16625 Discussion 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE THE MR. THE MR. THE MR. MAY 23, 198 9 VANCOUVER, B.C. REGISTRAR: Order in court. In the Supreme Court of British Columbia, Vancouver, this Tuesday, May 23, 1989. Calling the matter of Delgamuukw versus Her Majesty the Queen at bar, My Lord. COURT: Thank you. Mr. Rush. RUSH: My Lord, I addressed you on certain subjects last Thursday. I wish to bring you up-to-date on some of those, and to advise the Court about what we see as the items on the agenda of the plaintiffs' case that remain. COURT: Thank you. RUSH: Firstly regarding funding. There is no change in the funding situation since my advice to you last Thursday. I can't inform you or shed any further light on the subject. Our position remains the same, and I will advise you throughout this week as to whether or not circumstances for the plaintiffs alter. COURT: Thank you. RUSH: Regarding outstanding matters for the plaintiffs' case. After the completion of the evidence of Dr. Lane, Ms. Marsden and Dr. Galois, I can say that it is the plaintiffs' intention to call the evidence of Dr. Rigsby. And we are exploring the possibility of calling that evidence by way of commission or deposition in Australia. Your Lordship may recall that the parties endeavoured to work out an agreement with regard to Dr. Rigsby's evidence, and it is our view now that in respect of one aspect of -- or possibly more of Dr. Rigsby's opinion, it is necessary to call his evidence, and he will be the remaining expert that we will be calling. And it's our hope that we can find a way other than by calling his evidence viva voce in court to call his evidence. Now, if that's not possible, we may be required to call his evidence and to present -- bring him from Australia to have his evidence called here. Secondly, there is the matter of an outstanding -- of the calling of evidence pertaining to certain Wet'suwet'en genealogies. And our thinking of that was to call the evidence by way of affidavit, which may leave open the possibility of the defendants cross-examining on the affidavit, but our proposal at the moment is in fact to tender a number of Wet'suwet'en genealogies through the medium of an 16626 Discussion 1 2 THE COURT: 3 4 5 MR. RUSH: 6 THE COURT: 7 MR. RUSH: 8 9 10 1 11 THE COURT: 12 MR. RUSH: 13 1 14 15 16 17 MR. GOLDIE 18 MR. RUSH: 19 THE COURT: 20 MR. RUSH: 21 22 23 24 25 26 27 28 29 30 31 32 ] 33 34 35 36 37 ] 38 39 40 THE COURT: 41 42 MR. RUSH: 43 THE COURT: 44 MR. RUSH: 45 46 47 affidavit. And that cross-examination could take place in court or out of court, as circumstances may dictate, I suppose? That's right. Yes. All right. Yes. There is remaining one affiant to a territorial affidavit who needs to be cross-examined, and that has not been scheduled because of the illness of the deponent. He has been in and out of hospital. Do your friends know his name? Yes, they do. Yes. We have corresponded and discussed this issue with our learned friends, and unfortunately we just haven't been able to schedule it so that the cross-examination in fact can be executed with all parties there, including the witness. : Is that fellow Turner? That's right. All right. And then there is a matter of certain fishing sites that we consider at the end of the plaintiffs' case, at least at the end of the plaintiffs' evidence as we now anticipate calling it, will require further proof, and we propose to call that evidence by way of affidavit as well. Now, to some degree this remains to be seen after the completion of one of the witnesses. And similarly that could be done in or out of court, but in fact it may be more convenient to do it in court. Next, My Lord, we are seeking admissions in respect of the map atlas, and to the extent that it may be necessary to the overlay maps, and there are presently discussions between the parties regarding these admissions, and to the extent that we are satisfied that these admissions assist us in the proof of these maps, we will then make a decision to call Mr. Lou Skoda or not with regard to the proof. And that will be technical proof of the way in which certain information came to be on the map. Is that with relation to the map atlas and the overlays? Yes, My Lord. Same witness? Yes, that's right. And I should have said that we would call Mr. Skoda as an expert. So I suppose in this respect he would be a second expert, but we are hoping that it won't be necessary to call him. 16627 Discussion 1 And then it is -- the plaintiffs are presently 2 considering calling another lay witness, and I can 3 advise Your Lordship that a decision has not been 4 taken on this, and as soon as we receive instructions 5 on this issue we will advise my learned friends and 6 the Court. At the moment we would only call one 7 further lay witness, and at the present time a 8 decision hasn't been taken to do that. So we can't 9 say yes or no to that. 10 And finally there are amendments to the Statement 11 of Claim that we would be proposing to make, and we 12 would do that at the conclusion of all of the evidence 13 to which I have made reference. 14 Now, My Lord, I should advise you that with 15 respect to my submissions to you last Thursday 16 regarding notification by the defendants of their 17 intentions regarding the calling of their evidence, 18 lay or expert, the schedule, when and so on, I have -- 19 the circumstances have not changed since that advice 20 to Your Lordship, and I would like to hear from my 21 learned friends what -- given now what the plaintiffs 22 say they expect to be able to call, in terms of 23 outstanding evidence, what we can expect in terms of 24 the calling of the defendants' case in the month of 25 July. 26 THE COURT: Mr. Goldie, are you able to respond to that? 27 MR. GOLDIE: Before I respond to that, I wonder if our friend 28 could give us any indication of how many affidavits he 29 intends to file. He made some reference to filing 30 Wet'suwet'en -- proving Wet'suwet'en genealogies by 31 affidavits. Our experience has been that this is a 32 fairly time-consuming process, and it would be very 33 helpful if we knew how many my friend intends to file. 34 MR. RUSH: Just one. One affidavit that addresses all of the 35 genealogies. 36 MR. GOLDIE: With respect to Dr. Rigsby, My Lord, the defendant 37 has advised -- my client has advised the counsel for 38 the plaintiffs that we do not require Dr. Rigsby to be 39 called. We advised them some time ago with respect to 40 that. So their decision in that respect does not 41 reflect any requirement on the part of the defendants. 42 The question of the remaining Gitksan deponent whose 43 cross-examination has been postponed, we'll have to, 44 of course, await advice, but Mr. Turner's 45 cross-examination was scheduled and he didn't turn up, 46 because apparently of illness, and there has been no 47 indication so far when he will be available. 1662? Discussion 1 I mentioned these things, My Lord, because I have 2 advised my friend that my decision with respect to 3 what witnesses will be called and generally speaking 4 in what order cannot be made until the plaintiffs' 5 case is closed. And I remain of that view, and the 6 comments that I will make now are always subject to 7 that. 8 Assuming that Dr. Rigsby is called, and that he is 9 the plaintiffs' last witness, with the possible 10 exception of the lay witness to which my friend refers 11 to -- 12 THE COURT: And possibly Mr. Skoda. 13 MR. GOLDIE: And Mr. Skoda, although I wrote my friend on May 14 the 11th with respect to that, and I am awaiting his 15 reply as to whether the suggestions I make are 16 sufficient for his purposes, and I note that the Crown 17 in Right of Canada has filed an admission which, as I 18 read it, largely parallels the suggestion I made to 19 the -- my friend with respect to that map atlas. 20 Now, subject to all of those things, there are a 21 number of matters to be dealt with before the Province 22 calls its first witness. We are preparing a list of 23 these, but they include the -- dealing with documents 24 which have been marked for identification during 25 cross-examination and argument has been deferred. 26 They include admissibility of the alienation series, 27 which is outstanding, they include matters arising out 28 of the cross-examination of the plaintiffs' experts, 29 and under that I include determination of the purpose 30 for which archival documents have been admitted. As I 31 say, we are preparing a list of matters which in our 32 submission must be dealt with at the conclusion of the 33 plaintiffs' case. Our present feeling is that that 34 might take two or three days, and if we cannot do that 35 in the week of June the 19th, then we would propose 36 doing that the first thing on the week of July the 37 3rd. And my understanding is that the week between 38 the week of July -- June 19th and July 3rd is an off 39 week. 40 THE COURT: Well, it is presently scheduled that way, but it 41 doesn't have to be that way. We could sit that week. 42 MR. GOLDIE: Well, if -- I am just outlining the schedule as we 43 see it, and if we can use that week, that would be the 44 first item that we would propose. 45 THE COURT: Nothing has been scheduled for that week, simply 46 because we have not had a -- a horizon to work 47 towards, but speaking for myself, I would be glad to 16629 Discussion 1 deal with those matters during that week, if it's 2 convenient. 3 MR. GOLDIE: That would be the week of June the 26th? 4 THE COURT: Yes. 5 MR. GOLDIE: Right. My Lord, with respect to the sequence of 6 witnesses for the Province, I have to say that we have 7 not alerted witnesses, and we do not intend to do so 8 until we know whether the trial will be proceeding. 9 We went through this last fall of sending up a yellow 10 warning, and of course that fell through. But the 11 first witness that we propose to call would be Dr. 12 Farley, who is a retired professor and at one time 13 head of the Department of Geography at the University 14 of British Columbia, whose report was delivered May 15 the 5th. 16 THE COURT: This year? 17 MR. GOLDIE: Yes. I mentioned, My Lord, that Dr. Farley had 18 been retained by Mr. Robertson, and I actually didn't 19 meet Dr. Farley until about a week before his report 20 was delivered, but that -- he deals with the 21 cartographic background to the Royal Proclamation. 22 THE COURT: What's the cartographic background? 23 MR. GOLDIE: Maps. 24 THE COURT: Yes. All right. 25 MR. GOLDIE: The next witness we would propose calling is Dr. 26 Greenwood, so that the Royal Proclamation evidence is 27 in one piece so-to-speak. After that I would expect 28 to call a lay witness. We will provide our friends 29 with a summary of this -- of the witness's evidence, 30 but which lay witness it will be is still subject to 31 confirmation. 32 THE COURT: When can you give your friend the summary? 33 MR. GOLDIE: I would anticipate, My Lord, very shortly after we 34 are advised that the trial will be proceeding, and 35 then we will know -- we will be able to go around the 36 block so-to-speak and ascertain the availability. But 37 we cannot have people standing by on the basis of the 38 present situation. 39 THE COURT: You mean we will be proceeding in July -- 40 MR. GOLDIE: Well, there is a doubt as to whether we are going 41 to be proceeding in July. 42 THE COURT: Yes. 43 MR. GOLDIE: Now, I should say this, that we are not putting all 44 of our eggs in one basket so-to-speak. I hope to have 45 a contingency plan in effect, so that if we -- if we 46 know we are going ahead, and we find that witness A is 47 unavailable, we'll have witness B or C or even D, or 16630 Discussion 1 we may even be able to schedule witnesses with respect 2 to the alienation series, if we have not resolved it 3 by that time. 4 Now, I should add this, that I said in January, I 5 believe, that we thought it possible we might call 15 6 to 25 lay witnesses, and we would endeavour to deal 7 with those by affidavit with as great an extent as 8 could be managed that way. Since that time, and as 9 the plaintiffs' case has proceeded, we have 10 endeavoured to cut down the number of witnesses that 11 we are proposing to call, and we have been able to do 12 that quite substantially, but we are still working on 13 the extent to which we can have one witness cover the 14 ground that we thought maybe two or three be required 15 for. 16 That, I think, is about all I can be of assistance 17 to my friends at this time, My Lord. 18 THE COURT: Well, does that -- is that intended to be a summary 19 in the general terms you have used of the evidence 20 you -- all the evidence you propose to adduce? 21 MR. GOLDIE: Oh, no. I thought we were providing my friends 22 with an indication of the case that would be called in 23 the first three weeks of July. 24 THE COURT: Yes. That's what you anticipate doing in the first 25 three weeks in July? 26 MR. GOLDIE: Yes. And filing affidavits which may be dealt with 27 in August. But I see now, from what my friend tells 28 us, that August may be fairly busy anyway. 29 THE COURT: Well, all right. I guess what I have to say is that 30 so far as I am concerned this trial will be proceeding 31 in July. 32 MR. GOLDIE: Well, I appreciate what Your Lordship says, and I 33 would like to think that the odds are that it will 34 proceed, but I do recall my friends advising the Court 35 that if there were no funds they could not proceed, 36 and Your Lordship stating at a later date that they 37 would under the circumstances of this case be excused 38 from endeavoring to continue the case if they didn't 3 9 have funds. 40 Now, as I say, we have experienced, unfortunately, 41 a delay that extended from September of 1987 to 42 January of 1988, and we have given our witnesses 43 deadlines as we went along, all of which have proven 44 to be unrealistic. And one of the witnesses has moved 45 to Montreal, and he's told us when he is available, 46 and I am unable to say at the present time change your 47 plans so as to be on hand, because I have had 16631 Discussion 1 experience with that and it didn't work out. But I 2 think that -- I see no reason why the program that I 3 have outlined is -- couldn't be carried through, and I 4 hope it will be carried through. I think it's evident 5 that we wish the conclusion of this trial on its 6 merits as soon as possible and as completely as 7 possible. 8 THE COURT: I don't know what you have in mind for Dr. Farley 9 and Dr. Greenwood as to length. Would they be several 10 days each? 11 MR. GOLDIE: Oh, I would anticipate that Dr. Farley would be no 12 more than three to four days. 13 THE COURT: In chief or all together? 14 MR. GOLDIE: All together. And Dr. Greenwood might be something 15 in the same order. I think Dr. Greenwood would be 16 better to assume that he would be five days. 17 Now, the lay witness, and possibly there might be 18 others, at the present time the lay witness that I 19 would like to bring in there would, I think, take 20 about four court days. 21 THE COURT: Four court days? 22 MR. GOLDIE: Yes. 23 THE COURT: Well, then, you have more or less completed the 24 greater part of three weeks then. 25 MR. GOLDIE: Oh, yes, I think so. It would undoubtedly be three 26 weeks, if we can't deal with these preliminary matters 27 before the week of July the 3rd, but assuming we can, 28 I intend to take full advantage of that three weeks. 29 THE COURT: Yes. All right. Thank you. Ms. Koenigsberg, 30 anything you want to contribute? 31 MS. KOENIGSBERG: I don't think we probably can add much. We 32 have not proceeded to the point of determining what 33 the order of our witnesses will be. We are working on 34 the proposition that our case, we hope, is shrinking 35 as time marches on and as the evidence begins to 36 settle out. 37 I would say that with regard to Dr. Rigsby, 38 although I don't know why exactly the plaintiffs would 39 feel that they had to call him, that certainly in my 40 view would be far easier and less expensive and 41 onerous if the one person, Dr. Rigsby, could come 42 here, rather than the probably three, at least, people 43 would have to go to Australia. So that if our 44 druthers are counted, I would certainly propose that 45 the most convenient way of taking any evidence from 46 Dr. Rigsby would be with Dr. Rigsby here. 47 I would perhaps add that it would seem to this 16632 Discussion 1 defendant that time in the beginning of July, at the 2 end of the plaintiffs' case and before the provincial 3 defendants' case began, would be devoted to attempting 4 to clean up the issue of admissibility of documents 5 generally. 6 We now have a large number of categories of 7 documents, a large number of situations in which we 8 have mused about both their admissibility and what 9 for, and in my submission it would certainly assist 10 Canada, and I took Mr. Goldie's remarks that it would 11 be of assistance to him, and I'm sure to the court and 12 the plaintiffs, if we knew what the rulings were going 13 to be with regard to admissibility of documents 14 generally, before we launched into the defendants' 15 case. 16 THE COURT: All right. Well, I think that we ought to 17 tentatively plan on doing as much as we can the week 18 of June 26th, if not sooner. 19 Mr. Goldie, are you able to assist Ms. Koenigsberg 20 and the rest of us generally in indicating how much 21 time you may need after this three week period in July 22 to complete your case? When should she be ready to 23 proceed with her defence? 24 MR. GOLDIE: I haven't reviewed the last estimate we made, in 25 terms of the developments as we have gone along, and I 26 am sorry to say I can't remember what that estimate 27 was. I will check it out at the noon hour. 28 THE COURT: I would like to get that subject ventilated, if only 2 9 in a very tentative way, so we have some idea what we 30 are working towards. 31 MR. GOLDIE: Well, I do know this, that on a worst case basis we 32 had come to the conclusion that the defences and the 33 counterclaim evidence would be completed before 34 Christmas. That was a worst case basis. 35 THE COURT: Yes. 36 MR. GOLDIE: And that was before I had gone through the business 37 that I am presently engaged in of trying to 38 consolidate evidence of lay witnesses so as to cut 39 down the number -- the estimate that I gave in 4 0 January. 41 THE COURT: All right. All right. Mr. Rush, are you prepared 42 to commence? 43 MR. GOLDIE: Regarding Dr. Farley, the first witness my friend 44 says he intends to call, we have taken the position, 45 and I take the position again, that for new 46 disclosures of expert opinions that there ought to be 47 ordered, and in my view Your Lordship did order, that 16633 Discussion 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. RUSH: THE COURT MR. RUSH: there be 120 days notification of the calling of the evidence. This we were advised, as my friend says, on May 5th of the presence of a report and summary, and then we were told it was Dr. Farley, and then we were told the content, and then we got the summary minus a few pages and its appendices. And, My Lord, it's completely unsatisfactory to expect the plaintiffs to prepare for the cross-examination of the first witness on the basis of somewhat less than two months notice of that witness, when in respect of all of the other opinions that have been tendered by the plaintiffs, there have been over two years of notice provided. And I say further that there will be an objection taken to Dr. Farley's opinion when it is tendered, because we received notice of Dr. Farley's opinion after the evidence of Mr. James Morrison, the witness presented by the plaintiffs, to deal with the very subject matter of Dr. Farley's report. And that's a matter that we will deal with at the time that the report and Dr. Farley are tendered, but at this point in time it's my submission that Your Lordship ought to order and require my learned friends to comply with the 120 day notice, and that if they need to put off Dr. Farley, well so be it, but that Dr. Farley is not a witness that can be called within 60 days of the tendering of his report. : When you said that you got the summary and then the report, how -- when did you get the summary? On May the 5th. : Wasn't some date earlier? We got the summary and the appendices on May the 5th, minus a few pages and minus the bibliography, I believe. I am not complaining about that. I am complaining about the fact that in order to prepare for Dr. Farley's evidence, we will now have to retain an expert or take advice from people assisting us with regard to the content of the report, and we are asked to do that in the face of a very, very tight schedule for the plaintiffs, and at the same time less than 60 days' notice. And I take very strong objection to that. I want to point out as well that my friend says that he has a lay witness and his summary will be delivered, and he thinks that this witness will be one that will be called in the month of July. Well, perhaps it might be a little earlier. We don't know the name of this lay witness. We don't know the name 16634 Discussion 1 of any of the witnesses that he might substitute for 2 this lay witness, in the event that he doesn't decide 3 to call that particular witness. And I say, My Lord, 4 that my friend should be required now to disclose the 5 name of the individual and the general subject area of 6 that lay witness. With Dr. Greenwood, no complaints. 7 There may be objections to Dr. Greenwood's evidence, 8 but that's -- we are not taking issue with Dr. 9 Greenwood in terms of notification. But in terms of 10 another lay witness, I ask Your Lordship to require of 11 my learned friend that we should have notice of the 12 name, we should have notice of the area, and we should 13 have notice of any other witnesses that may be 14 substituted for that witness. 15 And, My Lord, in my submission it is an untenable 16 situation for my friend to rest the -- his 17 unwillingness to disclose this information on the 18 basis of a lack of knowledge about whether or not we 19 will be proceeding in the month of July based upon the 20 current funding situation of the plaintiffs. In my 21 submission that is no justification whatsoever. We 22 hope for the best, and we hope that in fact we will be 23 proceeding as directed by Your Lordship, but for my 24 friend to sit back and hold close to the chest the 25 question of who his witnesses will be, identified by 26 name and subject area, because of the existing funding 27 situation with the plaintiffs, in my submission is 28 completely untenable. 29 I say that with regard to the lay witnesses we 30 have asked, My Lord, that there be a disclosure of the 31 names and the subject areas and the -- well, the names 32 and the subject area of those lay witnesses 60 days in 33 advance of the calling of the witness. We are not 34 saying that my friend should be restricted to any 35 other rules with regard to the disclosure of the 36 summary of the evidence. That summary, in my 37 submission, remains to be disclosed in a timely way, 38 14 days in advance of calling the witness, but because 39 of the nature of the discovery process of the 40 defendants' case, in my submission it is a fair 41 disposal of the question of notification to require 42 that there be 60 days notice of lay witnesses. 43 In terms of the affidavit -- of the affidavits 44 that my friend intends to call, it is unclear to me 45 whether in respect of that body of evidence that my 46 friend is suggesting that part of August be set aside 47 for out of court cross-examinations, whether he's -- 16635 Discussion 1 he is suggesting as an alternative to in court 2 examination of these witnesses, and where those 3 affidavit witnesses sit in the general scheduling of 4 his -- his witnesses as a whole. 5 And so far as Ms. Koenigsberg's suggestion goes, I 6 think that she raises the very consideration that is 7 at play in our mind as to whether or not there should 8 be a commission or a deposition of Dr. Rigsby. What 9 we are trying to do is to figure out what the cost 10 alternatives are, and if it's more convenient for 11 everyone that he come here, then that's what we want 12 to do. 13 But with respect, My Lord, I think there should be 14 some certainty for the plaintiffs now regarding the 15 issues raised by Mr. Goldie, in terms of the 16 scheduling of his witnesses and who they are. 17 MR. GOLDIE: Well, My Lord, this whole business was thrashed out 18 at pre-trial conferences. The order that was made in 19 1986 with respect to lay witnesses was a summary of 20 evidence of witnesses 14 days in advance, and we are 21 going to exceed that. 22 So far as names are concerned, I have told Your 23 Lordship that -- and I have told my friend that I will 24 not provide names until I know when and know what the 25 plaintiffs' case is, that is to say when it's closed. 26 I do not think it is appropriate to, and its never 27 been done in litigation, so far as I am aware, never 28 been done to state that so and so will be called as a 29 witness when that -- when there is -- when it is 30 possible he will not be called as a witness. 31 I really don't know where this 120 days crept in. It 32 was never the subject matter of an order. If my 33 friend says that he is unprepared to deal with Dr. 34 Farley, then in my submission Dr. Farley ought to be 35 called, his evidence given, and if my friend at that 36 time is unable to deal with it, an order is 37 appropriate at that time. If I understand him 38 correctly, he wants Your Lordship to say there will be 39 no -- Dr. Farley may not be called. If that's the way 40 in which my friend wishes to proceed, then I will have 41 to -- and Your Lordship makes such an order, I will 42 have to reconsider my position. 43 THE COURT: Well, is it essential that Dr. Farley be called in 44 July? Can he not be replaced by some other witness 45 and avoid this difficulty? Your friend says he has 46 this problem. Can it not be accommodated by dealing 47 with some other witness? I don't think there is any 16636 Discussion 1 magic in having two witnesses on the Royal 2 Proclamation -- 3 MR. GOLDIE: There is no magic, but as I say, if my friend is 4 going to take the position that he is taking, then I 5 will have to consider what substitution can be made. 6 But I want to make it clear that that would be my 7 proposal for July, and I think that it would be 8 convenient to have Dr. Farley precede Dr. Greenwood. 9 In fact I would not call Dr. Greenwood until after Dr. 10 Farley. 11 THE COURT: Well, counsel have a great advantage over me, 12 because they have an understanding of the way all 13 these things fit in, which is denied me, but it does 14 seem that after all this time we are at a state we 15 shouldn't be in, and I don't have enough information 16 or insight into these things to commit me to be 17 otherwise and terribly arbitrary. I have confidence 18 that the funding problem will be resolved. I am 19 determined we should proceed in July, simply because I 20 think that if we don't, we may extend this trial by 21 six months. I think that we have to clean up these 22 details that have been left unresolved during June, if 23 we possibly can, and I think we have to use the three 24 weeks in July to try and avoid the six month delay 25 that I just mentioned. 26 It seems to me that it should be possible for 27 counsel to organize their affairs in a way that will 28 permit that to be done. At the moment, not having 29 reviewed the previous directions which have been made, 30 I am not able to deal with the requirement of 60 days 31 notice of witnesses. Mr. Rush tells me that I 32 directed there be 60 days, I think he said, did he, 33 Mr. Rush, for lay witnesses? 34 MR. RUSH: No, My Lord, I don't say that with regard to lay 35 witnesses. I say that only with regard to the 36 disclosure of new expert opinion reports that I raised 37 this matter with you. 38 THE COURT: Well, do you say there is any order outstanding that 39 requires your friend to give the names of the lay 40 witnesses more than 14 days before the evidence is 41 called? 42 MR. RUSH: No, I don't say that there is any outstanding order 43 to that effect. What I am saying is that I think that 44 in the circumstances here that it is desirable to do 45 so, given the -- well, given two issues, essentially, 46 and that is given the nature of the discovery and what 47 in my submission has been the absence of a -- of a 16637 Discussion 1 full discovery of the defendants in the case, and 2 secondly, we have urged upon Your Lordship and 3 previous Chambers judges that there ought to be a 4 grouping of the defendants' documents giving the 5 voluminous disclosures that are involved there. And 6 for those two reasons, because neither, in our 7 submission has been adequately met, that we need more 8 notice of who the witnesses are going to be to make 9 that -- those preparations. 10 Now, I think that there was an informal 11 recommendation from Your Lordship with regard to the 12 disclosure of the names of lay witnesses in a period 13 earlier than 14 days when the summary was required to 14 be disclosed. I can't at this point recall whether it 15 was 30 days. It is the only date that would spring to 16 mind. 17 THE COURT: All right. Well, I don't have a recollection of 18 those matters, and that leaves me to be more careful 19 than I might otherwise be. Mr. Goldie. 20 MR. GOLDIE: My Lord, I -- the comment that my friend makes 21 leads me to think that he is under a misapprehension. 22 I thought I made it clear in January, and I perhaps 23 didn't. The Province is not calling any lay witnesses 24 to prove historical documents or anything of that 25 kind. The lay witnesses that we are dealing with, and 2 6 which we are endeavoring to reduce to a minimum, deals 27 with the plaintiffs' claim of use and occupation. 28 There is no -- there are very little, if any, 29 documentary material involved with these people. 30 Basically, when we come to dealing with the meaning of 31 documents which are archival, it will be a matter of 32 argument. 33 THE COURT: Yes. 34 MR. GOLDIE: So if my friend is under the misapprehension that a 35 lay witness will be called to deal with matters beyond 36 the memory of living man, I can relieve his mind of 37 that right away. 38 MR. RUSH: Well — 39 THE COURT: Well, I think that we have to get on with this 40 trial. I am terribly disturbed about what I am 41 hearing. I think it should be unnecessary. I think, 42 Mr. Goldie, you are going to have to give your friend 43 at least 30 days notice of the identity of the 44 witness, and you are going to have to give him 14 days 45 notice of the nature of the evidence. 46 I am not going to say anything about Dr. Farley at 47 the moment, but I am going to invite you, Mr. Goldie, 1663? Discussion 1 to see if you can accommodate your friend by calling 2 some other witness other than Dr. Farley. If you 3 can't do that, then I will have to deal with the 4 matter again, but it seems to me not -- to avoid these 5 problems if we can, and if we can't, then I will have 6 to make an arbitrary ruling, which I am reluctant to 7 do. But it does seem to me that if we are facing 8 three to four months of evidence here, that we 9 shouldn't have to get hung up over which witness is 10 called first and which one is called secondly, and I 11 hope we can avoid these problems. If we can't, then I 12 will have to deal with it. 13 I don't think we should proceed on the basis that 14 this trial is not proceeding in July. I think we 15 should proceed on the basis this trial is proceeding 16 in July, and if we have to -- need to retreat from 17 that, then so be it, but I am not prepared to 18 recognize that we are going to risk completion of the 19 evidence this year by not sitting for three weeks in 20 July. I think that would be irresponsible, and I 21 don't -- so let's get on with the trial and for 22 heaven's sakes let's see if we can accommodate each 23 other in some way. 24 MR. GOLDIE: I would like to say, My Lord, I entirely agree with 25 what Your Lordship is saying, in that we intend to 26 occupy three weeks in July of the defendants' case. 27 THE COURT: Well, I hope that can be arranged. Shall we proceed 28 with the evidence? 29 MR. RUSH: Thank you, My Lord. 30 My Lord, the next witness the plaintiffs intend to 31 call is Dr. Barbara Lane. I will set out the area of 32 the expertise in which we intend to call her evidence. 33 Dr. Lane is being called to give expert evidence in 34 the fields of ethnohistory and anthropology in 35 relation to the origin, nature and content. 36 THE COURT: Origin, nature — 37 MR. RUSH: And content of Imperial, Colonial, Provincial and 38 Dominion policy regarding Indian title in what is now 39 British Columbia from the time of Captain James Cook's 40 voyage to the northwest in 1776. And she will be 41 called to give evidence in relation to the manner of 42 the recognition and implementation of that policy from 43 time to time in the Colonies of Vancouver Island and 44 British Columbia, the United Colonies and the Province 45 of British Columbia, including the response of Indian 46 people in terms of shaping and implementing the policy 47 referred to toward native title. 16639 B. Lane (for Plaintiffs) In chief by Mr. Rush (on qualifications) 1 Dr. Lane is also being called, My Lord, to give 2 expert evidence in the fields of ethnohistory and 3 anthropology in relation to the land grant system 4 under the South African War Land Grant Act in the 5 Bulkley, in Kispiox Valleys, and the impact of those 6 grants on the native people in those areas, including 7 the response by those people to the grants. 8 I would ask that Dr. Lane come to the witness stand. 9 And Dr. Lane, if you will please come to the witness 10 stand here. 11 THE REGISTRAR: Would you state your name for the record please, 12 and spell your last name. 13 THE WITNESS: Barbara Lane, L-A-N-E. 14 15 BARBARA LANE, a witness called on 16 behalf of the Plaintiff, having been 17 duly sworn, testifies as follows: 18 19 THE REGISTRAR: Thank you. You may be seated. 20 THE WITNESS: Thank you. 21 MR. RUSH: My Lord, I have handed up two sets of three volumes. 22 There is a fourth volume to come, but the relevant 23 portion deals with volumes 1 to 3 to begin with, and I 24 would ask that these volumes be placed before you. 25 There will be a passing reference to Volume 1, and the 26 substantial reference that I will be directing the 27 witness to will be in volumes 2 and 3 as I refer them 2 8 to her, but may I place Volume 1 -- have Volume 1 29 placed before the witness. 30 31 EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. RUSH: 32 33 Q I would ask you to turn to Tab 1, and in Tab 1 at 34 Volume 1 there is a document set out "Curriculum 35 Vitae, Barb Lane, consulting anthropologist". You 36 have reviewed this document. Does this accurately set 37 out your academic training, your field research, the 38 faculty position which you have held, your 39 administrative and research posts, your retainer as an 40 expert witness and your publications? 41 A Yes, it does. 42 Q You indicate in your Curriculum Vitae that you hold a 43 teaching position or have held a teaching position 44 from 1981 to 1989 at the University of Washington. Do 45 you still hold a position there? 46 A Yes, I teach there intermittently. I don't teach 47 every term. 16640 B. Lane (for Plaintiffs) In chief by Mr. Rush (on qualifications) 1 Q And what course do you teach? 2 A The last number of years I have taught primarily two 3 courses, one on Indians of the Northwest Coast, and 4 the other a course in ethnohistorical method in 5 archival technique. 6 Q Have you taught courses in ethnohistorical method in 7 archival technique elsewhere than at the University of 8 Washington? 9 A Yes. Some years ago I taught at the Western 10 Washington College. It's now Western Washington 11 University in Bellingham. 12 Q And have you taught at any Canadian university? 13 A Yes, at the University of Victoria and the University 14 of British Columbia. 15 Q And what has been the subject matter of the courses 16 you have taught there please? 17 A At the University of British Columbia I taught a 18 course in ethnographic field method to graduate 19 students in the Department of Anthropology, and also a 20 course on Indians of the Northwest Coast, or I believe 21 it was called Indians of British Columbia at U.B.C., 22 and several courses at the University of Victoria, 23 including Indians of British Columbia. 24 Q Thank you. Apart from your teaching experience, have 25 you had experience as an ethnohistorian, direct 26 experience as an ethnohistorian in archival research 27 with regards to Indians in the northwest? 28 A I am sorry, could you repeat that question. 29 Q Yes. Apart from your teaching experience, have you 30 had other experience of doing archival research and 31 performing work as an ethnohistorian? 32 A I see you are asking me apart from for academic 33 purposes? 34 Q Yes. 35 A Yes. 36 Q And what is that? 37 A I have done so in connection with litigation. 38 Q And can you advise His Lordship in respect of which 39 litigation, and what it was that you did in 40 preparation for that litigation? 41 A Well, several cases. Perhaps the most pertinent would 42 be the United States v. Washington. 43 Q Yes. And that is that -- a case sometimes known as 44 the Boldt case? 45 A Yes, it is. 46 Q And in respect of the Boldt case, what work did you do 47 as an ethnohistorian in archival research? 16641 B. Lane (for Plaintiffs) In chief by Mr. Rush (on qualifications) 1 A I reviewed the circumstances of Indian and non-Indian 2 people in what is now Washington State in the 3 mid-nineteenth century, in order to assist with the 4 interpretation of treaty language on a series of about 5 half a dozen treaties that were made there in 1854 and 6 1855. 7 Q And in respect of the non-Indian research that you 8 did, could you be more specific as to some of the 9 subject areas into which you conducted investigation? 10 A Yes. I researched the history of American Indian 11 policy in the nineteenth century prior to the time of 12 those treaties. I researched the questions regarding 13 recognition of Indian title to land in that territory, 14 as reflected in the American policy, and I researched 15 what was known by the representatives of the United 16 States government at that time regarding both the 17 Indian fisheries and the fish that were at issue in 18 that case. 19 Q And in respect of your research about the Indian 20 people, did you conduct research with regard to 21 Indians and their responses to the policy that you 22 have yourself indicated that you researched for the 23 non-Indian? 24 A Yes. I had to research the nature of Indian societies 25 in the case area in the mid-nineteenth century and 26 earlier, and the political organization, societal 27 structures and the manner of fishing and the 28 territorial claims of the various Indian groups that 29 were involved in the case. In addition I had to 30 provide ethnohistorical material to assist with the 31 identification of the current plaintiffs with the 32 people who had been parties to the treaties in the 33 1850's. 34 Q Current plaintiffs meaning native or non-native 35 people? 36 A Non-natives -- excuse me, native people, Indian tribes 37 that were the plaintiffs in the case. 38 Q Right. And did you in the course of your research 39 with regard to the Indian people examine their fishing 40 habits and examine the fishery? 41 A Yes. 42 Q Okay. And having done that research, were you called 43 upon and did you testify as an expert witness in the 44 case of U.S. v. Washington? 45 A Yes, I did. 46 Q And is that -- are you still engaged as an 47 ethnohistorian and archival researcher in respect of 16642 B. Lane (for Plaintiffs) In chief by Mr. Rush (on qualifications) 1 that case? 2 A Yes, I am. 3 Q That case is outstanding? There is continuing 4 litigation in respect of issues subsequent to that 5 case? 6 A Not subsequent to. There is still -- the Court has 7 maintained control over the case, and the 8 implementation of the rulings in that case, and there 9 are still ongoing hearings and litigation within that 10 case. 11 Q And in respect of that you have been called to testify 12 in respect of your ethnohistorical and anthropological 13 knowledge? 14 A Yes, I am still retained by the United States for that 15 purpose. 16 Q All right. I would just ask you, if you will please, 17 to identify for His Lordship on pages 2 and 3 of your 18 Curriculum Vitae other cases in which you have done 19 ethnohistorical and archival research, and 20 subsequently been called upon to lead that -- the 21 results of your research as a witness in court. And 22 you needn't, unless you feel necessary, go into each 23 of the cases, but perhaps just to identify those in 24 which you have done that type of work. 25 A Yes. Well, looking at page 2 and simply naming the 26 cases, the State v. Moses, the White River Project, 27 Makah Tribe v. the United States. I have already 28 mentioned U.S. v. Washington. Regina v. Jack, 29 Quinault Tribe v. Long, Alaska v. Frank, the 30 Nisqually Power Project, the Elwha Power Project, 31 Umatilla v. Alexander, Regina v. Bartleman/August, 32 Regina v. Bradley Bob, Regina v. Charlie and Jack, 33 U.S. v. Lincoln, Regina v. Adolph. I believe all of 34 the others. There is one in there in which I think I 35 did not do archival research, and that may have been 36 the Charlie and Jack case. 37 Q All right. 38 A I believe I misspoke a moment ago and named that one. 39 I think that was not. 40 Q All right. Thank you. Dr. Lane, have you in the 41 course of your work as an anthropologist and 42 ethnohistorian been involved in field-work where you 43 have invoked the use of your ethnohistorical and 44 ethnographic training in -- in what field-work have 45 you been involved with? 46 A Well, in two separate geographic areas. In the South 47 Pacific, and then what used to be the the New 16643 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 Hebrides, and now the Nation of Vanuatui, 2 V-A-N-U-A-T-U-I. I spent several years doing 3 ethnographic field-work in the islands, and in 4 connection with that did archival research at 5 libraries in New Zealand and Australia and France and 6 England. 7 Q And the other area, the other geographic area in which 8 you have done ethnographic and ethnohistorical 9 field-work? 10 A Well, here in the Northwest Coast. 11 Q And in respect of which peoples? 12 A Coast Salish people, Dene people, Nootkan, 13 N-O-O-T-K-A-N, people primarily, and others 14 incidentally, and I have done research in archives and 15 libraries in Canada and the United States and 16 England -- 17 Q All right. 18 A -- in that regard. 19 Q Yes. All right. And in terms of your ethnographic 20 work, have you conducted field-work among or with the 21 Gitksan and/or Wet'suwet'en people? 22 A No, I have not. 23 Q Okay. And have you done archival work with respect to 24 the Gitksan and Wet'suwet'en people? 25 A Yes, I have. 26 MR. RUSH: All right. I am asking that Dr. Lane be qualified as 27 an expert in the field that I have so indicated, in 28 the field of giving expert opinions, My Lord. 29 THE COURT: Thank you. Do I have this right, that you have done 30 archival research but not ethnographic research with 31 regard to the Gitksan and Wet'suwet'en? Thank you. 32 Mr. Goldie. 33 34 CROSS EXAMINATION ON QUALIFICATIONS BY MR. GOLDIE: 35 36 Q Dr. Lane, as you have told His Lordship, your formal 37 qualifications are in the field of anthropology? 38 A Anthropology and ethnohistory. 39 Q I'm sorry? 40 A Anthropology and ethnohistory. 41 Q What formal qualifications have you in ethnohistory? 42 A I have been a practising ethnohistorian for the past 43 30 years or so, and I have taught courses in 44 ethnohistory at several universities. 45 Q I asked for your formal qualifications, and I'll 46 qualify that by stating academic. 47 A I have a PhD in anthropology, which included training 16644 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 in ethnohistory as a -- 2 Q So that your formal qualifications in the academic 3 sense is in anthropology? 4 A Which includes ethnohistory. 5 Q All right. I will come to that. And the branch of 6 the discipline that you have received your training in 7 is cultural anthropology; is that right? 8 A That's correct. 9 Q Which is the study of a living culture? 10 A Generally, yes. 11 Q I beg your pardon? 12 A Generally, yes. 13 Q Why do you say "generally"? 14 A Well, cultural anthropology is generally concerned 15 with the study of living cultures. 16 Q Yes. Thank you. And would it be fair to say that 17 your specialty, so far as cultural anthropology is 18 concerned, has focused on the Indians of the Northwest 19 Coast of North America? 20 A And peoples of the Southwest Pacific. 21 Q Uh-huh. And I think you named them a few minutes ago. 22 Coast Salish -- I am sorry, I want to be clear about 23 the names that you gave us. Yes. Coast Salish, Dene 24 and Nootkan? 25 A Yes. I neglected to mention that I have also done 26 field research and archival research in connection 27 with Tsimshian, T-S-I-M-S-H-I-A-N, people. 28 Q Yes. And is it fair to say that your focus in Canada 29 has been mainly in Vancouver Island? 30 A It would be fair to say that it's mainly on Vancouver 31 Island, yes. 32 Q Your dissertation for your PhD was on a comparative 33 and analytical study of Northwest Coast Indian 34 religion, with the field-work being done amongst the 35 Cowichan Indians in Vancouver Island; is that correct? 36 A That's correct. Cowichan and Saanich. 37 Q Your kinship studies were done in the South Pacific? 38 A Yes, that's correct. 39 Q The research and study which you have undertaken with 40 respect to the Northwest Coast Indians includes 41 research and study of the Gitksan; is that right? 42 A That's correct. 43 Q Because they are a Tsimshian people? 44 A No, because they are a Northwest Coast people, and 45 that's one of my areas of specialty. 46 Q Yes. Well, you gave me some names a few minutes ago, 47 and you said I omitted the Tsimshian. Did you also 16645 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 omit the Gitksan? 2 A No. I'm sorry, did I mishear your question? 3 Q I said you gave me some names of the studies that you 4 had made a few minutes ago. Do you remember that? 5 A Yes. 6 Q Yes. And the names were Coast Salish, Dene, Nootkan 7 and Tsimshian? 8 A Yes. I thought that the question that had been asked 9 to me, with respect to that answer, those four groups, 10 were groups that I had done field-work with, 11 ethnographic field-work. 12 Q So your inclusion of the Gitksan is because you have 13 done archival work with respect to them? 14 A That's correct. 15 Q Yes. And what about the Wet'suwet'en? 16 A As with the Gitksan, archival work. 17 Q Archival work only? 18 A Yes. 19 Q All right. Thank you. My understanding is that from 2 0 your evidence that you gave opinion evidence in the 21 Canadian courts as listed in your C.V., including 22 Regina v. Bradley/Bob and Regina v. Adolph. You gave 23 opinion evidence in those cases? 24 A Yes. 25 Q But you -- the evidence that you gave in those cases 26 was in your capacity as an ethnohistorian? 27 A That's correct. 2 8 Q Now, I think you told me a minute ago that your formal 29 training as an ethnohistorian was included in your 30 training as an anthropologist? 31 A That's correct. 32 Q You don't have a degree in history? 33 A That's correct. 34 Q Nor have you taken any course work in history? 35 A That's correct. 36 Q When did you come to regard yourself as qualified to 37 speak as an ethnohistorian? 38 A I couldn't give you an exact date on that. 39 Q Well try. 40 A Perhaps I can answer your question in this way. I 41 took my PhD in anthropology in 1953, and at that time 42 there were no separate, as far as I know, no separate 43 courses being given in ethnohistory. It was a 44 developing field, and some anthropologists who were 45 pioneering in that field as a specialization within 46 anthropology -- 47 Q Yes. 16646 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 A -- were among my professors and my doctorate program. 2 Today there are courses offered in ethnohistory, 3 titled as such, in those days they were not. 4 Q Right. 5 A However, from the time of my doctoral training I have 6 regarded that as one of the areas of my 7 specialization. That's the best way I can answer your 8 question. 9 Q Am I correct in my understanding that at one time you 10 took the view that evidence with respect to the 11 interpretation of archival documents was part of 12 anthropology? 13 A I am sorry, could you repeat that question. 14 Q I said: Am I correct in my understanding that at one 15 time you regarded the interpretation of documents as 16 part of the field of anthropology? 17 A I still do. 18 Q Uh-huh. So in that sense you blend the two together, 19 ethnohistory and anthropology? 20 A Ethnohistory is an area of specialization which is 21 engaged in -- by people who have degrees in 22 anthropology, and sometimes by people who have degrees 23 in history. 24 Q Yes. So I -- my question to you was you have blended 25 the two together. 26 A I don't blend them. It is a discipline which is 27 practiced by many anthropologists, yes. 28 Q And by many historians? 29 A They have more recently become interested and followed 30 anthropologists in that endeavour, yes. 31 Q Yes. You gave a paper in Victoria, I believe last 32 year, November, 1988, when you -- do you recall that? 33 A I think you may be referring to a talk at the 34 University of Victoria called "The Uses of 35 Ethnohistory". 36 Q Well, the document that I have been given is headed 37 "Use of Historical Evidence in British Columbia 38 Courts, Progress and Problems, B.C. Studies 39 Conference, November, 1988" -- 40 A No, that was in Vancouver at Simon Fraser University. 41 Q All right. The "Victoria" is simply your residence, 42 is that right, the reference to "Victoria"? You live 43 in Victoria? 4 4 A I do. 45 Q Yes. All right. And have you a copy of that paper 46 with you? 47 A No, I have not. 16647 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 Q I just got the single copy. 2 THE COURT: I notice, Mr. Goldie, it is time for the usual 3 morning adjournment. Perhaps before you put this 4 document to the witness we should take the morning 5 adjournment. 6 MR. GOLDIE: All right. Thank you. 7 THE REGISTRAR: Order in court. This court will recess. 8 9 (PROCEEDINGS ADJOURNED FOR BRIEF RECESS) 10 11 I HEREBY CERTIFY THE FOREGOING TO BE 12 A TRUE AND ACCURATE TRANSCRIPT OF THE 13 PROCEEDINGS HEREIN TO THE BEST OF MY 14 SKILL AND ABILITY. 15 16 17 LORI OXLEY 18 OFFICIAL REPORTER 19 UNITED REPORTING SERVICE LTD. 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 16648 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Goldie. 5 MR. GOLDIE: 6 Q Dr. Lane, I think you told me that you don't have a 7 copy of that paper here? 8 A I don't have a copy of that paper. 9 Q Well, I'll place one in front of you then. Is that a 10 transcript of a paper that you gave at the proceedings 11 described there in November of 1988? 12 A Yes, it is. 13 Q As I understand that paper, on page 5 you, after 14 discussing in the paragraph beginning over the page, 15 and perhaps I should read you the first sentence on 16 the page 4 under the heading "The Researchers", you 17 say, and I quote, "Ethnohistorical research is 18 undertaken most frequently by anthropologists and by 19 historians." They're two separate and distinct 20 disciplines, aren't they? 21 A That's correct. 22 Q And in the case of ethnohistory they have come 23 together in analysing cultural reactions within their 24 historical context; is that a fair statement? 25 A Yes. 26 Q And you say on page 5, and I quote "In a well 27 researched study of relations among native groups or 28 between natives and non-natives, the anthropologist 29 needs to understand cultural interactions within their 30 historical context." And that's a statement that you 31 made and which you believe; is that correct? 32 A That's correct. 33 Q These two disciplines may have different approaches to 34 the same set of information or data? 35 A Is that a question? 36 Q Yes; is that correct? 37 A Yes. 38 Q In fact, that's what you say, is it not, on page 7? 39 You say: "Even when they share the same general 40 research objective, the historian and anthropologist 41 may bring different approaches and perspectives to the 42 enterprise." 43 A Yes, that's what I said. 44 Q All right. And you believe that? 4 5 A I do. 46 Q But in fact there are two separate and distinct 47 disciplines which it is your opinion come together 16649 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) with an ethnohistorian and provide information derived from both approaches; is that a fair way of putting it? Well, it's not the way I would put it precisely. Well, perhaps I can refer you to page 11 of your paper. Uh-huh. You say -- and it's the last sentence on that page. You say: "The ethnohistorian, whether that expert is an anthropologist or a historian, may be the only one who can provide the information needed by the judge to adequately assess the document." That's your present belief? Yes, I said that. That's a different statement from the one that you put to me a moment ago, however. All right. Well, do you accept the statement I just read to you? Yes, I do. Yes. And your expertise originates in the field of anthropology, doesn't it? That's correct. And not in the field of history? That's correct. And you have found it increasingly useful as a witness in court cases to interpret historical documents in light of the anthropological study you have made of Indian cultures; is that correct? Well, this is an approach which I have used since the late 1940's in understanding materials for academic purposes and in more recent decades when I have been involved in using this approach in litigation I have found it consistently to be a useful and sometimes indispensable part of the research. Yes. Now, in every case in which you've testified in Canada that is shown on the CV you have testified on behalf of the Indians; is that correct? Yes, with respect to the cases in Canada that is correct. Yes. Perhaps I might tender the paper as an exhibit, my lord. It's "Use of Historical Evidence in British Columbia Courts, Progress and Problems, Barbara Lane, Victoria B.C." and the head is -- the head-note is "B. Lane - B.C. Studies Conference, November, 1988". We took the trouble to get some copies, Mr. Goldie. : Thank you. What's the next exhibit number? 1 2 3 4 A ' 5 Q 6 7 A 8 Q 9 10 11 12 13 14 A 15 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 A 24 Q 25 26 27 28 A ' 29 30 31 32 33 34 Q 35 i 36 37 A 38 39 MR. GOLDIE 40 41 42 43 44 45 MR. RUSH: 46 MR. GOLDIE 47 THE COURT: 16650 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 THE REGISTRAR: Next exhibit number is 1036, my lord. 2 THE COURT: Thank you. 3 4 (EXHIBIT 1036: "Use of Historical Evidence in British 5 Columbia Courts, Progress and Problems" by B. Lane) 6 7 MR. GOLDIE: 8 Q And in the cases in the United States you were 9 retained either by the Indians or by the United States 10 on behalf of the Indians; is that correct? 11 A No, that's not correct, sir. 12 Q Which cases were you retained other than by the United 13 States on behalf of the Indians or the Indians in the 14 CV that you've listed here? 15 A At page 3 in the CV. 16 Q Yes. 17 A The only listing under the date 1982 which was before 18 the Federal -- U.S. Federal Energy Regulatory 19 Commission, Kootenay Falls Project. 20 Q Yes. 21 A I was retained by the Federal Energy Regulatory 22 Commission to serve as their expert in order to assist 23 them in evaluating the anthropological testimony that 24 was offered through an expert on behalf of the 25 Indians, as well as the anthropological testimony that 26 was offered by I believe four anthropologists on 27 behalf of the power project. 28 Q You were a staff witness at that time? 29 A Well, I was not a member of the staff. They didn't 30 have a staff anthropologist and they asked me if I 31 would serve in that capacity. 32 Q Perhaps more accurately you were retained by the 33 commission on its behalf? 34 A That's correct. 35 Q Yes. Any others? 36 A Well, in many of the ongoing court hearings under the 37 umbrella of U.S. v Washington the particular issue is 38 a disagreement between Indian tribes and I have on a 39 number of occasions been retained either by several of 40 the disputants jointly in order to assist the court in 41 settling the differences among them, or by one or 42 another of the tribes in order to do research on their 43 behalf in such a dispute. 44 Q All right. Thank you. 45 A So that those have been Indians against Indians which 46 I have been retained by one or the other. 47 Q But the original case you were retained by the United 16651 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 States on behalf of the tribes? 2 A In the original case of United States versus 3 Washington? 4 Q Yes. 5 A It's a little more complicated than that. The United 6 States brought the case against the State of 7 Washington -- 8 Q Yes. 9 A -- on behalf of certain named tribes. Other tribes 10 who were interested and affected by the results of the 11 case had not been named by the United States and they 12 intervened in the case on their own behalf, and I was 13 retained -- well, it's a little more complicated. In 14 one case at least a tribe that was named by the United 15 States also intervened on its own behalf, apart from 16 having been named by the United States, and I was 17 retained both by the United States and by the 18 intervening Indian tribes as the expert for the 19 several parties. 20 Q When the United States retains an expert, it does so 21 in its capacity as trustee for the tribes in question, 22 does it not? 23 A That's correct. 24 Q Now, are you familiar with the works of Dr. Bruce 25 Trigger? 2 6 A Yes, I am. 27 Q He's a respected well known anthropologist in Canada? 28 A Yes, he is. 29 Q Are you familiar with his work "Natives and 3 0 Newcomers"? 31 A Yes. 32 Q That was published in 1985, was it not? 33 A I'm not sure of the date. 34 MR. GOLDIE: I've taken some extracts from Dr. Trigger's book. 35 At page 166 of this particular chapter, which is 36 chapter 4, Dr. Trigger says that -- 37 THE COURT: I'm sorry, whereabouts is this? 38 MR. GOLDIE: 39 Q Page 166, my lord, at the bottom of the page, the last 40 sentence of the paragraph, four lines from the -- six 41 lines from the bottom of the page he says: 42 43 "In this view, to which I subscribe, the term 44 ethnohistory should be confined to labelling 45 a set of techniques that are necessary for 46 studying native history." 47 16652 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 Do you accept that as an accurate statement or is 2 that a statement to which -- with which you agree? 3 A From my perspective that is a true statement, but it 4 is not the entire statement. I don't agree with it if 5 it's confined. I think ethnohistory involves more 6 than that. 7 Q All right. Well, he goes on to say in the next 8 sentence: 9 10 "It is generally agreed that 11 ethnohistory uses documentary evidence and 12 oral tradition to study changes in 13 nonliterate societies." 14 15 Do you accept that statement? 16 A Again, as partially correct. Correct insofar as it 17 stands, but not the whole truth. 18 Q All right. To what would you add -- what would you 19 add to that? 20 A To the first or the second of the statements? 21 Q Either. 22 A All right. Perhaps I can answer the question best in 23 this way. Ethnohistory brings together the 24 historiographic techniques used by historians and 25 archivists and the theoretical framework from 26 anthropology, and that is why I feel the first 27 sentence that you read me is too limited, although 28 it's correct insofar as it goes. And the second one, 29 I might add this: Ethnohistory is used by different 30 people in two somewhat different but overlapping 31 senses. In one sense it is used to refer to the study 32 within a historical framework of cultural systems or 33 cultural processes or particular societies, and in 34 another sense, which overlaps with this, it's 35 sometimes used to refer to an ethnic group's own 36 history about itself, especially with reference to 37 oral tradition and oral history. 38 MR. GOLDIE: But Dr. Lane — 39 MR. RUSH: Excuse me. Excuse me. We should be sure that Dr. 40 Lane has completed her answer in this respect. 41 MR. GOLDIE: 42 Q Oh, certainly. 43 A Thank you. 44 Q Do you wish to keep on talking? 45 A Well, I would like to clarify -- 46 Q Carry on. 47 A So that ethnohistory is sometimes used when referring 16653 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 to non-native renderings of a history of a native 2 group, but it is also not confined to the study of 3 exotic groups. Anthropologists frequently use 4 ethnohistorical research in order to study change 5 within American culture, Canadian culture, French 6 culture, Irish culture, and so on. It is not 7 necessarily related to a nonliterate society. 8 Q Well, that is its focus though, isn't it? That's how 9 it arose? It brought together the anthropologist 10 who's interested in the changes in the culture of a 11 particular group and historical techniques with 12 respect to research, and it was focused on nonliterate 13 groups; isn't that correct? 14 A No, it is not correct, sir. 15 Q So you -- 16 A A large part of what is done as ethnohistorical 17 research perforce is done with nonliterate societies 18 because the only older materials, apart from oral 19 tradition, were those written by outsiders, and in 20 order to get at the earlier history of groups without 21 written traditions it was necessary to use this 22 approach. However, it has been used extensively by 23 anthropologists both in Europe and in Canada and the 24 United States for studies of earlier phases of the 25 history of literate societies. 26 Q Well, the history of a literate society is the 27 province of a historian, isn't it? 2 8 A No. 29 Q Well, that's what he's trained for, he or she? 30 A Oh, yes, but not exclusively. 31 Q All right. 32 A Yes, certainly. 33 Q The nexus between anthropology and the historian is 34 the study of a nonliterate group using historical 35 methods; isn't that correct? 36 A Only in part. 37 Q Well, I take it, Dr. Lane, that you disagree then with 38 Dr. Trigger's statement, and I quote: 39 40 "It is generally agreed that 41 ethnohistory uses documentary evidence and 42 oral traditions to study changes in 43 nonliterate societies." 44 45 You disagree with that? 46 A No, I don't disagree with it. I simply say that it is 47 also used for the study of literate societies. 16654 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 Q I see. Well, if the — 2 A And I tried to clarify that by explaining that 3 ethnohistory is used in two different senses. The 4 sense in which he is using it here relates to the 5 study of nonliterate societies, but that's not the 6 entire scope of ethnohistorical research. 7 Q Would you agree that ethnohistory is confined to the 8 study of native cultures? 9 A No, I would not. 10 Q Yes. All right. Let me read to you a little further 11 from what Dr. Trigger says: 12 13 "Ethnohistory has been variously 14 described as a separate discipline, a branch 15 of anthropology or of history, a technique 16 for analysing particular kinds of data, and 17 a convenient source of information for other 18 disciplines." 19 20 A Excuse me, would you tell me where you're reading 21 from? 22 Q At page 166 the third complete paragraph midway down 23 the page beginning with the words "Ethnohistory has 24 been variously described..." 25 A Yes. Thank you. 26 Q All right. Stopping at the end of that sentence. Do 27 you accept that statement? 2 8 A Yes, I do. 29 Q And then continuing "It has been debated..." Well, the 30 reference there is to McBryde. Are you familiar with 31 who Mr. McBryde is? 32 A I don't at the moment recall. 33 Q Well, let me refer you to the first complete paragraph 34 on that page, and I quote: 35 36 "For a long time the theoretical 37 foundations and aims of ethnohistory remain 38 part of the broader discipline of 39 anthropology (McBryde 1979)" 40 41 Do you accept that statement as accurate? 42 A Yes. 43 Q "In recent years", continuing: 44 45 "In recent years, however, more 46 ethnohistorical research has been done by 47 professional historians, as well as by 16655 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 economists and geographers. These 2 researchers are bringing new skills and 3 fresh theoretical perspectives to the study 4 of native American history." 5 6 Do you accept that? 7 A That's correct. Yes. 8 Q Now, just pausing there, would you not agree with me 9 that, so far as this continent is concerned, 10 ethnohistory is generally considered to mean the study 11 of native American history? 12 A Oh, in this continent much of the work in ethnohistory 13 has been devoted to native Americans. Yes. 14 Q Yes. Nobody speaks of an ethnohistorian studying the 15 history of France, does he? 16 A I don't know. 17 Q Then I go back to the third complete paragraph of Dr. 18 Trigger's book following the first sentence on that 19 paragraph: 20 21 "It has been debated whether it is closer to 22 anthropology or to history and whether it is 23 a bridge or a no man's land between these 24 two disciplines." 25 26 I take it you would agree with that statement? 27 A Yes. 28 Q 29 30 "There is also disagreement about whether 31 historical ethnography, or the 32 reconstruction of early historical cultures, 33 and the study of changes in native societies 34 are separate branches of ethnohistory, as 35 many ethnohistorians maintain, or whether 36 only the latter activity constitutes 37 ethnohistory in the strict sense. 38 (Hickerson 1970) " 39 40 A I have no problem with that statement. 41 Q Yes. Both are related, however, to the study of 42 native cultures, aren't they, the disagreement that he 43 makes reference to there? 44 A Well, this sentence speaks about native societies. 45 Yes. 4 6 Q Yes. All right. And continuing: 47 16656 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 "It is worth noting, however, that historical 2 ethnography was not designated as 3 ethnohistory prior to the development of an 4 interest in studying cultural change." 5 6 Now, that sentence is also applicable to other 7 than current cultures, that is to say, cultures of a 8 nonliterate character? 9 A And your question is? 10 Q That sentence is applicable to nonliterate societies? 11 A Oh, certainly. 12 Q Yes. It is not applicable to a literate society is 13 it? 14 A Just let me read it again for a moment. Are you 15 asking me about the sentence that begins "It is worth 16 noting"? 17 Q Yes. 18 A No, it would be applicable to a literate society as 19 well. 20 Q Well, does one speak of a literate society as a study 21 of historical ethnography? 22 A One can do, yes. 23 Q Do you? 24 A Well, you're asking me a hypothetical question. You 25 have to point to a particular study. 26 Q Well, do you refer to the study of the history of let 27 us say Russia from 1840 to the present day as 28 historical ethnography? 29 A Well, again, you're giving me a hypothetical without 30 any specific to direct the label to. 31 Q Well, can you answer my question? 32 A But in the -- I would -- well, I can't answer it in 33 the way you ask it. No. 34 Q All right. And then I continue in the reading of what 35 we have here: 36 37 "In recent years it has been suggested that 38 labelling a field of historical 39 investigation 'ethnohistory' perpetuates an 40 ethnocentric and unjustifiable distinction 41 between the study of literate and 42 nonliterate societies." 43 44 Do you understand what I've read to you? 45 A I think so. 46 Q Yes. And has there been such a labelling of 47 historical investigation, ethnohistory, as one that 16657 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 perpetuates an ethnocentric and unjustifiable 2 distinction between the study of literate and 3 nonliterate societies? 4 A Yes. I think perhaps that's what this communication 5 is about. 6 Q Yes. Your view is that there is no distinction? 7 A That's correct, the same procedures and approaches are 8 used. 9 Q Yes. And Dr. Trigger says, and this is the sentence 10 with which you did not wholly agree, and I quote: 11 12 "In this view, to which I subscribe, the term 13 ethnohistory should be confined to labelling 14 a set of techniques that are necessary for 15 studying native history." 16 17 Now, you say that is unduly confined? 18 A Well, no, now that you are reading it to me with the 19 preceding material, I see that what he is suggesting 20 here is what should be in his view. He's proposing a 21 tighter definition of how that label should be used. 22 He's not describing how in fact the label has been 23 used, and I think that's what's caused an 24 unnecessarily long communication back and forth with 25 these preceding questions. 26 Q You now agree with him that it is a set of techniques 27 that are necessary for studying native history? 28 A No. I'm saying it can be defined to be confined to 29 that area of research, and that's what he's proposing. 30 I have no problem with that. Labels and words are 31 simply things that we use to mean what we want them to 32 mean, and he's proposing a meaning there. 33 Q Yes, I believe there's a well-known book that follows 34 that line of thinking. 35 Well, now we come to the last sentence again. 36 37 "It is generally agreed that ethnohistory 38 uses documentary evidence and oral 39 traditions to study changes in nonliterate 40 societies." 41 You've explained why you don't agree with that. 42 Would you agree that that -- there is general 43 agreement that the term ethnohistory uses documentary 44 evidence and oral traditions to study changes in 45 nonliterate societies? 46 A Well, as I believe I said to you before, I agree with 47 this statement. There's nothing wrong with it as it 16658 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) stands. It simply doesn't encompass everything -- Yes. that's done in the name of ethnohistory. The techniques that have been developed have been developed for the purpose of identifying the history of societies which rely upon oral traditions? Again, that's true insofar as it goes. It's not the entire story. All right. Now here, if I understand what you told his lordship, you wish to speak of imperial, colonial, and provincial policy with respect to Indian title; is that correct? I don't believe I spoke to his lordship. Those are areas which I was asked to research in this case. I understood that in answer to questions put to you by Mr. Rush that your expertise was in relation to imperial, colonial, and provincial policy with respect to native title? Yes. All right. But that's what you wish to speak to in this case; is that not correct? That's what I've been asked to do, yes. Yes. And in the course of that, as I understand it, you propose talking about intent; is that right? I propose to describe materials which I have found in the course of my research which may assist the court in understanding the intent. Yes. You have through the course of your research identified certain documents which you wish to place before the court? That's correct. Yes. Now, we've been furnished with a summary of your opinion which I understand you wrote; is that correct? That's correct. Yes. Do you have that in front of you? No, I do not. Would you just familiarize yourself with that? My lord, I tender that extract from Dr. Trigger's book as an exhibit. RAR: 1037, my lord. (EXHIBIT 1037: Extract from Dr. Trigger's book, "Natives and Newcomers") Yes, it's already in, but -- : I wasn't sure whether that part was already in. I think it is, but we'll have it in again. 1 2 Q 3 A 4 Q 5 i 6 7 A 8 9 Q 10 11 12 13 A 14 15 Q 16 ] 17 18 19 A 20 Q 21 22 A 23 Q 24 25 A 26 27 28 Q 29 30 31 A 32 Q 33 34 A 35 Q 36 A 37 MR. GOLDIE 38 39 40 THE regist: 41 42 43 44 45 THE COURT: 46 MR. GOLDIE 47 THE COURT: 16659 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 MR. GOLDIE: Are we correct in our understanding that -- 2 MR. RUSH: Excuse me, you've produced a copy of the summary of 3 Dr. Lane's opinion? 4 MR. GOLDIE: That's correct. 5 MR. RUSH: And she's reviewing it now? 6 MR. GOLDIE: 7 Q Yes, that's correct. 8 Is that still a summary of the evidence that you 9 propose giving here? 10 A I believe so. 11 Q You say in the first paragraph: 12 13 "The opinions summarized here address 14 the following (1) the nature and content of 15 imperial policy regarding Indian title." 16 17 And then you go on to say from when, and how that 18 policy was implemented, and then: 19 20 "(3) evidence provided in the ethnographic, 21 ethnohistorical, and documentary records 22 regarding any intent to diminish or 23 extinguish Indian title in British Columbia 24 through treaty, legislation, or other formal 25 legal instrument." 26 27 So you wish to bring to his lordship's attention 28 all documents which you think are relevant with 29 respect to the intent that I have identified? 30 A I would agree with your statement with one 31 qualification. 32 Q Yes. 33 A You said "all documents". Many are simply 34 repetitious. 35 Q Yes. 36 A And so I've not -- 37 Q The significance -- 38 A -- encompassed all. 39 Q It's a selection by you of the significant 4 0 documents -- 41 A Yes. 42 Q -- relating to intent? 43 A That may shed light on intent. 44 Q All right. And it is your view, and I'm now referring 45 to the last sentence on that page, that these 46 documents would "provide legislative background 47 indispensable to an informed interpretation of the 16660 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A Q A Q B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie Submissions by counsel. resulting legal instruments.", and it is for that purpose that you're bringing these documents or will bring these documents to his lordship's attention? Yes. Now, you identify in the second paragraph certain sources? Yes. And you include amongst those, item number (5), "notices, letters to the editor, editorials, and accounts published in the public press."? That's correct. MR. GOLDIE: My lord, I would like to have that — I'm going to be referring to the summary and I would ask that it be marked as an exhibit, but I'll do that after I make my submission with respect to her qualifications. MR. RUSH: I think it should be marked now, my lord. MR. GOLDIE: All right. I don't mind. THE COURT: For all purposes? MR. RUSH: I don't see why not. MR. GOLDIE: No, I think this is a classic example of the state of the witness' mind. THE COURT: Well, if — MR. GOLDIE: It is tendered during her -- the cross-examination on her qualifications and that's really all that it's tendered for. Is there general agreement with that? Well, my lord, I think that my friend risks the use by which we may well put this document. I hadn't intended to lead it, as I indicated to him. You had not intended? No, I hadn't, but I will now. I'll take advantage of presenting the document before the court, and I think it's in for all purposes and, as I think your lordship has indicated on many previous occasions, that the document once tendered cannot be used or confined to the specific areas for which it is being tendered and nor should it be. THE COURT: The only question I had with that is whether that rule applies to a document that is put in during the course of a cross-examination on qualifications. I wonder if this is in any way a parallel procedure to a voir dire where the court determines a fact before the evidence can be heard and then, in the absence of agreement, the evidence has to be re-tendered and it doesn't become admissible for all purposes, it just becomes admissible on the voir dire. And I wonder if this document is only admissible on the question of THE COURT MR. RUSH: THE COURT MR. RUSH: 16661 Submissions by counsel 1 qualifications and if it -- if she is found to be 2 qualified, it would then be open to counsel to seek to 3 tender it or for the other side to oppose it. I'd 4 like to think -- modesty should prevent me from saying 5 this, but I'd like to think that -- I'm thinking out 6 loud. I'm not sure that there's any authority that 7 governs this question that I have encountered. 8 MR. GOLDIE: I said I would tender it as an exhibit after I 9 completed my submissions. This contains -- if this is 10 an indication of the evidence this witness is going to 11 be giving, this contains a number of statements which 12 would be objected to and the reason would be given for 13 the objection. I'm taking an in limine objection to a 14 number of the statements, and I'm going to be 15 submitting that the document is tendered and would be 16 proof of the nature of the evidence which she would be 17 giving. But I think that you -- 18 THE COURT: For the purpose of questioning her qualifications to 19 give that statement? 20 MR. GOLDIE: Yes. And the statements themselves even if she's 21 qualified would be objected to, but we are now dealing 22 with the qualifications to make the statement. 23 MR. RUSH: And I say again, my lord, my friend cannot pick and 24 choose. It may in this phase of the trial go to the 25 question of the qualifications of the witness. It 26 doesn't mean then that it is excluded for purposes 27 other than qualifications in the trial. Are we to 28 pull out and excise from the trial all of those 29 exhibits that have been tendered in the course of this 30 trial for testing the qualifications? 31 THE COURT: Well, we do that in voir dires. 32 MR. RUSH: This isn't a voir dire I say. 33 THE COURT: Isn't this an inquiry to determine whether the 34 witness is qualified to give expert evidence of the 35 kind that you have? 36 MR. RUSH: Yes, it is, but I think it's noteworthy that your 37 lordship identified the Trigger document as one that 38 was previously exhibited, and I think that we all, by 39 force of logic, refer to the documents which have been 40 tendered for whatever purpose, and there may be many 41 different purposes in my friend's mind as to why he 42 tenders a document. I can tell you that I will use 43 the same document in a completely different way. 44 That's my purpose. But he can't limit the use of the 45 document by the statement of his purpose nor by the 46 place at which the document enters the proceedings. 47 MR. GOLDIE: Well, I'll resolve the matter and I won't tender 16662 B. Lane (for Plaintiffs) Cross-exam by Mr. Goldie (on qualifications) 1 the document at this point. 2 THE COURT: All right. 3 MR. GOLDIE: 4 Q That completes my cross-examination. Thank you, my 5 lord. Oh, I just have one other question. Dr. Lane, 6 the contract of employment that you have with the 7 Tribal Council is dated June the 13th, 1985, and is 8 with Lane & Associates. Can you tell me who the 9 associates are, please? 10 A My husband. 11 Q And has he been responsible for any part of the 12 evidence you're giving here? 13 A No. 14 Q Have you done the research that you are relying upon 15 in the case at bar personally or through others? 16 A Both. 17 Q Would you describe to his lordship how you have done 18 it through others? 19 A My husband has assisted me by getting things from the 20 library and from the archives for me. 21 Q Yes. Anybody else? 22 A Yes, other people from time to time, colleagues, 23 research assistants. 24 Q How many of the latter? 25 A Oh, since 1985? 26 Q Yes. 27 A I can't give you an exact count, but I suppose I've 28 called on the assistance of somewhere between half a 29 dozen and ten people perhaps to get materials for me 30 from libraries and archives rather than me having to 31 travel to them. 32 Q Those are people who have done archival research under 33 your supervision then? 34 A That's correct. 35 MR. GOLDIE: Yes. All right. Thank you. 36 THE COURT: Miss Koenigsberg? 37 MS. KOENIGSBERG: I have no cross-examination. 38 THE COURT: Thank you. Mr. Rush? 39 MR. RUSH: Madam registrar, could you place the extract entitled 40 "Use of Historical Evidence in British Columbia 41 Courts, Progress and Problems before Dr. Lane, please? 42 THE REGISTRAR: It's Exhibit 1036. 43 44 RE-EXAMINATION ON QUALIFICATIONS BY MR. RUSH: 45 Q Thank you. 46 Dr. Lane, I refer you please to page 4 under the 47 heading "The Researchers", and it says: 16663 B. Lane (for Plaintiffs) Re-exam by Mr. Rush (on qualifications) 1 2 "Ethnohistorical research is undertaken 3 most frequently by anthropologists and by 4 historians. In studies of cultural 5 relations between natives and non-natives, 6 anthropologists sometimes focus on the 7 native community and culture. 8 Alternatively, the anthropologist's central 9 interest may be the effect of contact on the 10 non-native culture or certain of its 11 institutions. In either case the 12 anthropologist analyses the nature and 13 dynamics of cross-cultural exchange and the 14 structural or systemic effects of culture 15 change in one or more of the affected 16 groups. Whatever the central concern, the 17 quality of ethnohistorical studies 18 undertaken by anthropologists depends in 19 part upon their ability to place central 20 events, actions and attitudes within an 21 adequate historical context. This often 22 requires specialized knowledge of archival 23 and historical materials and methodology." 24 25 Those are your statements obviously at that time. 26 Do you hold those statements today? 27 A Yes. 28 Q And does that accurately reflect your views with 29 regard to the use to which ethnohistorical research is 30 put? 31 A Yes. 32 Q You then go on to say: 33 34 "The historian who undertakes a study of 35 cross-cultural relations may be primarily 36 concerned with the effect of specific events 37 or with analysis of particular policies. 38 The historian's interest may focus primarily 39 on non-native actions and only secondarily 40 or tangentially on the native community and 41 culture. Even so, the quality of such 42 studies depends in part on how competent the 43 historian is to deal with information 44 concerning relative native communities and 45 cultures. Without adequate knowledge of 46 these, there is abundant room for 47 misunderstanding historical realities and 16664 B. Lane (for Plaintiffs) Re-exam by Mr. Rush (on qualifications) 1 mistaking native actions and responses. The 2 competent historian exploring relations or 3 transactions between two European nations 4 would consider it indispensable to study the 5 situation and motivations of both parties. 6 However, when one of the parties in a 7 transaction is a native group, the same 8 standards are not always applied. It often 9 appears that less stringent efforts are made 10 to understand relevant political, legal and 11 other aspects of the native culture." 12 13 And then there's the passage which Mr. Goldie 14 referred to you, and I ask you simply, Dr. Lane, are 15 those views that you uphold today? 16 A Yes. 17 Q And with regard -- I just would ask you if you'd refer 18 through to the end of that chapter without my needing 19 to read the whole of it, and ask you again if these 2 0 views are the views that you have with regard to 21 ethnohistorical research by historians and 22 anthropologists? 23 A Yes. 24 Q And at the bottom of page number 6 under the heading 25 "Research Objectives and Strategy", you say: 26 27 "The anthropologist and the historian 28 often rely on the same documents to discover 29 data for their studies. Sometimes the field 30 of inquiry is the same; sometimes it is 31 different. Even when they share the same 32 general research objective, the historian 33 and anthropologist may bring different 34 approaches and perspectives to the 35 enterprise. For example, if the general 36 field of inquiry is the nature of Indian 37 policy in the colony of Vancouver Island, 38 both anthropologist and historian may search 39 the same official documents to discover 40 statements about policy and specific actions 41 taken to implement policy. Both will be 42 concerned to understand the origins and 43 development of policy and to account for 44 changes in it over time. The historian 45 likely will be more interested in 46 understanding the subject by studying Indian 47 policy within a context of other 16665 B. Lane (for Plaintiffs) Re-exam by Mr. Rush (on qualifications) 1 governmental actions and concerns and 2 against the history of colonial affairs in 3 general. The anthropologist often will find 4 it more instructive to study the development 5 of policy as influenced by the native people 6 at whom it is directed. The anthropologist 7 bring to bear knowledge of the native 8 societies and of the interaction between 9 particular Indian groups and the government 10 agents, traders, settlers, and others with 11 whom they were in contact." 12 13 And in particular I'd like you to refer to this 14 paragraph: 15 16 "The two approaches are complementary. 17 Together they contribute to a more balanced 18 and adequate understanding of historical 19 realities than can be gleaned from study of 20 official documents or legal instruments read 21 without such context being provided. Both 22 kinds of analysis are indispensable to any 23 well-reasoned judgment regarding what the 24 policy actually was at any given time." 25 26 And then I would just ask you to go over the page 27 to page 8, having considered two points, noting the 28 two points with regard to the two disciplines. At the 29 top of page 8 you say: 30 31 "What is important is that the research 32 strategies are appropriate to the problem 33 addressed and that the materials and methods 34 are used in a competent manner. 35 Ethnohistory is a specialized field 36 requiring special skills and knowledge. 37 Although some historians and some 38 anthropologists engage in ethnohistorical 39 research, not every anthropologist or 40 historian does so, nor is every historian or 41 anthropologist qualified in the field. 42 It used to be a fairly comment conceit 43 of academics and some other intellectuals 44 that they could understand events within 45 their particular frame of reference and that 46 they had no need to explore other approaches 47 or consider other perspectives. 16666 B. Lane (for Plaintiffs) Re-exam by Mr. Rush (on qualifications) 1 Ethnohistorians, like biochemists, 2 understand that their subjects require 3 diverse approaches." 4 5 Do you hold those views today? 6 A That their subject matter requires diverse approaches. 7 Q Thank you. "That their subject matter requires 8 diverse approaches." 9 A Yes, I hold those views today. 10 Q Thank you. And, Dr. Lane, I want to ask you one 11 further question. You refer to your husband as being 12 one of those with whom you worked in Lane & Lane 13 Associates. Do I take it that the second of the Lane 14 is your husband? 15 A That's correct. 16 Q And his name is Robert Lane? 17 A That's correct. 18 Q And does he have academic credentials as an 19 anthropologist and ethnohistorian? 20 A Yes, he does. 21 Q And what degrees, if any, does he hold? 22 A He has a Ph.D. in anthropology. 23 MR. RUSH: Thank you. 24 THE COURT: Dr. Lane on page 7 in that last full paragraph in 25 the page which Mr. Rush read to you it says: 26 27 "Both kinds of analysis are indispensable to 28 any well-reasoned judgment regarding what 29 the policy actually was at any given time." 30 31 I'm sure -- well, I'm not sure about anything 32 anymore. Does your discipline recognize that very 33 often the world moves on ad hocery and not reasonable 34 policy? 35 THE WITNESS: I'm sorry, I didn't hear you. 36 THE COURT: That the world sometimes moves on ad hocery and that 37 there is no policy? 38 THE WITNESS: Yes. 39 THE COURT: Reading this would seem to suggest that there's 40 always a policy and it's only necessary for the 41 ethnohistorian properly trained and skilled to 42 discover what the policy is? 43 THE WITNESS: I take your point. 44 THE COURT: So you do not intend to convey that there must 45 always be a policy to be discovered? 46 THE WITNESS: No, I do not. 47 THE COURT: Yes. All right. All right. Thank you. I suppose 16667 Submission by Mr. Goldie 1 you're tendering the witness as an expert. I suppose 2 I should hear from you, Mr. Goldie. 3 MR. GOLDIE: Yes, my lord, my concern is that whatever else Dr. 4 Lane is proposing to do, it is not something which is 5 based upon any anthropological training, and assuming 6 that there is an ethnohistorical specialty which has 7 emerged, it is not the specialty which is being relied 8 upon here. What is being relied upon here is purely 9 historical. There are -- as I said earlier, there are 10 no actors who are alive who can speak to the question 11 of policy, assuming for a second that the question of 12 policy is relevant, and that all that can be done by 13 someone who's trained in whatever training Dr. Lane 14 has, is to pick documents. 15 Now, the documents which she has identified as the 16 documents that she relies upon are -- 17 THE COURT: Dr. Lane, you're welcome to stay there if you want. 18 It may not be the most comfortable place and we're not 19 going to get to your evidence this morning. If you 20 wish to step down you may do so or you may stay there 21 if you prefer. 22 THE WITNESS: Thank you. 23 THE COURT: Is there any point in embarking on this document in 24 five minutes time Mr. Goldie? 25 MR. GOLDIE: Yes, that would be helpful, my lord. 2 6 THE COURT: We'll adjourn until two o'clock. 27 THE REGISTRAR: Order in court. This court will adjourn until 2 8 two. 29 30 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS) 31 32 I hereby certify the foregoing to 33 be a true and accurate transcript 34 of the proceedings herein to the 35 best of my skill and ability. 36 37 38 Tanita S. French 39 Official Reporter 40 41 42 43 44 45 46 47 1666? 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 Submission by Mr. Goldie 1666? Submission by Mr. Goldie 1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS) 2 3 THE REGISTRAR: Order in court. Ready to proceed, My Lord? 4 THE COURT: Yes. Mr. Goldie. 5 MR. GOLDIE: Thank you, My Lord. The submission that I make on 6 qualifications comes down to this. First her evidence 7 is not concerned with ethnohistory, it is simply 8 history, and in my submission she is not a historian 9 qualified to speak about Imperial, Colonial, 10 Provincial or Dominion policy. She is not a historian 11 qualified by any academic yardstick, and it is not a 12 field of interest which has occupied her attention 13 since 1953. She has become, by her own evidence, an 14 ethnohistorian, and in my submission that has resulted 15 from her occupation as a witness called where native 16 interests are at stake. 17 My Lord, ethnohistory is not history. It's the 18 study of a particular -- or I should say more 19 accurately the history of a particular people in their 20 culture. Now, that's evident from the name ethno, 21 which when applied to ethnography is the study of 22 culturally significant behaviours of a particular 23 society. Ethnology is the comparative study of 24 documentary -- documented and contemporary cultures, 25 and ethnohistory is a study of the cultural history of 26 a particular people, and in the case of Dr. Lane, the 27 Indians taken at its broadest, the Northwest Coast 28 Indians, the Indians of British Columbia, the State of 29 Washington, what have you. 30 Now, Dr. Lane may disagree with Dr. Trigger, but 31 he repeats on a number of occasions, and I am now 32 referring to the excerpt of his book which has been 33 handed up, My Lord. The page 164, which is the first 34 page of the excerpt, second paragraph under the 35 heading "ethnohistory". 36 37 "Ethnohistory uses written sources of 38 information and oral traditions to study the 39 history of non-literate peoples." 40 41 Dr. Lane's quarrel is that ethnohistory can be 42 used to study the history of literate peoples, but it 43 doesn't change the fact that it is primarily a 44 cultural study of a particular people. 45 On the next page Dr. Trigger says in the second 46 paragraph: 47 16669 Submission by Mr. Goldie 1 "Since the time of L.H. Morgan, American 2 ethnologists have used historical documents, in 3 conjunction with varying amounts of 4 archaeological, linguistic and ethnographic 5 evidence, to reconstruct traditional native 6 cultures and to trace the origins and 7 interconnections of their various features." 8 9 And then the part that I discussed with the 10 witness at page 166, where Dr. Trigger states again, 11 and I quote: 12 13 "It is generally agreed that ethnohistory uses 14 documentary evidence and oral traditions to 15 study changes in non-literate societies." 16 17 Whatever her difference with Dr. Trigger, the 18 whole thrust of her experience relates to the cultures 19 of native peoples, but she proposes to give evidence 20 before Your Lordship on Colonial, Provincial, Dominion 21 and Imperial policy. 22 THE COURT: Well, your quarrel is not with the admissibilities 23 of her evidence, but with the choice of a person with 24 her qualifications to give that evidence? 25 MR. GOLDIE: Well, that's my first point. I do have a quarrel 26 with the admissibility of her evidence. 27 THE COURT: Yes, right. 28 MR. GOLDIE: But I am confining my point now to the question 29 of -- assuming that her evidence was admissible, that 30 the -- she -- her -- the focus of her study is not the 31 culture of the people of the United Kingdom or the 32 culture of the people of Canada or the culture of the 33 people of the Colony of British Columbia or Vancouver 34 Island, her focus is in the culture of the native 35 peoples, but she wishes to address Your Lordship in 36 terms of the documentary records of the -- of those 37 other societies. 38 Now, in her paper given in Simon Fraser 39 University, Exhibit 1036, she gives an example of 40 something which I assume she says that she would have 41 been of assistance in. Beginning with the second 42 paragraph she says: "In the second case ..." 43 THE COURT: I'm sorry, what page are you at? 44 MR. GOLDIE: 20. I'm sorry. She says: 45 46 "In the second case an anthropologist was 47 called to give evidence regarding hunting 16670 Submission by Mr. Goldie 1 practices of Indians in the interior of 2 mainland British Columbia. In this case also, 3 counsel for the Attorney General of British 4 Columbia as intervenor objected to testimony 5 about historical documents from an 6 anthropologist. Testimony about such documents 7 was tendered subsequently through an historian. 8 Several important issues about ethnohistorical 9 evidence arose in this case which merit more 10 extended discussion than is possible here. I 11 briefly comment on one of those. 12 The historian gave as his opinion that 13 Indians in the area had killed game for food 14 without government regulation until about 1890. 15 Counsel for the Attorney General disagreed, 16 citing a series of laws beginning in 1865 which 17 set seasons and other regulations for specific 18 species. Indians are not mentioned in the 19 initial 1865 law or in the subsequent 20 amendments. The language in these laws reads 21 "... it shall be unlawful for any person ..." 22 or "No person shall ...". Counsel for the 23 Attorney General appears to assume that the 24 term 'person' was intended to include Indians, 25 but this assumption appears to be unwarranted. 26 At that era, Indians were not necessarily 27 deemed to be persons under the law. Be that as 28 it may, there is ancillary documentation to 29 show that Indians hunting for food were not 30 intended to be affected by the law. Mr. 31 Holbrook, who drafted the bill in 1865, 32 initially used the word 'settlers' in 33 contradistinction to Indians, who should not be 34 affected by the law. The objector explained 35 that he did not think Indians should be 36 prevented from shooting deer either and the 37 language was amended to read 'person'. 38 Reading of historic documents without 39 reference to surrounding records and 40 circumstances can lead to the advancing of a 41 claim wholly at odds with the sources on which 42 the claim purports to be based." 43 44 Now, in that case I assume that Dr. Lane is saying 45 I as an anthropologist trained as an ethnohistorian 46 and having a focus on Indians could be of assistance 47 to the court in interpreting an ordinance of the 16671 Submission by Mr. Goldie 1 Colony of Vancouver Island or British Columbia, 2 whatever the case may be. In fact, all she is doing 3 is referring the court -- or all in my submission she 4 can do is refer the court to a document which she 5 found in her research. Now, if the historian had done 6 his work, if he was a historian trained in the -- he 7 could have found that document equally well. There is 8 no magic in the term ethnohistorical. Both of those 9 are historical. 10 And my objection to Dr. Lane on the basis of 11 qualifications is notwithstanding the pride in which 12 she takes in unearthing, I assume, the equivalent of a 13 parlimentary debate, and ignoring for the moment 14 whether that may be referred to as an aid to the 15 construction of the statute. As I say, ignoring that, 16 that is the province of the historian whose focus is 17 on the culture -- 18 THE COURT: Even historians wouldn't be allowed to speak with 19 respect to the intention of the legislature. 20 MR. GOLDIE: Well, that's my second point, because the whole 21 purpose of her evidence, even if she was qualified as 22 a student of English history or Canadian history or 23 Colonial history, even if she was qualified in that 24 regard, she is speaking about something which the -- 25 is outside the purview of an expert. And in the 26 Saanichton Marina case the -- His Lordship Mr. Justice 27 Meredith noted that she was proposing to give as 28 evidence statements which were conclusions of fact. 29 Now, some of them were pretty -- how should I put 30 it -- pretty innocuous. I think there's been handed 31 up, My Lord, the Saanichton Marina transcript. Tab 14 32 of the collection that Mr. Willms handed up. As I 33 say, some of those questions -- or some of the 34 statements that she was going to make reference to are 35 pretty innocuous, and they are the sort of statements 36 that counsel would make in argument. I refer to page 37 38. There is underlined words that -- at lines 33 to 38 36, and I assume they are a quotation from -- they are 39 a quotation from her evidence. Sets out unequivocally 40 that the company acted as an agent. 41 THE COURT: What page are you on? 42 MR. GOLDIE: 38, My Lord. 43 THE COURT: I don't think my pages are numbered. 44 MS. KOENIGSBERG: 38 is numbered, My Lord. I think is the only 45 one that is numbered. 46 MR. GOLDIE: Oh, I see. There are — well, I am reading from — 47 Your Lordship should have -- 16672 Submission by Mr. Goldie 1 THE COURT: The practise of protecting inland fisheries. 2 MS. KOENIGSBERG: It's the fifth page in from the front. 3 THE COURT: Fifth page from the front. 4 MR. GOLDIE: Fifth page from the front, yes. 5 THE COURT: Yes. All right. 6 MR. GOLDIE: And line 31 to 37 is a quotation from her evidence, 7 and she says at 33: 8 9 "Sets out unequivocably that the Company acted 10 as an agent of Imperial policy with respect to 11 Indian rights in Vancouver Island during the 12 period of the grant." 13 14 Now, that's a statement, but it's drawn from 15 documents which anybody can read. And it's the 16 province of counsel to argue, and it's the province of 17 the court to decide. And then two pages further on at 18 line 24, 26 there is an underlined portion: 19 20 "No limitation on Indian fishing as explicitedly 21 noted." 22 23 And the Court says: 24 25 "That's an argument, isn't it, and not an 26 opinion. She has interpreted documents there." 27 28 And then in the next page at line 20 His Lordship 29 says: 30 31 "Do you think that's an opinion? She says she 32 has looked at all the documents and she sees no 33 limitations." 34 35 She is making a statement of fact that there are 36 no limitations, and she makes the very same statements 37 with respect to various ordinances and statutes in 38 this case that in her -- she sees no limitation on 39 aboriginal title. But that is a statement that 40 constitutes an interpretation of the document in 41 question. 42 Now, Your Lordship has had read to you, I 43 understand, the ruling of His Lordship at page -- it's 44 at page 54, and it's 5 pages from the end, and at line 45 19 he says: 46 47 "But I hold that the conclusion of Dr. Lane 16673 Submission by Mr. Goldie 1 tendered as a fact in evidence is inadmissible. 2 To allow it would be to embarrass the 3 Defendants in having to cross-examine on any 4 number of other documents which may go to 5 contradict or test the conclusions expressed by 6 Dr. Lane, and if those conclusions - those 7 conclusion, incidentally, really are recorded 8 in the statements themselves." 9 10 The fundamental difference, of course, between 11 history and the court of law is that history is always 12 probing for the motives of individuals and so on and 13 so forth. The Court is not concerned with the motives 14 or intentions of people only as their words are 15 recorded in the documents which are to be taken as 16 conveying that intention. 17 And I want to refer to a case in the House of 18 Lords. I'll hand up a report, My Lord. That is the 19 report in the Court of Appeal as well as the House or 20 Lords. Henry Boot & Sons. The facts are not of any 21 importance. There is a dispute between a building 22 contractor and a -- the London County Council. The 23 dispute centered on who would bear the cost of 24 increased benefits accruing to workmen by virtue of 25 regulations and a statute in place at the time. The 26 part that I wish to refer to, because in my submission 27 it states a principle of general application, is found 28 in the judgment of the House or Lords at page 641, the 29 last page. And the background or the observation is 30 that prior to the contract being entered into, the 31 parties exchange correspondence on the meaning of the 32 clause in question, and one of the parties said well, 33 as far as I am concerned the clause means this, and 34 the other party said no, it doesn't, it means this. 35 And Lord Denning commented at page 641, letter E: 36 37 "I may add, perhaps, a word on the 38 correspondence which took place before the 39 contract was executed. The appellants there 40 made it clear that they did not regard holiday 41 credits as coming within the rise-and-fall 42 clause, but the Builders Association took a 43 different view. Neither side inserted any 44 words in the contract so as to clear up the 45 difference between them. They left the 46 rise-and-fall clause as it was. It was 47 suggested that, on this account, there was no 16674 Submission by Mr. Goldie 1 consensus ad idem. Your Lordships rejected 2 this suggestion without wishing to hear further 3 argument on it. There was, to all outward 4 appearances, agreement by the parties on the 5 one thing that really mattered, on the terms 6 that should bind them. In the case of 7 difference as to the meaning of those terms, it 8 was for the court to determine it. It does not 9 matter what parties, in their inmost states of 10 mind, thought the terms meant. They may each 11 have meant different things. But still the 12 contract is binding according to its terms as 13 interpreted by the court." 14 15 Now, just to give Your Lordship an indication of 16 the nature of the conclusions which the witness wishes 17 to -- the court to accept. From her reading of 18 documents -- these are the summary of the conclusions 19 on page 18 of her summary. She says: 20 21 "Imperial policy was to recognize Indian title 22 in British Columbia and to extinguish native 23 title by formal arrangement with the Indians, 24 for compensation, and with Indian consent, 25 while reserving to the Indians lands adequate 26 to their needs." 27 28 Now, that involves a consideration and 29 interpretation of the whole host of documents, or to 30 use the witness's expression, a range of documents. 31 She says: 32 33 "Failure to continue to negotiate with Indians 34 regarding their title is not due to a change in 35 policy but because of a shortage of funds." 36 37 That requires consideration of a range of 3 8 documents. 39 40 She suggests that: 41 42 "The Imperial policy regarding Indian title was 43 the same in Vancouver Island and in the 44 Mainland Colony of British Columbia." 45 46 Well, that requires consideration and 47 interpretation of documents to come to the conclusion 16675 Submission by Mr. Goldie 1 A, that there was a policy; and B, that the -- there 2 was a policy that was applicable to both; and C, that 3 the -- it was the Imperial policy. These conclusions, 4 and I could go onto the -- every single one of them is 5 of the same character as Mr. Justice Meredith 6 considered in the Saanichton Marina case. For 7 instance, and here is a -- here is one that requires a 8 crystal ball. 9 10 "The Imperial government did not intervene in 11 regard to the Indian title issue in the 1870's 12 in the expectation that the Dominion and 13 Provincial governments would resolve the 14 matter." 15 16 That requires consideration of a number of 17 documents. And indeed the best proposition that I can 18 call in aid of that submission is to say that since -- 19 we have received a very substantial number of 2 0 documents from my friend that are in the four volumes 21 which were delivered to us yesterday, not that all of 22 those documents are new. We received the first list 23 in April of 1987, when my friend wrote us a letter 24 saying these are the documents which Dr. Lane relies 25 upon. Then there was a further list in April 29th of 26 this year, and then on May the 4th and finally on May 27 the 15th there were further documents. All of that 28 goes to underline the proposition that the -- that the 29 skill of the witness is not interpretation. The skill 30 of the witness is in the research activity which she 31 has undergone and which her assistants have undergone 32 in order to winnow out what she considers to be the 33 significant documents. 34 Now, I have no intention of taking the documents 35 which I consider to be significant and putting them to 36 the witness. That would be a fruitless exercise, even 37 if she was qualified to comment on it. What I intend 38 to do, and which in my submission is the only 39 appropriate thing to do, is to have the documents 4 0 tendered and marked, and then we'll hear in argument 41 what it's all about. 42 Now, I say the same thing applies to her second 43 opinion, which relates to the South African Lands 44 scrip. Everything which the witness relies upon, as 45 far as I can make out, is based upon the reading of a 46 statute, the reading of newspaper reports, the reading 47 of evidence before the Royal Commission, all of it is 16676 Ruling by the Court 1 simply an interpretation and suggested conclusions. 2 Now, I say -- my submission is a very simple one, 3 My Lord, that firstly Dr. Lane's expertise, so far as 4 ethnohistory goes as related to the culture of the 5 native peoples, and we are dealing entirely in these 6 opinions with the statutory and written records of the 7 United Kingdom, the Dominion of Canada, the Province 8 of British Columbia, the Colony of Vancouver Island 9 and the Colony of British -- the United Colony, and 10 Your Lordship is in as good a position as any to 11 interpret those. 12 THE COURT: Thank you. Mr. Rush, I don't need to hear you on 13 the question of the qualifications of Dr. Lane. I 14 have the view that one does not have necessarily to be 15 a person with a PhD in history before he or she can 16 give evidence on historical research. I think that 17 most of the classic definitions of experts refer to 18 persons whom by reason of special training or 19 experience have acquired an expertise or a proficiency 20 in a particular function, and I think that someone 21 like Dr. Lane, who has spent her professional life 22 dealing with these kinds of problems and is a trained 23 researcher in a larger or a sister discipline is 24 perhaps not quite as competent to research a 25 historical question as an equally intelligent 26 historian might be, but I think that she's good enough 27 for this task. 28 Therefore I do not have any difficulty in saying 29 that to the extent she has indulged herself in 30 research and has collected together documents which 31 she considers relevant to a historical question 32 arising in this case. And I would be prepared, 33 subject to whatever counsel have to say about 34 particular documents, to allow them to be admitted in 35 evidence. 36 The question of the purpose for which they can be used 37 is perhaps another matter, and I don't know if that 38 has to be dealt with now or at some subsequent time. 39 With regard to Mr. Goldie's second principle 40 submission, I have the view, as I have expressed 41 before with respect to Dr. Ray and Mr. Johnson and -- 42 no, not Johnson, Morrison, then there was someone 43 else, Galois, that while the witness can explain why 44 they think these documents are relevant, they cannot 45 interpret the documents. That, it seems to me, in the 46 court of law is the exclusive province of the judge. 47 It seems to me that if a document contains a 16677 Submission by Mr. Rush 1 statement, that is, it is confident for a witness such 2 as Dr. Lane, if such should be the case, to point out 3 other documents which call that statement in question, 4 but only for the purpose of bringing to the attention 5 of the court the full picture, so that the court can 6 structure the document, will be assisted and will be 7 as true and accurate as human resources can make it. 8 I do not think, if she is proposing to interpret 9 documents, that she may be allowed to do so, but that 10 is a matter that will have to depend on what specific 11 question she is asked and what answers she embarks 12 upon. 13 With regard to the third question, which is the 14 South African War Land Grant Act, if that's its name, 15 I would think that if Mr. Goldie has accurately 16 described the question, that she would not be allowed 17 to explain what its intention or meaning was. I think 18 again she can point out the documents in the 19 collection or explain why she has collected these 20 documents, but their interpretation and their 21 consequences, it seems, are not, strictly speaking, 22 matters that fall within the limited range of 23 admissibility that I think applies in the case of 24 historians dealing with the problem of the kind we 25 have here. 26 Now, those are the preliminary views that I have 27 reached, Mr. Goldie, but I would be glad to hear what 28 you want to say about it. 29 Again, before I do that, I should call upon Ms. 30 Koenigsberg to see if she has a submission. 31 MS. KOENIGSBERG: I think I would not have gone very far afield 32 to what Your Lordship has outlined. My concerns were 33 less with her qualifications and more with the 34 admissibility of this kind of evidence as expert 35 evidence. It seems to me that in fact the -- at least 36 the Indian title in British Columbia opinion comes so 37 close to being a legal opinion that I wouldn't be 38 surprised to find that in the library of any law firm 39 that was interested in this particular topic, and it 40 certainly is in my view a good example of what one 41 might expect as legal argument. And I have no further 42 submissions as far as the witness's confidence to 43 speak about the documents she has selected. 44 THE COURT: Thank you. Mr. Rush, what do you want to say now? 45 MR. RUSH: Well, I'm not sure that Your Lordship's preliminary 46 ruling in my submission are all that far apart. Let 47 me say in the first issue, and that is the question of 1667? Submission by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: qualifications, in my submission there is absolutely no magic in the use of the word "ethnohistory" or "anthropology" or "history", and that it is, with regard to Dr. Lane's experience and knowledge in the field and what she has done, whatever the label, that I think brings her forward to qualify her as an expert to assist the court in terms of factual decisions which the court has to make. With regard to the question of her task in bringing forward documents to the court, I have this to say, that I have said before and I say now, and no doubt I will say in legal argument, that I disagree with the court's interpretation of the role of a historian or an ethnohistorian or an anthropologist with regard to documents. I do not, and I urge upon Your Lordship that no document speaks for itself. A document cannot be decontextualized. A document must be with reference to its date, its place, the sender, the receiver, the context, what happened the day before and the day after. It must also be viewed from the perspective of someone with specialized knowledge about the circumstances. And it is for this reason that I urge this upon Your Lordship, and have in the past, and that is that you will be called upon to weigh certain documents. Mr. Goldie in the final submission or in the closing submissions talked about the significance of the documents which he will urge upon you, and I ask Your Lordship how are you going to determine the significance of documents put to you without the assistance of an expert, because it is that expert who will contextualize the documents, who will assist you to determine the weight to attach to a specific document, whether you can evaluate a newspaper article in the same way that you can evaluate a Colonial dispatch. Those facts, those ingredients, if you will, to determine significance, I believe and I urge upon Your Lordship to find as being necessary, a necessary component of an expert to assist you in evaluating and assessing documents that are brought to you. But the expert's contextual explanation can surely come from other documents. Why can't counsel do that, rather than the witness? Because, My Lord, they don't only come from other documents. They come from -- in this case you are going to hear ethnographic evaluations that were done 16679 Submission by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: in the fifties and sixties about what the people, the native people in the 1840's were doing, and I think you have to set aside the documents, the viewers of events in the 1840's with what we know about the people who are being viewed, and I say that you cannot glean that only from the documents that will be presented to you. : Well, then I am -- you are inviting me to -- to reach conclusions based upon some nebulous substratum of information the witness has collected from sources, some admissible and some aren't admissible. No, My Lord. Your Lordship has heard on many occasions references to ethnographic considerations by a host of anthropologists and ethnographers, and Your Lordship will be urged to accept one over another. We will try to persuade you in terms of what weight to attach to which one. There is nothing nebulous about it. There are evaluations in the academic community and there may be differences, and you have heard the evidence of many of the witnesses whom we have called to assess those assessments of native peoples. Nonetheless, they go into the mix to assist you to determine who the people were that were being viewed by the bald words in a document. And I say to you, My Lord, that those words need to be weighed in some context. I don't say that every word needs to be weighed, nor do I say that every document needs to be weighed. I say that documents have to be seen in their historical sequencing. They have to be seen in terms of the particular people that were being addressed, the physical realities that were being addressed, in terms of what the positions were that were held by the various recipients of the document. And my argument is really based on the fact that no document stands in so blind isolation, and no document speaks nakedly for what the words seem to say. And I say to Your Lordship that the task of an expert, with regard of Dr. Lane's qualifications, will be to assist the court in understanding the context and -- of the documents as well as the significance of the documents and the weight to be attached to them in the end. And I say that Mr. Goldie can certainly chose on behalf of the provincial defendant the task or the particular objective that he choses in not advancing documents either to a witness by way of cross-examination or by way of his own expert witness, 16680 Submission by Mr. Rush 1 but I say he does so at his peril, because you will -- 2 he will be asking Your Lordship to make a decision on 3 the basis of his word, on the basis of his assessment 4 of the documents that will be presented to Your 5 Lordship at the end of the day, in terms of the 6 argument that will be advanced to you. And I say that 7 in respect of many documents there will be 8 disagreement about the significance of those 9 documents, and there must be evidentiary foundation 10 for Your Lordship to appreciate on what basis you 11 should weigh them and on what significance you should 12 attach to them. 13 THE COURT: But if witnesses are able to come into the courtroom 14 and give me their view of the interpretation of 15 documents, there could be no end to it. I am 16 reluctant to decide points of admissibility based upon 17 policy, but surely either it's wide open or it's 18 confined in some way. If we are talking about -- 19 well, Dr. Lane said that Cook arrived here in 1776, I 20 think, so we are talking about 223 years, and if 21 anything that happened in that time affecting Indians 22 can be the subject of evidence about the significance 23 of what was happening or what was being said, then it 24 seems to me that just as a defensive mechanism the 25 court has to confine it. And the documents are 26 voluminous, and surely that's not the way a legal 27 issue is to be decided. 28 That's why these rules have been developed, so 29 that we will not allow people to tell us what the 30 legislators had in mind or what the draftsmen had in 31 mind. We talk about the meaning of legislation to be 32 gathered from its terms and the meaning of documents 33 to be gathered by its terms. All these rules were 34 developed in order to permit the matter to be dealt 35 with sometimes somewhat harshly, but effectively and 36 efficiently. And it seems to me you are asking me to 37 go way beyond what's never been done before. That's 38 not a reason not to do something for the first time, 39 but it's pretty persuasive. 40 MR. RUSH: My Lord, I may have mispitched my argument, because I 41 am certainly not urging the Court to entertain Dr. 42 Lane's evidence from the standpoint of an 43 interpretation of Statutes or Proclamations or 44 Treaties or anything else. I am asking Your Lordship 45 to entertain her evidence from the standpoint of 46 contextualizing documents which in some cases may 47 require her interpretation of a word or a sentence in 16681 Submission by Mr. Rush 1 the document, but I certainly do not intend to ask her 2 about -- and I think -- I think Your Lordship has 3 already spoken on the issue of calling expert evidence 4 to deal with the meaning of language and statutory 5 instruments. 6 I do not intend to direct Dr. Lane's attention to 7 such evidence, but I do intend to direct her attention 8 to language in certain of the documents which in my 9 submission will assist you in determining whether 10 there is or is not a policy that was consistent or in 11 conformity throughout the period of concern to this 12 court, and -- 13 THE COURT: Well, I am not sure, Mr. Rush, that you are able to 14 persuade me that you can now determine what somebody's 15 policy was 100 years ago or even last year. I have 16 seen enough of life to know that very often what 17 people later come along and say was obviously policy 18 was nothing more than accident, and I think we are 19 into a very, very slippery piece of ground if we are 20 trying to determine not just what happened, but the 21 policy behind it. 22 I think we should proceed with the evidence, and I 23 think that subject to further submissions and 24 consideration I am going to try and confine the 25 evidence more or less as it was confined with Dr. Ray 26 and Mr. Johnson and Mr. Morrison and Mr. Galois, but I 27 will be glad to hear from you, and I am sure we will 28 hear from your friend if you want to depart from that 29 format. If that happens, and I am reasonably 30 confident it will, then I will try to deal with the 31 matter on a more precise basis, but I don't want to 32 generalize at this point and say yes, we are going to 33 do it this way and get into that way, and get myself 34 into something that I don't -- I quickly realize we 35 shouldn't be into. 36 I think there has to be serious limits put on the 37 scope of this kind of evidence. The courts have come 38 very close to surrendering its authority to experts, 39 and I am determined that that must not be allowed to 40 happen. Experts have gone far too far in many cases. 41 What is happening is deplorable, in the sense of the 42 way experts are being used to change the face of 43 litigation, and I don't think it's a healthy change, 44 and I am quite determined to see it doesn't go much 45 further than it has. But I will be glad to hear from 46 you, and if you get to a particular place where you 47 want to go beyond what I have generally outlined, we 16682 Submission by Mr. Rush 1 will deal with it in specific terms, and I think 2 that's the healthy way to 3 do it. 4 MR. RUSH: I take from that, My Lord, that you have made a 5 ruling on Dr. Lane's qualifications and the area of 6 expertise, and I can now proceed with the evidence? 7 THE COURT: Yes. 8 MR. RUSH: Dr. Lane, I wonder if you could please step forward 9 to the witness stand. I wonder if you would place, 10 please, Volume 2 before Dr. Lane. 11 12 EXAMINATION IN CHIEF BY MR. RUSH: 13 14 Q Dr. Lane, before I refer you directly to the volume of 15 documents in front of you. You were asked to 16 undertake research with regard to your opinion on 17 Indian title in British Columbia, and I wonder if you 18 would just explain in summary form the research that 19 you were asked to undertake. 20 A As I recall, I was asked to explore the documentary 21 record to identify those written documents which 22 appeared to shed light on policy or lack of policy 23 regarding Indian title in the area now known as 24 British Columbia, and I understood that task to 25 include the timeframe from the first British presence 26 in this area. And I date that period from Captain 27 Cook's arrival here in 1778. I perhaps neglected to 28 say in the first sentence that I understood the task 29 to be Imperial policy and later Colonial policy and 30 later Dominion policy with respect to native people in 31 what is now British Columbia. 32 Q In terms of the period that you were considering, was 33 there a cut-off point? 34 A Yes. I chose as a cut-off point roughly 1927. 35 Q Okay. Within that timeframe, Dr. Lane, what did you 36 examine? 37 A Well — 38 Q The documentary record, if you can express -- 39 A Yes. That timeframe was the one that I was concerned 40 with, but in order to begin at the beginning point I 41 had to search out what the preceding situation was, so 42 that the documents looked at actually begin before 43 that timeframe. 44 Q Yes. 45 A In order to -- you can't start at one point without 4 6 knowing what went before. 47 Q All right. 16683 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 A I looked at statements of policy, I looked at 2 secondary histories and analyses that purported to 3 deal with this subject matter. I then went to the 4 primary sources that those secondary sources dealt 5 with, and I refer here to official statements of 6 policy, unofficial statements about policy, statutes, 7 laws, proclamations, acts that purported to deal with 8 that subject matter, both published and unpublished 9 materials, comments about policy contained in the 10 personal records, such as diaries, personal 11 correspondence, so on of officials that were involved 12 with annunciating such policy or implementing it. 13 Official dispatches back and forth between the 14 imperial government and various governments here, 15 commentaries about what the policy was or had been or 16 would be in future or at a particular given time that 17 were contained in the statements and documents 18 produced by British and American and Spanish 19 representatives of their several governments in 20 periods in which those several nations were disputing 21 or discussing among themselves who had claims or 22 better claims to this territory which became British 23 Columbia. And contemporaneous accounts, wherever I 24 could find them, or commentaries on what was going on, 25 and these include such things, as in later days, 26 newspaper accounts, editorials, letters to the editor, 27 notices published in papers that bear on that subject 28 matter. 2 9 Q Right. 30 A I also looked at the accounts of unofficial persons 31 who had anything to do with or on the scene as policy 32 was being implemented or annunciated to the Indian 33 population, and so I looked at any written records 34 left by Indians or left by missionaries or other 35 persons on the scene who may have been writing on 36 behalf of Indians to communicate with government about 37 policy. 38 Q Now, in the course of your research on policy with 39 regard to Indian title did you undertake a course of 40 research with respect to land grants in the Bulkley 41 Valley? 42 A Yes. 43 Q And can you briefly state how you came to do that, and 44 what documents you reviewed in respect of the research 45 you did there? 46 A Yes. That had not been initially contemplated, but as 47 almost inevitably happens in undertaking a historical 16684 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 or ethnohistorical research project, one becomes aware 2 after becoming involved in the research that there are 3 areas that were unknown that need to be covered in 4 order to fully understand what was going on. And I 5 discovered in looking over records and correspondence 6 left by Indian people from that area that their 7 concerns over their land and their loss of land had to 8 do with something that I saw referred to as South 9 African war land grants. And I had no idea what those 10 were, and I searched in most of the likely places in 11 historical records and asked all of the professional 12 historians I knew who work on British Columbia 13 history, and nobody was able to enlighten me. So I 14 had to undertake original research to find out what 15 those South African war land grants were, and how they 16 happened to be used so extensively in the Bulkley 17 Valley, and how they impacted Indian land holdings in 18 that valley and clan territories, and why the 19 individuals who had become dispossessed and were 20 trying to protect the lands were in that position at 21 the time that they were. 22 In doing so I brought to bear on the problem I -- 23 knowledge I gained through anthropological training, 24 although I have never done any field-work in that 25 area, I was able to realize very quickly that the 26 paper records I was looking at did not reflect what 27 was probably an ethnographic situation. And so I 28 pursued the matter and came to a realization this was 29 a very important part of the history of how government 30 policies interacted with and affected and impacted 31 native claims to land in that area. 32 Q And did you look at a similar array of source material 33 and documents, as you have indicated you did in 34 respect of your research on native title in British 35 Columbia? 36 A Yes. 37 MR. GOLDIE: I'm sorry, array of what? 38 MR. RUSH: Of documents. 39 MR. GOLDIE: I thought that's what your first questioning was 40 all about. 41 MR. RUSH: Well, it was, but it was in relation to one of two 42 opinions. And if you would like to hear it again, I 43 am quite happy to -- 44 MR. GOLDIE: I wanted to know what "similar" referred to. 45 MR. RUSH: Well, I think if Your Lordship has any doubt — 4 6 THE COURT: You have now explained it. 47 MR. RUSH: Thank you. 16685 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 MR. GOLDIE: Thank you. 2 MR. RUSH: 3 Q Now, Dr. Lane, I wonder if you -- you have used, and I 4 am going to ask you if you have used in terms of your 5 research -- you have used the term Indian title in 6 describing research which you did, and if you have a 7 meaning which you attached to that term. 8 A Yes. 9 Q And what is that? 10 A Well, I find the term used in many of the sources that 11 I go to, and it appears to me that the term, like many 12 other labels, is used by different people to refer to 13 different things. And since I was trying to spread a 14 broad canvass here to follow what was meant when the 15 term Indian title or aboriginal title or native title 16 was used, and I use them interchangeably, I chose as a 17 working definition, and what I understand and what I 18 mean when I use the term, simply some sort of claim 19 made by native people in respect of their -- the lands 20 they claim to be their traditional lands. And I use 21 the term and understand the term to include not only 22 land within a given domain or territory, but also the 23 waters within it and all other things within that 24 territory, other kinds of resources and other kinds of 25 things that are encompassed within that territory. 26 Q Okay. And is the definition which you employ here, is 27 that one that's common or not among the 28 ethnohistorical -- ethnohistorians and 29 anthropologists? 30 A Well, I need to elaborate that answer. 31 MR. GOLDIE: I object to that, My Lord. The question was what 32 do you mean by aboriginal title. She's explained 33 that. 34 MR. RUSH: Well, that wasn't the question. But anyway -- 35 MR. GOLDIE: Well, if the question was intended to illicit an 36 opinion as to what is meant in documents, I take 37 objection to it, but I didn't take that out of the 38 question. I thought what is it that you mean when you 39 employ the words "aboriginal title", and she's 40 explained that. 41 MR. RUSH: Well, I said Indian title. But yes, that's right, I 42 did ask the witness that, and now I am asking the 43 witness how, in terms of her definition, if that is 44 common or uncommon within her discipline. 45 MR. GOLDIE: Well, I am objecting to that, My Lord. It is her 46 definition. That's what we are intended to know is 47 meant by her. What does it matter what other people 16686 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 think? We are embarking upon the evidence of others to support her definition. THE COURT: Well, I don't at the moment see any harm in it, Mr. Goldie. If you say that I have adopted a definition and here it is, and it is commonly used in my profession, it seems to me to be relatively innocuous, isn't it? MR. GOLDIE: Well, that stage of it is, but I don't want that spread over the documents that we are going to look at. THE COURT: That other people will have the same view I have about this? MR. GOLDIE: That's right. THE COURT: Well, I think there might be some force to that submission. I don't see it with respect to the question of the definition. MR. RUSH: Q Now, before this objection, Dr. Lane, you -- I had asked the question if the definition which you employed was common or uncommon among ethnohistorians and anthropologists, and then I think you indicated there was something more that you wanted to say before answering that question. A Excuse me, Mr. Rush, I hadn't finished my answer to your initial question. Q All right. A I believe that I said that I started with a broad definition, which I have just given you, and I want to continue my explanation of how I use the term. Q Go ahead. A To encompass as well that the way in which native title is used in my view has two aspects. One is -- MR. GOLDIE: Excuse me. If the witness is embarking upon how other people use it, I object. THE COURT: I think she is telling you how she uses it, and she has added in the fact that people use the same definition. MR. GOLDIE: I think, My Lord, with respect, the witness ought to confine it to what she uses it -- THE COURT: That's what I took. I wrote down her words. I use the term to distinguish the way native title was used, to which there are two aspects. She hasn't said anything about what anybody else says or thinks. MR. GOLDIE: It's her two aspects. MR. RUSH: Go ahead, Dr. Lane. THE WITNESS: If I might be allowed to complete my answer, I think it will perhaps make it quite clear to Mr. Davie 16687 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 (sic) and to His Honour what it is that I am trying 2 say here. I am trying to say that when I use the 3 term, I use it broadly, as I have just described it, 4 but I have already also to take into account that the 5 term has two aspects. One, when I use it to describe 6 what native people are referring to, it is from their 7 perspective. When I use it in reference to statements 8 which I make about documents that I look at, prepared 9 by non-Indian people, there are these two sides to how 10 native title is used, and they are not exactly the 11 same definition, because they come from two different 12 perspectives. When I use the term, I am sometimes 13 using it from the one perspective and sometimes using 14 it from the other perspective, depending upon context 15 and what it is that I am describing or discussing. 16 THE COURT: Shall we take the afternoon adjournment, Mr. Rush? 17 MR. RUSH: All right. 18 THE REGISTRAR: Order in court. This court will recess. 19 2 0 (PROCEEDINGS ADJOURNED FOR BRIEF RECESS) 21 22 I HEREBY CERTIFY THE FOREGOING TO BE 23 A TRUE AND ACCURATE TRANSCRIPT OF THE 24 PROCEEDINGS HEREIN TO THE BEST OF MY 25 SKILL AND ABILITY. 26 2 7 2 8 LORI OXLEY 2 9 OFFICIAL REPORTER 30 UNITED REPORTING SERVICE LTD. 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 166? B. Lane (for Plaintiffs) In chief by Mr. Rush 1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Rush. 5 MR. RUSH: 6 Q Dr. Lane, you indicated that from your review of 7 documents that the term native title had been used by 8 government sources in those documents? 9 A Yes. 10 Q And is it -- are you able to you say how the term was 11 used in those documents? 12 A Yes, it's used in two senses; sometimes in a general 13 sense, and sometimes with reference to a specific area 14 or a specific ethnic group. When it's used in its 15 general sense it tends to be used in an abstract way. 16 When it's used with reference to a particular group, 17 it has to be defined in terms of the specific people, 18 the kind of society, the kind of political 19 organization, the kind of laws about land tenure and 20 territory that pertain to that particular area or 21 people. 22 Q All right. Now, does the literature which you've 23 examined disclose what position -- what the position 24 was, rather, of Britain, Spain, and the United States, 25 with regard to native title in the latter half of the 26 18th century? 27 A Yes. In the latter half of the 18th century all three 28 of those countries recognized something which they 29 called Indian title or native title. 30 MR. GOLDIE: Well, my lord, if we're going to get along I'd ask 31 the witness to identify the source of every document 32 that supports these, then we can save a lot of time. 33 MR. RUSH: 34 Q First, if you can complete your answer, and then we'll 35 deal with the objection. Go ahead. You said that all 36 countries recognized native title to some degree I 37 think it was. 38 A Yes. The kinds of recognition were not precisely the 39 same, but there were some common aspects. I'm dealing 40 here just with the three countries -- 41 Q Yes. 42 A -- of concern with respect to the north-west coast or 43 the part of it that became British Columbia, and I'm 44 speaking then of the Spaniards, the British, and the 45 Americans. 46 Q Yes. 47 A And the common aspects for all three of those 16689 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 countries with respect to recognition of native title 2 was that the indigenous people had some kind of rights 3 to the territory in which they were found by the first 4 discoverers; that the first discovering nation had the 5 right to make purchases from the natives of land in 6 the area that the discoverer claimed sovereignty over 7 or rights of discovery to; and that those purchases 8 could only be made on behalf of the government not by 9 individual citizens of that country or subjects of 10 that country; and that the purchase had to be made by 11 payment of compensation to the natives for the ceding 12 of territory to the foreigners. Several of the 13 countries also thought at that time I think still in 14 the -- in that area that we're discussing that another 15 way of gaining rights to the land would be in a just 16 war with the native people. That, however, doesn't 17 apply to the area that we're concerned with. 18 Q And what documents do you refer to which express that 19 position in regard to those three countries? 20 A Well, a number of documents which I have read, not all 21 of which are in evidence, but of those -- excuse me, I 22 guess none of them are in evidence yet, but that I 23 have given to you, item number one in this volume that 24 you've placed before me would be an example of a 25 description of British policy. I refer to the Indian 26 Land Cessions in the United States, the Royce volume, 27 which contains a large introduction by Mr. Thomas 28 which outlines the policies of Spain, France, Britain, 29 the United States, and deals with imperial policy, 30 with colonial policy, of the various colonies on the 31 eastern seaboard of North America prior to 1776. 32 Q Okay. 33 A And then with colonial policies after that period, and 34 then with both British and American policy in what is 35 now Canada and United States. 36 Q And are there other documents to which you make 37 reference with regard to the position you've outlined? 38 A Yes. The Royal Proclamation of 1763, the various 39 American statutes that either track that language and 40 immediately follow it I think are the Proclamation of 41 1783, the first United States Intercourse Act, 1790. 42 I think these have all been given to you. 43 Q All right. I'm going to be referring those to you 44 shortly. 45 A Yes. 46 Q Before I do, however, I'd like to ask you if there 47 were any other concepts or terms which you felt had to 16690 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 be defined for an understanding of the opinion -- 2 A Yes. 3 Q -- you were giving? 4 A Yes. Many of the sources that I referred to that 5 discuss the interface between government authorities 6 and Indian people with respect to land in what is now 7 British Columbia use the terms not only Indian title 8 but the term Crown title when referring to certain 9 lands, and since most of the land in British Columbia 10 has not been ceded through formal treaties between the 11 Indians -- 12 MR. GOLDIE: Well, I object to this, my lord. She's defining a 13 term that is found in documents, not one that she's 14 using. 15 THE WITNESS: No, I'm trying to define how I use the term when 16 I use it. 17 MR. GOLDIE: Well, I'm sorry, she's defining a term that is 18 found in documents. 19 THE COURT: The term being? 20 MR. GOLDIE: Crown title. 21 MR. RUSH: Crown title. I don't agree, my lord. I think that 22 the question that I posed was a question aimed at the 23 witness' understanding of the words "Crown title" and 24 how she uses it when she refers to it. If you will, 25 it's the opposite side of the coin to Indian title, 26 and her definition of that in terms of her use of 27 those terms through the course of her evidence. 28 THE COURT: Well, for the time being can we assume that what the 29 witness is doing is identifying merely what she means 30 when she reads or what she understands when she reads 31 that term. 32 MR. GOLDIE: Well, my lord, unlike aboriginal title or native 33 title, everybody knows what Crown title means. 34 What -- if the word Crown title doesn't mean land that 35 is vested in the Crown, then what does it mean? 36 THE COURT: Well, I suppose, Mr. Goldie, it might mean the 37 so-called allodial or radical underlying title. It 38 seems to me there are possibilities for variations of 39 meanings. 40 MR. GOLDIE: There are a variety of Crown titles. 41 THE COURT: Yes. 42 MR. GOLDIE: But the one common thread is that the title is 43 vested in the Crown. So far as the word Crown is 44 concerned, modifying the word title, it is an 45 indication that the title, whatever the title may be, 46 is vested in the Crown. Now, I can understand that 47 the witness wishes to say "When I use native title, 16691 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 2 3 4 5 1 6 MR. RUSH: 7 THE COURT: 8 MR. GOLDIE 9 10 11 THE COURT: 12 13 1 14 15 16 MR. GOLDIE 17 THE COURT: 18 19 MR. GOLDIE 20 21 THE COURT: 22 23 MR. GOLDIE 24 THE COURT: 25 ] 26 27 28 29 MR. GOLDIE 30 1 31 1 32 THE COURT: 33 MR. GOLDIE 34 35 THE COURT: 36 37 1 38 MR. RUSH: 39 Q 40 41 42 43 A 44 Q 45 A 46 47 when I use Indian title, I mean this." because there are a whole range of definitions attached to those words. But I don't know of any definition which has any meaning other than the title that is being described as one that is vested in the Crown. Well — Are there not different kinds of Crown title? : Well, there may be. There may be. But the one common thread is that whatever that title may be, it's vested in the Crown. I don't know that I can deal with that. I think that's a position that you may well be able to demonstrate and argue, Mr. Goldie, but I'm not sure that I can rule with confidence that there is only one kind of title that's vested in the Crown. : My — I mean, the king claims title to all animals farae naturae. : Yes, but we're talking about land here as far as I'm aware. And are there not variations in the kind of Crown title that might arise in an English land law? : Not in respect -- I'm surprised if anything was as simple as you're making it. I thought it was the most complicated thing I'd ever heard of when I tried to study it in law school. If it was as simple as that, I don't know what all the fuss was about. : I think the fuss arose out of grants from the Crown, which in a variety of ways came back to the Crown. That may be. : And with all of the ragtag and bobtail that attached as they went out and came back. I'm going to allow the evidence subject to your objection, Mr. Goldie. I just don't feel that I can deal with it. Thank you, my lord. Now, in terms of your use of the term Crown title, Dr. Lane, can you express how you use it and will use it in terms of your opinion? Yes. Please go ahead. Before I begin, am I allowed to preface my answer with a statement which will -- a one sentence statement which will make my following sentence intelligible? 16692 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 Q Well, we'll have to wait and hear what you -- 2 A All I'm trying to say here is that much of the land in 3 British Columbia is viewed as land to which the Indian 4 title holds by some people, mainly native people, and 5 is viewed as land which is vested in the Crown by 6 other people who call that land Crown title, and I 7 simply wanted to make clear that I am going to use the 8 word Crown title or the label Crown title frequently 9 when referring to documents and evidence which contain 10 that language instead of saying each time "lands to 11 which the Crown asserts title" or "lands to which the 12 Indians assert title". In other words, I am using 13 Crown title, but without any implication as to whether 14 that land belongs to the Crown, belongs to the 15 natives, or to both, or what kind of fee or other 16 kinds of rights in the land may be with either party. 17 I simply wanted to explain that I will use Crown title 18 without using quotation marks each time or saying 19 "alleged Crown title" or "alleged native land" or 20 anything of the sort, just as a shorthand, but it does 21 not mean that I, as I am using the term, imply any 22 legal status of that land one way or the other from my 23 point of view. 24 Q All right. 25 A That's all I wanted to make clear. 2 6 MR .RUSH: All right. Thank you. In terms of the volume of 27 documents before you, that I placed before you as 28 volume 2, Dr. Lane, does the documentary record 29 indicate the existence of an imperial policy towards 30 North American Indians and Indian title at the time of 31 the first contact by the British with lands we now 32 know as part of British Columbia? 33 MR. GOLDIE: There are about three questions in that, my lord. 34 I think my friend should establish without necessarily 35 leading the date of first contact, the documents that 36 the witness will be relying upon, and then we can see 37 what it is that she's referring to. 38 MR. RUSH: I don't have any trouble with that, my lord. 39 THE COURT: All right. Thank you. 4 0 MR. RUSH: 41 Q Dr. Lane, do you have knowledge from the documentary 42 record at what time there was the first contact 43 between a non-Indian from Britain and the land that is 44 known today as British Columbia? 45 A Well, the first official entry of a British subject 46 coming as a representative of the Crown that I can 47 discover is that of Captain Cook's arrival in 1778. 16693 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 Q Okay. And is that arrival recorded in the documentary 2 record in some form or another? 3 A Yes. 4 Q And at that time can you say whether there was in 5 existence an imperial policy towards North American 6 Indians? 7 A Yes. The documents I have looked at describe such a 8 policy. 9 Q And the documents that you have looked at which 10 describe such a policy are what? 11 A Well, the secondary sources, of which there are many, 12 and I have included one here, is the long introduction 13 by Thomas to the Indian Land Cessions in the United 14 States, which describes the 19th century policy as 15 well as earlier and later policies of Britain. 16 MR. GOLDIE: What tab is that, please? 17 THE WITNESS: It's tab 1. 18 MR. RUSH: 19 Q And, Dr. Lane, is that -- the reference you've made, 20 is that at tab 1? 21 A Yes, it is. 22 Q All right. And if I direct you to the document 23 itself, can you demonstrate by reference to the 24 document the policy to which you're making reference? 25 A Yes. And I'm referring here to the Thomas 26 introduction. This is the "Eighteenth Annual Report 27 of the Bureau of American Ethnology" and this sets out 28 for the -- it was printed in 1899. It sets out for 29 anthropologists and ethnologists the policies that the 30 Indian people in various parts of North America were 31 impacted by with respect to their title to land or 32 their -- depending upon the particular European 33 country that was in contact with them. 34 Q Yes. 35 A And I've included in here only a section from that 36 very long introduction, the section dealing with the 37 English policy, and it begins at the bottom of page 38 549 and carries on to the end of the material in tab 39 1, which is at page 561, and this describes the 40 imperial policy. The English policy here refers to 41 the policy enunciated in England and refers to the 42 treaties made by Great Britain with various native 43 people in the eastern part of North America in what is 44 now Canada and the United States. It does not 45 cover -- that's in another section -- the policies 46 carried out by various British colonies earlier, but 47 deals only with the direct policy by the government in 16694 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 England. 2 Q Yes. And if I direct your attention specifically to 3 pages 558 and 559. 4 A Yes. At these pages beginning with the small point 5 type at page 558 and carrying over to 559, Mr. Thomas 6 sets out the language in the Royal Proclamation of 7 1763, and then goes on to discuss its application to 8 Indian people in North America, and I'll perhaps just 9 read one paragraph here. 10 MR. GOLDIE: Well, I object to that, my lord. This is the 11 subject matter of Mr. Morrison's evidence. It is an 12 issue before the court. Mr. Thomas presumably is long 13 dead. 14 THE COURT: This is just a quotation from the Proclamation, 15 isn't it? 16 THE WITNESS: No, I was going to read Mr. Thomas' — 17 MR. GOLDIE: She was going to — yes. 18 THE WITNESS: -- following paragraph, the first large sized type 19 paragraph on page 559, to explain what it is that I 20 base my previous answer on. 21 THE COURT: On 559? 22 THE WITNESS: Yes, the paragraph beginning "Although primarily 23 relating". 24 THE COURT: Oh, I can quickly read it. Let me see what it says. 25 Yes. All right. I read that. Where are we now? 26 MR. GOLDIE: Well, my objection is, my lord, that Mr. Thomas' 27 views held in 1899 don't gain any greater credence by 28 being repeated by Dr. Lane in 1989. This is the 29 subject matter of Mr. Morrison's evidence. He put 30 before the court a whole range of documents, original 31 documents not secondary sources, and from that the 32 question will be, was the Royal Proclamation intended 33 to be a general application. 34 THE COURT: What do you want to ask the witness now, Mr. Rush? 35 MR. RUSH: Well, this all originated with my question, and my 36 attempt to parse the question out of courtesy to the 37 objection that was taken, to determine the documentary 38 reliance placed on this document by Dr. Lane for the 39 question of the existence of an imperial policy at the 40 time -- at the time of the first contact by a 41 non-Indian from Britain to the land mass that we know 42 as British Columbia. 43 THE COURT: What the witness is telling me is the policy such as 44 it was, if it was a policy, is set out in the Royal 45 Proclamation. 46 MR. RUSH: Yes, she will say that. 47 THE COURT: And does it help any to say what Mr. Thomas thought 16695 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 about that? MR. RUSH: Well, it's -- your lordship is directed to sources both secondary and primary which the witness has relied upon, and if this is one of the sources, then this is one of the sources. THE COURT: Yes. MR. RUSH: And it -- Dr. Lane will indicate why she relied on it and she will say as well that she relied upon the Royal Proclamation, and perhaps it's little more than that, but we thought it of significance that your lordship have some documentary reference with regard to the policy as it existed at the time of Captain Cook's voyage to the north-west in 1778. THE COURT: All right. Well, it seems to me that we've got that when the witness refers me to the document. Haven't we got all that? Well, yes, but we had to get you to the document, my lord, if I can put it that way. We've been to the document for sometime now. All right. Let's go to the next one. MR. THE MR. RUSH: COURT RUSH: Q THE THE Now, Dr. Lane, in terms of -- you've made reference to Mr. Thomas' comments at 559 of the document entitled "Indian Land Cessions". In terms -- just who was Mr. Thomas, to assist the court on this -- in this respect? A Mr. Thomas was both a lawyer and an anthropologist. COURT: A lawyer and a what? WITNESS: Anthropologist. That is to say, there were very few -- he didn't have a Ph.D. in anthropology. There were very few universities at that time that gave degrees in anthropology, but he was a practising anthropologist and published extensively on Indian people of the eastern part of North America and Mexico. MR. RUSH: Q A Q A All right. And I think you've already commented on the document the "Indian Land Cessions in the United States". Yes, this is a standard -- the standard reference source for anthropologists looking at land history of Indian people throughout what is now the United States . And in terms of primary sources, Dr. Lane, do you rely on the Royal Proclamation itself? Yes, I rely on it to tell me what the enunciated policy was in 1763, which is the nearest date that I 16696 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 can find an enunciated policy prior to Cook's 2 departure, which by the way was in 1776. He arrived 3 at the north-west coast in 1778, but his departure 4 from England was in '76. 5 Q Okay. Now, do you refer to the documentary record in 6 respect of -- or, rather, let me rephrase it, to 7 illustrate if or that the policy enunciated in the 8 Royal Proclamation was extended to the land of British 9 Columbia? 10 A Well, I look at the policy that was enunciated then as 11 context for what I find with respect to the north-west 12 coast. 13 Q And in respect of that policy what do you find when 14 you look to -- 15 A Well, I looked for instructions that were given to 16 Captain Cook when he set sail on behalf of the British 17 government to discover whether he was given 18 instructions as to what policy to pursue when he met 19 with native people on the north-west coast. 20 Q And are those instructions set out at tab 2? 21 A Yes, they are. 22 Q And what's the context of these instructions? 23 A Well, these instructions set out -- this was after all 24 a voyage of discovery to the north-west coast. Cook 25 was to try to search for and find a north-west 26 passage. And it was understood that he would be 27 coming into territory claimed by Spain, and farther 28 north perhaps, if he got that far north, perhaps to 29 territory claimed by Russia, and he was given 30 instructions with respect to how he should deal if he 31 had to come to shore at places claimed by prior 32 discovering nations, and also what he was to do if he 33 was to discover territory that wasn't claimed by other 34 nations or was uninhabited, and how to deal with 35 native people if he found them present where he came 36 to shore at the coast. 37 Q All right. And how do these instructions relate, if 38 they do, to the imperial policy that you've talked 39 about? 40 A Well, they appear to be in conformity with the policy 41 that was enunciated in the Royal Proclamation of 1763. 42 Q And is there a passage of the instructions which you 43 rely on for that? 44 A Yes. I think there may have been two places, but one 45 certainly is at the top of what is page 4 in the 4 6 document here beginning: 47 16697 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 "You are also with the consent of the 2 natives to take possession in the name of 3 the King of Great Britain of convenient 4 situations in such countries as you may 5 discover, that have not already been 6 discovered or visited by any other European 7 power, and to distribute among the 8 inhabitants such things as will remain as 9 traces and testimonies of your having been 10 there. But if you find the countries so 11 discovered are uninhabited, you are to take 12 possession of them for His Majesty by 13 setting up proper marks and inscriptions as 14 first discoverers and possessors." 15 16 Q This document, Dr. Lane, appears to be dated the 6th 17 of July, 1776? 18 A That's correct. 19 Q And I think you indicated that the voyage of Captain 20 Cook was in 1778? 21 A No, he set out from England in 1776 and arrived on the 22 north-west coast in 1778. 23 Q Okay. 24 A And these were the secret instructions that were given 25 to him along with his sailing instructions. 26 Q Were there other -- were there instructions similar to 27 those given to Captain Cook given to other sea 28 captains of the British? 29 A Yes. I've included one other example. I believe it's 30 at the next tab. 31 Q And that's the instructions to Captain Nathaniel 32 Portlock? 33 A Yes, in 1785. 34 Q And the particular passage that you direct our 35 attention to here is that to be found on page 29 of 36 those instructions at tab 3? 37 A Yes. Yes. In the paragraph beginning "Mr. William 38 Willy...", and I'm quoting: 39 40 "...we have deemed perfectly qualified for 41 such an undertaking, and he accompanies you 42 entirely with that intent. Therefore, 43 wherever it is necessary to establish a 44 factory," 45 46 Q What's being referred to there, if you know? 47 A A trading station, I believe, 1669? B. Lane (for Plaintiffs) In chief by Mr. Rush 1 2 "a factory, you are to purchase of the 3 natives such a tract of land as you shall 4 think best suited for the purpose of 5 trading, and for security, paying them in 6 the most friendly and liberal manner for the 7 same." 8 9 Perhaps that's all I need to read. 10 Q Thank you. Now, in respect of the voyages made by 11 the -- well, by Captain Cook in 1778 to the 12 north-west, did you research further documentary 13 support to demonstrate the policy of the Royal 14 Proclamation as having been extended to the lands that 15 we now know as British Columbia? 16 A Yes. I looked to see if Captain Cook had in fact 17 carried out the instructions that were given him, 18 found that he did not in fact take possession of land 19 within the area which is now British Columbia, but 20 that he did in fact carry out the instructions with 21 respect to paying the natives who claimed, who made 22 claims about things in the territory where he touched. 23 Q Okay. And is that illustrated by documentary 24 reference in tab 4? 25 A Yes, it is. 26 Q And can you just explain to his lordship what this 27 document represents? 28 A Yes. These few pages are taken from the journal of 2 9 one of the men who accompanied crew in that voyage of 30 discovery. This particular excerpt is from King's 31 journal. King accompanied Cook and several of the 32 members of that expedition kept journals which were 33 later published. This is one of them. 34 Q All right. And I direct your attention to page 1407 35 and in the bottom right-hand corner. Is this the 36 passage to which you draw our attention? 37 A Yes. King's journal is of particular interest and 38 value to anthropologists because he spent a good deal 39 of time discussing the native people, and in the 40 passage to which I would draw your attention he 41 describes an encounter in which the native people, and 42 this is in the vicinity of Nootka Sound when Cook's 43 ships were there, insisted on being paid for 44 everything, and King says here: 45 46 "No people had higher Ideas of exclusive 47 property; they made the Captain pay for the 16699 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 grass which he cut at the Village, although 2 useless to themselves, and made a merit, 3 after being refused payment for the wood and 4 water we got in the Cove, of giving it to 5 us, and often told us that they had done it 6 out of Friendship." 7 8 Q All right. Now, does that event appear in the 9 journals of any of the other persons who were on this 10 voyage? 11 A Yes. Captain Cook himself reported this material in 12 the next tab, tab 5. 13 Q That's at tab 5? 14 A Yes. 15 Q And this is again described as "The Journals of 16 Captain James Cook on His Voyages of Discovery", and 17 this is "The Voyage of the Resolution and Discovery", 18 and is that to be found at 306, Dr. Lane? 19 A Yes, the preceding pages are simply there to place -- 20 to give the place and the time at which the text -- to 21 which the text refers at page 306. And this is in 22 April of 1778. And in the last full paragraph Cook 23 says: 24 25 "Here I must observe that I have nowhere 26 met with Indians who had such high notions 27 of every thing the Country produced being 28 their exclusive property as these; the very 29 wood and water we took on board they at 30 first wanted us to pay for, and we had 31 certainly done it, had I been upon the spot 32 when the demands were made; but as I never 33 happened to be there the workmen took but 34 little notice of their importunities and at 35 last they ceased applying. But made a Merit 36 on necessity and frequently afterwards told 37 us they had given us Wood and Water out of 38 friendship." 39 40 Q Is this Captain Cook speaking? 41 A I believe it is. I would need to check, but I think 42 so. Yes. 43 Q All right. And I direct your attention to tab 6, and 44 I would ask you if the account which is described as 45 "A Journal of Captain Cook's Last Voyage, by John 46 Ledyard" also contains a description of the event 47 which has previously been described by Mr. King and 16700 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 Captain Cook? 2 A Yes, it is. Ledyard was another one of the people 3 with Cook and I included this because he gives an 4 interesting description of Cook's reaction when being 5 told about the native people demanding payment and 6 claiming possession of everything in their country. 7 Q And does that reaction appear at page 72 and 73? 8 A Yes, it does. 9 Q And I won't ask you to read the passage to which 10 you've made -- the whole of the passage, but could you 11 just direct our attention to the particular passage? 12 A Yes. It begins, the last paragraph on page 72: 13 14 "When a party was sent to procure some 15 grass for our cattle, they would not suffer 16 them to take a blade of it without payment," 17 18 And goes on to say: 19 20 "nor had we a mast or yard without an 21 acknowledgment. They intimated to us that 22 the country all round further than we could 23 see was theirs." 24 25 And it proceeds to describe the events that we've 26 already had a description of, but what is new in this 27 account is a description of Cook's reaction, and it 28 begins the last sentence on page 72: 29 30 "Cook was struck with astonishment, and 31 turning to his people with a smile mixed 32 with admiration, exclaimed 'This is an 33 American indeed.' And instantly offered 34 this brave man what he thought proper to 35 take; after which the Indian took him and 36 his men..." et cetera, et cetera. 37 38 Q All right. 39 A I read Cook's action here as an acknowledgement that 40 these Indians, like the Americans -- 41 MR. GOLDIE: Well, excuse me, I object. It speaks for itself, 42 my lord. 43 THE COURT: It really does, doesn't it? 44 MR. RUSH: I don't intend to pursue this with Dr. Lane. I 45 would, however, refer Dr. Lane to the next tab. 4 6 THE COURT: You want to do that this afternoon or do you want to 47 keep the usual hours? 16701 B. Lane (for Plaintiffs) In chief by Mr. Rush 1 MR. RUSH: I think we could keep the usual hours, my lord. 2 THE COURT: All right. We'll adjourn then until tomorrow 3 morning at ten o'clock. 4 THE REGISTRAR: Order in court. This court will adjourn until ten 5 a.m. 6 7 (PROCEEDINGS ADJOURNED TO TEN O'CLOCK MAY 24, 198 9) 8 9 I hereby certify the foregoing to 10 be a true and accurate transcript 11 of the proceedings herein to the 12 best of my skill and ability. 13 14 15 Tanita S. French 16 Official Reporter 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