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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-06-20] British Columbia. Supreme Court Jun 20, 1989

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 17753  Discussion  1 Vancouver, B. C.  2 June 20, 198 9.  3 THE REGISTRAR:  In the Supreme Court of British Columbia, this  4 20th day of June, 1989.  In the matter of Delgamuukw  5 versus Her Majesty the Queen, at bar.  6 May I remind you sir you are still under oath.  7 Would you state your name for the record?  8 THE WITNESS: Robert Galois.  9 THE COURT:  I would like to dispose of this matter and I am  10 embarrassed to say that I think this relates to a  11 report prepared by Mr. Chilton, doesn't it?  12 MS. MANDELL: Yes.  13 THE COURT:  And I have read the report that is the subject  14 matter of the inquiry by counsel for the province,  15 relating to snowpack mapping, which Mr. Chilton  16 prepared but upon which he did not give evidence, and  17 while it is a writing by a witness, an expert witness,  18 on a matter that might have been relevant, it's my  19 conclusion that it is not relevant in view of the fact  20 that no evidence was led on that question and it does  21 not, in my view, relate in any way whatsoever to any  22 of the issues -- in any meaningful way to any of the  23 issues in the trial and I do not think that the  24 defendants' case would be enhanced or the plaintiffs'  25 case lessened in any way whatsoever, by the production  26 of this report.  I think it falls within the category  27 of documents which were prepared by a witness for  28 counsel's consideration, a decision having been made  29 not to proceed with the matter it may properly, in my  30 view, be characterized as part of counsel's brief and  31 neither it nor the underlying or supporting documents  32 need be disclosed.  33 Return the file to Ms. Mandell.  34 All right.  Do counsel wish to speak to the matter  35 of scheduling?  36 MR. ADAMS:  My lord, I had an opportunity to speak last evening  37 with Mr. Rush and the proposal I am to convey to you  38 is that we not sit next week and we use the first week  39 in July to dispose of the outstanding matters that are  40 a subject of correspondence between other counsel and  41 the housekeeping matters that have been mentioned as  42 the beginning of the defendants' case with the  43 expectation that the provincial defendant would begin  44 calling its evidence in the second week of July.  As a  45 practical matter it seems that without great  46 difficulty none of the plaintiffs' counsel are  47 available next week in any event. 17754  Discussion  1 THE COURT:  Well, do I take it then, Mr. Adams, that the  2 plaintiffs will be in a position to close their case  3 by the start of the first full week in July after that  4 four day week?  5 MR. ADAMS:  That wasn't a specific subject of our discussion but  6 it's an implication from it.  7 THE COURT:  Yes.  Well, I am going to — I should hear what  8 counsel say.  Mr. Macaulay?  Mr. Willms?  9 MR. WILLMS:  I recall my friend mentioned in addition to what I  10 have been called calling loose ends, argument, based  11 on that we could deal with that first week in July,  12 four days should be able to deal with what my friends  13 want to deal with, as I am presently advised but we  14 did hear about Dr. Rigsby, we heard I think about an  15 affidavit for genealogies, and I would like to know  16 what the outstanding matters are that the plaintiffs  17 would like to deal with so that I can be assured -- we  18 have a witness scheduled to come down on the 10th.  19 And I would like to be -- to have some assurance that  20 the plaintiffs will close their case and that we can  21 deal with all of the issues in those four days.  22 THE COURT:  All right.  Mr. Macaulay?  2 3 MR. MACAULAY:  I have got nothing to add to what Mr. Willms has  24 said.  25 THE COURT:  All right.  Well, I am — I want to make it  26 abundantly clear that if there is more evidence to be  27 called, then it should be called next week.  And I  28 have set that time aside.  I won't pretend that I am  29 not able to be usefully used elsewhere, because there  30 is a serious difficulty in the Court of Appeal next  31 week, and if we do not sit here, I will sit there, and  32 I would, but I would give this priority, even if it  33 meant cancelling a division of the Court of Appeal  34 next week, which is a possibility.  But if counsel  35 aren't able to use up that time for evidence, I will  36 accede to Mr. Adams's suggestion that I will regard  37 for practical purposes, the plaintiffs' case as being  38 closed subject to these housekeeping matters and I  39 will call upon the defence for their -- to embark upon  40 their case on the Monday of the first full week in  41 July.  42 MR. MACAULAY:  There is one matter that's outstanding and I  43 don't think this should affect the timing of the  44 plaintiffs closing their case, that's the cross-  45 examination of Mr. Turner.  Mr. Turner's cross-  46 examination on a territorial affidavit had been  47 scheduled two or -- three times and because he has 17755  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  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  health problems we have never been able to get at it.  I assume that that can be done in August.  But surely  that would mean that the plaintiffs' case is being  reopened.  :  Well, I would certainly think that we have to be  flexible and be able to deal with matters of that kind  reasonably and possibly after the defendants embark  upon calling their evidence.  But insofar as fresh  evidence is concerned, I think the plaintiffs must use  the time that's available for that purpose next week  or forego that advantage.  :  Well, my lord, my understanding is that there are  some difficulties with the availability, potentially,  of Dr. Rigsby, should he be called, and there is no  resolution of that particular problem.  My suggestion  would be that counsel continue to correspond on the  issue of what is outstanding and how it's to be dealt  with.  I have not been part of that correspondence and  I have difficulty advising your lordship of its  details.  :  I am not for a moment foreclosing the right of the  plaintiffs to seek leave to clean up matters like Dr.  Rigsby, cross-examination of this witness that Mr.  Macaulay mentioned, other matters of that kind, and in  a case of this nature, I think we have to be flexible  but I want to make it abundantly clear that next week  is a scheduled sitting week, I will be available to  sit and if the plaintiffs have evidence to call, other  than these matters that are already before or already  a part of discussion between counsel, then we will --  that's what I was intending to say that I expect that  the plaintiffs' case will be closed and that the  defence will embark upon its case on the Monday that I  have mentioned.  Thank you.  Mr. Willms?  CROSS-EXAMINATION BY MR. WILLMS:  (Continued)  THE COURT  MR.  WILLMS:  Q   Dr  Galois, you noted in your view of the historical  record the use of certain non-Indian officials to  adjudicate disputes arising within the Indian system?  A   Yes.  Can I just ask one question?  Is it possible for  me to correct a reference to a document that I made  yesterday?  THE COURT:  Yes, certainly.  MR. WILLMS:  Sure. 17756  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 A   It concerned the fate of Dewdney's surveys in 1871, I  2 think yesterday I referred to a letter by Mr. Field as  3 having something to do with that.  It should be a  4 report by a Mr. McDougall for the Hudson's Bay  5 Company.  I think it is part of the documents.  6 Perhaps counsel can advise me on that.  It was  7 numbered BG-54.  8 MR. WILLMS:  9 Q   And does that change your recollection of the document  10 whether or not Dewdney's survey of the reserve was  11 ultimately adopted in whole or in part by O'Reilly?  12 A   The impression that I get from that document is that  13 the marks, et cetera, were -- had been obliterated and  14 forgotten by 1890.  15 Q   But, as far as you're aware, there was nothing that  16 changed Dewdney's survey of the townsite?  17 A   The townsite too had been forgotten according to that  18 document, as far as I can recall it now.  As I say, it  19 was identified as BG-54, I don't know if that means  20 that it's tab 54 or not.  21 Q   Now, just returning to the issue of dispute  22 resolution, I am showing you a copy, two pages from an  23 earlier draft of yours and this is your handwriting,  24 correct?  25 A   Yes.  26 Q   If you look to the middle of the page you cite a  27 document Graham to provincial secretary, May 9th, 1885  28 and then you say this:  29  30  31 "According to the gold commissioner the  32 relations between Indians and other miners were  33 good but he complained of having to adjudicate  34 many trivial grievances among the Indians which  35 they bring to the government judge to settle,  36 so much so that he was forced to employee an  37 interpreter."  38  39  40 And you will see your reference there ibid, June  41 20th, so your reference -- you are quoting from Graham  42 to provincial secretary, May 9th, 1885?  43 A   Right.  Yes.  44 Q   And that particular document is contextually  45 significant in reviewing the issue of dispute  46 resolution in the area, isn't it?  47 A  Well, it's not quite clear from the document what is 17757  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 involved in terms of being settled there at all.  It  2 just -- I think that's, I am not sure but I don't  3 think it adds very much in terms of what I have stated  4 there, trivial grievances.  One should add too that  5 there are indications that there were Indians of  6 Gitksan and Coast Tsimshian.  7 Q   I am just asking about this document, Dr. Galois, the  8 document that you quoted from, and I am asking whether  9 that document, Graham to provincial secretary, which  10 you quoted from in your draft, whether that document  11 is contextually significant when you are considering  12 dispute resolution in the area?  13 A  What do you mean by contextually significant?  14 Q   I mean significant or relevant to the context of the  15 issue of dispute resolution in the area, that's what I  16 mean?  17 A   For -- it would seem to me it has some significance  18 for some very specific things at a particular point  19 and place in time.  Beyond that, I would not wish to  20 generalize at all.  21 Q   And do you know whether or not this particular  22 document is in volumes one through eight of the  23 document book that's been marked?  24 A   I really couldn't tell you, I am afraid.  25 MR. WILLMS:  My lord could that be 1033-18?  2 6    THE COURT: Yes.  27  28 (EXHIBIT 1033-18: LETTER DATED MAY 9, 1885, GRAHAM TO  2 9 PROVINCIAL SECRETARY)  30  31 MR. WILLMS:  32 Q   I am showing you another extract from an earlier draft  33 of your report and in the middle paragraph of this,  34 you -- if you start right by the three-hole punch in  35 the middle, you will see the words "missionary work"  36 and then a store, the sentence a store?  37 A   Yes.  38 Q  39  40 "A store was operated was at Greenville on the  41 Nass River, at least for a period, and a store  42 was erected at the confluence of the Skeena and  43 the Bulkley on the Crosby pre-emption.  It is  44 not clear, however, if the latter ever  45 operated.  What is known is that it occasioned  46 a protest from Get-dum-gal-doe, head chief of  4 7 the Getanmax." 1775?  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 Then you quote:  2  3 "'Those people came here to erect a school  4 house as pretense, but turned it into a trading  5 establishment for the purpose of gain.  6 I strictly protest against all these  7 proceedings and appeal to the law to aid and  8 protect me in this matter.'"  9  10  11 And then you refer to the document that you quoted  12 from.  Is that document Loring to Moffat, October 2nd,  13 1889, contextually significant when you are  14 considering dispute resolution in this area?  15 A   The context, of course, is shortly after the events of  16 1888 and the establishment of the Babine Indian Agency  17 and as I think I indicate in my report, the Gitksan in  18 this period used these new channels as a way of  19 expressing their protests, and I think that this  20 particular incident is one of the earliest examples of  21 such a form of protest.  22 Q   So I take what your answer is that this is  23 contextually significant when you are considering the  24 issue of dispute resolution in the area?  25 A  What I am saying is that the context had changed in  26 1889 and that this is a new form of protest which, as  27 a result of the establishment of the Babine Agency,  28 the Gitksan had been guided towards and at this point  29 were utilizing.  This is not a draft of my report, by  30 the way.  31 Q   Is that your writing at the bottom?  32 A   It's my writing, I am not disputing that I wrote it,  33 but this is not a draft for my report as such.  34 Q   Is Loring to Moffat in volumes one to eight or do you  35 know?  36 A   I am afraid I don't have that in my head.  37 MR. WILLMS:  1033-19, my lord?  38 MR. ADAMS:  My lord, I don't have any objection to this going in  39 but on the basis of authority, I am going to argue  40 that it should be identified where it's coming from as  41 a whole document and that the whole document should go  42 in and that it's then available to counsel on either  43 side to draw to your attention passages from the whole  44 document that may influence the treatment of this in  45 your evaluation of the cross-examination of this  46 witness.  And I provide your lordship with some  47 authority to that effect. 17759  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 THE COURT:  Well, can we find out what this document is?  2 MR. ADAMS:  Well, I don't know that.  3 MR. WILLMS:  If could I just save my friend some time and  4 trouble here, I am not putting this in, I am not  5 asking this witness any opinion on the document, other  6 than is the document contextually significant when you  7 consider dispute resolution?  That's the only question  8 I put to the witness.  That's it.  Is it relevant?  Is  9 it not relevant?  The document speaks for itself.  We  10 will get the document later, it's not in volumes one  11 to eight but it's a document that he knew about before  12 and the point will develop later on but the only  13 question that I put to the witness is, is the document  14 that he is quoting from here contextually significant  15 to the issue of dispute resolution, yes or no?  16 THE COURT:  There doesn't seem to be any reason to put this in  17 then.  18 MR. WILLMS:  Except it identifies the document.  19 MR. ADAMS:  Why not put the document —  20 MR. WILLMS:  It's Loring to Moffat, October 2nd, 1889.  21 THE COURT:  Which has a citation called B. A. L. in capitals —  22 A   That's RG-10, volume 1584.  23 THE COURT:  What does B. A. L. mean?  24 A   That was an abbreviation I was using at the time to  25 signify the Babine Agency letter books.  26 THE COURT:  I see no reason to put this in, Mr. Willms.  27 MR. WILLMS:  Well, if my friend objects, I won't tender it.  28 THE COURT:  All right.  Thank you.  I will return it to you, Mr.  2 9 Willms.  30 MR. WILLMS:  31 Q   Dr. Galois, I am showing you documents starting with a  32 letter from Vowell to Baker, the provincial secretary,  33 July 10th, 1894, which has enclosed with it a letter  34 of June 2nd, 1894, from Loring to Vowell.  And the  35 substance of the document deals with the burial of an  36 Indian in a Christian cemetery and the subsequent  37 exhumation of the body and transport to Kitwanga.  Do  38 you recall this --  39 A   I think the -- if I recall -- I think it's probably  40 from, the original is in the Babine Agency letter  41 book.  I would have to read this through to be sure.  42 Q   But do you recall an issue arising concerning the  43 exhumation of a body from a cemetery and the  44 transmittal of the body to Kitwanga for re-burial?  45 A  Very hazily.  I would like to re-read this to refresh  46 myself on the matter.  47 Q   Would you please read that. 17760  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 A   I am in the process of doing so.  2 A   I have read that.  3 Q   And I am showing you as well a copy of the permit  4 under the authority of the Graveyard Act, March 22nd,  5 1893.  And what the document sets out is it not, that  6 the chief, a chief from Kitwanga whose son was buried  7 in a graveyard, wanted the body returned to Kitwanga  8 for re-burial, sought the assistance of Mr. Loring,  9 who was able to obtain a permit under the authority of  10 the Graveyard Act to exhume the body and then the body  11 was transported to Kitwanga for re-burial; that's a  12 fair summary of Loring's letter?  13 A   Yes, there are certain contextual matters that I think  14 bear upon these events.  15 Q   Well, if I could just ask this question:  Are the  16 events that are set out in Loring's letter and his  17 letter and the permit, contextually relevant to the  18 question of dispute resolution in the area?  19 A   Insofar that it pertains in part to denominational  20 differences between missionaries and missionary  21 groups, Means-ge-neast, which is where the burial took  22 place first, was Robert Tomlinson's non-denominational  23 mission, and Kitwanga, as I recall, was a Church  24 Missionary Society mission and relationships between  25 the two after Tomlinson's departure from the Church  26 Missionary Society were not entirely amicable so that  27 there is a contest in a sense there between certain  28 white agencies involved in this process and --  29 Q   Where do you see the Christian Agency from Kitwanga  30 referred to in this document?  31 A   I don't see it referred to there but burial is a  32 Christian activity, it's not, as I understand it, the  33 Gitksan procedure.  And I know that there was a Church  34 Missionary Society mission there in 1888.  One of the  35 documents we were looking at yesterday -- sorry, when  36 we were talking about the feast, I mentioned  37 Fitzstubbs's visit to Kitwanga in terms of the  38 application of the feast prohibition, and this was  39 done on the invitation of a missionary at Kitwanga,  40 Pocock.  So there was a Church Missionary Society  41 mission at Kitwanga dating back, I am not sure, the  42 mid-1880s anyway.  43 Q   Do you know whether the chief at Kitwanga was a  44 Christian?  45 A   No, I do not know for sure.  46 Q   So why are you giving all this evidence if you don't  47 know that? 17761  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 A  What I am saying is that what we are talking about  2 Christian forms of dealing with the death, it seems to  3 me part of the context in terms of these activities.  4 Q   So you say that these documents are relevant to the  5 context of a dispute between two white Christian  6 factions, is that what your evidence is?  7 A   No, no, what I am saying is that that is part of the  8 context of these documents.  9 Q   Yes.  And these documents are not contextual as  10 between non-Christian native desires and Christian  11 beliefs, that's not the context, is that your  12 evidence?  13 A   No, I am saying that there is this dispute which has  14 gone on here and the Indians have taken this to  15 Loring, who is the Indian agent, and that was the  16 procedures that the Gitksan are being impressed with  17 doing for sometime and that they had participated in  18 that, as the previous documents indicated.  However, I  19 am saying that there is -- this is not purely, it  20 seems to me, an intra-Indian dispute, that there are  21 other contextual matters which are pertinent to these  22 events.  23 Q   And what would be pertinent is if the chief was a  24 Christian, because if he wasn't a Christian your  25 explanation would not be relevant at all, would it?  26 Obviously if the chief was not a Christian, this is  27 not a dispute resolution between two Christian  28 factions, is it?  29 A  Means-ge-neast was a village that was established by  30 Tomlinson, there wasn't a village there before, so I  31 would assume that anybody that was buried there would  32 at least at some point have been a Christian.  33 Q   But that's the Tomlinson end?  34 A   That's at Means-ge-neast.  35 Q   That's where he was originally buried?  36 A   Right.  37 Q   He is being exhumed to be moved to be buried at  38 Kitwanga and I thought your explanation involved an  39 assumption that it was a Christian motivation to move  40 him from one Christian graveyard to another Christian  41 graveyard, is that the context you are suggesting?  42 A   No, I am saying that there is some sort of a dispute  43 between the relationships between Kitwanga and  44 Means-ge-neast and the people associated with those  45 are -- flow sort of and interweave to a certain extent  46 with denominational differences between missionaries.  47 MR. WILLMS:  My lord, could both documents be marked at 1033-19 17762  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 (EXHIBIT 1033-19:  LETTER VOWELL TO BAKER DATED JULY  2 10, 1894 WITH ATTACHED GRAVEYARD PERMIT)  3  4 MR. WILLMS:  5 Q   Dr. Galois, I am showing you a memorandum from you,  6 Keith Ralston, Skip Ray to Richard Overstall and Scott  7 Clark, August 25th, 1983.  Who was Keith Ralston?  8 A   Keith Ralston was a professor in the history  9 department at UBC.  He has subsequently retired since  10 this letter was written.  11 Q   And there is a reference in the beginning of the memo  12 about a meeting of August 19th, 1983.  Was that a  13 meeting attended by all of the people named above,  14 that is Richard Overstall, Scott Clark, yourself, Dr.  15 Ray and Keith Ralston?  16 A   I am not completely sure who was there.  I know I was,  17 I am pretty sure Skip Ray was.  I think Richard  18 Overstall was.  I think Keith Ralston was.  I am not  19 sure about Scott Clark.  There may have been other  20 people there too, I honestly can't remember now.  21 Q   Who was Scott Clark?  22 A   I believe he was a researcher employed by the Gitksan-  23 Wet'suwet'en Tribal Council at that point in time.  24 Q   You say or the memo says in the second sentence, the  25 third line down:  "In the light of the meetings,  26 discussions and the 10 June memo of Scott Clark", what  27 was that memo, do you still have that?  28 A   I surrendered all the documents that I retained to  2 9 counsel.  I don't know what happened beyond that to  30 them.  If it's not in that collection I presume that I  31 don't have it.  32 Q   Do you recall what was in the memorandum?  33 A   I honestly don't know, I am afraid.  34 Q   Now further down -- this is a proposal for historical  35 research, is this the first document that refers to  36 research to be done by you either alone or in  37 conjunction with others on the history of the Gitksan  38 or Wet'suwet'en?  39 A   This is a draft that I think Professor Ray wrote on  40 behalf of myself and Keith Ralston, for the -- right  41 at the beginning of our involvement in doing research,  42 yes.  43 Q   That's your handwriting at the bottom of the first  44 page, "Collins telegraph"?  45 A   Yes, those are my pencilled additions to it, as far as  46 I can recall.  It's my writing, certainly.  47 Q   Down at the bottom, one of the -- and this is in 1983, 17763  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 under provisional chronological framework for the  2 study, item four was period of economic transition,  3 1860-1905.  Now, that is something that ultimately  4 came to be included in your report, correct, that  5 period?  6 A   No, that's not my dates at all.  I think that's Skip  7 Ray's.  I think it has more to do with his report than  8 mine.  Anyway, this was very preliminary before any  9 research had been done.  So this was based on general  10 knowledge that he and/or I had of the Upper Skeena at  11 that point in time.  12 Q   Do you recall how 1860 and 1905 were chosen initially  13 to be significant dates?  14 A  As I say, I think Professor Ray drafted this and I  15 can't recall why he chose those dates, as I think he  16 did.  I don't think that I did.  17 Q   Perhaps if you turn to the second page that might help  18 you.  You see the next item under five is Grand Trunk  19 era, 1905 to 1949.  Was the first economic period  20 under consideration at period up to putting the  21 railroad through?  22 A  Well, if it was, the dates are incorrect.  I honestly  23 can't remember.  As I say, I think this is a document  24 that was drafted by Professor Ray, because this is  25 done on a computer and I didn't have access to a  26 computer at that point in time.  I think he did that  27 on behalf of the three of us after the meeting and we  28 had some sort of discussions, I presume, and this was,  29 I think, him putting down his thoughts as a result of  30 some input, I am sure from myself and Professor  31 Ralston.  But it is a very tentative outline and I  32 wouldn't attach too much significance to it.  As I  33 say, it's before any research eventually had been  34 undertaken.  35 Q   These are your notes on the second page?  36 A   These are my notes on it, yes.  37 Q   Now further down on page 2 where it says:  "We are of  38 the opinion that it would be very useful for the three  39 of us to visit the research office in Hazelton to meet  40 with Scott Clark and Gene Joseph to, one, review the  41 work that has been done to date regarding the history  42 of the area."  What work did you review?  43 A  My goodness, as I recall --  44 MR. ADAMS:  Excuse me, my lord, just to clarify the question,  45 the witness hasn't said he reviewed any work, he said  46 this was a tentative proposal before the fact.  47 THE COURT:  That's right. 17764  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 MR. WILLMS: Sorry.  2 Q   Did you go to the research office in Hazelton and  3 review work that had been done to date regarding the  4 history of the area?  5 A  We went to Hazelton, Professor Ray and I, and the trip  6 I think is indicated there took place sometime before  7 the 12th of September.  So it would be early  8 September.  I guess this would be 1984, I am not sure.  9 No, I guess 1983.  Sorry.  As I recall what I did  10 there was to go through the documents that the Tribal  11 Council had been accumulating over the previous, well,  12 I don't know how many years, I think that's partly  13 what Scott Clark had been doing, but I think primarily  14 Gene Joseph had been responsible for collecting the  15 materials for the Gitksan-Wet'suwet'en archives.  Now  16 that was split up into two distinct sections, one was  17 historical documents and the other one was transcripts  18 of interviews with Gitksan and Wet'suwet'en people.  19 Now, I simply confined my attention to the documentary  20 record that had been assembled there.  21 Q   And this is the historical documentary record?  22 A   Yes, the written historical documentary record.  I  23 mean, the documents that I looked at in a generic  24 sense were no different from the sorts of documents  25 that I examined in the archives.  It's just that the  26 Tribal Council, as part of the process, I guess,  27 before I was involved, of collecting materials and  28 doing research for the court case, they compiled,  29 hired somebody to compile what they knew of as  30 relevant documents.  A good chunk of it I think was  31 copies of DIA documents.  And I spent most of my time,  32 as I recall, trying to familiarize myself with what  33 was available there and as a guide to the sorts of  34 things that might exist in other places and just to  35 sort of familiarize myself.  36 MR. WILLMS:  Now, could this memo be 1033-20, my lord?  37 THE COURT:  Yes.  38  39 (EXHIBIT 1033-20:  MEMO DATED AUGUST 25, 1983)  40  41 Q   I am showing you a letter dated September 19, 1983  42 from yourself to Peter Grant.   And you start off  43 by -- you talk about discussions at Hazelton and then  44 in paragraph one, numbered one  you say:  "Let me  45 begin by reiterating those areas where I have no  46 difficulty in agreeing to restriction (prior  47 approval)".  Now, does that mean that there would be 17765  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 some restriction on you using or disclosing documents  2 without the prior approval of the Gitksan-Carrier  3 Tribal Council?  4 A  What we -- the discussion, as I recall this now, this  5 is sometime ago, was the issue that arose in terms of  6 work that I had previously done and I was concerned  7 that I wouldn't have to go and ask the Tribal Council  8 for permission to publish materials that I had worked  9 on prior to commencing research for them on this  10 issue.  But there was also a concern, as I recall, by  11 the Tribal Council, about they -- about publishing  12 material as a result of the work that I had done for  13 them.  And I agreed that I wouldn't publish without  14 consulting and obtaining their approval.  15 Q   And -- it appears only 1.3 relates to something that  16 you would actually do, materials collected whilst  17 employed by the Tribal Council, 1.1 and 1.2 appear to  18 refer to materials that were prepared by other people  19 that you reviewed or had occasion to review; isn't  20 that fair?  21 A   It refers, yes, to other materials.  This was very  22 much, as I say, this is, if one looks at the date,  23 it's September, 1983 so it's before I had done any  24 research so that what we were trying to do is to make  25 sure that no problems did arise in terms of  26 publication of materials.  27 Q   But, as an academic, whose work would be critically  28 reviewed by others, weren't you concerned with the  29 restrictions you were agreeing to there?  30 A  Well, I was concerned about publication, yes, and not  31 being sort of restricted.  I had not had any previous  32 experience working for a case of this nature and, as I  33 recall, the Tribal Council or counsel for the Tribal  34 Council were concerned about this issue.  And I was  35 willing, somewhat reluctantly, to go along with that.  36 Q   But you will agree with me that in the normal academic  37 field it's somewhat unusual for a historical  38 geographer to agree after reviewing something and  39 coming to some tentative academic conclusions, to  40 restrict disclosure of what that academic had  41 reviewed?  42 A  Well, I mean, I was -- this was not the normal sort of  43 academic situation and it was one that I had very  44 little familiarity with.  I would have preferred,  45 certainly, to have been free to publish findings as  46 they came along.  But I was prepared to sort of go  47 along with that.  I wasn't quite sure what the 17766  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 implications were at that point in time and I was  2 trying to specify some of the limitations on what I  3 was prepared to accept.  4 MR. WILLMS:   1033-21, my lord  5  6 (EXHIBIT 1033-21:  LETTER PETER GRANT FROM R. GALOIS  7 DATED SEPTEMBER 19, 1983)  8  9    MR. WILLMS:  10 Q   I am showing you a letter dated April 12th, 1985 from  11 Mr. Grant to yourself regarding historical evidence of  12 the Gitksan and Wet'suwet'en, was this the letter that  13 formally retained you on behalf of the Gitksan and  14 Wet'suwet'en in respect of your opinion evidence?  15 A   I don't think I ever signed -- I signed one contract I  16 believe about six months to do some very early  17 research then I don't think I signed any contract  18 after that.  19 Q   But is there another letter prior to this requesting  20 your opinion on the historical record of the Gitksan  21 and Wet'suwet'en?  22 A   I am afraid I really don't know.  I don't go back and  23 read my correspondence.  I provided all of the  24 materials to counsel.  Again, I can't add very much to  25 that, I am afraid.  I don't have any recollection of  26 this particularly.  27 Q   Do you recall any other initial terms of reference  28 respecting the opinions that were being sought from  29 you?  30 A   There may well have been one.  This is 1985, the other  31 one was 1983, there may have been some sort of  32 response to the letter there of September 19th, but  33 I -- if there was, what its contents were I couldn't  34 specify at this point in time.  35  36 (EXHIBIT 1033-22:  LETTER GRANT TO GALOIS DATED APRIL  37 12, 1985)  38  39 MR. WILLMS:  40 Q   I am showing you a letter November 8th, 1985, from Mr.  41 Overstall to yourself and enclosed with that letter is  42 agreement for council consultant services, which is  43 signed by -- on behalf of the Tribal Council, but this  44 copy is not signed by you, if you look to the last  45 page.  Do you recall signing a document --  46 A   No, this is the one that I didn't sign.  I never  47 returned it.  There was some things that I disagreed 17767  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 with.  I honestly can't remember what they were any  2 more.  I am not sure that the matter went any further.  3 As I say, I don't recall.  I don't think I ever signed  4 a contract.  5 Q   But you do recall at some point signing a contract for  6 six months?  7 A   There was one when I first began working, yes, either  8 the end of 1983 or 1984, I can't remember.  9 Q   Did you keep a copy of that?  10 A   I can only repeat the answer that I have given to the  11 other ones.  All of that documentation went to  12 counsel.  Beyond that, I am really not sure.  I would  13 imagine that I probably kept a copy of it for a while  14 anyway.  15 Q   But you don't have one any more?  16 A   You know, I can't add to my previous answer on that  17 point.  18 Q   I am going show you another document in a moment, but  19 perhaps we could just -- I would like -- could you  20 keep this document in front of you, we will mark it  21 1033-23, my lord.  22  23 (EXHIBIT 1033-23:  LETTER DATED NOVEMBER 8, 1985,  2 4 TRIBAL COUNCIL TO R. GALOIS)  25  26 MR. WILLMS:  27 Q   And I am showing you a document dated May 9th, 1985,  28 it's a letter from Mr. Rush to yourself and I would  29 just like you to confirm, Dr. Galois, if you look at  30 Exhibit 1033-23, that the the November 8th, letter,  31 you will see in the third line down it says this:  32 "The work described in section two in conjunction with  33 Stewart Rush's letter to you of May 9th, 1985, should  34 provide adequate terms of reference for the work."  35 And can you confirm for me that this letter that I  36 have just put before you of May 9th, 1985 is the  37 letter that's being referred to in the November letter  38 from Mr. Overstall to you?  39 A  Well, the date is the same.  I couldn't be -- I would  40 assume that it probably is.  41 MR. WILLMS:   Now, my lord, I advised my friends that and  42 requested that they have a clean copy of the letter of  43 May 9th, 1985 to hand up to your lordship.  And I  44 don't know whether they have a copy here.  But it is  45 my submission that the terms of reference which are  46 set out in the letter of November 8th, 1985,  47 incorporate Mr. Rush's letter of May 9th that there 1776?  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 can't be any privilege that attaches to the terms of  2 reference of an opinion, of someone who is being  3 retained to give an opinion.  So I would ask my  4 friends to hand up that clean copy, if they have it,  5 now.  If they don't, perhaps I could get it at the  6 break and hand it up after the break.  7 MS. MANDELL: I have a copy here.  8 THE COURT:  Thank you.  Do you want me to look at it now?  9 MR. WILLMS:  I will carry on because I can't ask any questions  10 on it if your lordship should rule that it must be  11 disclosed until I see it anyway.  I will carry on and  12 if your lordship at the earliest convenient time --  13 THE COURT:  All right.  Let me have it now, and I will look at  14 it at the morning break.  15 MR. WILLMS:  Perhaps, my lord, we could mark the excised version  16 as 1033-24.  17  18 (EXHIBIT 1033-24:  LETTER DATED MAY 9, 1985)  19  2 0    THE COURT:  All right.  21 MR. WILLMS:  22 Q   Just referring back to the letter -23, Dr. Galois, you  23 will see again as I just read to you the work  24 described in section two?  25 A  Are we talking about the November 8th one?  26 Q   I am in the November 8th letter now and the sentence,  27 "The work described in section two" in conjunction  28 with the May 9th letter, section two refers to section  29 two of the agreement that's attached; is that correct?  30 That's the reference in the letter?  31 A   Seems to be, yes.  32 Q   All right.  And you will see in -- under work, at the  33 middle of the page, "research sources will include but  34 not be limited to, the published and unpublished  35 papers and notes of Barbeau, Beynon Jenness and other  36 ethnographers."  Did you review any those sources in  37 the preparation of your opinion?  38 A   Yes.  Barbeau, Beynon and Jenness under Roman I, yes.  39 Q   I don't need to ask Roman II because we have got eight  40 volumes of Roman II.  Roman III, the tapes,  41 transcripts and notes of interviews with Gitksan and  42 Wet'suwet'en informants in the possession of the  43 Tribal Council.  Did you review any of those in  44 preparation of your report?  45 A   No.  46 Q   Four, "Such anthropological historical and biophysical  47 reports as may be provided by the Tribal Council." 17769  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 Did you review anything that would fit into that  2 category in preparing your report?  3 A   I have to think.  I reviewed, I looked at a draft of  4 Professor Ray's report.  I was given copies of reports  5 by Crown experts.  I can't think of anything else  6 offhand.  7 Q   Did any of the reports that you were referred to form  8 a part of the basis of the opinions that you reached?  9 A   Professor Ray's report I used as a guide to certain  10 documents.  But I didn't use the report as such as a  11 basis for my opinion.  12 Q   Do you recall reviewing the drafts of any other  13 experts' reports of the plaintiffs?  14 A   I can't recall any at the moment.  15 Q   I am showing you a handwritten memo, March 14, 1986,  16 to Barbara and Bob from Tonia.  I take it that Tonia  17 is Antonia Mills?  18 A   I think so, yes.  19 Q   Did I give you the one -- sorry.  You think so or you  20 know so?  21 A   I presume that's who it is, yes.  22 Q   Well, you met Dr. Mills, didn't you?  23 A   Yes, I have met her.  24 Q   And Barbara and Bob at the top, that's Dr. Lane and  25 yourself?  26 A   I presume so, yes.  27 Q   You have met Dr. Lane?  28 A   Yes.  29 Q   Do you recall receiving any other information from Dr.  30 Mills or was this it?  31 A   I think she sent me some archival documents in the  32 Oblate archives, she sent me some copies of those.  33 She spent some time working in the Oblate archives, I  34 think, in Ottawa.  And she did send me some copies, I  35 believe, of those documents.  36 Q   What percentage of the documentary research that  37 formed the basis for your opinion would you say that  38 you did directly and what percentage was done by  39 others and then given to you?  40 A  What do you mean by documentary research?  41 Q   Well, you gave evidence earlier that there had been a  42 collection of historical documents already made by the  43 Tribal Council when you went up there to review it.  44 You said those documents were similar to the ones that  45 you ultimately reviewed at the archives.  4 6 A   They are documents that one would find in the  47 archives.  In fact, a lot of them are taken from the 17770  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 Provincial Archives.  2 Q   So my question to you is:  How many of the documents  3 that now -- we now find in volumes one through eight,  4 were documents that you physically went and dug up on  5 your own research and how many of them would you say  6 are documents that were already dug up by others for  7 you?  8 A  Absolutely no idea.  It's not a question that I would  9 address.  I still have to read the documents wherever  10 they are.  And I mean the research is the reading of  11 the documents.  It's not a question that I am  12 accustomed to addressing, I am afraid.  And I don't  13 think any answer that I could give you would be  14 particularly helpful.  15 MR. WILLMS:  1033-25, my lord.  16 THE COURT:  What does a historian mean when she says "we are  17 commissioning Lame Arthur's son now"?  18 A   Tonia Mills is an anthropologist, my lord, and I  19 presume that refers to commission evidence.  2 0 THE COURT:  I see.  21 A   I would think.  That's the only context I could think  22 of that term being used in.  23 MS. MANDELL: I can advise at this time Basil Michell was being  24 commissioned and I think that's what the reference  2 5 was.  2 6 THE COURT:  I see.  Thank you.  27  28 (EXHIBIT 1033-25: HANDWRITTEN MEMO DATED MARCH 14, 1986)  29  30 MR. WILLMS:  31 Q   Showing you -- I have put before you a letter from you  32 to Richard dated June 26, 1986.  And some enclosures  33 with that.  Richard is Richard Overstall?  34 A   Yes.  35 Q   Tonia is Tonia Mills, Dr. Mills?  36 A   Yes.  37 Q   So that what -- your recollection is that you from  38 time to time received information from some of the  39 other experts and from time to time you provided  40 information that was to be used by other experts?  41 A  What I did was to send documents, I think that's what  42 this refers to.  43 Q   Yes.  Documents or information, is that right?  44 A   Yes.  But I think it was, I mean the information was  45 in the form of documents, that's basically the role  46 that I was performing at this time.  I can't -- I may  47 have got, occasionally, some documents in return 17771  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 through Richard Overstall.  2 Q   Item four, a list of genealogical materials at VST,  3 what is VST?  4 A   I think -- right, Vancouver School of Theology.  5 That's at UBC, they had -- there is an archives there  6 of the United Church and the Anglican Church and they  7 had some materials, lists of births, deaths and  8 marriages and materials like that.  I, in doing some  9 work in there, just came across these and as far as I  10 recall what I did was send a list of them to Hazelton.  11 I gather -- well --  12 Q   Now, you have attached to that a memorandum, it's  13 September, 1910, —  14 A   September 21st, 1910, is this the one?  15 Q   And these -- and if you would just turn in your  16 report, have this document before you and turn in your  17 report to page 69.  And in the middle paragraph you  18 describe on page 69 of your report the visit of Green  19 to the Upper Skeena in 1910, and along with Reverend  20 John McDougall, you say:  21  22 "McDougall's objective was to collect  23 information on Indian grievances and the  24 general situation in the area.  He held a  25 series of meetings with the Gitksan and  26 Wet'suwet'en and produced a brief written  27 report and a set of recommendations."  28  29  30 Did you note that when you read this memorandum  31 from McDougall that requests were made by the Indians  32 at Hagwilget for reserves at Hagwilget and Moricetown?  33 A   I am sorry, I am not sure what the question is.  34 Q   Well, maybe I can put it this way:  The document that  35 you have attached to this memorandum to Richard  36 Overstall quotes from -- encloses minutes of meetings  37 with Indians at Hagwilget, 19th to the 22nd of August,  38 and you understood from this document that the quotes  39 are quoting from Indian people speaking to McDougall;  40 correct?  41 A   Yes.  42 Q   And, for example, in the second paragraph:  43  44 "We made our requests to the commission of last  45 year for some fishing reserves and the  46 enlargement of this reserve at Hagwilget.  We  47 think there is an agent living in Hazelton but 17772  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 he never comes to see us."  2  3 What commission is that referring to?  4 A   That's the Stewart and Vowell Commission of 1909 and  5 the complaint --  6 THE COURT:  Stewart and —?  7 A   Stewart and Vowell visited the upper Skeena, I think  8 it was in June or July of 1909.  There is a reference  9 to it in my report.  10 MR. WILLMS:  11 Q   Then skipping down to the next -- skip the next  12 paragraph:  13  14 "What we want in this reserve at Hagwilget and  15 that at Moricetown be made two miles square and  16 that one section of land be set apart for us at  17 each old fishing and hunting station.  We will  18 make a rough map and show what we mean."  19  20 Just stopping there, if you turn over to the third  21 page and the fourth page there appear to be two maps,  22 are those to your understanding the rough map?  23 A   This is the rough map.  I redrafted that and included  24 it as part of my report.  25 Q   And the rough, what the rough map sets out is the  26 request for reserves?  27 A  Well, it's -- what it's trying to do, one has to see  28 this document in context, it really is very important,  29 that by 1910 the settlement in the Bulkley Valley had  30 proceeded apace and one of the things that McDougall  31 was inquiring into was cases of his Indians living  32 outside of reserves and cases of dispossession.  So  33 what we have here is an attempt with white settlement  34 going on, dispossession going on, of the Wet'suwet'en  35 attempting to preserve a land base in order to carry  36 on with their -- as much as their traditional economy  37 is is still practicable.  That would be my  38 interpretation of this and one again has to see it as  39 part of an ongoing sequence of events.  This is one  40 report on this issue.  41 Q   And this is a contextually significant document on the  42 issue of reserves in the Bulkley Valley, isn't it?  43 A  Well, it speaks to more than reserves, it seems to me.  44 Q   But at least to the point of reserves, you will agree  45 with me that this is a contextually significant  4 6 document?  47 A   It points to the inadequacy of the existing reserves. 17773  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1 Q   I am not asking you to comment on it other than either  2 agreeing or disagreeing that this document is  3 contextually significant to the issue of reserves in  4 the Bulkley Valley, is it or is it not significant?  5 A  Well, I think one is going to understand the issue  6 very incompletely by restricting reference simply to  7 reserves about this document.  It does refer to  8 reserves, yes.  9 Q   So in that respect -- maybe more, let's put it this  10 way, there may be more respects that it is significant  11 to but it is significant contextually to the reserve  12 issue?  13 A   To the inadequacy of reserves.  14 Q   I am not asking for your opinion on whether they were  15 adequate or not, I am just asking whether it was  16 significant to the issue?  17 MR. ADAMS:  My friend is asking about the reserve issue at large  18 and the witness is responding in connection with  19 reserves.  Perhaps my friend can specify what it is he  20 understands is the reserve issue.  21 MR. WILLMS:  Well, my lord, as I understand the reserve issue is  22 that there is some issue in this case as to whether or  23 not when Stewart and Vowell laid out reserves in this  24 area, and when other reserves were a laid out, whether  25 that was the end of the matter of Indian title.  Now,  26 that's an issue in this action.  I am just asking this  27 witness not whether -- who he thinks is right or  28 wrong, I am just asking him whether this document is  29 contextually significant.  That's all.  30 THE COURT:  Seems to me that what the witness has said is yes,  31 it is contextually significant to the general question  32 of reserves but it's more specifically significant to  33 the subdivision of that subject, namely, the  34 inadequacy of the existing reserves.  Is there  35 anything different from that?  36 A   That's pretty close, I think.  37 MR. WILLMS:  Except, my lord, I don't know that there is an  38 issue in the case about expanding the reserves.  I may  39 be wrong.  I don't think that's one of the plaintiffs'  40 claims.  So the adequacy of the size of the reserves I  41 didn't think was in issue here but I could be wrong.  42 THE COURT:   Well, I don't think any of us know what the issues  43 are yet.  We won't know until at least until argument  44 but more likely until the Supreme Court of Canada has  45 pronounced.  46 MR. WILLMS:  1033-26, my lord.  47 17774  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  MR. WILLMS  5  Q  6  7  8  A  9  Q  10  11  12  A  13  Q  14  15  16  A  17  Q  18  19  A  20  21  22  23  Q  24  25  26  27  28  29  30  31  32  33  34  A  35  36  37  38  Q  39  40  41  A  42  MR. WILLMS  43  44  45  46  47  THE COURT:  (EXHIBIT 1033-26:  LETTER JUNE 26, 1986 GALOIS TO  OVERSTALL WITH ATTACHED MEMORANDUM FROM McDOUGALL)  Now, I am showing you a letter, this is from you to  Richard, I take it Richard is Richard Overstall, July  3rd, 1986?  Yes.  And, once again, you will see you have transmitted  some information for Dr. Mills, you can see that in  the first paragraph?  Yes.  Canyon Creek William, in the last paragraph, you say  your letter of June 5, has arrived.  What letter is  that, do you --  I am afraid I can't recall.  I can't help you with that because I don't have a copy  of it.  But you don't --  I am afraid I can't remember any more.  Seems to me  that what I have done is forward some material.  It  looks like he is asking whether he should send it  back.  In the last lines you say this:  "Maybe we should schedule a workshop session on  this topic when I come up next.  Could use my  text as a starting point.  Need to discuss the  topic substantively and concretely not in the  abstract."  Do you remember attending a workshop session where  a text that you had drafted was discussed?  I remember going to a meeting, I can't remember when  it was, whether it was before or after this but there  was no workshop that substantively discussed my  manuscript, no.  How about a workshop that discussed anything that was  written by you relating to the history of the Gitksan  and the Wet'suwet'en?  There was no workshop like that that I can recall.  :  1033-2 7, my lord.  (EXHIBIT 1033-27: LETTER DATED JULY 3, 1986 - GALOIS  TO OVERSTALL)  All right.  Let's take the morning adjournment now. 17775  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  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 adjourned for short recess)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 17776  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING SHORT RECESS)  2  3 THE COURT:  I have looked at the original of Mr. Rush's letter  4 of May 9th, 1985, but I think it's one that's  5 supposed -- I'm going to think about it a bit more.  6 Do you need it before the luncheon adjournment, Mr.  7 Willms?  8 MR. WILLMS:  No, my lord.  Before cross closes.  9 THE COURT:  All right.  Thank you.  10 MR. WILLMS:  11 Q   Dr. Galois, I'd just like to revisit the issue of  12 Meanskinish.  I'm showing you a letter from Reverend  13 Tomlinson to The Honorable James Baker, and you'll see  14 it's received in the Provincial Secretary's office in  15 November of 1893.  And at the bottom it says -- it  16 discusses the permit.  At the top "The permit granted"  17 in the second paragraph, and then starting at the  18 bottom.  19  20 "Joshua Skins (for the removal of whose body  21 the permit was obtained) was 20 years of age  22 and a Christian of some standing.  Resided here  23 continuously for more than a year before his  24 death.  All his nearest relatives with the  25 exception of four are living here and have  26 given up heathenism.  Of the four exceptions  27 only one an uncle and a leader of the heathen  28 party actively"  29  30 -- Can you read that?  "Actively" something "in  31 the matter."  32  33 "moved in the matter and even his name is not  34 among the applicants for a permit.  The real  35 applicants were those who had died a heathen  36 would have buried him and thus obtained a  37 quantity of property at the potlatch over him  38 thereby showing the real character of the  39 application."  40  41 Now, does that help you in determining whether  42 this is what's happening here, is between two  43 Christian factions or between traditional -- does  44 potlatch assist you with --  45 A   I'd like to read the context.  46 Q   -- Contextualization?  47 THE COURT:  What do you say the date of this is?  Is it received 17777  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 November 1998?  2 MR. WILLMS:  No, it's 1893, my lord.  3 THE COURT:  '93.  4 MR. WILLMS:  Perhaps while the witness is reading it it could be  5 marked 1033-28.  6 THE COURT:  Yes.  7  8 (EXHIBIT 1033-28:  Letter from Rev. Tomlinson  9 to James Baker)  10  11 MR. WILLMS:  12 Q   There's nothing in there referring to another  13 Christian group at Kitwanga, is there?  14 A   No, there isn't.  What it does talk about is  15 protesting against the actions of the Indian agent.  16 Q   Yes.  In obtaining the exhumation permit to move the  17 body from a graveyard, a Christian graveyard to  18 Kitwanga for a traditional burial; correct?  19 A   Yes.  And they're protesting -- I mean, it's an  20 intersection of the missionaries, the process of  21 converting Indians and the role of the Indian agent  22 and the unconverted, shall we say, Indian agents and  23 intersection of those three sort of forces playing  24 themselves out over, in this case, a body.  25 Q   Yes.  And the forces playing themselves out in respect  26 of this body was the heathen forces on one side and  27 the Christian forces on the other; right?  28 A  And also through the role of the Indian agent.  I  29 mean, this is a protest by Tomlinson about the actions  30 of Lorring.  31 Q   I'm showing you a letter of August 6, 1986 from Mr.  32 Grant to yourself about the historical research.  And  33 if you turn to -- just, first of all, in the first  34 paragraph the reference to Richard, that's Richard  35 Overstall?  36 A   Yes, I think so.  37 Q   Yes.  Now, in the second page it says this:  38  39 "You also raised a number of other areas of  40 concern, which included:  41  42 1.  The unpublished Barbeau-Beynon material  43 with respect to 1888 uprising."  44  45 And then just skipping down you say, or Mr. Grant  46 says:  47 17778  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  THE  COURT:  11  MR.  WILLMS  12  Q  13  14  15  A  16  17  Q  18  19  A  20  MR.  ADAMS:  21  22  MR.  WILLMS  23  THE  COURT:  24  25  26  27  MR.  WILLMS  28  Q  29  30  31  32  33  34  35  A  36  37  38  Q  39  A  40  Q  41  A  42  43  Q  44  45  46  A  47  MR.  WILLMS  "With respect to the unpublished material  relating to 1888, I strongly urge that you do  not have to approach this material at this  time.  You can utilize this material after  October to enhance and build up your opinions  with respect to that incident."  In respect of the 1888 incidents did you rely on  unpublished Barbeau Beynon material?  Excuse me, Mr. Willms.  Sorry, Mr. Willms.  Did you utilize the 1888 unpublished Barbeau material  with respect to the 1888 uprising in coming to your  opinion?  Yes, I used some -- a set of narratives that Barbeau  collected about the 1888 uprising, yes.  And are those in your volumes one through eight, or do  you know?  I think they are, yes.  My lord, they were referred to in the course of the  witness' evidence in chief.  :  1033-29, my lord.  Yes.  (EXHIBIT 1033-29:  Letter dated August 6, 1986)  I'm showing you a letter of March 5th, 1987 from Mr.  Overstall to yourself which enclosed, you can see in  the first line, a version of your report that was  given to the lawyers representing the defendant.  Did  you receive any versions of your report with Richard  Overstall's notes on it or with a cover letter from  Richard Overstall with his notes on your report?  I'm not -- I'm not sure.  It's possible that I did,  but I couldn't -- I wouldn't like to be categorical  about that one way or the other.  You don't --  All the documentation that I had was given to counsel.  Okay.  If there had been such a reply I presume it would be  amongst those documents.  Do you recall Mr. Overstall revising for you any  portions of your report, or writing any portions of  your report for you?  No, he certainly did not.  :  1033-30, my lord. 17779  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 (EXHIBIT 1033-30:  Letter dated March 5, 1987)  2  3 MR. WILLMS:  4 Q   I'm showing you a typed memo October 1st, 1987 that  5 doesn't appear to have a signature on it, but it has  6 your address.  Did you type this up?  7 A   Yes.  8 Q   Neil refers to Neil Sterritt?  9 A   That would be to Neil Sterritt, yes.  10 Q   And you are enclosing materials from the Historical  11 Atlas of Canada?  12 A   From volume 3 thereof, yes, which is a separate  13 organization, shall we say, from volume 1 which is  14 separate from volume 2.  15 Q   Right.  And I see you note in the second line that:  16  17 "I have rewritten the text to accompany the  18 maps but if you have problems feel free to make  19 any changes."  20  21 Were any changes made?  22 A  What we are talking about here is about a 150 word  23 text that was to accompany the map of the Gitksan  24 Wet'suwet'en tribal territories and a map of the lands  25 that had been alienated into the Skeena and Bulkley  26 Valleys by about 1920.  And I secured -- I approached  27 Neil Sterritt about whether he would be agreeable to  28 them being submitted to the Atlas in case they deemed  29 it suitable for publication, and I wrote a brief text  30 to accompany those two.  But as these were materials  31 that the map -- the Gitksan Wet'suwet'en map were  32 materials that I had not prepared I was happy to agree  33 that they should have the right of refusal, shall we  34 say, to the text and the context within which their  35 material appeared, and that is what this letter is  36 doing.  37 Q   Right.  Has that map been published yet?  38 A   It has not been published, but it has been accepted  39 for publication and will be included in the -- I think  40 volume 3 is likely to be out sometime possibly in late  41 1990 or early 1991.  Like this trial the dates of  42 publication for historical atlases are infinitely  43 expandable.  44 THE COURT:  Shame on them.  45 A   Indeed.  4 6    THE COURT:  Shame on us all.  47    MR. WILLMS:  1033-31, my lord. 17780  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 (EXHIBIT 1033-31:  Memo dated October 1, 1987)  2  3 MR. WILLMS:  4 Q   By the way, did you -- do you have a copy of the map  5 of the traditional territories that you were referring  6 to in this?  7 A   No.  I would -- I was sort of a go-between in this  8 enterprise.  I knew the tribal council, I knew the  9 materials, and I sort of forwarded the materials to  10 the Historical Atlas people in -- in Toronto.  I think  11 after this most of that was dealt through -- through  12 counsel.  13 Q   So you don't have a copy of that map any more?  14 A   The final maps, no.  As I understand there were --  15 there were hold ups getting the final version of it  16 prepared.  17 Q   But you did send a copy of the map to Neil Sterritt?  18 A   No, I didn't send a copy of the map.  As I recall,  19 what I got from Neil was the map and I forwarded that  20 to the -- to the Historical Atlas in Toronto.  And  21 what I sent -- oh, what I -- okay.  What I sent to  22 Neil was the plate within which the Gitksan  23 Wet'suwet'en materials would appear so that he would  24 be able to evaluate the context within which they  25 would be published as well as the text that would  26 accompany those materials.  27 Q   Right.  Is that text and that map, since you worked on  28 them, still available to you?  29 A   I'm not sure that I have the final version.  I mean,  30 it's in -- it's in Toronto.  As I say, I was a sort of  31 go-between in this, and I couldn't tell you if I have  32 a copy of the final text or not.  33 Q   Well, as a part author of what will ultimately be  34 published is it -- surely it's possible for you to get  35 a copy of that, isn't it?  36 A   There's a copy in Toronto, certainly.  I'm not sure I  37 retained a copy of that.  I can't recall whether I  38 have or not.  39 Q   But you could get one -- since you're a part author of  40 it you could get one, couldn't you?  41 A   You could get one now if you phone up the Historical  42 Atlas and obtain one, I'm sure.  I mean, I don't see  43 any problem.  All that I'm trying to say is that I  44 don't know if I have a copy of the final version of  45 the text in my possession, because in part I think it  46 was revised by the people in Toronto as well as -- as  47 other people.  I mean, it's not a secret.  I mean, 17781  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  it's going to be published.  Q   Well, it's not published yet, is it?  A   No, that's certainly true.  WILLMS:  My lord, could -- we filled up the other binder.  Perhaps we could mark this as the next available  number, or we could mark it A.  COURT:  Well, we've used the A designation in the past,  perhaps we should do the same.  WILLMS:  So if the binder could be 1033A.  COURT:  1033A and the tab number.  WILLMS:  Yes.  REGISTRAR:  1033A.  (EXHIBIT 1033A:  Binder)  WILLMS:  Q   I'm showing you a two page note dated December 17th,  1986 from Stewart Rush to Linda re Bob's report.  Did -- have you seen this document?  I'm not sure.  If it was in the documents that I gave  to counsel then I would presume that I've seen it at  some point.  In the middle paragraph on the first page Mr. Rush is  saying -- do you know who Linda is?  She was the head of the typing pool at the tribal  council.  And your report -- your summary report and your final  report were both typed up at the tribal council?  No.  Where were they typed up?  The initial draft of the summary report, the 1987  report, was typed up there.  Subsequently I typed up  the final version myself, because I'd advanced to the  computer age at that stage.  All right.  This, by the way, doesn't refer to either of those  documents.  This doesn't refer to your 1987 summary?  No.  That was begun in February 1987.  Your summary?  Yes.  All right.  I'm sorry.  Did you say it doesn't refer to your  report or the summary?  No.  You said yes, it doesn't?  No.  What it refers to are the -- is the initial long  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  THE COURT  A  THE COURT  A 17782  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 report that I did out of which the summary report was  2 prepared initially in 1987, so that this doesn't refer  3 to either the initial summary report or the final  4 summary report.  5 MR. WILLMS:  6 Q   You're not --  7 A   So it's my writing up of the research I had done up to  8 that point.  9 Q   But surely you're not suggesting that -- that what is  10 being referred to in here has nothing to do with your  11 1987 summary, are you?  12 A  Well, what it refers to is the research that I had  13 written up prior to December 1986, and I think they  14 are in the drafts that were variously called  15 Smouldering Embers, and whatever else it was.  So it's  16 those manuscripts, shall I call them that, that I had  17 prepared.  18 Q   Well, wasn't it those manuscripts that you used to  19 write your summary, your February 1987 summary?  20 A   I used the research that I had done, and that was  21 embodied in those, yes.  22 Q   Now, just -- I want to get this straight here.  You'd  23 written two documents, but instead of reviewing those  24 documents to prepare the summary that was delivered to  25 the defendants you put them off to one side and you  26 didn't look at them and you went back to the original  27 documents and wrote your summary of February 1987?  28 A   No.  I used the research that I had previously done.  29 Q   Well, and you used Smouldering Embers.  It was in  30 front of you when you prepared your summary, wasn't  31 it?  32 A   I used the research that I had done and that I had  33 written up, yes.  34 Q   Yes.  Called Smouldering Embers?  35 A   I'm not sure when that name appears exactly.  36 Q   Yeah.  And you knew that at that time that in respect  37 of the two works that you were using to write the  38 summary, which was gonna be delivered to the  39 defendants, you knew, for example, that Mr. Rush had  40 cut a fair bit out of your earlier work?  I'm  41 referring to the first page.  You see in that middle  42 paragraph --  43 A   Yes.  44 Q  45 "I hope you can understand the directional  46 signals.  Sorry for the small writing and the  47 inserts.  I have cut a fair bit out." 17783  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  1 So when you were preparing your summary, your 1987  2 summary, you knew that the documents that you were  3 using to prepare that summary had had a fair bit cut  4 out by Mr. Rush?  5 A   No.  I still had the original.  That's just one  6 version of it.  There were so many versions, and I  7 couldn't -- I couldn't be sure which ones I used  8 exactly to prepare the summary report.  9 Q   You could have used a 1984 version instead of the most  10 up to date one, is that what you're suggesting?  11 A   No, I would have -- I mean, various bits and pieces  12 got taken in and put out according to A finding out  13 more than B.  Whether -- I mean, some of the material  14 was being covered by other people.  Some, I guess,  15 didn't seem relevant.  I mean, there were a variety of  16 reasons.  There were so many versions of that.  But,  17 as I say, they were separate documents.  I mean, we're  18 not talking here about editing that document.  I still  19 had the information that Mr. Rush may or may not have  20 eliminated.  I mean, that's his version of -- of that  21 report I gave him.  22 MR. WILLMS:  1033A-1.  23 MR. ADAMS:  My lord, I'm not sure the witness ever identified  24 that.  I understood him to say if it was in the  25 material disclosed to counsel he must have at sometime  26 seen it, but he wasn't sure of that.  He hasn't been  27 able to identify it.  It's not from him or to him.  28 MR. WILLMS:  Well, it came to us from the material that was  29 identified as the doctor's drafts.  I took that as  30 affirmative since I know where we got it from.  We got  31 it from --  32 THE COURT:  Well, I think, Mr. Adams, that the evidence of the  33 witness is sufficient to allow it to be marked.  If it  34 is part of a collection he must have seen it, and it's  35 part of that collection.  I think it may be marked.  36 1033A-1.  37 MR. WILLMS:  Thank you, my lord.  38  39 (EXHIBIT 1033A-1:  Two page note dated December 17,  40 1986 from S. Rush)  41  42 THE COURT:  I regret to inform counsel apparently my signature  43 is required on some documents that are going to be  44 brought up.  I'm going to have to adjourn for what I  45 think is a very few minutes.  I take it you're not  46 running a way ahead of yourself, Mr. Willms?  47 MR. WILLMS:  In my sprint to the end of the day I think the end 17784  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 of the day will arrive before my sprint.  2 THE COURT:  Yes.  Well, we should carry on then.  I'm sure we'll  3 get another 15 minutes in this morning.  I'm sure this  4 will take another few minutes.  5 THE REGISTRAR:  Carry on right now.  6 THE COURT:  They're not coming?  7 THE REGISTRAR:  In a few minutes.  8 MR. WILLMS:  Well, I'll keep sprinting.  9 THE COURT:  Yes.  Yes.  10 MR. WILLMS:  11 Q   Dr. Galois, in your review of the documentary -- the  12 historical records you found no evidence of harm  13 befalling any of the small parties of miners who  14 visited Skeena and the Nass in the 1860's; correct?  15 A   Skeena and Nass in the 1860's.  I'm sorry.  Get my  16 mind into that frame.  I think I say something very  17 close to that in my report.  18 Q   And it was after that time that the Cassiar Trail  19 incidents which you describe in your report took  20 place?  21 A   They took place in 1874, yes.  22 Q   Yes.  And the -- in the historical context the Cassiar  23 Trail incidents took place after a decline in the  24 mining activity in the Omineca?  25 A   They -- yes.  And in the context of the gold rush in  26 the Cassiar district, which is north of the Stikine  27 area and Deas Lake area.  28 THE COURT:  What was the date of the Cassiar gold rush?  29 A   1873-1874 was the peak of that gold rush.  30 MR. WILLMS:  31 Q   Now, I'm showing you an extract of your -- of one of  32 the drafts.  33 MR. ADAMS:  My lord, again, I'd ask to know of which draft, and  34 to have the rest of it if my friend is seeking to mark  35 this.  36 MR. WILLMS:  Well, it's the big draft.  My lord, when they came  37 over to us they came over in a great big box with no  38 identification except this one is the biggest.  I hope  39 that helps my friend.  It's the biggest one.  I can't  40 do better than that.  There's no date on the front of  41 it, there's no date on the end of it, but it's the  42 biggest one.  And the numbers -- the page numbers, to  43 help my friend, are up in the upper right-hand corner.  44 And he can fit them into the draft, but I don't know  45 what else my friend wants from me.  I got these from  46 him.  47 MR. ADAMS:  Well, my lord, I want what I asked for in an earlier 17785  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 objection, which is that if my friend is going to  2 cross-examine on this that the document go in and be  3 available.  This page is headed "Conclusion" which  4 brings it almost dead on point to the case I was  5 offering to hand up to your lordship earlier this  6 morning, which is that a conclusion in the portion of  7 an expert report may be conditioned by what was in the  8 rest of the report.  9 MR. WILLMS:  Well, once again, my lord, there's a quote from a  10 document here that the witness quotes from, a document  11 by Robert Tomlinson, on the second page, and which he  12 obviously thought was contextually relevant in the  13 draft, and I just wanted to put the quote to him again  14 and ask him if he still thought it was contextually  15 relevant.  I don't want to ask him about his opinions.  16 I'm just asking him about the document that he  17 referred to here.  18 THE COURT:  Can't you ask the question without having the  19 document in your hand?  It's an old trick in criminal  20 law to show the document to a witness and terrorize  21 him, and put it away and then ask the question, as it  22 were, in a vacuum without the document.  If you're  23 waving it at the witness when you ask the question  24 there is an argument to be made that perhaps the  25 document should go in.  26 MR. WILLMS:  I'll come back to that, my lord.  27 THE COURT:  All right.  I'm told by this marvelous means of  28 communication available that the documents are here  29 and I have to adjourn to sign them.  And, I think,  30 perhaps it would be convenient if we adjourn until two  31 o'clock now.  32 I've looked at these documents again, and I can  33 deal with this now because counsel may find it  34 convenient for me to do so.  I am not going to order  35 the -- the first page to be delivered unexcised, but I  36 have the view that the three numbered paragraphs on  37 the second page being in the nature of commentary as  38 part of the instructions to the expert to prepare his  39 report, or to have in mind when he's preparing the  40 report what it is that counsel want, that I think  41 those three numbered paragraphs should be disclosed.  42 The penultimate paragraph, the first unnumbered  43 paragraph in the page, I think is a matter that  44 relates to trial tactics which are not necessary for  45 the -- for the letter, and while it's a matter of  46 information for the witness it's not a matter that I  47 think need be disclosed, but I think the three 17786  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 numbered paragraphs must be disclosed.  Give that to  2 Ms. Mandell, and we'll adjourn until two o'clock,  3 please.  4 THE REGISTRAR:  Order in court.  Court stands adjourned until  5 two o'clock.  6  7 (PROCEEDINGS ADJOURNED)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein to the best of my  12 skill and ability.  13  14  15  16 Peri McHale, Official Reporter  17 UNITED REPORTING SERVICE LTD.  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 17787  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 MR. WILLMS:  Could Exhibit 969 be put to the witness.  4 My lord, this is one of the -- this is the  5 Attorney-General of Canada cross-examination book of  6 document for Dr. Ray, that's where this extract --  7 your lordship has seen it a number of time, it's the  8 Reverend Tomlinson's diary of 1875 and I just want to  9 put an extract to Dr. Galois.  10 Q   Could you turn to page 282 of tab 17.  Now, you  11 recognize this journal, that was one of the references  12 to your report?  13 A   Yes.  14 Q   If you could turn to page 282, and you will see from  15 the top of the page just to set the context, the date  16 is September, 1875, that Reverend Tomlinson is -- this  17 is a journal of his tour in 1875 on the Nass and  18 Skeena rivers, correct?  19 A   That's published in 1875, isn't it?  I think it's his  20 journal for 1874.  21 Q   Okay.  For 1874, it's just that —  22 A   It's published in 1875 so I don't think it's his  23 journal for 1875.  24 Q   Perhaps could you turn to the first page, maybe I am  25 reading this wrong, but if you look at the very first  26 page, the second page it's got August, 1875 at the  27 top?  2 8 A   Right.  29 Q   And then it carries on to September --  30 A   That's the date of the journal.  It's published --  31 there are two issues of the church Missionary  32 Intelligensia, one is August, 1875 and the second one  33 is September, 1875.  34 Q   This is taking place in 1874.  35 A   The text, yes.  36 Q   Now, on page 282, in the right hand column Reverend  37 Tomlinson says this.  38  39 "Edward and Legaic had reached the forks on  40 Saturday evening and they had held service  41 twice on Sunday with the natives.  Many changes  42 have taken place here since I visited this  43 place two years ago.  First, the Indians have  44 left their old ranch and built a new village  45 about half a mile higher up the river.  Then  46 there were five stores and about 25 white men.  47 Now there are but two stores and four or five 17788  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 white men.  This is owing to the Peace River  2 Mines being deserted.  I may here add that this  3 has also affected the Indians most seriously.  4 Many among them who during the gold excitement  5 were making their hundreds of dollars by  6 packing, et cetera, cannot now make their tens.  7 The result of such a sudden reaction has been  8 to make them steal from and browbeat the few  9 white men who come into their neighbourhood.  10 Last summer the Indians levied blackmail upon  11 and otherwise maltreated some packers and men  12 driving cattle across country to the new gold  13 fields at the head of the Stikine River."  14  15  16 Just stopping there, that observation by Reverend  17 Tomlinson, would you say that that's contextually  18 significant when you're considering the Cassiar Trail  19 incidents?  20 A   I considered this statement and included it as part of  21 one of the longer reports.  I assessed it and found  22 that it had some relevance, particularly as a white  23 perception of the events there, but found that it was  24 considerably inadequate as an explanation of all of  25 the complex sequence of events in 1874 and in the  26 light of a number of other historical documents that I  27 had examined, I guess after my first reading and  28 assessment of this.  29 Q   Well, now, can you turn to page 35 of your report, and  30 this is in the context of the Cassiar Trail incidents.  31 And at the same time, you will see on page 35 you have  32 discussed, in the middle of the page, the Kispiox  33 Indian Tsicktsap in respect of the Cassiar incidents,  34 and I am just going to put to you some of the  35 documents that you have referred to in your footnote.  36 The first one is, my lord, tab 150, which is in  37 volume three.  38 THE COURT:  This is footnote 10 on page 35?  39 MR. WILLMS:  Footnotes nine and ten.  There are two footnotes  40 which contain references to the Cassiar Trail  41 incidents.  42 THE COURT:  Is that volume three?  43 MR. WILLMS:  Volume three, tab 150.  And just at the first page,  44 this is the diary of Humphrey, 1874?  45 A  William Humphrey, yes.  46 Q   And he was going up the Cassiar Trail; is that  47 correct? 17789  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 A   He was both exploring for the Cassiar Trail, it didn't  2 exist at least in terms of use of whites, and he was  3 also then subsequently clearing or constructing the  4 trail for the use of subsequent pack trains.  5 Q   And this is one of the documents you relied on in your  6 discussion of the Cassiar Trail incidents?  7 A   Yes.  8 Q   Could you turn to page 14, and you will see they are  9 numbered in the upper right hand corner in square  10 brackets.  11 A   Yes.  12 Q   And at -- on Friday, June 5th, there is a note:  13  14 "Engaged nine Kuldo Indians to move camp eight  15 miles.  Camped at the Upper Kuldo Village where  16 the Kisgegas bridge crosses the Skeena.  This  17 piece of trail requires some grading.  Two men  18 chopping and two grading today.  Orr still  19 sick.  Rained hard all the afternoon and then  20 trouble with the Kuldo'o Indians.  They don't  21 want us to go on."  22  23  24 Is this one of the extracts that you include in the  25 Cassiar Trail incidents?  26 A   This is part of the documents, yes.  27 Q   Right.  And -- but if you read the next section:  28  29  30 "The Kuldo'o Indians want to turn our packers  31 back and won't pack themselves without  32 exorbitant prices."  33  34  35 Now, is that contextually significant when you  36 consider the Cassiar Trail incidents, the next  37 reference there?  38 A  Again, it's part of the documentation of a complex  39 sequence of incidents and it has to be viewed not as  40 something standing on its own but part of that  41 sequence.  42 Q   You know when Humphrey refers to "our packers" on June  43 6th, he is talking about non-Kuldo Indian packers,  44 right?  45 A   I would think so.  I would need to check to be certain  46 of that.  It's quite sometime since I looked at this  47 journal. 17790  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  I am curious about the geography, did there used to  be a bridge across the Skeena that's called the  Kisgegas bridge at old Kuldo? Upper Kuldo, rather.  I think there was a bridge there.  I can't remember, I  think in my report I have a list of -- an appendix  which lists bridges and references to bridges that I  came across in searching through the documents.  My recollection is that Old Kuldo is somewhere  between 20 and 40 miles north of the confluence of the  Skeena and Babine and Kisgegas is on the Babine River?  Yeah, Old Kuldo is not quite the same place I think as  Kuldo.  Yes, there is two of them.  I think there is --  My recollection is that the Upper Kuldo was the old  one?  I think that's correct, yes.  And it's north of New Kuldo?  Yes.  And further away from where the bridge is now, of  course the bridge now is across the Babine?  There is a bridge as Kisgegas, I think there may have  been one somewhere near Kuldo, if not across the  Skeena then perhaps across one of the tributaries but  I am not sure of that.  Kisgegas bridge, it would have to cross the Skeena?  Yes.  Well, the Kisgegas bridge would be across the  Babine River.  But not at Upper Kuldo.  No, I am just --  My lord, in the appendix to the witness's report,  appendix seven, he does -- he has got two -- a bridge  across the Skeena River near Old Kuldo and also a  bridge on the Babine at Kisgegas.  Whether that means  that —  Well, it makes sense, I just wasn't aware of the  fact that there was a bridge up there.  Dr. Galois, you will see in the margin, page 14 a  handwritten "Old Kuldo", is that your writing on the  left hand side?  That's mine, yes.  And N. S., is that Neil Sterritt?  I am not sure.  I would think it probably is, yes.  Mr. Sterritt helped you to locate that bridge?  I thought it was Nova Scotia.  He helped me in terms of tracing the routes that were  1  THE  COURT:  2  3  4  A  5  6  7  8  THE  COURT:  9  10  11  A  12  13  THE  COURT:  14  A  15  THE  COURT:  16  17  A  18  THE  COURT:  19  A  20  THE  COURT:  21  22  A  23  24  25  26  THE  COURT:  27  A  28  29  THE  COURT:  30  A  31  MR.  WILLMS  32  33  34  35  36  THE  COURT:  37  38  MR.  WILLMS  39  Q  40  41  42  A  43  Q  44  A  45  Q  46  THE  COURT:  47  A 17791  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 followed by the Humphrey party in this journal.  2 MR. WILLMS:  3 Q   Now, I wonder if volume four could be put before the  4 witness.  And, Dr. Galois, could you turn to tab 159  5 of volume four, this is the letter Duncan to -- Duncan  6 to Farron, April 27th, 1873, and it's one of the --  7 it's the cite to footnote ten, this is another  8 document you relied on in setting out parts of the  9 Cassiar Trail incidents?  10 A   Yes, it is.  11 Q   You will see, starting at the beginning, "we have here  12 in prison an Indian" and I think that's named or name  13 of?  14 A   Named, I would take it to be.  15 Q   "Named Mesk-ka-boo", M-E-S-K, - K-A,- B-O-O.  16 A   It's M-E-S-H-K-I-B-O-O.  17 Q   Thank you.  18  19  20 "...convicted of having unlawfully detained a  21 party of white men on the way to Omineca via  22 Nass River.  On my hearing the case,  23 Mesh-ki-boo offered in his defence a statement  24 to the effect that 'you had wronged him out of  25 just wages due to him for freighting goods for  26 you up the Skeena River and according to Indian  27 law he has sought his revenge on the first  28 party of white men who came into his power'."  29  30  31 That, I take it you acknowledge that that reference  32 is contextually significant in considering the Cassiar  33 Trail incidents?  34 A  Again, it's part of the context and has to be viewed  35 along with a considerable variety of others.  What  36 this one is concerned with is the existence and  37 operation of native law on the Nass River.  I should  38 point out that Mesh-ki-boo was a major chief at the  39 village, I think of Kitladamax on the Upper Nass and  40 the Nishga, particularly the Upper Nishga, were  41 closely related to the Gitksan culturally and  42 linguisticly.  43 Q   You did note though the similarity between the  44 Humphrey reference and this reference, one thing  45 that's similar between the two is the reference to  46 wages for packing?  47 A  Well, I think there is a difference in that 17792  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 Mesh-ki-boo he is saying he has been wronged, he  2 hasn't been paid, there was some sort of agreement  3 that he should be paid.  And the point here seems to  4 me to be in terms of responsibility, that under the  5 native law as it is laid out here by Duncan to Farron,  6 the responsibility as viewed by Mesh-ki-boo was not in  7 terms of the particular white individual concerned but  8 in terms of the next white person that he encountered.  9 So that my point here is that there are differences in  10 terms of notions of law, of responsibility.  And that  11 I take this to be very close to the Gitksan version of  12 it.  13 Q   And they are both -- they both appear to be related to  14 wages?  15 A  Well, but the difference with the second one, of  16 course, is that --  17 Q   But could you just answer my question, they both  18 appear to be related to wages, don't they, both the  19 Humphrey and this one --  20 A   One, wages that had not been paid and one in terms of  21 some kind of disagreement about potential wages in the  22 future, isn't it?  23 Q   Could you turn to tab 156, this is another  24 reference -- and this is an extract from the evidence  25 at the trial of Tsicktsap, tab 156, and you see that  26 this is the evidence of Edgar  27 Pettingell,P-E-T-T-I-N-G-E-L-E?  28 A   E-L-L.  29 Q   E-L-L.  And, "sworn, said I was one of a party of five  30 white men one of whom was" and I can't make that out.  31 A   Phillip Grinder.  32 Q   "Phillip Grinder."  And then that is "on"?  33 A  About, I think.  34 Q   About.  35  36  37 "About the first August we arrived at a crossing  38 near Kispiox Village when a party of Indians  39 from the village amongst whom was the person  40 Tsicktsap refused to allow the Indian whom we  41 had employed to ferry us over the river to  42 fulfill his engagement, and thus demanded five  43 bags of flour to take us over the river and  44 after we were over they further demanded  45 another three sacks of flour and tobacco which  46 we had to pay as they aroused themselves to  47 threaten violence if we refused." 17793  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 Now that bit of evidence is also contextually  2 significant to a consideration of the Cassiar Trail  3 incidents, isn't it?  4 A  Again, that's part of the sequence, yes.  And one  5 additional piece of information is that I think what  6 we are talking about here again is the operation of  7 Gitksan customs and Gitksan laws.  The important point  8 I think is that "the Indian whom we had employed to  9 ferry", that is referred to in there, was not from  10 Kispiox.  I think, anyway.  I can't be completely sure  11 about that.  But the pack trains, I think, altered at  12 Hazelton/Gitanmax.   My assumption there is that is  13 probably where this Indian was hired from, in which  14 case he would be infringing, shall we say, on  15 privileges that the Indians of Kispiox assumed  16 belonged to them, and that I think is what this  17 conflict, in part anyway, is about.  At least that  18 seems to me to be a reasonable inference.  19 Q   Well, you mean you assume that it was Gitksan law at  20 the time that if you had packers from another village  21 when you came to another Gitksan village you had to  22 fire those packers and hire packers from the new  23 village, is that your understanding of what Gitksan  24 law was then?  25 A  My understanding is that trade routes in particular  26 were controlled and that one required permission to  27 use them for trade purposes, if you did not own and  28 control them, and that one of the ways that that was  2 9 done was in terms of payments of some kind.  30 Q   Well, isn't it the case that at both Kuldo and this  31 incident here, it was more than just a payment for  32 permission, they also seemed to have wanted the  33 earlier hired packers released from their engagements,  34 how do you fit that in with Gitksan law as you  35 understand it?  36 A  Well, I mean, it seems to me that they are both  37 related, one they don't want the non-Kispiox Indian to  38 do it and the other assuming that this is a trading  39 party and that there should be some kind of payment  40 of -- for the use of this route, in part anyway.  I  41 think there are other factors that become involved in  42 the sequence of events.  43 Q   Of course another aspect of this, which is  44 contextually significant, is Tomlinson's view at the  45 time of the cause of these problems on the Cassiar  46 Trail, that's certainly contextually significant,  47 isn't it? 17794  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  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  A  Well, I have commented on that before.  The only thing  that I would add at this point is that Tomlinson was  not that familiar with the Gitksan at this point.  This is his second visit.  He is not the Tomlinson of  1884 who spoke Gitksan and has had a good deal of  familiarity.  So, yes, it is a version of it but again  I don't think it is a complete view of a very complex  sequence of events.  Are we using Cassiar and Omineca interchangeably?  No, no.  Omineca lies to the east.  It's part of the  Peace River drainage system whereas Cassiar is north  of the Stikine river.  So the trails intersect, shall  we say, around Hazelton.  THE COURT:  Yes.  Thank you.  MR. WILLMS:  Q   Could you turn to page 51 of your report, where you --  at the top of the page, you are here talking about  O'Reilly and Green visiting and alloting reserves at a  number of places and then you say:  "At Kispiox and Kitwanga there was clear  opposition to O'Reilly's activities."  Now, is it contextually significant to a  consideration of the reserves at Kispiox that  subsequently a Chief Kaile from Kispiox expressed his  regret at the conduct of his people and asked O'Reilly  to return?  A   That's part of the context, certainly, and it has to  be viewed as part of that.  Q   And is it also contextually significant in respect of  Kispiox that in 1896 three Kispiox chiefs wrote to  O'Reilly attributing their actions to the fact that  they were in heathenism and darkness but now as  Christians they apologized and requested an  enlargement of their reservation, is that also  contextually significant?  A   It seems to me it speaks strongly of the role of the  missionaries at Kispiox.  Q   So it is significant?  A   It's again part of the context.  The other thing that  I would add is that on the ground when there was  virtually no white settlement in the area, the  establishment of reserves had little meaning or  significance in terms of the activities of the people  at Kispiox.  And -- well, I will leave it at that. 17795  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 Q   If you wouldn't mind just turning back for a moment to  2 page 19 of your report.  You say at the bottom of page  3 19, over to the top of page 20:  4  5  6 "Travel to the coast for cannery workers also  7 began to replace the annual visit to the Nass  8 oolichan fishery by the mid-1890s.  The  9 Gitksan, it would appear, were able to obtain  10 oolichan grease during their visit to the coast  11 for cannery work hence the impetus to make the  12 traditional March and April  excursion to the  13 Nass was diminished."  14  15  16 First of all, when was the cannery work at the  17 coast, what time of year?  18 A   It ran from about mid-June, I think, to mid-August.  19 Again, it increased somewhat as one goes later on in  20 time.  But I think probably we are talking here about  21 the mid-1890s, I think that two-month period is  22 reasonably accurate for the time of operation of the  23 fishery.  24 Q   Isn't it the case --  25 A   The cannery.  26 Q   Isn't it the time case that you noted from the  27 historical record and the documents you cite to that  28 footnote there that you noted that the oolichan  29 fishery had dropped off but you did not note in any of  30 the historical record that you cited in that footnote  31 that it had been replaced by obtaining grease on the  32 trips to the canneries?  33 A  Well, I didn't say that the oolichan fishery had  34 dropped off.  I said that the visit of the Gitksan to  35 the oolichan fishery had diminished.  I am not quite  36 sure whether the Gitksan obtained their supplies by  37 fishing or by trading.  What I am suggesting here is  38 that in their visits to the coast they obtained  39 supplies during that period.  40 Q   But you're not suggesting that based on anything in  41 that footnote there, are you, you have got footnote 35  42 on the next page, you are not suggesting that's based  43 on anything from the historical record, are you?  44 A   Yes.  I mean what I am referring to, I am not sure  45 what's in the footnote, there is a couple of  46 statements by Loring talking about the diminution of  47 it and then I used an account from a slightly later 17796  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 period which pointed, which -- I forget the exact  2 date, but it was sort of 1905-1908, where it talked  3 about the Indians bringing back supplies of oolichan  4 on the steamers as they returned from the coast.  And  5 it seemed to me a reasonable interpretation that this  6 was a process which had gone on earlier as a  7 compensation for the diminution of those visits.  8 Q   I am showing you one of the documents that you refer  9 to in footnote 35, which is a letter from Loring to  10 Vowell of February 29, 1895.  And in that letter  11 Loring says in the second paragraph:  12  13 "A portion of the old people, that is all those  14 still intent on making grease, are gone.  I may  15 also state that the younger and middleaged  16 people of along the Skeena River have given up  17 the latter practice and learned to spend their  18 time to better advantage."  19  20  21 Now, first of all, this document does show that the  22 trips have fallen off, doesn't it?  23 A   It does indeed, yes.  24 Q   But it doesn't seem to show that oolichan grease is  25 obtained on the trips for cannery work, does it?  26 A   I didn't say that it did.  I was placing it with other  27 documents that I was describing.  28 MR. WILLMS:  Could that be 1033-A2, my lord.  29  30 (EXHIBIT 1033-A2: LETTER DATED FEBRUARY 29, 1895 -  31 LORING TO VOWELL)  32  33 A   I should add too this is another example of Loring  34 taking an optimistic view about certain sorts of  35 developments and that one has to view these things  36 very much in context, and what I mean by that is a  37 sequence of them.  There is quite clear evidence that  38 grease is being brought up later on.  39 MR. WILLMS:  40 Q   Now I am showing you another document, which is cited  41 in footnote 35, which is the -- which has a reference  42 to oolichan in it, this is -- and you recognize this,  43 a letter from Loring to Vowell, February 29, 1896?  44 A  Well, it's sometime since I have seen it.  45 Q   And on the second page here, Loring says:  46  47 "Very few of the Indians left for the Nass 17797  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 River at the end of this month to make and  2 procure oolichan grease.  Their number on that  3 is getting less every year as their energies  4 are lately getting absorbed to improve their  5 new homes in severalty to which they are  6 becoming more and more attached."  7  8 Once again, this document is consistent with the  9 trips to get oolichan grease diminishing but certainly  10 has nothing in it saying that it's being replaced, the  11 oolichan grease is being replaced by being brought  12 back on the cannery trips, right?  13 A   I haven't claimed that it has.  As I said earlier, one  14 has to view this in the context of evidence which  15 pertains to continuing oolichan use in the period  16 after 1900.  I should add, too, that there is evidence  17 of the Gitksan coming up in the 1890s from working at  18 the canneries and bringing what is described as their  19 own freight with them.  There is no further details as  20 to what comprises that freight.  21 Q   Well, just, Dr. Galois, I am just trying to deal with  22 what you have cited on footnote 35 and I am going to  23 get to the next one -- my lord, can we mark that  24 1033-A5.  25  26 (EXHIBIT 1033-A3: LETTER DATED FEBRUARY 29, 1896,  2 7 LORING TO VOWELL)  28  29 MR. WILLMS:  30 Q   I wonder if volume three of the document book could be  31 put before you.  And this is the third document that I  32 have noted here from you as footnote 35.  It's at tab  33 125.  It's entitled "Skeena - River of the Clouds,  34 1977-1."  Do you recall where it was in here?  Is  35 there a reference in here that before the turn of the  36 century they used to bring --  37 A  As I have said several times, this is a document that  38 refers to the period after 1900 when steamers were  39 operating on the Skeena and that I have used this as  40 evidence of, at a slightly later period, oolichan  41 grease being brought up, and I have inferred that this  42 was a process that was likely occurring before this  43 particular occurrence is described.  44 Q   Yes.  And the slightly later period is a period when  45 boats were running up the river?  46 A   Yes.  This is the first steamwheeler that was put on  47 the Skeena was in 1891 by the Hudson's Bay Company.  I 17798  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 am not quite sure, the date on this is somewhat  2 imprecise, but from the period of the construction of  3 the Grand Trunk Pacific Railway there were at one time  4 two or three different steamers operating on the  5 Skeena up as far as Hazelton and, I suspect, if I  6 recall correctly, that this refers to that period.  7 Q   But in the historical record of the time, you couldn't  8 find a reference and certainly not cited to your  9 footnote, this is a transcript of an interview with  10 somebody about ten years ago?  11 A   This is a transcript of a radio documentary which  12 consisted of a series of interviews undertaken by  13 Imbert Orchard and broadcast on the CBC, I think in  14 the the 1960s, and I don't know when the intervies  15 were done.  I suspect that they were probably done  16 sometime immediately prior to the initial broadcast of  17 the programme.  18 Q   So is what you meant to say on pages 19 and 20 that at  19 sometime later, as indicated in the radio broadcast,  20 people were able to bring oolichan grease up on the  21 steamboats?  22 A  As I said before, I used that evidence from a somewhat  23 later period to draw what I considered to be a  24 reasonable inference in terms of that evidence and the  25 evidence that the visits to the coast, the Lower Nass,  26 by the Gitksan, were diminishing, because there is  27 other evidence which points to the continued use of  28 oolichan grease by the Gitksan.  29 Q   Yes.  Do you have Exhibit 962?  I asked for it the  30 other day.  31 THE COURT:  You don't need this tab 125?  32 MR. WILLMS:  Well, I have referred the witness, he has  33 identified what it is, a CBC radio show in 1960.  34 A  About 1960.  35 THE COURT:  1960?  36 A   I am not sure of the exact date, my lord.  I think  37 it's somewhere in that vicinity.  I may have it  38 included, I am not sure.  39 MR. WILLMS:  40 Q   Are there any other recent interviews that you have  41 relied on in forming your opinions on the historical  42 record, say, pre-1900?  43 A   Sorry, are there any other --  44 Q   Interviews with people?  45 A   Interviews undertaken by people since when?  46 Q   Well, let's say, any other tapes, interviews with  47 plaintiffs in this action? 17799  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 A   No, no I haven't used any of those.  2 Q   Dr. Galois, if you turn to tab 4, this is volume  3 three, my lord, plaintiffs' document book for Dr. Ray,  4 and tab 4 is Exhibit 962, which is a draft of Dr.  5 Ray's report dated January 16, 1985.  And if you can  6 look at that, Dr. Galois, you recall giving evidence  7 this morning that you remember reviewing a draft  8 report of Dr. Ray?  9 A   I did, yes.  10 Q   Is this the one or do you recall?  Was the one --  11 A   I am not sure, actually.  12 Q   Was the one that you reviewed, did it have a  13 discussion in it of the period 1830 to 1900?  14 A   I am not sure.  I am mixed up because I have read a  15 report of his recently which does cover that period.  16 I am not sure whether I did see that at an earlier  17 period or not.  18 Q   Now, you ended your economic assessment at 1897?  19 A   Yes.  20 Q   In your report?  21 A   Yes.  22 Q   Could you turn to page 85 of Exhibit 962?  23 THE COURT:  What is 962.  24 MR. WILLMS:  962 is Dr. Ray's January, 1985 draft.  25 A   1985?  26 Q   Yes.  27 A   This is under tab 4?  2 8 Q   Under tab 4.  29 A   Page?  30 Q   Page 85.  31 A   Sorry, I was looking at the 1984 version, actually.  32 That is when my previous remarks were, I was looking  33 at this one.  34 Q   Okay.  35 A   I am not sure whether --  36 Q   Could you turn to tab 4 then.  37 A   85?  38 Q   Page 85.  Here Dr. Ray, in the middle paragraph, says  39 this:  40  41 "As figure 9 shows, Indian incomes were  42 generally on the rise during the period between  43 1898 and 1915.  This becomes even more  44 noticeable when income is expressed in per  45 capita terms.  Equally striking is the shift in  46 the relative importance of various income  47 sources.  The agricultural and wage labour 17800  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 sectors showed the most striking increases and  2 fishing the most marked decline.  Hunting and  3 trapping fluctuated until about 1908 and then  4 dropped sharply.  Fishing contracted sharply in  5 1904."  6  7  8 Now, I recognize you ended your report at 1897, but  9 from your review of the historical record is Dr. Ray  10 accurate there or did you stop your consideration of  11 the economic record in 1897?  12 A  Well, I collected a certain amount of information.  At  13 one point I think I was going to carry on beyond 1897.  14 Most -- what I didn't do though is collect and analyze  15 the sort of data that Dr. Ray is talking about here.  16 So, I would be reluctant to comment upon that, I  17 think.  I don't think I could add anything that would  18 be particularly useful.  19 Q   Okay.  Well perhaps you can look to the period  20 immediately before that time which you do have in  21 appendices to your report, and if you can turn to your  22 report at the back of appendix 8?  2 3 A  Appendix 8?  24 Q   Appendix 8, page 131 at the top right hand corner.  25 And what you have done here is you have broken down  26 Gitksan occupations by village in 1881?  27 A   Yes, this is material taken from the manuscript census  28 rolls.  29 Q   And the occupations of packer and miner are non-  30 traditional, correct, or your understanding was that  31 packer and miner was non-traditional?  32 A   Yes, primarily packing has certain traditional  33 elements, what one is talking about moving about.  I  34 mean, there is a certain overlap.  Traditional skills  35 would be pertinent for packing but it's a new activity  36 in a sense of being done for remuneration for whites.  37 In that sense it's a new occupation.  One has to be a  38 little wary too, I think, of the sort of categories  39 that one uses.  I mean, I think one has to be somewhat  40 wary of occupations as a term that we are familiar  41 with in terms of our society and the application of it  42 to a different society at this point in time.  43 Q   And then boatmen, when you listed the 18 boatmen, was  44 that -- is your understanding that was a traditional  45 Gitksan occupation or is that an introduction due to  4 6 the non-native economy?  47 A  Well, it's not quite clear what that means.  I suspect 17801  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 what it means is some sort of employment at the  2 canneries, as probably does fishermen.  But these  3 were -- what I did was simply use the terms as they  4 were listed in the census.  5 Q   And then you note "labourer" and I take it that you --  6 that's a non-traditional occupation, from your  7 understanding?  8 A   Yes, yes.  9 Q   So that it appears that by 1881, if you look at  10 packer, miner, labourer, that you have got  11 approximately 30 percent of the population with a non-  12 traditional occupation, that's what the table shows,  13 doesn't it?  14 A   I am just trying to figure out what the percentage --  15 seven -- what those percentages are are the total  16 numbers of occupations listed as a percentage of the  17 village population so, no, it doesn't -- I don't think  18 I calculated the percentage of hunters versus the  19 other occupations listed there.  20 Q   But you have totalled up the occupations as 379?  21 A   Yes.  That's all occupations, including hunter.  22 Q   All occupations?  23 A   Yes.  As against the total population, so in other  24 words of the total Gitksan population in those  25 villages that are listed in 1881, 26.2 percent are  26 listed as having occupations which are distributed as  27 I have indicated in that table.  28 Q   That's consistent with children and --  29 A   It's the total population.  30 Q   You wouldn't expect it to be 100 percent, would you,  31 of the population?  32 A   No, I don't.  33 Q   If you turn the next page to appendix 9, in respect of  34 Gitksan occupations by village, and your list, as you  35 go down, you will agree with me that predominant among  36 all of these, except until you get down to Kuldo, is  37 working at the canneries on the coast?  38 A   Predominant?  39 Q   Well, let's say dominant then.  40 A   There is no quantitative information whatsoever in  41 this table.  42 Q   What about Kitwancool, the main occupation, is that  43 sort of quantitative?  44 A   During the salmon season, which as we talked earlier  45 was about two months in the year.  46 Q   Okay.  47 A   I mean I just use this as sort of an indication of the 17802  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 array of activities that are undertaken by the Gitksan  2 at 1897.  This is taken directly from Loring's annual  3 report and also to suggest some of the spatial  4 variations in the types of activities that the Gitksan  5 are engaged in at this time.  6 Q   Now if you turn to appendix 11, which is on page 134,  7 you see what you document here is the increase in the  8 number of canneries from 1876 to 1898 from one to 19?  9 A   The total, yes, for those four areas.  10 Q   Yes.  And then salteries go up to 1887, what happened  11 to the salteries?  12 A  Well, as is often the case when dealing with sort of  13 data like this they just sort of disappear, which is  14 not to say that salteries didn't exist.  What happens  15 is they don't exist in the data any longer.  This is  16 taken from the annual reports of the Department of  17 Fisheries.  And so one is hostage to the data that is  18 available.  I would suspect that some salteries are  19 carrying on but it would have been an enormous task to  20 unearth that data.  21 Q   Just keeping Dr. Ray's report in front of you, turn to  22 page 75 of your report.  23 A   75?  24 Q   75.  And on page 75, in the middle of the page, you  25 talk about the construction of the Grand Trunk Pacific  26 Railroad through the Upper Skeena region and you say  27 it raised two specific issues for the Indian people,  28 the acquisition of land for the right-of-way, and  29 damage done to Indian property during the construction  30 process.  31 And then you also note at the last two lines:  32  33  34 "Given this framework it is often difficult  to  35 determine the role of Indian protest if any in  36 the process.  Nonetheless, the Gitksan were not  37 simply spectators."  38  39 And what you meant by that, is that the Gitksan  40 worked on survey crews and on right-of-way  41 construction with the Grand Trunk pacific Railroad, is  42 that what you meant by they weren't simply spectators?  43 A   No, there were one or two examples where they did  44 enter protests about the process of construction of  45 the Grand Trunk Pacific.  46 Q   But it is contextually significant to note from the  47 historical record that the Gitksan did take up 17803  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 employment with the survey crews and on the  2 construction crews, isn't it?  3 A  Well, I wasn't looking at that particular issue at  4 that point.  I don't have any -- I don't have any  5 evidence to hang on that.  So I am not sure whether  6 they did or whether they didn't, quite honestly, at  7 this point.  8 Q   Could you turn to page 82 of Exhibit 962, Dr. Ray did  9 consider this in his review of the historical record.  10 Page 82, you will see.  11 THE COURT:  What's the exhibit number?  12 MR. WILLMS:  Exhibit 962, my lord, still with Dr. Ray's 1985  13 report put in by the plaintiffs.  He says, I am about  14 seven lines down:  15  16  17 "One very important but brief source of  18 employment was in connection with the  19 construction of the Pacific Grand Trunk Railway  20 through the Bulkley Valley and down the Lower  21 Skeena River to the Prince Rupert terminal.  22 Beginning in 1907 local Indian people,  23 particularly Kitwancool, Gitanmax, Kitwanga and  24 Roche de Boullier bands worked on the survey  25 crew and later on right-of-way construction.  26 This activity largely ceased in the local area  27 in 1912 when the line was completed to  28 Hazelton."  29  30  31 Now certainly what Dr. Ray noted from the  32 historical record there is contextually significant to  33 the issue of the construction of the railway through  34 Gitksan and Wet'suwet'en areas, isn't it?  35 A   In what way?  I am not quite clear?  36 Q   Well, you don't understand that surveying is when you  37 lay out on land where the railroad is going to go,  38 isn't that significant to the issues you are talking  39 about, like right-of-way on page 75 of your report?  40 You talk about the acquisition of land for right-  41 of-way and damage to property, and I am just  42 suggesting that those two points that you raised in  43 your report, isn't it significant to note from the  44 historical record that Gitksan people helped survey  45 and, it appears, Wet'suwet'en did as well, and helped  46 construct?  47 A  Well, the point that I am talking about here is -- was 17804  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 handled by and large through the -- there was a  2 formula worked out for the sale of the right-of-way by  3 the Grand Trunk and the DIA.  I am not quite sure what  4 work the Gitksan -- it says survey crews, I guess.  5 Q   Can I take from that that you don't think that's very  6 significant at all, then, is that fair?  7 A   In terms of the way that that issue was handled, the  8 Gitksan didn't have much involvement, as far as I  9 could tell, except in one or two cases where other  10 issues were sort of brought into play.  I can't  11 remember the details of that now.  12 Q   No.  Would you mind just turning back in your report,  13 pages six to nine of your report you deal with -- you  14 call it New Approaches, 1850 to 1869, and I note in  15 there, in those pages, that you don't refer to Legaik  16 in those pages.  You certainly found references to  17 Legaik in the historical record, didn't you?  18 A   I am aware of who Legaik is, yes.  19 Q   And it's important, the part that Legaik played in the  20 economy of the region at this time is important, you  21 acknowledge that from historical record?  22 A  Which region?  23 Q   Let's say the Skeena River.  24 A  As far as Gitanmax, he was important in that he was  25 the head chief of the Gispakloats, and certainly for  26 the period up until, well, sometime around 1866, they  27 effectively, as far as I am aware, controlled that  28 route in terms of trade access.  29 Q   All right.  And if you still have Dr. Ray's Exhibit  30 962 in front of you, if you turn to page 70 you will  31 see Dr. Ray at page 70 deals with the period in the  32 middle of the 19th century in the middle of the page:  33  34  35 "From the foregoing it is clear that by the  36 middle of the 19th Century a new pattern of  37 traded had developed which affected the Upper  38 Skeena River region.  The Hudson Bay Company  39 tightly controlled the coastal area and had  40 become dominant supplier of trade goods. The  41 company was content to let the Indians struggle  42 for control of the inland trade and in the end  43 the Legaik chiefs emerged victoriously in the  44 Skeena River Valley."  45  46 Now that observation by Dr. Ray from the historic  47 record is certainly contextually significant to the 17805  R. Galois (For Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 economy of the region, isn't it?  2 A   Yes.  3 Q   And, in fact, one of the references to your report,  4 and it's not a historic reference, but is a reference  5 to a work by Robinson called Sea Otter Chiefs?  6 Michael Robinson, you recall reviewing this?  7 A   Yes.  8 Q   And I have just -- the only extract I have shown you  9 is pages 61 to 87, chapter four, from this, you read  10 the chapter that Robinson had written on Legaik?  11 A   Yes, I have read this.  12 THE COURT:  Where is that?  13 MR. WILLMS:  I have just put in the section on Legaik, pages 61  14 to 87, my lord.  15 Q   And you will agree with me, Dr. Galois, that the  16 impact of Legaik and the Coast Tsimshian trading into  17 this area is very significant when you're considering  18 the economy of this period, that is the Gitksan and  19 Wet'suwet'en economy?  20 A  Well, it was important.  I am not sure that I would  21 want to put it beyond that.  The Gitksan also had  22 access to the coast via the Nass and there is evidence  23 that the Wet'suwet'en had access to the coast I think  24 via Kemano.  But there was clearly trade up the  25 Skeena.  It was an important route and it was  26 controlled by Legaik and was part of, well, the growth  27 of his importance as a chief at Fort Simpson.  28 THE COURT:  Shall we take the afternoon adjournment?  29 MR. WILLMS:  1033-A4, my lord.  30  31 (EXHIBIT 1033-A4:  ARTICLE "SEA OTTER CHIEFS BY  32 MICHAEL P. ROBINSON)  33  34 (PROCEEDINGS ADJOURNED FOR SHORT BREAK)  35  36  37  38  39 I hereby certify the foregoing to be  40 a true and accurate transcript of the  41 proceedings herein to the best of my  42 skill and ability.  43  44  45  46 Wilf Roy  47 Official Reporter 17806  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS)  2  3 THE COURT:  Mr. Willms.  4 MR. WILLMS:  My lord.  5 Q   On page nine of your report, Dr. Galois, you note in  6 the middle paragraph that:  7  8 "There are also indications that white visitors  9 were expected to conform to established  10 practices governing trading journeys.  The  11 difficulties encountered by a COT party at  12 Kitselas is a case in point."  13  14 And that from your review of the record was a case  15 where the COT party was mistaken for a trading party?  16 A   It was interpreted initially as being a trading party,  17 as I recall.  And I can't remember the details of it,  18 but the account that I relied upon is that of Morison.  19 Q   Right.  And is it contextually significant that they  20 had with them Indians hired from Metlakatla, and Paul  21 Legaik, is that contextually significant to that  22 particular event?  23 A   It may have some -- some significance.  It's difficult  24 to be certain about this.  I mean, one has to remember  25 again that Morison's account was written some 50 years  26 after the event and he was not familiar with Indian  27 cultures at all, so that I think one has to approach  28 his account with some caution.  29 Q   Well, I'm not asking you about Morison's account, I'm  30 asking you is it contextually significant to note that  31 the Indians that were with the COT trading party were  32 from Metlakatla and that Paul Legaik was with them?  33 Is that contextually significant to that event?  34 A   It may have been -- had some significance.  I'm not  35 quite sure as to the extent of the significance at  36 this point in time.  37 Q   It may have had the same contextual significance as  38 Youman having an Indian wife in respect of the Gitksan  39 actions?  40 A  Well, I'm not sure I would equate those two in that  41 way.  42 Q   One thing you do know from Morison is that not only --  43 after the mistaken identity issue was resolved not  44 only did the trading -- did the COT party pass through  45 Kitselas, but they were assisted through the canyon by  46 the Indians there.  The Indians helped them go  47 through. 17807  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 A   I can't recall the circumstances of that particular  2 document, I'm afraid.  3 THE COURT:  Well, does Morison give a completely different  4 picture of the one that Mr. Willms is painting now?  5 A   I'm not sure, your honour.  It's some time since I  6 looked at this particular document.  It would be  7 useful for me, I think, to refresh my memory on that.  8 MR. WILLMS:  9 Q   I'm showing you the Morison -- and it's the extract.  10 The last two pages have the discussion from Morison on  11 the passage through starting at the bottom, and the  12 page's numbered 21 at the top, and starting at the  13 bottom Morison says:  14  15 "I should mention that before our first passage  16 of the historic Kitselas Canyon, that we  17 arrived just below the Canyon in the evening  18 and Capt. Butler judged it wise to camp and to  19 tackle the Canyon next day as all our company  20 were pretty well fagged out with their day's  21 work.  Just after supper when we were enjoying  22 our 'Otium cum dig' and listening to something  23 which he called music from the concertina of  24 our friend Miller, a small canoe came down the  25 river from the Canyon with an envoy from  26 Kit-horn, the Kitselas Chief, with a message  27 that if we attempted to pass the Canyon they  28 would throw rocks on us from above and sink our  29 canoes; they laboured under the delusion that  30 we were a great fur trading company and would  31 spoil their trade with the up-river Indians,  32 who were not allowed to pass the Canyon to the  33 Coast; the Captain informed the messenger,  34 after a due present of pigtail tobacco and a  35 fill up of bacon and beans, that we were not a  36 trading company but a working company and far  37 from interfering with their trade would employ  38 them and that would make money out of us;  39 incidently he caused our arm-chests to be  40 opened containing a great display of Colt's  41 repeating rifles, Sharp's Carbines and  42 revolvers, the messengers eyes grew big at the  43 sight of these, Capt. Butler told him he was  44 going through the canyon in any case, and when  45 he said a thing he meant it.  46  47 We proceeded next day and reached the Canyon, 17808  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 both sides of which at that time were lined  2 with large Indian Houses, with a population of  3 about five hundred inhabitants.  The rocks were  4 lined with Indians far above us, they rushed  5 down but instead of smashing us they tackled on  6 to out tow-lines and drew us through the Canyon  7 in triumph and with much yelling, it was a  8 great help as being July the water was very  9 high, it took all day to get the floatilla  10 through and we were glad to make an early camp  11 at the head of the Canyon, and after a hearty  12 meal we were soon asleep."  13  14 And does that help you?  15 A   Yes, it does.  The important point there I take to be  16 the giving of presents, which is conformable with the  17 procedures for obtaining permission to pass through.  18 At least, that's my understanding of the Gitksan  19 trading rule, shall we say.  20 Q   You weren't -- you weren't aware of the Kitselas  21 tradition of warring with the Coast Tsimshian and  22 stopping them from going through?  23 A   There were certainly conflicts between the Coast  24 Tsimshian and the Kitselas on one or two occasions.  25 However, as I recall, by the mid 1860's when this  26 occurred there had been some form of marriage alliance  27 between one of the Kitselas chiefs.  And I'm not sure  28 if it was Legaik or some relation thereof.  29 Q   Right.  This is the Legaik that you don't mention in  30 this part of your report?  31 A   There was several Legaiks.  I mean, that was a name.  32 MR. WILLMS:  1033A-5, my lord.  33 THE COURT:  Yes.  34  35 (EXHIBIT 1033A-5:  Article - Reminiscences of the  36 early days of British Columbia - C.F. Morison)  37  38 MR. WILLMS:  39 Q   Now, turn in your report to page 34.  And at page 34  40 in your discussion of the -- in that first paragraph  41 you talk about:  42  43 "The tri-partite structure of events at  44 Metlakatla was compatible with Gitksan  45 procedures for resolving conflicts."  46  47 Then you say: 17809  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1  2 "Given the precedent of the Tsimshian-Nishga  3 settlement of 1869 - which involved the  4 exchange of compensation, a feast and signed  5 'papers' - and the important role of Duncan as  6 interpreter and advisor to Trutch, it is  7 unlikely that this correspondence was  8 accidental."  9  10 Just pausing there.  I'd ask you to -- I'd ask  11 volume 3 be put before the witness.  12 THE REGISTRAR:  I think you have it.  13 MR. WILLMS:  Tab 146.  14 Q   Now, the report by J.W. Trutch on visit of HMS  15 Sparrowhawk to Nass Harbour in 1869.  That's a report  16 in reference to the Tsimshian Nishga settlement of  17 1869, isn't it?  18 A   This is Trutch's account of events which led to that  19 settlement, yes.  20 Q   Okay.  And if you turn to page five, my friend put to  21 you and read to you on page five the first paragraph  22 beside June the 2nd.  23 A   The chiefs of the Tsimshian tribe?  24 Q   Right.  25 THE COURT:  I'm sorry.  Are the pages numbered?  26 MR. WILLMS:  They're numbered in the top at the middle, my lord.  27 Should be a five.  28 THE COURT:  My fifth page is numbered two.  29 A   There are two segments to it.  It's the second  3 0 segment.  31 THE COURT:  Yes.  All right.  I have the page.  32 MR. WILLMS:  All right.  It's numbered five, and it's June the  33 2nd.  34 THE COURT:  Yes.  35 MR. WILLMS:  My lord, and the first paragraph was read by my  36 friend.  37 Q   And you'll see, Dr. Galois, that paragraph or extract  38 for June 2nd carries on.  39  40 "The Governor then, through Mr. Duncan,  41 addressed the chiefs telling them that he had  42 allowed them on this occasion, for the last  43 time to make compensation to each other  44 according to the custom hitherto in force among  45 them for friends and relatives killed and  46 injuries inflicted.  But now they must  47 understand that this barbarous system was 17810  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 abolished; that they must now henceforth live  2 accordingly to English law; and if they  3 offended against English law by taking one  4 another's lives, every means in the  5 Government's power should be employed to  6 apprehend and punish them."  7  8 Just stopping there.  Certainly that statement by  9 the Governor is contextually significant to the  10 further application of Tsimshian dispute resolution  11 mechanisms, isn't it?  12 A  Well, it's a statement.  How it was realized I'm not  13 sure.  I mean, whether it had very much impact I  14 honestly don't know.  15 Q   But it's certainly significant in the context?  16 A   It's a statement that one can only presume was made.  17 This is an account by Trutch of that statement, and I  18 would assume that it's -- it's a reasonable summary  19 thereof.  2 0 Q   Right.  And you noted that it was made through Mr.  21 Duncan?  22 A   Duncan was the interpreter, yes.  23 Q   Right.  And so it's contextually significant that  24 Duncan who was involved in this particular settlement  25 was also involved in the events in Metlakatla after  26 the Kitsegukla fire?  27 A   Duncan was certainly involved with interpreting both,  28 yes.  29 Q   He certainly knew, or must have known what Trutch said  30 the last time around?  31 A   He was present when it was -- it's not Trutch  32 speaking, it's the Governor by the way.  33 Q   Oh.  Sorry, the Governor.  34 A   He was there, I don't dispute that at all.  I mean,  35 it's -- I accept what that document says as a  36 reasonable summary of what was stated by the Governor,  37 which was Governor Seymour.  He died shortly  38 thereafter.  39 Q   Now, if you turn to page 32 of your report where you  40 deal with -- and it's before you talk about  41 tri-partite structure on page 34, but you deal with  42 the Kitsegukla fire.  And at the bottom you discussed  43 the fire at the bottom of page 32?  44 A   Yes.  45 Q   You say that the response was to close the river, the  46 Skeena?  47 A   It was the initial response. 17811  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 Q   Yeah.  You didn't mean to say that they had closed the  2 river for a very long period of time, did you?  3 A   I forget the exact length of time that they stopped  4 Hankins trade canoe going up.  They did stop some  5 Hudson's Bay trade canoes going up, but then  6 subsequent to a visit -- a second visit by Hankin they  7 opened the -- they allowed the river to be opened.  8 And what's significant about the second visit by  9 Hankin and the opening of that was that Hankin sent  10 the petition to the Governor.  11 Q   Yes.  12 A  And then there is an indication about six weeks  13 later -- I can't remember the dates of this precisely,  14 but there are indications that the river had been  15 closed again.  I can't remember the date.  A report of  16 some miners returning down the Skeena to the coast  17 indicated that the river had been closed again, or  18 that -- I mean, they wouldn't let trade things come  19 up.  20 Q   Well, perhaps you could just turn back to tab 133 in  21 volume 3, and recalling that it was in June of 1872  22 you say in your report that Kitsegukla fire took  23 place, and if you turn back this tab contains a fair  24 bit of correspondence in July of 1872.  But the  25 document that I'd like you to turn to is --  26 THE COURT:  What tab are you on, please?  27 MR. WILLMS:  Tab 133, my lord, and seven pages from the back.  28 Perhaps the easiest way --  29 A   The pages are numbered.  30 Q   Count them.  31 A  Well, I mean, if you can tell me the page number I'll  32 find it.  33 Q   Okay.  Your pages are numbered?  34 A   183745.  35 THE COURT:  That's —  36 MR. WILLMS:  37 Q   Well —  38 A   Thomas Hankin to the Lieutenant Governor.  39 Q   All right.  Start at the back.  The first page is a  40 four page document which is the petition; correct?  41 A  All right.  42 Q   All right.  Then preceding that there is a two page  43 document which is an extract of a letter from Matthew  44 Feak, June 27th?  45 A   The next one I've got is Thomas Hankin to Lieutenant  4 6 Governor.  47 THE COURT:  Me too.  These have a stamp on them 183746 is the 17812  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 start of that letter.  2 A   That's the Thomas Hankin one.  3 THE COURT:  The petition is 183748.  4 A   Right.  That's my copy.  5 MR. WILLMS:  183745.  Well, my lord, at mine — here.  6 THE COURT:  We don't really care what yours says.  7 A   It took -- I'm quite confused.  Are we talking about  8 extract of letters from Matthew Feak to Mr. --  9 MR. WILLMS:  Have we got the tab?  10 A   No.  This is right, it's 183740 in mine.  11 THE COURT:  Yes.  12 MR. WILLMS:  Oh, there we are.  13 Q   Well, if you can turn then -- thank you, very much.  14 It's not the first one, but it's the 183744, July 1st,  15 1872.  16 A   July the 1st, 1872.  17 Q   Matthew Feak.  18 A   Right.  19 Q   Right.  Okay.  And he says:  20  21 "I beg to inform you since I last wrote to you,  22 we have been led to believe from reports of  23 Indians who have arrived here since Mr. Brown's  24 departure for Victoria that the disaffected  25 Indians at Kitsegukla soon after Mr. Brown  26 started down the river, became frightened of  27 the consequences attending their conduct should  28 a Man of wars arrive, and sent word to Mr.  29 Hankin at the forks that he might take his  30 goods through whereupon Hankin after taking an  31 inventory of the property the Indians had lost  32 held out certain promises which the Government  33 would fulfill, which satisfied them and they  34 allowed him to take his goods pending the  35 arrival of a magistrate to settle 'the matter  36 permanently'."  37  38 Now, first of all, this document, this extract of  39 this letter is contextually significant in considering  40 the events surrounding the Kitsegukla fire?  41 A   It's part of the process, yes.  This is a letter --  42 Matthew Feak, I should point out, was the clerk at  43 Port Essington.  He's writing to his superior in  44 Victoria.  And the other point that I think is of some  45 significance is that the Hudson's Bay Company and  4 6 Cunningham and Hankin were competitors for trade up  47 the Skeena River at this point in time, and it seems 17813  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 to me that Feak here is somewhat suspicious of his  2 competitor in being able to get his trade goods up to  3 Hazelton, whereas the Hudson's Bay Company goods were  4 still stored, I believe, at Kitselas at this point.  5 Q   Now, are you aware of anything from the historical  6 record that would indicate there was any entertainment  7 at the time Mr. Hankin attended at Kitsegukla?  8 A   Entertainment?  9 Q   Yes, entertainment.  10 A   I'm just reading what Hankin said.  11 Q   You'll agree that it appears from reading this, first  12 of all, that the river was reopened, and that the  13 Kitsegukla chiefs wanted a magistrate to come up and  14 settle the matter?  15 A   They wished to have it -- Mr. Hankins says they wished  16 to have the matter peaceably settled, yes.  And it  17 seems to me, as I recall, that he -- where does he put  18 it?  Well, there's -- I'm not sure if it's this one or  19 another one that he held out certain sort of promises.  20 Q   If you turn to the next page you'll see the cover  21 letter from Thomas Hankin to Lieutenant Governor which  22 has the number 183746 at the top right?  23 A   Yes.  24 Q   He says in the first paragraph that he wrote the  25 enclosed petition of the Indians, and then he says  26 this:  27  28 "At first they were hostile to the whites and  29 refused to allow any canoes to pass their place  30 turning two back and threatening to fire if  31 they attempted to proceed."  32  33 A   Yes.  34 Q  35 "I went down to their camp, (which is 20 miles  36 below the forks of Skeena and after a long  37 talk, promised to aid them in forwarding their  38 petition to proper quarters if they would  39 behave pleasantly to all freight..."  40  41 MR. ADAMS:  Peaceably.  42 A   Peaceably.  43 MR. WILLMS:  Oh.  44  45 "Peaceably to all freight or passenger canoes  46 that might pass their way."  47 A   Yes. 17814  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 Q   So that is how Hankin went down and got the river open  2 again?  3 A   Yes.  It's sort of preliminary agreement on the  4 assumption that at some future date there would be a  5 settlement.  6 Q   Sorry.  Could you show me where preliminary agreement  7 shows up in this document, or are you contextualizing?  8 A   That's my interpretation of that.  9 Q   Yeah.  That doesn't leap out from the document, does  10 it?  11 A  Well, he says:  12  13 "I've taken it upon to act as I've done and for  14 the time what might have ended very seriously  15 is I believe peaceably settled."  16  17 Q   Settled, yes.  18 A  19 "The Indians pending the results of their  20 petition."  21  22 That seems to me that there's some sort of  23 agreement that there would be nothing further untoward  24 should happen and that they await the result of their  25 petition for a more enduring settlement.  2 6 Q   And then you know what happened is the gunboat came up  27 from Metlakatla, and that when you review not only  28 European accounts of what happened, but also Indian  29 accounts of what happened the chiefs at Kitsegukla  30 were summoned and taken down to Metlakatla?  31 A  Well, I don't think summoned is quite the correct  32 word.  There are different words that he used.  W.H.  33 Fitzgerald, as I believe who arrived at Kitsegukla  34 after the party had departed down to Metlakatla,  35 described it as the chiefs who were invited.  And he  36 was the Gold Commissioner at Omineca, your honour.  37 And I had heard of this incident, and journeyed to  38 Kitsegukla as soon as he could.  And he arrived there  39 shortly after the departure of -- of the chiefs down  40 to Metlakatla.  There are a number of different  41 versions and descriptions of this event.  Some of the  42 accounts by the natives indicate that there was some  43 form of arrest or coercion in that.  I examined and  44 considered these and it seemed to me that the balance  45 of the evidence indicated that this was a voluntary  46 step on their part.  47 Q   Well, let's just look at some of his documents.  This 17815  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 informant is Charles Mark.  The collector is Marius  2 Barbeau.  This is a document that you reviewed in  3 writing your report; is that correct?  4 A   Yes.  I regard this as the least reliable of the three  5 native accounts, particularly when -- what I did,  6 first of all, to establish a framework of events using  7 the historical documents, and I used the native  8 accounts to fill in certain aspects of that and I  9 compared them against, wherever it was possible, the  10 historical documents.  This is the account that is  11 least in accord with the set of historical documents  12 that I used.  13 Q   Well, let's just deal with this one and then we can  14 turn to an historical document.  If you turn to page  15 four of this you'll see in the second paragraph:  16  17 "The two canoes landed below Wiget's house at  18 Gitsegukla.  And the soldiers got out of the  19 canoe and they went to Wiget's house.  And they  20 said to Wiget who was in his fish house:  Come  21 on, change your clothes put on your chief's  22 clothes and put on a beaten blanket and his  23 chief's hat.  They took Wiget down and put him  24 in the canoe.  25  26 Then they went to Hagasu (Laxse'l) house and  27 they wanted Hagasu to do the same, to get ready  28 and put his clothes; they were to take him  29 away.  They went down to Xsaqamlage fish house.  30 They did not arrest everybody they just took  31 the heads of the houses.  Ksagml was told to do  32 the same thing.  And got ready for the journey.  33 They went to Haxpagwstu'st' and took him.  Hax  34 said yes he would dress up.  He put on the old  35 fishing pants (long sponge pants sold by the  36 H.B.)  It looked like a pair of shaps no seat  37 to it, long leggings.  With a broad ridge of  38 beads about four inches on each sides of the  39 leg.  And he put on a big skin coat covered  40 with beadwork and fringe.  It was a very  41 beautiful coat much admired by the rest of the  42 Indians.  He wore on his head a hat  43 representing a finback whale.  It had a beaten  44 fin worked with beads.  45  46 And they took these chiefs, put them in the  47 canoe and took them away to the men of war. 17816  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 All the rest of the village were away camping  2 some at the berry grounds and some at their  3 fish houses farther away."  4  5 Now, first of all, you will agree that this  6 document being from a native informant is contextually  7 significant in understanding the events at Kitsegukla?  8 A  Well, it has to be placed in the context and analyzed  9 very carefully.  I relied primarily on the white  10 historical documents in reconstructing this, and used  11 this with the other two to fill in gaps.  As I said,  12 it seems to me that this is the least reliable.  And  13 one has an indication of some of the problems in the  14 paragraph that you read out.  One wonders, for  15 example, if people are being arrested why are they  16 being asked to dress up in what appear to be some kind  17 of ceremonial uniforms.  It seems to me that that is  18 unlikely.  There are other indications that this was  19 improbable.  The degree --  20 MR. WILLMS:  Could that be 1033A-6.  21 THE COURT:  Yes.  22  23 (EXHIBIT 1033A-6:  Early History of Gitsegukla -  24 Informant Charles Mark)  25  26 MR. ADAMS:  My lord, I don't believe the witness has finished  27 his answer.  2 8 THE COURT:  Oh, all right.  29 A   Just that it's the balance of evidence, it seems to  30 me.  You're only using both white and native accounts.  31 That this was not a coercive action, but one which the  32 Gitksan chiefs participated in of their own volition.  33 MR. WILLMS:  34 Q   I've handed to you the more reliable white version.  35 20th August 1872.  Transmission from Lieutenant  36 Governor Trutch to Secretary of State for the  37 Province's Report on visit to Skeena River.  You  38 recognize this?  39 A   This is Trutch's account of those events, yes.  40 Q   Right.  And here's what -- if you turn to the very --  41 to the second page in the letter to the Honorable  42 Joseph Howe Trutch says this:  43  44 "With reference to my despatch number 70 of  45 July 9th and my telegrams to you of the 9th,  46 18th and 23rd July.  I have the honour to  47 report for the information of His Excellency 17817  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 the Governor General that I left Victoria on  2 the 26th July in the M.S. 'Scout' accompanied  3 by the Honorable J.F.W. Creight"  4  5 Is that Creight?  6 THE COURT:  McCreight.  7 A  McCreight.  8 MR. WILLMS:  9 Q  10 "Attorney General and having taken on board at  11 Nanaimo, Captain Saplding the County Court  12 Judge and Magistrate of that District,  13 proceeded to Metlakatla from with station I  14 despatched a message by Constable Brown to the  15 Indians of Kitzeguendla - whose unruly conduct  16 was the subject of my despatch above referred  17 to summoning them to come down to me at  18 Metlakatla."  19  20 Now, that's what happened, isn't it, they were  21 summoned down?  22 A   I mean summoned in the sense -- I mean, he is the  23 Lieutenant Governor.  It's the sort of terminology one  24 would expect a Lieutenant Governor would use, it seems  25 to me.  I don't see any indication in here of people  26 being arrested.  As I say, there are a number of other  27 contemporary documents which points to the fact.  28 Fitzgerald was at Kitsegukla and was informed that the  29 chiefs had been invited.  30 Q   Let's go to page 183849 and Trutch explains a little  31 more.  32 A   183849.  33 Q   There are stamps on the upper right-hand corner.  34 A  Mine only goes up to 39.  35 Q   It's just a couple of pages after.  It's the  36 beginning.  37 THE COURT:  Two pages after we stopped.  38 A   Oh.  Okay.  39 MR. WILLMS:  40 Q   It's 183849.  Are you with me?  41 A   Right.  42 Q  43 "On my return to Metlakatla the chiefs and  44 people of Kitzeguendla having arrived in  45 obedience to my summons - came before me and a  46 careful enquiry was held as to the facts of  47 their behavior and the circumstances which 17818  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 induced their unlawful proceedings."  2  3 Now, that's important in determining the context  4 of the chiefs' attendance at Metlakatla, isn't it?  5 A   I would make the same remarks as I did in my previous  6 answer.  7 Q   Sorry.  Which document -- could you just tell me which  8 document it was that said they came down by  9 invitation?  10 A  A report by W.H. Fitzgerald.  It's a letter that he  11 wrote.  I forget who to, but it was written from  12 Kitsegukla.  13 Q   All right.  Well, perhaps overnight you can find that  14 in your document book and --  15 THE COURT:  Isn't this almost semantical, Mr. Willms?  One may  16 say that they were arrested, and another might say  17 they were invited, another might say they were  18 persuaded.  Captain Bligh asked a young officer who  19 laughed at him to make himself comfortable in the  20 mast -- before -- him.  We sometimes use these  21 euphemisms of give our compliments when asking them to  22 be so kind as to do what we expect them to do.  23 MR. WILLMS:  My lord, if it weren't for the fact the Indian  24 informant talks about being arrested and Trutch talks  25 about summoning them to come down -- maybe it is  26 semantics.  27 THE COURT:  Isn't —  28 MR. WILLMS:  I'm just trying to explore the document that this  29 witness says is contextually significant to the  30 tri-partite settlement in accordance with Gitksan law  31 that's going on here.  32 THE COURT:  You may certainly pursue it.  I've heard it said  33 that prisoners are invited to make themselves  34 comfortable in Her Majesty's prisons.  35 MR. WILLMS:  36 Q   Now, what is attached -- you'll see that the letter  37 from the Lieutenant Governor to the Secretary of State  38 ends at page 183858?  39 A   Right.  40 Q   And that it is followed by the report of the interview  41 between His Honour the Lieutenant Governor and the  42 chiefs.  43 A   Right.  44 Q   Correct.  Starting at 183814?  45 A   This is -- this is a somewhat different version from  4 6 the one that I examined which was a copy of -- from  47 the provincial archives.  They were Trutch's papers. 17819  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 I'm not sure how different it is.  I would assume that  2 it's pretty much the same, but it's not the exact --  3 it's from a different location than the copy that I  4 examined.  5 Q   Yes.  Well, if you turn to page 183822, in the middle  6 of the page you'll -- you'll see a question by the  7 Lieutenant Governor to Chief Hahalookh.  8  9 "Did you resist the white men proceeding up the  10 river?  Answer - I did say that no white man  11 should go up the river in order to prevent the  12 foolish Indians who accompanied them because we  13 had suffered so much by these foolish men.  I  14 repent that I did resist the constable but have  15 obeyed his order now to come down here to you."  16  17 And isn't it the case when you review the  18 transcript of what the chiefs said as transcribed by  19 Trutch that without exception they all repented what  20 they had done?  21 A   They certainly didn't want a violent confrontation.  22 What they wanted, as I recall, was some form of a  23 settlement and compensation for the losses that they  24 had incurred.  25 Q   And if you see starting on page 183828, the extract  26 starts where the Lieutenant Governor addressed the  27 chiefs, and at 183830 this is the Lieutenant Governor  28 speaking to the chiefs.  29  30 "With us the law is not the will of a Chief on  31 this earth like myself, but the will of God  32 above, founded on right and justice towards  33 Indians and Whites alike, and that when the  34 Whites resist or commit crime against the law  35 they are inevitably punished, and it is so also  36 with the Indians in these days, whether near or  37 far from Victoria; that what you have done in  38 resisting Mr. Brown, Constable, and in  39 threatening his life and those of the Whites  40 with him (had it occurred amongst the Indians  41 with whom White people had more intercourse and  42 who understood the law) I should at once have  43 taken steps to punish you summarily, but as you  44 were suffering under a great loss - labouring  45 under much excitement at that loss I am going  46 to treat you as more children than as grown up  47 people.  You say you repent having threatened 17820  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 the Constable and Whites with him, therefore  2 you will be forgiven, but you must remember  3 when you return to your Village that because  4 you are some distance up the river you are not  5 out of the reach of the law and that if you  6 commit offences at whatever cost, you will  7 inevitably be punished by the law and at the  8 same time if white people offend you they will  9 likewise be punished."  10  11 Now, certainly that statement by the Lieutenant  12 Governor to the Indians of Kitsegukla is contextually  13 significant in respect of the application of the law  14 in the Skeena River, isn't it?  15 A   That, again, is Trutch's statements.  Quite clearly  16 the question I asked in my report was what would have  17 been the Gitksan perspective of this sequence of  18 events.  That was one part of it.  I suspect that from  19 the Gitksan perspective of greater significance was  20 the fact that there was some sort of agreement was  21 reached and that they were paid.  They received some  22 sort of a compensation, and the fact that there was  23 some form of entertainment of feeding, and that taken  24 as a whole that this sequence of events was not  25 incompatible with the sort of mechanisms that existed  26 amongst the Gitksan for resolving disputes within  27 their own culture.  28 Q   But you noted, did you not, that the chiefs requested  29 that a magistrate come to settle the issue, and a  30 magistrate came to settle the issue?  31 A  Well, that's Hankin's word.  I doubt that the Gitksan  32 were aware of the term magistrate, or of its meaning  33 in 1872.  34 Q   I see.  Is this -- is this part of your  35 re-interpretation of the historical record that you  36 discussed in the Kropotkin article?  37 A  As I recall, Kropotkin didn't have anything to do with  38 the Upper Skeena.  39 Q   I'm talking about approach to the historical record.  40 You recall the approach in the Kropotkin article of  41 re-interpreting and re-discovering history.  Is that  42 what you were doing here?  43 A  What I was attempting to do, as I said before, is to  44 see the contact process which involves on the one hand  45 white actions and white activities, on the other hand  46 the Indian peoples of the Upper Skeena, to see this as  47 a two-sided process.  And I think if we are going to 17821  R. Galois (for Plaintiffs)  Cross-exam by Mr. Willms  Proceedings  1 understand the history of the province we have to  2 incorporate an understanding of both sides of that  3 process.  And that is what I was attempting to do.  4 MR. WILLMS:  Could that be 1033A-7, my lord.  And I see it's  5 four o'clock.  6 THE COURT:  Yes.  All right.  7 MR. WILLMS:  This would be an appropriate time to adjourn.  8  9 (EXHIBIT 1033A-7:  Transmission from Lieutenant  10 Governor to Secretary of State)  11  12 THE COURT:  All right.  Thank you.  Could I ask counsel to give  13 some consideration to the suggestion I made earlier  14 that we might consider revising summer hours in July  15 and perhaps starting earlier and finishing in the  16 early afternoon.  I'm open to suggestions in that  17 regard.  18 MR. MACAULAY:  On that point, my lord, we may find ourselves  19 starting earlier and finishing late if we are going to  20 lose a week here and there and we want to keep to the  21 general schedule, which as I understand it involves  22 finishing this trial, including all the written and  23 oral submissions, before the -- before June of 1990.  24 I don't -- perhaps adjourning early may not be a  25 luxury we can afford.  26 THE COURT:  Well, I'd be glad to make whatever adjustments are  27 necessary in order to obtain that highly desireable  28 objective.  I have been proceeding on the general  29 assumption that the defence evidence would take about  30 four months, and I thought if we sat for three weeks  31 in July that would be five months, and that would be  32 sufficient.  And counsel said they needed about two  33 months to get their arguments together, and we can  34 start the argument in March.  But if that four months  35 or five months is no longer realistic then the whole  36 programme must be reconsidered entirely.  37 MR. MACAULAY:  I'm not thinking only of the evidence, but of a  38 number of things that are still up in the air.  3 9 THE COURT:  Yes.  40 MR. MACAULAY:  The Province's alienations project is only one of  41 them.  The other's a debate on how we'll deal with the  42 historical documents.  I use that in its broadest  43 sense.  The full gamut of documents that Dr. Galois  44 has in his collection, that's a pretty good  45 illustration of the variety of things, types of  46 historical documents we have to get into.  47 There is another even more important thing.  That 17822  Proceedings  1 is an application -- we haven't got notice -- the  2 notice of motion yet, but there is going to be an  3 application for amendment of the Statement of Claim,  4 which has an ominous ring to it.  I don't know what  5 that's going to do.  All these things, anyhow, are  6 still sort of unknowns in terms of are we going to  7 take two weeks or three weeks to sort all that out.  8 That's my concern, my lord.  9 THE COURT:  Well, I'm obliged you bring it up, Mr. Macaulay.  10 I'll be glad to hear from counsel any time.  And the  11 suggestion I made a moment ago was based upon the --  12 the view I had from behind the rose coloured glasses I  13 sometimes wear, and if that very generous and  14 apparently leisurely programme won't suffice then I  15 will be the first one to agree that it should be  16 revised, and I'll look to counsel for advice in that  17 regard.  Thank you.  18 THE REGISTRAR:  Order in court.  Court stands adjourned until  19 ten o'clock tomorrow.  20  21        (PROCEEDINGS ADJOURNED TO JUNE 21, 1989 AT 10:00 a.m.)  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein to the best of my  26 skill and ability.  27  28  29  30 Peri McHale, Official Reporter  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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