct your attention to the middle of  the page in the first full paragraph, and two, four,  five lines into that paragraph there is the sentence:  "I have find out by this time that the Nass Glee is  the main dependance of Fort St. James for fish."  What I would like to ask first of all what you  understand that to be to refer to?  A   That's a continuation of a pattern that had been  established by the Hudson's Bay Company dating back to  the operation beginnings of Fort Kilmaurs.  I guess  the important point is that there were considerable  variations in the available supply of salmon on the  upper Fraser watershed.  As one gets further and  further away the sort of -- the fluctuations from one  year in the quantities of salmon were variably  increased so that every -- I'm not sure of the  frequency, but there were -- it was not uncommon at  least for the Hudson's Bay Company to suffer shortages  of supply of salmon, which was the main source of  eatables in the forts of the New Caledonia, therefore  it was customary to resort to the Skeena system, in  particular the fishery near the outlet of Babine Lake,  to supplement the supplies of salmon.  This merely 16440  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 suggests that this pattern was still continuing in  2 1859.  3 MR. ADAMS:  4 Q   Let me ask you to turn to tab 29.  And that has on its  5 facing page "Overland Monthly Devoted To The  6 Development Of The Country."  And within that extract  7 to page 458, it's towards the back, first of all, this  8 you cite as Chismore?  9 A   Yeah.  10 Q   1885, is that a publication date or a production date,  11 or do you know?  12 A   That's a publication date.  Chismore worked initially  13 for the Collins Overland Telegraph, had some  14 experience of the northern coast.  I'm not sure if he  15 ever made it up to the upper Skeena, then as far as I  16 can recall with the purchase of Alaska by United  17 States in 1867 I think he stayed on in some capacity  18 there, and then in 1870 went on a trip up the Nass to  19 the upper Skeena.  I think he intended to go to  20 Omenica.  The first discovery of gold in Omenica had  21 occurred late in 1869, but to the best of my  22 recollection he never made it to Omenica.  23 Q   And on page 458 I would like to direct your attention  24 to a passage in the second full paragraph, "On the  25 14th of July"?  26 A   You wish me to read that?  27 Q   Well, I'll just read it through quickly and ask you to  2 8 comment:  29  30 "On the 14th of July, we arrived at the village  31 of Kis-py-aux, on the river of that name, near its  32 junction with the Skeena.  The inhabitants were in  33 a great state of excitement over the death of an  34 old woman two days before.  She and a younger  35 squaw had been picking berries, and were returning  36 home with well filled baskets on their backs, when  37 a huge bear issued from the brush and set upon  38 them."  39  40 And then so on.  This account of that, was that part  41 of what you rely on to identify berries as a part of  42 the Indian economy?  43 A   That's the type of information.  One gets descriptions  44 both of it's quite clearly Indian use of specific  45 resource.  One finds information too on the exchange  46 of such resources as berries with visiting whites.  47 Downie, for example, obtained supplies of berries on 16441  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Galois (for Plaintiffs)  In chief by Mr. Adams  his trip from Hagwilget to Babine Lake, rather more  than he wished, is the impression one gets.  MR. ADAMS:  And then further down page 8 of your opinion report  you draw some conclusions about trade.  You say in the  paragraph following footnote 7:  "Trade, and consequently trade routes, were  important facets of Gitksan/Wet'suwet'en  economies."  And then you say:  "Trade was not limited to Indian/White exchanges."  And then you refer to the grease trails and say that:  "In 1870 the 'grease trails' to the oolichan  grounds of the lower Nass were already of some  antiquity."  And finally in that paragraph you say:  "The oolichan trade was governed by a set of rules  or procedures which covered exceptional as well as  normal circumstances."  And then one of the things you cite there is an  earlier passage in this same tab 29 of Chismore, and  just like to refer you to that, at page 455.  THE COURT:  What tab is that?  MR. ADAMS:  Q   29, my lord.  It's the one we were just in but a  little bit back. And in the middle of the right-hand  side there it begins "On the afternoon of July 5th we  left Kil-ack-tam".  Do you see that?  A   Yes.  Q   Where is that?  A   I take that to be on the Nass River.  I think -- I'm  not sure if it's referring to Gitanmaax or some other  location there.  I take it to be above the lava beds  anyway.  Q   And it carries on:  "We left Kil-ack-tam and ascended the river three  miles to the point where the great Grease Trail  begins." 16442  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 And then if you skip down a few sentences, it  2 continues:  3  4 "It is borne upon the back by means of a thong  5 fastened to the boxes, and dividing into two  6 parts."  7  8 And there's a description there:  9  10 "Every member of the family that can walk carries a  11 burden.  One hundred and twenty pounds is called a  12 load for an adult, man or woman, and each age has  13 its proportionate weight.  Those who have brought  14 the grease up the river transport it a certain  15 distance on the trail, where they are met by  16 Indians from the interior who buy it from them to  17 trade it in turn to others at the confines of  18 their territory.  Each tribe is exceedingly  19 jealous of its privileges,and it is only on rare  20 occasions that a member of one is allowed to pass  21 through the territory of another.  Ten miles is  22 considered a day's journey."  23  24 And then skipping down to the first full paragraph on  25 456:  26  27 "The distance by the trail to Skeena was estimated  2 8 by me to be one hundred and twenty-eight miles:  29 following the Nass in a direction almost north for  30 twenty-four miles; thence up a branch, the Harkan,  31 to the divide, forty-two miles to the north-east;  32 and then down the valley of the Kis-py-aux to the  33 Skeena, sixty-two miles, nearly east."  34  35 And I simply want to ask you is that something that  36 you rely on for the comments you make about the  37 oolichan trade?  38 A   Yes, it is.  Chismore is perhaps the best description  39 that we have from this relatively early period of both  40 the operation and facilities surrounding the oolichan  41 trade from the Nass to the upper Skeena.  I should  42 perhaps add that distances in this type of account  43 tend to be somewhat unreliable, they tend to be  44 overstatements very often.  45 Q   Another source you refer to for your observations  46 about trade is to be found at tab 58, which I believe,  47 my lord, is in volume 2.  And that's headed "Report of 16443  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. Galois (for Plaintiffs)  In chief by Mr. Adams  A.L. Poudrier".  And I wonder if you could explain who  Poudrier was?  A   He was an employee of the British Columbia Land  Service or Survey, I'm not quite sure which that is,  but anyway, his employer was the provincial  government.  And he undertook exploratory -- a very  large scale exploratory survey of New Caledonia in  1891, and this is his report.  He also published a map  on the basis of his survey work in 1891.  Let me ask you to refer to page 361 of tab 58, and  you will see at page 358 a heading "Skeena River", and  this is part of that passage.  What page again?  MR. ADAMS  THE COURT  MR. ADAMS  Q  A  Q  The beginning of the passage on the Skeena River, my  lord, is at 358.  The passage I'm referring the  witness to is that section at 361.  And in the middle  of the page beginning with the paragraph "Kitwanga, an  Indian village of some importance"; do you see that?  Yes.  "Is on the north side of the Skeena at the mouth of  the creek of the same name; its principal  importance being the departure point of the trail  going to the Nass River and known as the "Grease  Trail"; it is very much frequented by the Indians  on their way to the Nass for their annual supply  of oolachan fat."  And then at the end of the same paragraph:  "There is also an Indian village of some  importance, and the old houses and the numerous  carved totem poles shows it must have been of some  importance in the past.  The Kitseguecla itself  will be described further on."  I just want to ask you whether that first passage  contributes to your conclusions about both trade  routes and the importance of the oolichan trade?  A   Yes.  It's just another -- there were two major grease  trails linking the upper Skeena and the Nass.  One  went via Kispiox and the second one went via  Kitwancool to Kitwanga in and the Skeena at that time,  and this is just one description of that particular  trail and its position within the grease trade.  Q   Okay.  Going to page 10 of your opinion report, let me 16444  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 just stop before I ask you and say the first section,  2 as far as dates that you've identified in your opinion  3 report, covers the years 1850 to '69?  4 A   Yes.  5 Q   And then beginning on page 10 you've started 1870?  6 A   Yes.  7 Q   What, from your point of view, in structuring this  8 opinion, is the significance of the break at 1869?  9 A   I base that on the discovery of gold in Omenica and  10 the subsequent small scale, by comparison with other  11 gold rushes in the colony, the small-scale gold rush  12 to Omenica.  The significance of this for the upper  13 Skeena is that by 1871 the Skeena route became the  14 principal route to supply that -- the Omenica gold  15 field.  There was an extremely long overland journey.  16 If you went sort of via New Westminster and the Fraser  17 system, there was a road as far as Quesnel, but beyond  18 that, transportation was somewhat rudimentary, shall  19 we say.  The Skeena route offered the considerable  20 advantage of sea transport to the mouth of the Skeena,  21 then you could go by Indian canoe essentially as far  22 as Hazelton, and then overland a much shorter  23 distance, and there were a number of trails that  24 linked up Hazelton with Babine, and then there were  25 two routes after one reached Babine Lake.  You could  26 go by water via Fort St. James, or there was another  27 pass, another route, I think, via Taqualate(?) Frying  28 Pass, and then onto Omineca.  Omineca was a part of  29 the Peace River drainage system, I should perhaps add.  30 Q   All right.  On page 10, where you begin with 1870, you  31 say in the paragraph in the middle of the page  32 following footnote 13:  33  34 "The white economy focussed upon exploiting the  35 resource base of the upper Skeena and adjacent  36 regions, and in overcoming the supply problem  37 involved in those activities."  38  39 And let me ask you a general question first.  What in  40 your opinion were the principal features of that white  41 economy at that time?  42 A  Well, on the basis of the documents that I've  43 examined, the white economy consisted primarily of the  44 fur trade and of gold mining and the various processes  45 of facilitating the operation of those two processes  46 of resource extraction.  Perhaps I should just add  47 that it was resources not just limited to the upper 16445  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 Skeena itself but also in adjacent areas where the  2 transportation routes passed through the upper Skeena  3 both to Omineca and also to the Cassiar region of,  4 which is the Dease Lake, the area north of the  5 Stikine.  There was a trail which was used for some  6 years which passed -- which was essentially a  7 continuation and an extension of the old Collins  8 Overland Telegraph trail, which was built as far as  9 Fort Stager, Kispiox in 1867 -- 1866, I'm sorry.  10 Q   And what was the route to Omineca that involved the  11 Skeena area?  12 A   Pardon?  13 Q   What was the route to Omineca that passed through the  14 Skeena area?  15 A  Well, as I mentioned earlier, you went by coastal  16 steamer to the mouth of the Skeena and then up the  17 Skeena by canoe to Hazelton, which was established in  18 1870, '71, I'm not quite sure exactly, and then you  19 went by trail overland to Babine Lake, and then there  20 were two possibilities from there.  The one that was  21 used most commonly after the initial rush, if I recall  22 correctly, was via Babine Lake to Fort St. James and  23 then onto Omineca.  24 THE COURT:  You weren't suggesting that the Collins Overland  25 Telegraph only got as far as Kispiox, are you?  26 A   That was as far as the line operated.  27 THE COURT:  It was?  28 A   Yes.  It was -- what happened was that the  29 construction party reached as far as Kispiox and they  30 built some building there which they called Fort  31 Stager in 1866, which was I think sort of October, and  32 at that point they received information that a -- a  33 subterranean cable had been laid across the Atlantic,  34 which rendered -- essentially rendered the whole  35 undertaking obsolete, which it was designed to provide  36 land telegraph communication from North America to  37 Europe by somewhat a circuitous route.  There had been  38 previous attempts to lay a subterranean cable across  39 the Atlantic, they had all failed, and this -- this  40 enterprise was undertaken in the light of those  41 failures.  However, there was a success in 1866, and  42 although the line was not abandoned immediately, there  43 was no further work done on the line, and relatively  44 shortly thereafter the route was maintained only as  45 far as Quesnel and then to Barkerville.  However, the  46 construction work that had been undertaken provided a  47 serviceable overland trail, which was used to drive 16446  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1 cattle from Ashcroft to Dease Lake in 1874 and in  2 subsequent years.  3 Q   You refer on page 13 of your opinion report to a  4 considerable decline in population, and you describe  5 that as the most fundamental impact that the Gitksan  6 and Wet'suwet'en had to confront in the last quarter  7 of the nineteenth century.  And at the bottom of that  8 paragraph you say:  9  10 "The incidence of Old World diseases was primarily  11 responsible for these losses."  12  13 My first question is why you characterize the decline  14 as a fundamental impact?  15 A  Well, the decline was substantial.  It's very  16 difficult to be precise about this.  As I mentioned  17 earlier, I think we don't have solid information on  18 the populations until, well, 1881 for the Gitksan, and  19 the Wet'suwet'en weren't included, weren't enumerated  20 in the 1881 census.  As far as I can judge, there was  21 a decline in population of somewhere between a third  22 and a half between 1870 and 1900 approximately.  I  23 think there's an appendix somewhere which provides the  24 data on which those calculations are based.  25 Q   And perhaps you could look at page 122, Appendix 1.  26 Can you explain what's represented in that appendix?  27 A   That refers to the indications of the existence of  28 villages and such population data as I could compile  29 from a variety of different sources between 1859,  30 which is when Downie passed through the area, which he  31 provides no numbers from these various sources,  32 connected the Collins Overland Telegraph, 1865 to '6  33 and 1868 is a report by -- which was published in  34 1869, by a Lieutenant Scott, who was part of the  35 administration of Alaska.  He obtained some  36 information from Robert Cunningham, who had been up  37 the Skeena in 1868 as part of the process of closing  38 down the Hudson's Bay Company post there.  39 Q   If you go over to Appendix 4 on page 125, there you  40 have population by village, selected years 1870 to  41 1901.  And I wonder if you could just connect those  42 figures with the comment in your text about -- or the  43 comment you've just made about the degree of the  44 decline?  45 A   I -- as I recall -- these are more sources that  46 provide similar sorts of data, and as I recall, I  47 compared the figures for as far as one could figure 16447  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1  2  3  4  Q  5  6  A  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Q  21  22  23  24  25  A  26  Q  27  A  28  29  THE  COURT  30  A  31  THE  COURT  32  MR.  ADAMS  33  THE  COURT  34  35  A  36  MR.  ADAMS  37  38  39  THE  COURT  40  A  41  42  43  44  45  46  47  them out for the early 1870's with those of 1900 for  the Gitksan, and one gets a decline of about 50  percent.  The appendix, my lord, goes over to another page to  show the first between 1885 and 1901.  For 1881 we have a fairly reliable census of the  Gitksan, which is a head count that was undertaken by  Robert Tomlinson, who was a missionary in the area.  And if we compare 1881 to 1901 for a 20-year period,  there's a decline of about a third, if my math is  correct.  The information on the Wet'suwet'en is a  good deal less precise.  We don't -- unfortunately  they weren't enumerated in 1881, but it is possible to  make some rough estimates, and if one -- and as I  recall, the calculation, as I made -- suggested that  the decline was probably of the same sort of order.  That was a calculation as based in part on using the  information on the numbers of houses as an indicator  of the population.  And then as you've said, you comment on page 13 before  footnote 22 that the incidence of Old World diseases  was primarily responsible.  Let me refer you to tab 74  in volume 2.  That's something you cite as Pierce,  P-I-E-R-C-E, 1933.  Yes.  Could you first just explain what that is?  W.H. Pierce was a half-breed Methodist missionary who  spent a number of years at different points.  I'm sorry.  Are we looking at the same thing from --  "From Potlatch to Pulpit".  I think I saw that.  It's at tab 74, my lord.  Oh, yes that's the -- it starts "How The Work Began  At Kitzegucla".  Yes?  And Pierce 1933 was --  That's cited, my lord, and it will be in the table  of contents tomorrow morning, but it is at footnote  22, I believe.  All right.  You say he was a Methodist?  Yes.  And he served as a missionary for a number of  years on the Skeena, initially at Kitzegucla, as that  page indicates, but if I recall correctly, he spent  more time at Kispiox before he leaves the upper Skeena  region.  As I recall correctly, he was part Tsimshian.  I'm not absolutely sure about that.  If that  supposition is correct, he would have had some  familiarity with the Gitksan language. 16448  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  A  THE COURT  A  THE COURT  A  Q   Let me ask you to look at page 56 of that tab 74 at  the very bottom of the page, where it says:  "During the winter of 1887 a very severe type  of measles broke out at Kitwungah, and spread to  all the other villages on the Upper Skeena.  Potlatching was strong at the time.  Consequently  the children were neglected.  A number of families  lost every child.  Even the grown-ups were  attacked.  Altogether there were over two hundred  deaths.  The potlatchers moved along from one  village to another, carrying their sick babies,  and thus the disease spread.  At Kishpiax every  house was crowded with strangers who had come from  other villages.  There was no doctor in the  country and no medicine.  While so many were  congregated at this place, deaths became so  frequent that it was impossible to obtain  sufficient boards to make coffins, so a large  bonfire was started right in the centre of the  village where the dead were cremated."  And it goes on.  What I wanted to ask you is whether  that's an example of the material you rely on for the  statement at page 13?  That's one example, yes.  Are there other examples, without going into all the  documents?  There are, in a variety of other documents, which  refer to European diseases affecting the upper Skeena  region from 1863 through to the last major epidemic, I  think was influenza epidemic in 1893.  The 1862 to '3  was a small pox epidemic.  The only information on  that that I have is from a narrative collected by  Jenness referring to the Wet'suwet'en, but we do have  very good primary evidence that the epidemic affected  the Coast Tsimshian and the Nishga, so it would be  somewhat surprising then if the disease had no impact  upon the Gitksan.  I should perhaps add --  :  Is Pierce here not talking about --  He's talking about a measles epidemic, 19 --  :  He's talking about Gitksan, isn't he?  Yes, he is, yes.  :  I thought you said you were surprised something  didn't affect the Gitksan?  I was talking about the small pox epidemic of 1862 to  '3, where we don't have any sort of firsthand  A  Q  A 16449  R. Galois (for Plaintiffs)  In chief by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  A  THE COURT  MR. ADAMS  THE COURT  description of the impact of that epidemic on the  Gitksan, but there is surrounding documentation.  What year was the small pox?  1862 to '3. We can date it precisely when it arrived  at Fort Simpson, which is, as I recall, was in May of  1862, and there are estimates that between -- there's  one estimate that 500 Coast Tsimshian died there, and  one estimate that 700 died there and five Coast  Tsimshian died at Metlakatla.  Shall we adjourn, Mr. Adams?  That would be a convenient place, my lord.  All right, thank you.  Ten o'clock tomorrow morning,  please.  THE REGISTRAR:  Order in court.  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd.

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