15469 1 April 14, 1989 2 Vancouver, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, Vancouver, this Friday, April 14, 1989. In 6 the matter of Delgamuukw versus Her Majesty the Queen 7 at bar. I caution the witness. You're still under 8 oath. 9 10 HUGH BRODY: Resumed 11 12 MR. JACKSON: My lord, there is a matter I wish to raise before 13 Mr. Goldie proceeds. Immediately at the conclusion of 14 the proceedings yesterday, Mr. Brody advised me that 15 in reviewing the documents in Volume I, the film 16 interviews, there are in fact four -- three tabs, 4, 6 17 and 12 -- I should say, your lord -- my lord, that Mr. 18 Brody had anticipated that he could talk to me before 19 the cross-examination started in relation to this. 2 0 THE COURT: Yes. 21 MR. JACKSON: Tab 4, 6 and 12 were interviews conducted at Mr. 22 Brody's direction, and the film was reviewed by him, 23 the transcripts were reviewed by him, but he was not 24 present at those interviews. My friends may wish to 25 pursue this matter on cross-examination and perhaps I 26 can deal with it in redirect if it becomes an issue. 27 I would submit that the field notes are still properly 28 tendered as part of the material upon which Mr. Brody 29 has based his opinions, the corpus of material. I 30 wanted to alert the Court to that so there was no 31 misunderstanding. 32 MR. GOLDIE: Could my friend tell us who the interviewer was? 33 MR. JACKSON: Yes. The interviewer in all three cases is 34 Richard Overstall. Thank you, my lord. 35 THE COURT: Thank you. Mr. Goldie. 36 MR. GOLDIE: My lord. Perhaps my friend can also advise us 37 about the whereabouts of the tape on the Bear Lake 38 feast. 39 MR. JACKSON: My lord, Mr. Grant is going to deal with that. I 40 see Mr. Grant is coming into court, so perhaps we can 41 deal with that during the break, my lord. 42 THE COURT: Would you answer some questions, please, Mr. Grant? 43 MR. GOLDIE: We were hoping to hear about the whereabouts of the 44 elusive Bear Lake feast. 45 THE COURT: Can you assist us in that, Mr. Grant? 46 MR. GRANT: Yes. I have -- just a moment here. I have checked 47 that these are the tapes and I have the originals to 4 MR. GRANT 5 THE COURT 6 MR. GRANT 15470 1 provide to my friend. 2 THE COURT: I'm sorry. You have the originals to provide to 3 your friend? I have the originals of the Bear Lake tapes. And these are copies that you have for your friend? No. That's what I was endeavouring to do, to 7 arrange for copying. But what I feel I can do is 8 provide my friends the originals with their 9 undertaking to return the originals. That would be 10 the easiest way. 11 MR. GOLDIE: Well, it's of no use to me right now, so perhaps it 12 could be given to Ms. Koenigsberg. 13 MR. GRANT: Yeah. I understood it was Ms. Koenigsberg's 14 request. 15 MR. GOLDIE: Well, it may have been Ms. Koenigsberg's request, 16 but obviously it was a matter of considerable 17 importance in the cross-examination of this witness. 18 MR. GRANT: Which was raised by Ms. Koenigsberg, yes. 19 MR. GOLDIE: Well, you didn't hear my voice in the background 20 saying here, here. 21 MR. GRANT: No, I didn't. 22 MR. GOLDIE: Then does my friend have the complete copy of the 23 December 31st, 1915 Loring letter? 24 MR. JACKSON: My lord, I'm still endeavouring to find that. It 25 seems to have got meshed in the toils of the photocopy 26 machine. I'm trying to rediscover it. 27 MR. GOLDIE: My lord, the first steamer to Hazelton — 2 8 THE COURT: Yes. 29 MR. GOLDIE: -- according to Dr. Largess' book was the Caledonia 30 in 1891. 31 THE COURT: Thank you. I've forgotten about Dr. Largess' book. 32 What's the title? 33 MR. GOLDIE: "Skeena", I think it is. 34 THE COURT: Yes. That's right. I knew his son quite well. 35 CROSS-EXAMINATION BY MR. GOLDIE CONTINUED: 36 Q Mr. Brody, do you have your report in front of you? 37 A Yes. 38 MR. GOLDIE: Would you turn to page 39, please? 39 THE COURT: 39 or 139? 40 MR. GOLDIE: 41 Q I have 39, my lord. Excuse me, my lord. It's page 38 42 of the report. 43 And in the second paragraph, line 4, you say: 44 45 "This is frog and wolf clan country, owned 46 above all" and so on. 47 1 2 3 4 5 6 7 8 9 10 A 11 12 13 14 15 16 Q 17 A 18 19 Q 20 A 21 22 Q 23 A 24 25 26 27 Q 28 29 30 A 31 Q 32 A 33 34 35 36 37 38 39 40 41 Q 42 A 43 44 45 Q 46 A 47 Q 15471 And you may recall that I raised during your examination in chief the fact that in the draft that we had been provided, that the -- that word in the draft was 'claimed' and a discussion arose and you said in the transcript, Volume 211, page 14295, and I quote: "My intention is the word should be owned. It seemed to make better sense of the issue". What do you mean by the word 'owned' in that -- in your use of it there? I'm trying to characterize what it means according to Gitksan law, that is to say within the accounts of this territory given by the relevant chiefs. They make clear that, according to their system, there is an ownership of the territories that encompass Bear Lake. It has no special anthropological sense? Only insofar as I'm remaining within the point of view of the Gitksan. Yes. That is what anthropology is very largely concerned with. And it is your personal conviction? I don't have a personal conviction about ownership over and above who does and doesn't as between the Gitksan and the Sekani-Carrier have ownership of these territories. No. I'm talking about the -- the reason why you changed it from the word -- from claimed to owned was that you accepted -- No. — the — The word 'claim' doesn't do -- doesn't represent properly how the Gitksan, the Miluulak and Nii kyap, in this case, think about this territory. When I first went to Bear Lake, it was with an understanding that there was some sort of confusion of claims among the people. With the benefit of my search there, I understood in fact much more clearly that the houses here have an ownership of the territories according to their laws. Yes. And you have accepted that? I've accepted that their system describes territory that encompasses Bear Lake, thanks to going there and hearing people explain that to me. So the answer to my question is yes? Well, you have to say your question again. You've accepted their claim? 15472 1 A I haven't accepted their claim in relation to anything 2 other than one another. I've accepted the Gitksan 3 have a claim in relation to the Sekani. 4 Q Yes. But you weren't endeavouring to convey any sense 5 of ownership according to the laws of Canada or 6 anything of that order? 7 A No. I'm not writing about that here. 8 Q No. All right. Now, when Mr. Jackson was qualifying 9 you, he went through the experience you had, and one 10 of the first ones was your experience that resulted in 11 a book about the Irish villages. What was that again? 12 A Well, there were two books. There was a book -- or 13 the book you're referring to is "Inishkillane", yes. 14 Q And then in your evidence in chief in Volume 210 at 15 page 14159 -- I should say this is your evidence with 16 respect to your qualifications. You said at line 17 38 -- the question was asked of you: 18 19 "Could you indicate the methodology, I think 2 0 you have given us some indication that you 21 did participant observation. Were there 22 other heads of methodological process which 23 you undertook in your work in Ireland? 24 25 And then you say: 26 27 "Yes. As I said, I did carry out extensive 28 participant observation." 29 30 And you repeated that, I believe, at page 14226. And 31 this is in your evidence in chief. And my friend put 32 this question to you: 33 34 Q "Mr. Brody, in dealing with your first 35 field study in anthropology, in social 36 anthropology" in Ireland, "you 37 identified a number of fronts upon which 38 you moved methodlogically", it's spelled 39 in the transcript. 40 41 And I would just -- I would like to just review those 42 with you. The first front was participant 43 observation. Now, the participant observation that 44 you were undertaking in Ireland was what I would call 45 under cover. That is to say you worked as a barman in 46 circumstances in which the people you were observing 47 were not aware that you were a social scientist? 1 A 2 3 4 Q 5 6 7 8 A 9 10 11 12 13 Q 14 A 15 16 17 18 19 20 Q 21 22 23 24 A 25 26 27 Q 28 A 29 Q 30 31 32 33 34 35 A 36 Q 37 A 38 39 Q 40 41 42 43 A 44 Q 45 A 46 47 15473 The people I knew best, and they would include the people I was observing, did know I was a social scientist. But somebody who came into the pub and ordered something from you and gossiped with his neighbour would not be aware that you were -- the man behind the bar was a social scientist? That's right, they wouldn't. Well, actually in a small -- there's a small community where gossip was a fairly alive force. I think there were few people who would come into the bar who wouldn't know, but it's possible. Yes. Just as it would be possible in my work with the Gitksan. If I was in the bar in Hazelton or on the river anywhere or I was at Kisgegas, say, for example, all the people fishing, not all the people there in the fishing site would know who I was. Once again, the gossip is pretty hot. Well, there is a difference though in the case at bar. You were introduced into the community as a social scientist or as a person who was going to do a film which would support their claims? No. I don't think I was introduced into the community in any formal way. I was retained by an organization that was a community organization. Yes. But not -- I'm not suggesting-- when I said "introduced", I'm not suggesting in a formal way in which the people were asked to come to the town square and you stood on a platform, but you, after all, were a white man in the middle of the native community and everybody knew who you were; isn't that right? Everyone knew who I was? Yes. No. I wouldn't say so. No. I wouldn't say so at all. And I wasn't the only white man. No. I'm aware of that. But you were -- you were present. You interviewed people. Is there anybody you interviewed that didn't know who you were and why you were interviewing them? Oh, yes. Who? There would be persons who I would be just chatting to. I remember being in, for example -- one example leaps to mind being in New Hazelton. I can't remember 15474 1 why I was there. I think I had gone to get gas or 2 something in the petro station and having a long 3 conversation about the fishery in the Skeena just 4 above Glen Vowel. We fell into conversation the way 5 you do in those communities and we had a really 6 interesting conversation. I think it was Ernie -- I 7 found out his name subsequently. Ernie Hyzims, I 8 think. And he had his family with him. We talked to 9 them. I remember thinking afterwards it's amazing how 10 you get into -- how you do interviews. 11 Q Is there anybody whose interviews you relied upon 12 didn't know who you were and why you were there? 13 A I was never sure that some of the oldest people knew 14 quite why I was there, but insofar as I could, I tried 15 to explain the nature of my research. But I think 16 probably most of the people I interviewed would have 17 known that I was working as part of a general research 18 project going on in the area that was associated with 19 this and other matters. 2 0 Q Having to do with land claims? 21 A Yes. Land claims research had been going on in the 22 area since '81, '82. 23 Q Yes. Now, the -- and had been going on and was the 24 subject-matter of the film proposal you put in 1980? 25 A I don't believe it was the subject-matter of the film 26 proposal. I don't recall there being a proposal that 27 characterized the film in that way. 28 Q There may have been, but you don't recall it? Is that 29 correct? 30 A Oh, you made a statement. Sorry. I didn't realize 31 you were asking a question. Yes. There may have 32 been, but I don't recall it 33 Q Now, the participant observation that you rely upon in 34 expressing your opinions here is not the same kind of 35 participant observation that you conducted in Ireland, 36 is it? 37 A No. I'd say it wasn't in certain regards, not as 38 extensive to start with, but it is observation 39 relative to the whole project in the west of Ireland. 40 We played a much larger role in northwest B.C., 41 largely because of change in my family circumstances. 42 I wasn't able to do the kind of participant 43 observation I had done there and other places. It was 44 a less prominent aspect in my work. 45 Q Yes. And the -- one of the contributing factors, 46 apart altogether from your inability to be in the area 47 for the length of time that you might have liked to 1 2 3 4 A 5 Q 6 A 7 Q 8 9 A 10 Q 11 12 13 A 14 Q 15 A 16 17 18 19 Q 20 A 21 22 Q 23 A 24 Q 25 A 26 27 28 Q 29 30 31 A 32 33 Q 34 35 A 36 Q 37 38 39 40 41 A 42 43 Q 44 45 46 47 15475 have been, was the language question. In Ireland, for instance, you -- your book indicates that your principal work was done in an English-speaking -- Bilingual, two community, one bilingual. The other -- English? -- English was the dominant language, yes. And you don't claim to be fluent in either Gitksan or Wet'suwet'en? No, I do not. And the person who conducted the interviews that were identified by Mr. Jackson this morning, 4, 6 and 12 in Volume I, who is that please? Richard Overstall. And is he -- what is his occupation? He was administrator with the tribal council and doing some of the co-ordinating work and provided a lot of the back-up help with the film making, arranging for tickets and expense accounts and so on. And he was the co-ordinator for the land claims work? I didn't know that he was. For all the land claims work you're saying? I beg your pardon? The co-ordinator for all the land claims work? Yes. Then you may know more than I do. I know with relation to the film he was credited as one of the producers and that's what he was. Yes. In your draft in certain references to footnotes, you say "R.O. to supply". That would be Overstall? Yes. Richard Overstall has a great deal of knowledge of where sources can be found and so on. And wasn't he -- you met him during the course of the McKenzie Valley pipeline Inquiry? No. No, I didn't. I met him long after that. All right. Now, the third front is archival work and we'll come back to that. And the fourth front in your -- in your evidence did you mean to suggest that you conducted formal interviews in your Irish experience? I can't remember if I did or didn't. It's a very long time ago. Yes. Well, I'm referring here to your evidence in chief where Mr. Jackson started off by referring you to your work in Ireland and said he would like to review with you whether -- and if you could indicate whether or not these were fronts which you utilized in 15476 1 the work you'd done in preparation for your opinion 2 report. I'm at transcript 210, my lord, page 14226. 3 The first front was participant observation and then 4 the question of language, the third approach analysis 5 of archival records and then page 14228 in answer to 6 the question: 7 8 "Interviewing, was that a technique you 9 employed? 10 A Yes, I did a great deal of interviewing. 11 I did lots of informal interviewing, 12 conversations of the ordinary 13 anthropological kind in the course of 14 visiting and participating." 15 16 Were you addressing -- was that answer addressed to 17 your experience here or your experience in Ireland? 18 A Can you tell me from the transcript, or perhaps you 19 can show it to me. 20 Q I can't. It's an ambiguity I'm going to ask you to 21 clear up. Line 3 is the beginning of your answer. 22 A It looks as though -- from the context here that I'm 23 referring to the work that I did in northwest B.C. 24 Q I see. We can put the Irish experience out of -- to 25 one side, because my reading of your book is that you 26 didn't do any formal interviews in Ireland? 27 A I think I did. 28 Q If you wish -- 29 A In the pause there I was trying to recall. 30 Q I'm going to show you -- my lord, I'm going to hand up 31 a book of documents. 32 A It's been a long time since I looked at this. 33 MR. GOLDIE: I'm showing you a photocopy of page 2 of the book 34 "Inishkillane" and paragraph 2, you say -- 35 MR. JACKSON: Which tab is this, Mr. Goldie? 36 MR. GOLDIE: 37 Q Tab 1. I'm sorry. I am referring you to page 2, 38 paragraph 2. 39 A Tab 1, is it? 40 Q Yes. I -- about the fifth line, you say: 41 42 "But a parish in West Clare and a parish in 43 West Cork, both exclusively 44 English-speaking, became the centres of my 45 work." 46 47 You agree with that, of course, do you? 1 A 2 Q 3 4 5 6 7 8 9 10 11 12 13 A 14 Q 15 16 17 18 19 20 21 22 A 23 Q 24 25 A 26 Q 27 28 29 A 30 Q 31 A 32 Q 33 A 34 35 1 36 Q 37 38 39 40 41 A 42 4 3 MR. GOLDIE 44 45 ] 46 47 15477 Yes, yes. "In sociological terms, this work was participant observation. I lived and worked in the communities as a visitor or additional hand, never as an investigator. No interviews were ever set up, and no formal investigations were ever undertaken with the people as a whole or with any section of a community." So that the Irish experience in that respect is of -- Very heavily based on participant observation. Yes. In your qualifications you refer to the Apsassin case, and one of your references to your opinion is with respect to your -- one of your references in your opinion here is with respect to your opinion in that case. My understanding is that in that case you were called by the plaintiffs to express opinions with respect to the Dunne-Za or Beaver Indians who lived in the vicinity of Fort St. John? That's right. Beaver and Cree. Beaver and Cree, yes. But the Beaver Indians are Athabascan? That's right, yes. And you lived for a good part of the period of 1977 through 1980 at the Halfway River Reserve with this band? '78 to '80, I think, '79, '80. I see. Well, I was going by your curriculum vitae. There's a mistake in the C.V. there. A period of about, what, 18 months? Over a period of about 18 months, and it wasn't continuous. I was working other communities; I was doing archival work and so on. From Mr. Jackson's letter to us of March the 31st, I understand that -- from that I understand your field interviews were all in the period August to November, 1985, including the visit to Kisgegas. Does that accord with your recollection? No. The field interviews -- you mean the film interviews? : No. What he has described in his letter as field interviews, Marvin George, Mary Anne Alec, Mary McKenzie and Earl Tremblay to such Mary McKenzie, they're all introduced with -- under the heading "August to November, 1985". I'll show you the letter 15478 1 in question. 2 MR. JACKSON: Perhaps it might be more helpful, my lord, if Mr. 3 Brody reviewed the index to the Document Book I, which 4 I think follows the same classification and it is my 5 classification. 6 MR. GOLDIE: 7 Q Well, do you want to look at Volume I? 8 A Well, perhaps you should pass it up here in case I 9 need it. 10 Q I prefer not to think that Mr. Jackson made a mistake. 11 Well? 12 A What's your question? 13 Q August to November, 1985? 14 A Well, I was doing field interviews. Depends how we 15 define field interviews. 16 Q I'm talking about the documents you say you relied 17 upon and which you put in evidence here. 18 A The documents that are listed there include many that 19 come from '85, '86. I was, of course, working in the 20 area in '83 doing interviews, field interviews, and my 21 work in '85, if I remember, began in spring of '85. I 22 can't remember quite when. I remember it was before 23 the salmon came in. 24 Q You have produced no notes of interviews in 1983 and I 25 just want to have your confirmation that what is set 26 out in Mr. Jackson's letter, field interviews numbered 27 1 to 23, which includes the Kisgegas visit and the 28 Kisgegas gravestone, were all conducted between August 29 and November, 1985? 30 A I seem to remember somewhere in July, but, yeah, if 31 that's -- they're all dated, I think those ones that 32 are in, so if those are the dates, those are the 33 dates, but it's clear in my mind that some are in 34 June, July. 35 Q Let's look at the next group called "Field Notes 1 to 36 18". And those range from July the 4th, 1985 to 37 December the 2nd, 1986. 38 A Yes. Those are the ones I had in mind, I suspect, 39 yes. 40 Q And then correspondence -- other documents, including 41 archival documents, are not yours. They are documents 42 which you relied upon? 43 A That's right. 44 MR. GOLDIE: Yes. All right. 45 MR. JACKSON: It might assist, Mr. Goldie, as I recall drafting 46 that letter, the initial head on page 1 should have 47 been film interviews, and that mistake, I think, has 15479 1 been tracked into the letter and into Tab 1 of -- into 2 the index of Document Book I. That was my attempt to 3 distinguish between film interviews and the rest of 4 the body of material which Mr. Brody provided me. 5 MR. GOLDIE: 6 Q Well, this is one of those trivial things. The items 7 under field interviews, August, November, 1985 refer 8 not only to people but to opening of carving house, 9 Kisgegas visit, Kisgegas' gravestone, and I didn't 10 understand that all of those were film — for the 11 purposes of the film, but if that's what it is, I'm 12 glad to have my friend's -- 13 A That's right. That explains my difficulty. I was 14 wondering what had happened to June and July and the 15 following December. Yes. That was the film 16 interviewing period. 17 MR. GOLDIE: All right. Thank you. And then we come to field 18 notes which extend from July the 4th, '85 to December, 19 '86. And are those the ones that you particularly did 20 with a view to your report here? 21 MR. JACKSON: Could that be placed before the witness? 22 MR. GOLDIE: Yes. 2 3 MR. JACKSON: He has it. 24 THE WITNESS: Easier if I looked at yours. A flood here. 25 MR. GOLDIE: 26 Q All right. Now, looking at the -- under B, these are 27 classified as field notes. They start off with 28 Solomon Marsden, December 2nd, 1986 meeting at Old 2 9 Hazelton. And then you go on down to interview with 30 Johnny David September, '86. But included in there 31 are interviews which start in July of 1985. And are 32 those the interviews that you -- or notes that you 33 took with respect to the report that you'd presented 34 here? 35 A Yes. 36 Q Thank you. Now, the other -- and then you told his 37 lordship that you had undertaken archival research and 38 you place some emphasis on Barbeau Beynon. Where did 39 you undertake that work? 40 A I did that in Hazelton. 41 Q The tribal council have a selection of Barbeau Beynon? 42 A They had the complete thing and the index. 43 Q And how long did you undertake -- did that work take 44 you and when did you do that? 45 A It took a long time. 46 Q Is that in '85, '86? 47 A Yes. I really would have to search out of my memory 15480 1 to think of the dates. I didn't work on it 2 continuously. It's very, very arduous work, as I'm 3 sure you know, and I do a piece of it and then I do 4 another piece and so on. 5 Q And then Volume III, which has been tendered here, are 6 a number of documents which are -- some of which are 7 Crown documents. And where did you do that work? 8 A Well, some of the documents that were useful, 9 interesting were coming my way throughout the whole 10 period of the work. 11 Q You mean you were being -- they were being referred to 12 you? 13 A No. I was finding them. When I started work in '83 14 in the tribal council, the library there was full of 15 documents that had just accumulated. McKenna-McBride 16 was there. There were at least one set of the Loring 17 papers, I think the papers that Barbeau collected from 18 Loring, odds and ends of paper, I have to say in a 19 rather disorganized form, and I sifted and sorted and 2 0 read and tried to find out what I could. And that was 21 an important source of -- 22 Q And trapline documents? 23 A Trapline documents I looked at there, and then I 24 looked at two boxes of trapline documents in Smithers, 25 trapline documents I also looked at when I was working 26 in northeast British Columbia. There was a big 27 overlap of documents, all the documents that were in 28 Prince George pertaining to the region, the northwest 29 region, and then I had access to documents in the 30 provincial archive in Victoria. 31 Q You said "access". You mean you went to the archive? 32 A No. I had a research assistant whom I directed. I 33 was the -- pressed beyond endurance at this point and 34 I knew that there were two big collections of 35 documents in Victoria; that I needed to have some good 36 sense of the IG 10 files and Fish and Wildlife files. 37 Q Now, I'm trying to get a sense of the period that you 38 spent with respect to the film and the case. You 39 don't have a diary or anything like that, I take it? 40 A No, I don't. I don't keep a diary, no. 41 Q Would it be fair to say that you embarked upon some 42 research in 1983 with a view to the film? 43 A No, no. I don't think so. I embarked upon research 44 in 1982 with a view to helping provide a background 45 account of Wet'suwet'en life and economy. It was -- 46 I'm sure in my mind that it would be exciting to do a 47 film in that area because I've always liked the area a 15481 1 lot and it's beautiful and so on. 2 Q You received a letter from Mr. Sterritt? 3 A Yes. I talked about his enthusiasm about doing a 4 film, but the '83 work was not in any way linked to 5 doing a film. It was linked to the Kemano Project. 6 Q All right. But then in '85 you got the go ahead on 7 the film and that's what the documents that are in 8 Volume I refer to? 9 A No. I didn't get the go ahead on the film until late 10 '85. In fact, it looked as though the film was not 11 going to go ahead until, I think, about two weeks 12 before we began filming. The first response from -- 13 we were getting the funds together and it looked as 14 though they weren't coming together, so I conducted 15 all the research spring, summer, '85 thinking the film 16 probably wouldn't happen, hoping it would, and then 17 suddenly the funds were there. 18 Q And then you did a considerable amount of work in '86 19 after you had been instructed to prepare a report? 20 A Well, I did work all through '85 on aspects of this. 21 Q Aspects which would be useful in the report? 22 A Yes. I'm researching all the time in that period. 23 Q Yes. And in April of '86, as we have seen, you 24 entered into a contract with the tribal council to 25 produce the report? 26 A That's right, yes. 27 Q Yes. And you're unable to assist me by giving me a 28 sense of the elapsed time that you spent doing work in 29 connection with this case and the film other than the 30 statement that you have made at several times that 31 your participant observation wasn't as extensive as 32 you would have liked? 33 A Well, I lived in the area in '83. 34 Q For how long? 35 A From September to Christmas, a short visit, and made a 36 visit in '84. There were two visits in '84 that were 37 short visits, and this is all exploring background 38 still, and then began continuous work in spring, '85, 39 remained in the area until mid-September, then worked 40 in London on the material we generated in August, 41 September, '85 until January, '86, then went back to 42 Hazelton spring of '86 to resume work in the field and 43 to work out how I would do a longer period and 44 arrangements of bringing the family over and so on, 45 and we all moved over there in September -- August, 46 '86 and remained until March, '87. 47 Q Well, the summary of your opinion is dated January the 1 2 3 4 5 6 7 8 9 MR. 10 MR. 11 12 MR. 13 14 15 16 17 18 THE 19 THE 2 0 MR. 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 A 15482 15th, 1987? Yes. All right. And you rely upon a number of the plaintiff's other experts in your opinion, do you not? Heather Harris is very important to me. And Susan Marsden? Susan Marsden, she was useful because of her immense understanding of the adaawk and -- GOLDIE: And Barbara Lane? JACKSON: I don't think Mr. Brody finished his question in relation to Susan Marsden. GOLDIE: Q I'm not particularly interested in the areas. I just want to know if he relied upon them, that's all. A It's a matter of great importance to me the way in which I did and did not rely on people. It goes to the — COURT: Mr. Goldie's question was as to who you relied upon. WITNESS: Then I misunderstood. Then continue. Sorry. GOLDIE: Q Heather Harris? A Yes. Susan Marsden, Barbara Lane? Very, very small ways, yes. Anybody else? I would sometimes seek advice from Bob Galois on historical matters. And Mr. Morrell? Advice on biological matters. Yes. And Mr. Overstall provided you with some references? Yes, because of his knowledge of some of the detail, yes . And it was to him that you provide the summary of your opinion? Through him? Through him, yes. I don't understand what you mean through him. I said was it to him that you supplied — you submitted the summary of your opinion? No. I think it was to Mr. Rush. All right. Did Mr. Overstall have any comments to make with respect to either your summary or the final opinion? Yes. I think he probably did. Editorial comments and assistance? Editorial comments, certainly. He's a good editor. Q A Q A Q A Q A A Q A Q A Q A Q A 1 Q 2 3 4 A 5 6 Q 7 A 8 Q 9 10 11 12 13 A 14 15 16 17 18 19 20 21 22 23 24 25 Q 26 27 28 A 29 Q 30 A 31 Q 32 A 33 Q 34 A 35 Q 36 37 A 38 39 40 41 42 43 44 Q 45 46 47 15483 Was he responsible for any of the deletions that you made in the final report as compared with the draft that we were supplied with on March the 31st? No. No. I'm the only person responsible for deletions, apart from a typo. Another person that you relied upon was Antonia Mills? For some Wet'suwet'en genealogy, yes. Part of the deletions that I see as between the draft and the final report is the references to the experts with the exception, I think, of Heather Harris. Despite the deletions you -- the report represents whatever advice and reliance you placed upon them? The report, like all anthropological work of this kind, depends upon many kinds of expertise. It doesn't rely upon the expertise usually in an extensive way, but it does depend upon expertise. There are things I don't know about salmon. There are things I don't know about the adaawk that are not within the area of my own particular inquiry. Genealogical information is incredibly complex and elusive and I require help in these kinds of areas. And with a view to archives, for example, a person who has really good firsthand experience of a archive can be very helpful. Yes. All right. Well, let me go back to the Apsassin references that you make. I think the Beaver are Athabascans? That's right, yes. And as are the Wet'suwet'en? Yes. In language you mean? Well, in derivation, if I may put it that way? Yes. You agree with me on that? Yes. Do you say your study of the Beaver people assisted you in your study of the Wet'suwet'en? All anthropological work is cumulative and every study helps the next one. There are ways in which the study of the Beaver help study the Wet'suwet'en, because the work among the Beaver had given me a good sense of the seasonal round of Athabascans and where summer gathering place fits into the seasonal round, for example. I believe you characterized the Beaver as being able, in common with all other Athabascan societies, to use their flexibility and extensive hunting territories to keep themselves well hidden from prying eyes. I'm 1 2 3 4 5 A 6 Q 7 8 9 10 11 12 13 14 15 16 A 17 18 19 20 21 Q 22 23 24 A 25 26 27 28 Q 29 30 31 32 33 34 A 35 36 37 38 39 Q 40 41 42 43 44 A 45 Q 46 47 A 15484 referring to Tab 2, my lord, which is Mr. Brody's opinion on the Apsassin case. And on page 2 you -- the second paragraph. And do you see the page 2 at the -- not the second paragraph, the bottom paragraph? Above the quote, the quote on page 2? Below the quote on page 2, the last three lines. You say: "At the same time, in common with all other Athabascan societies, the Indians of northeast British Columbia use their flexibility and extensive hunting territories to keep themselves well hidden from prying or judgmental eyes." There's a qualification required here of Athabascan. I realize, as I'm looking at it, it should be northern or interior Athabascan societies. This wouldn't apply to coast Athabascan or southwest United States Athabascan. Well, I don't know anything about the Navahoe or the southwest United States Athabascan, but do you include the Wet'suwet'en? No. I would not regard them as coastal Wet'suwet'en -- coastal Athabascan. It wouldn't apply in the same way to the Tahltan, for example, or the people to the south of the Wet'suwet'en. Well, I had the impression from your opinion -- and I'm referring to page 26 of your opinion where you talk about the invisibility to outsiders of Gitksan and Wet'suwet'en jurisdiction. I had the impression that you were extending this invisibility from prying eyes to the Gitksan and the Wet'suwet'en? Not by virtue of the same circumstances anthropologically. There is an anthropological line to be drawn and it is often drawn between the interior Athabascan and the peoples on the coast, which isn't to say there aren't cultural traits that are shared. You -- you said with respect to the Beaver that they were a fascinating combination of mobility and extensive hunting territories and some are residents at a predetermined meeting place. Wasn't that the way you characterized the Beaver? Yes. Yes. Isn't that the way you characterize the Wet'suwet'en? No. The Wet'suwet'en have a summer gathering place or 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Q 15 A 16 17 Q 18 19 20 21 22 A 23 Q 24 A 25 26 27 Q 28 A 29 30 Q 31 A 32 33 Q 34 A 35 Q 36 37 38 A 39 Q 40 41 42 43 A 44 Q 45 46 47 15485 thing that looks like a summer gathering place in the form of Moricetown, because I think I pointed out in my evidence the other day that summer gathering place is not of the same status as is that summer gathering place among interior Athabascan people, simply by virtue of it being a major economic resource. The Moricetown and Hagwilget communities are centres of economic life and there are a number of consequences that flow from this anthropologically, including a preoccupation with territoriality. Once there is a preoccupation with territoriality, then you cease to have that simple coincidence between coast Athabascan and interior Athabascan. Yes. Well, we'll come to that. I think it's important that I make clear what the answer to the question is. That's very helpful. You also characterize the Beavers as a hunting system which despite a multitude of pressures as late as the 1940's represented the most complete hunter-gatherer system anywhere in the new world? What page are you on there? 3, the second-to-last paragraph. Yes. I'm referring to the 1940's. I say: "It could be argued that they represented this extreme clear form of hunting-gathering system", yes. Yes. You agree with what I've said? I agree that what I'm saying is in the 1940's it could be argued that. Yes. I believe I -- I can't remember exactly what you said. I'm reluctant to agree to your referring to what you say. Well, I'll try and overcome that. Thanks. The -- you appear to classify both the Wet'suwet'en and the Gitksan as falling in part within this category of hunter-gatherers? Yes. And the -- the Beaver hunter-gatherers had a system which saw dispersal through the hunting grounds and small groups and, as you put it a few minutes ago, concentration in a traditional spot in the summer? Yes. Yes. That's right. Yes. You put it this way in the Apsassin opinion, page 5, the second to last -- or the third complete paragraph. You said, and I quote: 15486 1 "Throughout the seasons I have thus far 2 described Dunne-Za families would be 3 scattered in small groups rarely of more 4 than five or six individuals. With the 5 arrival of summer, however, all the small 6 groups made their way to summer gathering 7 grounds." 8 9 Now, with with respect to the Wet'suwet'en, you put it 10 in somewhat similar terms, did you not? 11 A Can you show me where? 12 Q Page 61. You say -- in the paragraph that begins with 13 "The seasonal round", you say: 14 15 "The seasonal round of resource harvesting 16 for the Wet'suwet'en has much in common with 17 some other Athapaskan groups." 18 19 And then you include the Dunne-Za in that group, don't 20 you? 21 A That's right, yes. 22 Q And you go on to say: 23 24 "Athapaskan families spend most of each 25 year - from autumn dry-meat preparation, to 26 winter hunting and trapping smaller species, 27 to spring Beaver harvest - moving in small, 28 nuclear family groups, from cabin to cabin, 29 or between villages of five or six houses 30 inside the territories. The Wet'suwet'en 31 seasonal round typifies this pattern, and 32 demonstrates the flexibility characteristic 33 of many northern hunting peoples." 34 35 That's very similar to your description, and indeed 36 you make specific reference to the Beaver people? 37 A Yes. There is a similarity. 38 Q Yes. 39 A Apparent similarity. There is, of course, immense 40 difference also that pertains to these issues, 41 especially to the moving around and what shapes the 42 moving around and the concern with territory and the 43 nature of the territoriality that shapes them moving 44 around. So here I am looking at that. The whole 45 purpose of this passage is to look at that in 46 Wet'suwet'en society which is shared amongst 47 northern -- many northern hunting peoples. 1 Q 2 3 4 A 5 Q 6 7 8 9 A 10 11 12 Q 13 A 14 15 16 Q 17 18 19 A 20 Q 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 A 41 Q 42 43 44 A 45 46 47 Q 15487 Yes. There are a number of differences, of course. For instance, the Beaver use their hunting territories as a common territory, don't they? Simply stated, yes. And indeed that was so until there was trapline registration in the Beaver area; that they -- they use the hunting territories without regard to internal boundaries? There were family conventions always, it seems, among the Beaver and trapline registration made little difference to those boundaries. I'm sorry. I didn't pick that up. The trapline registration made surprisingly little difference to the way in which the Beaver use their land. Well, didn't you suggest to the Court in the Apsassin case that the confinement to smaller areas arising out of trapline registration would divide the people? Whereabouts is this, if you can show me? Tab 3, page 1839, my lord. It's the first page under that. His lordship put this observation to you: "I don't understand how the confinement then to smaller areas would divide the people. Would you explain that, because it seems to me that at first blush the wider the area you're roaming about, the more you're likely to be divided. That's what I don't understand." You said: "The more you're roaming, the more the hunting system can work well and the more that as you roam, you will criss-cross with other peoples paths. I guess that's what I have in mind." You see that? Yes. You were describing, were you not, the — what you consider to be the adverse effect of the trapline registration which would inhibit this roaming? Insofar as people were trapping on their registered traplines, this would mean that they didn't meet so often -- Right. 1 A 2 Q 3 4 5 A 6 Q 7 8 9 10 A 11 Q 12 A 13 14 Q 15 16 17 18 19 20 A 21 22 23 24 Q 25 A 26 Q 27 28 A 29 Q 30 31 32 33 34 35 A 36 Q 37 38 39 40 41 42 43 44 45 A 46 47 Q 15488 -- in the winter as they might have before. And you were contrasting that with the criss-crossing that went on when people were using the territory -- the territories in which they hunted as a common? That's right. Now, of course, with the Wet'suwet'en it is said to -- there is said to be a rigidly exclusive possession of internal territories marked in -- possessed by clans or houses? Are you asking me a question? Yes. Is that a correct characterization? Well, I think it's a bit more complicated than that, as I said. Well, it may be more complicated and you can explain why it is more complicated, but would you agree with me as a general proposition that the Wet'suwet'en system is characterized by a rigid sense of exclusivity marked by internal boundaries based upon clans or houses? There is a strong sense of exclusivity. I'm bridling at your use of the word 'rigid', I think, because within Wet'suwet'en law, there are provisions, as you know, through Neggedeldes. Take out the word 'rigid'. Fine. And you characterize -- you'd agree with that characterization? Yes. Right. As you put it at -- well, I -- now, another aspect of this that I want to draw your attention to was that in your evidence in the Apsassin case, you said, if I understand it correctly, that there are no chiefs in any sense with the Beaver. Am I right in that? I'd like to have a look at where I said this. All right. If you'd look under Tab 3, the last page, 1923. This is just the last page of a considerable exchange, but my understanding is that your evidence was to the effect that the Beaver did not have a decision-making process as we understand it and you had described how when people go hunting, it is not an apparent decision. It is all virtually spontaneous, I won't say combustion, but mental telepathy; is that right? It isn't planned in the way in which we would plan things, that's right. And his lordship said: 15489 1 2 "Yes, but that's very nice to go carefully 3 and slow, but you've got to go somewhere. 4 What are you going to do? What do you do?" 5 6 And you said: 7 8 "Let me be precise. He"... 9 10 Now, you're talking there about an anthropologist or 11 somebody who is going to explain things to these 12 people. 13 14 "He would say you have to talk to all the 15 people individually. There isn't a person 16 who represents them. That's what he would 17 have said. There cannot be a person who 18 represents this kind of culture. It doesn't 19 make anthropological sense." 20 21 Now, without going into your evidence in great detail, 22 would you not agree with me that you emphasized that 23 these Athabascan peoples did not have a hierarchy of 24 decision making or chiefs? 25 A Yes. 26 Q Yes. And this was evidence that you were giving in 27 support of the claim in that case that their consent 28 had thought not been given to a surrender? 29 A I think my evidence was suggesting that getting 30 consent would be a rather complicated matter in a 31 culture that didn't have a hierarchy or a system of 32 representatives. 33 Q Now, in any event, your -- your evidence, as you've 34 described it a minute ago or as I described it to you, 35 and as I understand you agreed, has marked this 36 absence of this hierarchical decision-making process 37 in the Beaver culture? 38 A My evidence sought to describe how the decision making 39 does work and doesn't work among the Beaver people, 40 and part of the problem of describing the 41 decision-making process, I think in my evidence, was 42 that the idea that there was -- that there isn't a 43 hierarchy and that creates problems and -- of 44 description and process. 45 Q And there weren't really chiefs? 46 A Among the Dunne-Za? 47 Q Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 4 MR. 25 26 27 28 29 30 31 THE 32 MR. 33 THE 34 MR. 35 36 37 38 39 40 41 42 43 44 45 46 47 15490 A No, there weren't. Q And in retrospect now, would you say that your failure to identify a decision-making process was simply something that illuded you or are you still of that opinion? A My opinion is based on my extensive work in the area. Q I'm asking you, as you're giving evidence today, would you now say there was a subtle and distinctive process of decision making that escaped my observation at the time? A Well, I always said there was a subtle decision-making process, and my evidence in my research into the Dunne-Za culture indicated to me that this was a decision-making process that was very hard to describe and very difficult to understand. I think that is at the heart of what I'm doing. Q Well, the point about it is that you took the view that there was no institution for collective decision making with the Beaver? A That's right. That doesn't prevent there being a subtle process of decision making. I'm asking questions about the institutions, not about decision making per se. GOLDIE: At page 1915 there is a quotation from your written opinion that was filed as an exhibit, and you say: "Moreover, these were people who had no procedure that fits Euro-Canadian conceptions"... COURT: Sorry. Do I have that, Mr. Goldie? GOLDIE: Yes. It's under Tab 3, my lord, and there are -- COURT: I still have 1839 in Tab 3. GOLDIE: Q If you start with 1839 and just keep on going, it comes to 1915. Do you have it, Mr. Brody? A Yes. Q You -- the question that was put to you quoted from your opinion; is that not correct? A That's right. Q And your opinion reads: "Moreover, these were people who had no procedure that fits Euro-Canadian conceptions of consent. They did not use voting and had no decision-making 1 2 3 4 5 6 7 8 9 10 11 A 12 Q 13 14 15 16 A 17 18 19 Q 20 A 21 Q 22 A 23 Q 24 A 25 Q 26 27 28 A 29 Q 30 31 A 32 33 Q 34 35 36 A 37 38 Q 39 40 41 42 A 43 44 Q 45 A 46 Q 47 A 15491 institutions at which consent could be reached. Dunne-Za/Cree culture does not have any equivalent to government or managing bureaucracy. Just as there are no persons with these kinds of roles, there are no places, no scheduled events, where groups would convene in order to make collective decisions." That was and is your opinion? Yes. But your evidence here with respect to this particular Athabascan society, the Wet'suwet'en, is there is a visible institution of authority and decision making, namely the feast; is that right? I think, yes, that on the whole the institutions of the Wet'suwet'en society are much more visible than the institutions of the Dunne-Za society. Yes. An example of that is the feasts. The feast? An example of the institutions. Is the feast? Yes. Yes. And that is an essential part of the evidence that you're giving in support of the plaintiff's claim, isn't it? What is an essential part? That the feast is a visible means of decision making and is an institution of authority? That's one of the conclusions I came to in the course of working in the area. Yes. But it is an essential part of the conclusions that you reach in your opinion with respect to the continuity of this culture? One of the things that has continued in spite pressure based upon it is the feast, yes. Yes. Now, one other aspect about the -- these two Athabascan cultures to which you have referred, is it so that a mixed economy characterizes the Beaver today? I've done a lot of work into the mixed economy among the Beaver, yes. I'm sorry. Is the answer to my question yes? Mixed economy is a feature of Dunne-Za life. Today? Well, when I was last there. 1 Q 2 3 A 4 Q 5 6 A 7 8 9 10 11 Q 12 13 A 14 15 16 17 18 19 Q 20 21 A 22 Q 23 A 24 Q 25 A 26 27 28 29 30 31 32 33 34 35 36 Q 37 38 39 40 41 42 43 44 45 46 47 15492 Well, it was your opinion that it has been so since the 1940's? Yes. That is to say coinciding with the arrival of white spread settlement in their area? You could say that the mixed economy goes back to the early days of the fur trade, so from predate 1940. I mean insofar as trading becomes an element in Dunne-Za economy, then it's a mixed economy, and guiding. A mixed economy is a slowly evolving phenomenon. Yes. But for a hunter-gatherer, a mixed economy is marked by involvement in farming; isn't that correct? No. Involvement in a whole range of economic sectors. Farming would be one such possible sector; trapping could be another, wage labour, transfer payments and so on. I mean the whole point of the mixed economy analysis is that it locates the economy as a series of sectors. Yes. But you singled out farming when you were talking about the Beaver? It was particularly significant for many of them, yes. It was a hallmark for you of a mixed economy? No. I don't think so. What was or is? I think I just said the whole point about the mixed economy is that it is a slow evolution of economic sectors. You become with all contact of hunting and gathering, trapping for trade in the case of the Beaver. In the case of the Wet'suwet'en, trade long predates contact. In the case of the Beaver, trapping for trade becomes a sector in the economy and then as you follow the history of the economy of the people, in this case between the Dunne-Za, as I understand, one can see how other elements come in, other ways of earning a living, spending, economic -- Page 1842 you were asked a question. That is under Tab 3, my lord. You were dealing with the last of four topics and Mr. Pape was asking you about the coming of sufficient numbers of farmers and the erection of fences, and so on, and the clearing of land in the area around the summer gathering place. "What impact did that have on the role or the importance of a summer gathering place for the people? A It wouldn't make it less important. It might make it more important insofar as 15493 1 the people who went to the summer 2 gathering place wanted to play their 3 part in the agricultural frontier, and 4 it's worth saying that the mixed economy 5 in the 1940's -- the Indian mixed 6 economy -- already shows Indians working 7 for farmers." 8 9 So you paid some attention to that aspect of it, 10 didn't you? 11 A Yes. 12 Q Now, the Wet'suwet'en became involved in a mixed 13 economy with the arrival of the first settlers in the 14 Bulkley Valley? 15 A Well, once again, the fur trade is part of 16 Wet'suwet'en life. Trading with other cultures is 17 part of Wet'suwet'en life before any white settlers, 18 so the economic structure of Wet'suwet'en life is 19 quite different from the economic structure of 20 Dunne-Za life, but the mixed economy, as I'm using the 21 term, would become relevant to the analysis of 22 Wet'suwet'en life once they're involved in the fur 23 trade with Europeans. 24 Q Yes. All right. I'm going to come to that. But with 25 particular participation in agricultural economy, it 26 would be the arrival of the white settlers who were 27 engaging in that activity that would be important? 28 A As I understand it, the Wet'suwet'en were guides and 29 packers for people coming to the area before there was 30 much agricultural settlement and kept horses for this 31 purpose, cleared land, made hay fields and so on. So 32 there's a way in which some of the old Wet'suwet'en 33 villages, for example -- and I think Dizkle, 34 Barrett — 35 Q Which is the first one, please? 36 A Dizkle. I'm hesitating because I'm not sure how you 37 spell Dizkle. 38 Q That's the mythical village, is it? 39 A The one for which the archaeologists have been unable 40 to find that -- well, I may be mistaken. I thought 41 Dizkle continued to be a village of which people 42 lived, three or four families lived there. The 43 Lehtait is another one. These are all places where 44 Wet'suwet'en had cleared land and grew hay to keep 45 horses, and this may predate the agricultural frontier 46 as far as horses might have been useful for other 47 purposes. 1 Q 2 3 A 4 5 Q 6 7 A 8 9 Q 10 11 12 13 14 15 A 16 17 18 Q 19 A 20 Q 21 22 A 23 Q 24 A 25 26 27 28 Q 29 30 31 32 33 34 35 36 A 37 Q 38 39 40 A 41 Q 42 A 43 44 Q 45 46 47 15494 It was the reflection of the introduction of the horse? The horse came into the area -- came into northwest British Columbia before Europeans did. Well, that's not the evidence in the case so far, Mr. Brody. I may be mistaken. It was my understanding from my work in northeast British Columbia. Mr. Joseph has told us that there are no horse legends or anything related to cattle, nothing related to a wheel, for instance. And as far as any of his people's legends are concerned, the -- there does not appear to have been the introduction to the horse until apparently the telegraph company went through. Actually, I'm referring now in the Biinii stories when Biinii makes his visit to heaven, he has an encounter with sky dogs, I think they're called. You refer to that? Yes. Anyway, that would be a -- in the 1860's and the 1870's? When horses first came? Yes. I don't know if the -- if they might have come with earlier traders and explorers in the area. I'm thinking of the 1826 visit by traders. I'm not sure. I don't know. Well, if you have any evidence that you wish to direct my attention to that would suggest that horses arrived before the telegraph company went through in the 1860's, I'd be glad if you'd refer me to it. But, in any event, the -- the arrival of the horse and the adoption of the horse and the use of the horse for packing resulted in the use of land for grazing; that's your evidence? That's my understanding, yes. Right. But it would not be until people who arrived who farmed that there would be the tillage of the land, would there? Well, missionaries encourage people to grow gardens. Yes? And I don't know again. I'm wondering what the history is of the garden in the area. I don't know. But the example that would be available to alert intelligent people who were, in your words in the Apsassin case, interested in participating in the agricultural frontier, that example, the use of the 1 2 3 4 ] 5 A 6 7 8 9 10 11 Q 12 13 A 14 Q 15 i 16 17 18 A ' 19 20 ] 21 22 23 24 Q 25 i 26 27 28 29 A 30 Q 31 32 A 33 Q 34 35 A ' 36 37 38 Q 39 A 40 i 41 42 Q 43 44 45 46 A 4 7 MR. GOLDIE 15495 technology of the plow, for instance, would become available and visible in the area with the arrival of settlers as opposed to people who were packing or miners? In the case of the Dunne-Za in northeast B.C., participation in the agricultural frontier centred on people's skills with horses and hiring themselves out as cowboys. It wasn't to do with creating farms for their own use. So if you're -- I don't quite see the analogy here. I'm talking about technology for farming. Technology is by way of example, is it not? Um-hum. So people that were tilling the soil, they would be doing so in emulation of other people who brought in implements and used them in a certain way; isn't that the case? Well, technology's by way of example and by way of instruction. Again, I'm wondering what the missionaries did here. I wonder if the missionaries encouraged the people to plow or create gardens, but on a large scale I'm sure it would be farmers who would be seen to be breaking the ground. Well, I can assist you with respect to the missionaries, and I'll do that in a minute, but I'm putting it to you that the Wet'suwet'en participation in an agricultural economy would not take place until the first settlers arrived? That's quite likely, yes. Now, that is, as you put it, in the -- around the beginning -- the very end of the last century? That's right. Yes. That's when the Wet'suwet'en would see people planting, farming, using horses and cattle and so on? Well, in the early days of farming I imagine would have been clearing land and grazing it rather than any extensive agricultural procedures. Well, clearing land. Or using already cleared land. In fact, it was the Wet'suwet'en who had cleared land for their horses by -- we know by the early 1900's. Well, you say the first farmers moved in at the very end of the last century. I'm referring to your opinion at page 114. A farmer is a person who intends to make a living from the soil, isn't that correct? Yes. : Yes. Thank you. 15496 1 THE COURT: Is it convenient to adjourn, Mr. Goldie? 2 MR. GOLDIE: Yes. That will be fine. 3 THE COURT: All right. Thank you. 4 THE REGISTRAR: Order in court. Court will recess. 5 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 6 THE REGISTRAR: Order in court. 7 THE COURT: Mr. Goldie. 8 MR. GOLDIE: Thank you, my lord. My lord, perhaps a number 9 might be -- this orange book might now be marked as an 10 exhibit and as we go through the tabs to be accorded 11 the usual dash. 12 THE COURT: What's the next exhibit number? 13 THE REGISTRAR: The next number is 995, my lord. 14 THE COURT: All right. 15 (EXHIBIT 995: A.G.B.C cross-exam book) 16 MR. GOLDIE: And the extracts from "Inishkillane" as dash 1 and 17 the extracts from Mr. Brody's opinion in the Apsassin 18 case as dash 2. 19 THE COURT: Yes. 20 (EXHIBIT 995-1: Tab 1 - "Inishkillane" by H. Brody) 21 (EXHIBIT 995-2: Tab 2 - Brody report on Apsassin 22 case) 23 MR. GOLDIE: And the extracts from the proceedings at trial dash 24 3. 25 (EXHIBIT 995-3: Tab 3 - Trial proceeding transcript 26 extract) 27 THE COURT: That's as far as we got, I think. 28 MR. GOLDIE: 29 Q And that's as far as we got, yes. 30 Mr. Brody, as I suggested to you a few minutes 31 ago, you had portrayed the Athabascan society that you 32 were describing in the Apsassin case as lacking in 33 institutional means for arriving at decisions. I 34 don't mean to completely sum up your evidence, but I 35 do so -- that description is not intended to be 36 exhaustive, but that was an essential part of your -- 37 A Yes. I just keep adding the proviso that what I'm 38 concerned within that work is the visibility of the 39 institutions. Of course, their present is whether or 40 not they're the kinds of things that we can see. 41 Q Well, you are critical of anthropologists for not 42 perceiving things which are hidden from ordinary eyes, 43 but I take it that when you made the statement that 44 you did at page 1915 of the proceedings of Apsassin -- 45 under Tab 3, my lord. You said in your report: 46 47 "Moreover, these were people who had no 15497 procedure that fits Euro-Canadian conceptions of consent. They did not use voting and had no decision-making institutions at which consent could be reached." You were expressing your opinion at that point? That's right, yes. Now, the purpose of that evidence was to support an opinion of yours, if I understand it correctly -- understand it correctly, that chiefs -- that people who signed surrenders as chiefs would have no real authority to do so under such a culture as you were there describing? They wouldn't have the kind of authority that might be ascribed to them by the persons who got them to sign, I think is the thought here. That was the nature of your evidence? Yes. And in the -- in the case at bar, you have, of course, emphasized -- I'm sorry. I don't know what the expression 'case at bar' means. I say at the case at bar, this case right here. Oh. You have emphasized aspects of the Wet'suwet'en society which indicate that chiefs have real authority in any sense of the word? Yes. They have visible institutions of authority. 30 THE COURT: I'm sorry. They have visible? 31 THE WITNESS: Visible institutions of authority. 32 MR. GOLDIE: 33 Q Yes. And I take it that the Wet'suwet'en as an 34 Athabascan society was once similar to what you 35 described the Beaver? 36 A I'm not at all sure about this. I mean it is possible 37 that the Beaver were once similar to the Wet'suwet'en 38 rather than the Wet'suwet'en once being similar to the 39 Beaver. I for a while in my anthropological life sort 40 of took for granted the view that Athabascan society 41 had spread over The Rockies heading west and more 42 recently I've been wondering about that and perhaps 43 Athabascan society went the other direction or perhaps 44 went both directions. I just don't know how I can 45 resolve that question. 46 Q This uncertainty in your mind arose since you filed 47 your report? 1 2 3 4 5 6 7 8 A 9 Q 10 11 12 13 14 15 A 16 17 18 Q 19 A 20 Q 21 22 A 23 24 Q 25 A 26 Q 27 28 29 A 1 A 2 3 Q 4 5 6 7 A 8 9 10 11 12 13 Q 14 15 16 17 A 18 19 20 Q 21 22 23 24 25 A 26 27 Q 28 29 A 30 Q 31 32 33 34 A 35 Q 36 37 38 39 40 41 42 43 A 44 45 46 47 15498 Yes, or since I've been -- I've been reading a lot more of this kind of literature lately, yes. Because when you wrote your report, you thought there was a comparability with respect to the Wet'suwet'en and other Athabascan groups, including the Dunne-Za of the Peace River Drainage? That goes to a different question, I think, the comparability question. There is comparability and there is dissimilarity. As I said earlier on, there's a big divide between the coast Athabascans and then the interior northern Athabascans. I thought you were asking about something else a moment ago. Well, let me go back and see if I can make myself clear. I started out by suggesting to you that at one time the Wet'suwet'en was a hunter-gatherer of the same kind as you described with respect to the Beaver? Which is to suggest that the -- the Athabascans of the coast, including the Wet'suwet'en, have acquired these visible institutions; is that what you mean? The -- I don't want to misunderstand you. You talk about the Athabascans at the coast. I'm talking about the Wet'suwet'en and I am assuming that at one time, at any rate, you understood the Wet'suwet'en to be an Athabascan society which came west? Yes. At one time I accepted that account of the spread of Athabascan society, yes. Now you may think it may have arrived in a different way? I wonder. All right. If it did come from the -- from the east and progressed west, I suggest to you that at one time it resembled the hunter-gatherer that you described in the Apsassin case? It depends on the time frame. Well, I appreciate that that depends on the time frame. The question that I put to you was that at one time -- now, you can select any time frame you want, but I'm suggesting to you that if the assumption is made that the Athabascan -- this particular Athabascan group, the Carriers, of which the Wet'suwet'en are a branch, came from the east, they shared the characteristics of a hunter-gatherer? Yes. Perhaps I can circumvent the time frame problem with an answer that goes like this: If they came from an east that was boreal forest or savannah lands where opportunistic roaming hunting would have been an ideal adaptation, then, yes, that would be the case. 15499 1 Q And that is -- that is the commonly accepted theory, 2 is it not? 3 A Well, I think it's a theory in crisis at the moment in 4 anthropology, but -- 5 Q Like so many other things in anthropology? 6 A All theories have difficult periods during which 7 they're being questioned, perhaps more — with more 8 information than they've ever been questioned before, 9 and that's the evolution of a science, isn't it? 10 Q The characteristics of the society, the Wet'suwet'en 11 society which you have emphasized in your opinion, are 12 those which I put it to you before support the 13 plaintiffs in their claim to ownership and 14 jurisdiction of the lands which are the subject-matter 15 of this action? 16 A Well, I don't really know the extent of the 17 plaintiff's claims in this action. I'm not familiar 18 with all these legal -- the legal back and forth here. 19 I'm attempting to characterize for the benefit of my 20 opinion the nature of Athabascan society and pay some 21 attention to the visibility of its institutions. 22 Q The -- I'm going to read to you from page 11 of the 23 draft that we were furnished with. And this part is 24 deleted from your opinion. 2 5 A Um-hum. 26 MR. GOLDIE: I quote: 27 28 "This legal action"... 29 30 THE COURT: Sorry, Mr. Goldie. Do I have that report? 31 MR. GOLDIE: 32 Q You do not, my lord. 33 Would you like to have that draft in front of you? 34 A Yes. Perhaps it's a good idea. 35 MR. GOLDIE: Do you have a copy? 36 MR. JACKSON: I can peek over his shoulders. 37 MR. GOLDIE: 38 Q You can ignore the exclamation marks or any other 39 thing like that. 40 A These are your own graffiti. 41 Q Exactly. The -- the first sentence to which I refer 42 you to is, and I quote: 43 44 "The legal action that has prompted this 45 opinion has generated extensive research 46 into Gitksan and Wet'suwet'en society and 47 culture." 1 2 3 A 4 Q 5 A 6 Q 7 8 9 10 11 12 13 14 15 16 17 A 18 19 20 21 22 23 Q 24 A 25 Q 26 A 27 28 Q 29 A 30 Q 31 32 33 34 35 A 36 37 38 39 40 Q 41 42 43 A 44 45 46 47 15500 And that, of course, is true, is it not? Yes. That's true. Why did you take that out? It seemed irrelevant, I think, to my opinion here. I see. The next is at the bottom of that page and it reads, and I quote: "This legal action is based on a demand for recognition of Indian jurisdiction in the combined Wet'suwet'en -- Gitksan and Wet'suwet'en house territories. This requires anthropological explication of a new kind." Now, why did you delete that? I think probably because I'm not sure that it's true or was not sure that it was true. I mean, my idea of what the legal action is based on is something about which I don't feel confident. As I said to you before, I'm not conversant with the ins and outs of the legal action. No. But it is the shaping force, isn't it? Of what? For the anthropological opinion that you've given? No. It's not the shaping force. It's the reason that I was retained to write this opinion. Well — It's quite different from it being the shaping force. You thought at the time that the existence of that action required anthropological explanation -- explication of a new kind. Now, what was new or novel about the anthropological explication that you were being called upon to make? I understood from very early on that what was needed here by me as an anthropologist was an understanding of how the institutions of this system worked. We're dealing with a system that has visible institutions. It's a burden on me to understand how they worked. So in order to -- but you understood that this new or novel anthropological explication was that which was required for the purposes of the lawsuit? I had to answer certain kinds of questions. I was asked to try and answer certain kinds of questions as an anthropologist. In order to answer these questions, I required a particular kind of anthropological account. I had to go into the nature 1 2 3 4 5 6 Q 7 8 9 10 A 11 12 13 Q 14 15 16 17 A 18 Q 19 A 20 21 Q 22 A 23 24 25 Q 26 27 28 29 30 31 A 32 33 34 Q 35 A 36 Q 37 38 39 A 40 Q 41 42 43 44 45 46 47 A 15501 of the visible institutions and I also had to go into the less visible part of the culture. I had to produce an opinion that relied on evidence going to both sides and that was, for me anyway, a new kind of research. It was the demand for recognition of Indian jurisdiction and the combined Gitksan and Wet'suwet'en house territories which required the opinion that you have just described? As I understood my brief, I had to do research into the visible and the less visible parts of the culture, otherwise I could not talk about the jurisdiction. That may have been how you translated the task before you, but you characterized it in your mind, Mr. Brody, as required by a demand for recognition of Indian jurisdiction in the combined territories? You're referring to a passage I deleted. Well, you wrote it, didn't you? I wrote it, yes, but I looked at it and thought, no, this does not properly describe what I was doing. I see. It's a shorthand, and they're always -- when one's rewriting, it's shorthands that get reconsidered and rewritten. Well, I'll come to that in a minute, but I want to refer you now to an extract from your book "Maps and Dreams". My lord, that's not in the -- in the Exhibit 995 and I'll hand up the — Do you recognize that as the preface to your book "Maps and Dreams"? I wonder which edition this comes from. This is something that went through a number of editions, I believe. Well, whichever edition it is, you wrote -- I'd just like to know. Well, I'm not sure that I can tell you right now. But would you agree with me that whatever edition it is, it's your preface? Oh, yes. Yes. And you start off by saying, and I quote: "The hunting societies of the world have been sentenced to death." That was your belief at the time you wrote that preface? A If you read on, I explain what I mean by that. 1 Q 2 3 4 5 A 6 7 Q 8 9 10 11 A 12 Q 13 14 A 15 Q 16 17 A 18 Q 19 20 21 22 23 24 25 26 27 28 A 29 Q 30 A 31 32 33 34 35 Q 36 37 38 39 40 41 42 43 44 45 46 47 A 15502 Yes. I'm not -- I'm not going to -- to challenge your explanation of what you meant by that. I'm just asking you if that was your belief at the time you wrote it? Yes. It's -- I'm referring to a process. In the next sentence you see they're being condemned by a process. At page XIII you begin to -- or you get into the question of the concerns that you had arising out of the nature of your brief in that case. You were employed by government, were you not? Yes. Indirectly. Well, the funding had been obtained from the Government of Canada? That's right, yes. Yes. And it was instigated by the prospect of a gas pipeline through northeastern British Columbia? That's right. And you say at the second complete paragraph on page XIII: "Such justification notwithstanding it was impossible not to feel apprehensive about the advantages of such research work to the people themselves." That is to say to the -- to the band that you spent some 18 months; is that correct? Well, to the Dunne-Za/Cree. Pardon? I think there were more than -- I worked in more than one community. When you say "the band", you're referring to, I imagine, one reserve. In fact here I'm meaning the people of the Treaty 8 area in northeast B.C. Thank you. You say: "Even the best political organizations happy to have secured government funding for their research might find that they are unconsciously working against their constituent's own interest." That was something that troubled you, that you were in effect being used or possibly being used as a cat's paw, or the people that that employed you were being used as a cat's paw. Do you understand what I mean? Oh, yes. 1 Q 2 A 3 Q 4 5 6 7 8 9 10 11 12 13 14 A 15 16 Q 17 A 18 19 Q 20 A 21 22 Q 23 A 24 25 26 27 28 29 30 31 32 33 34 Q 35 36 37 38 39 40 41 A 42 Q 43 44 A 45 Q 46 A 47 Q 15503 And you agree with that? It's always an anxiety, yes. An anxiety, yes. You summarize that concern at the last sentence in the paragraph. You say: "When I set out in the summer of 1978 on a first exploratory trip to northeast British Columbia, I was haunted by the thought that must have bothered many researchers. You might find out five or even ten years later whom you were really working for." That's the anxiety that you had? Yes. There's always an anxiety that you are providing information that can be used in all kinds of ways. Yes. It's a problem in anthropology going back to the 1920's and '30's. Yes. You never know who's going to read the report? You never know what kind of information you're going to make public. Yes. I mean, for example, you might identify in a report a really good area for hunting moose, as arose in the northeast study. The people have very special moose hunting areas and I might write a report in which I describe where these moose hunting areas are to be found and how to get to them and then sports hunters in the area can go in, and this is the kind of thing that would be very disturbing to the people involved, or in the case, perhaps, of another area, one might describe burned off lands where there is grazing available and this could be made available. That is -- that may be an example, but one that has troubled anthropologists is gaining the sympathy and understanding and trust of the people that they are reporting on and making public information which invades or is seen to invade the privacy of those people. That's a well known anthropological concern, isn't it? It increases their vulnerability. Exactly. And it may increase their vulnerability in a psychological way, not just where the moose are? I'm not sure what you have in mind. The sense that their privacy has been invaded. Some people worry about that much more than others. What's your position on the spectrum of worry? 15504 1 A Some cultures worry about this much more than others. 2 Q It is though -- you recognize that as a basic problem 3 for anthropologists, especially those who do field 4 work? 5 A There are certain classes of information in every 6 culture about which people are very sensitive. 7 Q Yes. All right. Now, you go on to say: 8 9 "Maps and Dreams presents both findings and 10 the way in which a project was shaped by a 11 group of Indians." 12 13 What you have done is to acknowledge that this book is 14 a report of the work you did there in a manner which 15 is -- reflects the way in which the people involved 16 want it to be reported? 17 A No. It reflects the way in which they show to me 18 their lives. The structure of the book is alternating 19 chapters, anecdotal chapter followed by social 20 scientific chapter followed by anecdotal chapter. 21 This is an indication of the way in which people took 22 me on their lands or gave me, as it were, stories. 23 They shared journeys with me and they designed many of 24 those journeys, and I report those journeys as 25 anecdotes in the book in alternating chapters. The 26 other chapters are straightforward social scientific 27 chapters not at all shaped by the people. 28 Q Yes. You go on to say: 29 30 "It is a book of anecdotes as well as a 31 research report, its structure being the 32 result of an attempt to meet two different 33 needs. The problem is one of audience or 34 the intimately related one of documentary 35 devices or an awkward tension between a wish 36 to maintain a sense of universal concern 37 without losing a feeling for a particular 38 place. In the case of either an 39 ethnographic monograph or a report whose 40 purposes include an encyclopaedic coverage 41 of the grounds, these problems can arise but 42 are not intrinsic. In the case of writings 43 that grow from and have their significance 44 and resistance to colonialism, the problems 45 can be overwhelming." 46 47 Now, it is the latter case that you have confronted, 15505 1 is it not? 2 A Yes. 3 Q And it is the latter case that you have dealt with in 4 this -- in your report in the case at bar? 5 A No, it doesn't. It's a completely different kind of 6 work. In northeast B.C. I was taken right into the 7 lands that white people normally are not taken into. 8 I was asked and expected to make my findings widely 9 available and I was, therefore, set a very difficult 10 problem. On the one hand I was provided with the 11 intimacies of the people's way of life and on the 12 other hand because of the people's belief in fact -- 13 and this I think we talked about some days ago -- they 14 hoped that what I discovered could somehow be used to 15 inform as wide a range of people as possible so that 16 thus informed, their conditions would be improved or 17 the threats to their land would be reduced. And that 18 set me a very serious writing problem, social science 19 problem, and I dealt with it in a number of ways, 20 alternating chapters being one device, changing 21 everybody's names being another. 22 Q Yes. 23 A And none of those -- or almost none of those 24 conditions apply here. 25 Q No. I'll come to that. You -- skipping a 26 paragraph -- well, the next paragraph: 27 28 "When social scientific work is undertaking 29 at least in part to convey other people's 30 sense of their needs, the problems are as 31 much political as they are methodological." 32 33 You agree with that? 34 A Well, it goes on to explain that. 35 Q Yes. 36 A It goes on to say what I just said, I think. 37 Q Yes. All right. Let me go on. 38 39 "Those who wish or have data must therefore 40 allow some kind of research"... 41 42 A Those who wish or -- sorry? 43 MR. JACKSON: There is a line you missed out. 44 MR. GOLDIE: 45 Q 46 "Those who wish or are obliged to state 47 their interests and even negotiate their 15506 1 future must have data and must therefore 2 allow some kind of research, and those who 3 carry out such research necessarily enter 4 into a very distinctive kind of relationship 5 with the people whose interests they are 6 expected to serve. The research itself is 7 part of a set of processes that on the one 8 hand may substantially determine the 9 findings, yet on the other hand may go far 10 beyond them." 11 12 And then you go on to say: 13 14 "To show how the work in northeast British 15 Columbia was soon inseparable from what the 16 people have wanted it to be like, it is best 17 to begin with a story about the pick-up 18 truck that came with the job." 19 2 0 And then you go on to say that: 21 22 "Before I was accepted by the people, I had 23 to get their minds directed away from this 24 truck to me." 25 26 Is that right? 27 A Well, not get their minds directed away from the truck 28 to me, but I had to be living in a way which meant 29 that I could be taken on their terms into the bush. 30 Q Yes. And that was the way in which they shaped what 31 they wanted you to report? 32 A They shaped the journeys into the bush, as I just 33 described and as is reflected in the anecdotal 34 chapters of the report. And the other thing they did 35 was shape the scope of the research, that is to say 36 the topics at issue. They don't shape the truth or 37 falsity of my own conclusions and they don't shape the 38 conclusions themselves, of course. 39 Q No. But it was in the sense of assisting them in what 40 you perceived to be colonialism that you wrote this 41 book? 42 A They were extremely alarmed by the prospect of the 43 Alaska Highway Pipeline and needed to negotiate with 44 whatever was coming down this line towards them. In 45 order thus to negotiate, they felt a strong need and 46 others felt a strong need, including branches of 47 government, for basic information, and I was asked to 1 2 3 Q 4 A 5 Q 6 7 8 A 9 10 11 12 13 Q 14 15 A 16 Q 17 A 18 Q 19 20 21 A 22 23 24 25 Q 26 A 27 28 Q 29 30 31 32 A 33 34 35 Q 36 37 A 38 Q 39 40 A 41 Q 42 A 43 Q 44 45 A 46 47 Q 15507 provide basic information with the help of which the dangers could be assessed -- But — -- and perhaps the disadvantages mitigated. But the book was written for the purpose of assisting them to resist what you perceived to be colonialism, isn't that so? No. The book was written in order to convey the people's predicament. The people believed that if the facts are there before us, their predicament will improve. Part of their defence is information, despite the privacy problem. But didn't your reports provide that? I'm talking about your book now, not your report. They want the information to be widely understood. Yes. Thank you. Available. Now, in this case you -- I suggest to you that you were received into the community with the intention of disseminating information that they wanted to get out? Partly, yes, on the same grounds. The facts are believed in in these cultures, much more perhaps than in our own. They believe that if others know them, they will respect them. Right. And this is a great importance to all cultures, of course, to be respected. And the -- as you point out in the "Maps and Dreams", you protected the identity of your informants through the device of anonymity and the use of fictitious names? Once I was writing for a large audience, yes. In my early reports, which I ensured only had very narrow circulation, I think I had all the real names in them. On "Skid Row", for instance, you don't reveal the names of your informants? No. I don't even reveal the name of the town. Yes. And on the -- your report with respect to the Eskimo -- "People's Land". -- on "People's Land" -- "The People's Land". -- you don't refer to people's names except in the acknowledgement section? That's right. The names are changed. There again, that was a book for general distribution. Yes. 1 A 2 3 4 Q 5 A 6 Q 7 8 9 10 A 11 Q 12 13 14 15 A 16 17 18 19 20 Q 21 22 23 24 25 A 26 Q 27 28 A 29 30 31 32 33 34 35 Q 36 37 38 A 39 40 41 Q 42 43 44 A 45 46 Q 47 15508 Though again, as I recall now, there was a report that preceded the book to the Department of Indian Affairs in which names were the true names. Of your informants? Everybody I talk about. Yes. Now, in standard anthropological literature that is going to be disseminated, whether in learned texts or otherwise, it is not common to reveal the names of informants, is it? Oh, I think — Isn't that one of the ways of reconciling this dilemma that I referred to a few minutes ago of getting as close inside the skins of people and at the same time protecting their sense of privacy? It varies tremendously from anthropologist to anthropologist. I think the stronger tradition anthropology is to use all real names. There may be another tradition. I would have to think for a while about who does what. The -- there are -- there is a code of ethics certainly in the American anthropological society, is there not, that talks about the duty of an anthropologist in dealing with the people that he is studying? Yes, there is. One of the ways in which that is done is to be very careful about protecting the sense of privacy? That's right. And that means that if you're dealing in matters about which people are very sensitive, there would be a burden on you to conceal identities. On the other hand, if you are dealing with matters that are not a matter of that sort of sensitivity, it may be otherwise, and I would think the two conventions in anthropology run along side by side. Now, in -- well, the other principle which is in conflict at times is the professional requirement of obj ectivity? I'm sorry. I was thinking about what anthropologists do and don't do with anonymity. Can you ask the question again? I said the principle that is in conflict at times with the principle of protecting the source of information is objectivity, professional objectivity? Objectivity in the social sciences is a subject of long and complicated argument. Well, be that as it may, in the -- in this case, you had no real problems because you were greeted and 1 2 3 4 A 5 6 7 8 9 10 11 12 13 Q 14 A 15 16 17 18 19 20 Q 21 22 23 24 25 A 26 27 28 A 29 Q 30 A 31 Q 32 A 33 Q 34 A 35 36 Q 37 38 39 A 40 Q 41 42 A 43 44 Q 45 A 46 47 15509 welcomed by people who wanted to talk and who were prepared to be identified and wanted to be identified; isn't that right? I think when you're dealing with cultures that have highly visible institutions, there's far less of a difficulty here. There are persons who are accustomed to speaking on behalf of others for whom the public record is an important matter. I also was not doing the kind of work in Gitksan/Wet'suwet'en country that created the invasion of privacy problem. I wasn't living in people's homes. I wasn't being taken to secret hunting territories. There is no real participant observation? There is participant observation, as I said earlier, that consisted in going to where people were doing things already, going with them to some places and spending a great deal of time visiting, talking. I think I said a few days ago that an important part of participant observation is simply visiting. Now, my question, however, to you was that you were welcomed by people who wanted to talk and who would have no concern about being identified. I'm talking about this society or these societies, the Gitksan and Wet'suwet'en? Well, you're making a big generalization. I think there were individuals who were very keen to talk, chiefs like Mary Johnson and Mary McKenzie. Yes. Alfred Joseph? Alfred Joseph. Pete Muldoe? Yes. Neil Sterritt Senior and Junior? By and large people were extremely friendly and informative. Yes. And that was because you were identified as the person who was going to disseminate the information they wanted to get out to the world? No. I don't think so. It was -- you were welcomed because of your personal characteristics? Well, I hope so in part. I have done an enormous amount of field work. I have learned many of the -- Ingratiating ways? -- many of the skills that are necessary for getting along well with people. Ingratiating is perhaps a pejorative way of doing it. 1 Q 2 A 3 4 5 6 Q 7 8 9 10 A 11 12 13 14 15 16 17 Q 18 19 20 21 22 23 A 24 Q 25 A 26 Q 27 28 29 A 30 31 32 33 Q 34 35 36 37 A 38 39 Q 40 41 A 42 Q 43 A 44 Q 45 46 A 47 15510 It was meant to be a compliment, Mr. Brody. I'm sure it wasn't. And there are many field techniques that are appropriate to which I have over 20 years or so been developing and I hope come to bear whenever I'm in the field. All right. The -- and it is not normal in -- in anthropological work which is to be of a professional character to submit your work for approval by the people who hired you? I didn't submit my work through approval to the people who hired me. I fulfilled the obligations of the contract and handed the contract to them and received no directions as to how I should revise, reconstruct and so on my conclusions. My conclusions arise from an enormous body of data. That's where they come from. The -- let me go back to a point that I was discussing with you a few minutes ago. You had, as you indicated on page 61 of your report, characterized the Wet'suwet'en as an Athabascan society of a hunter-gatherer origin and having certain characteristics of that kind of a society? Can you direct me to where you're -- Page 61, the second paragraph. Yes. I have you. Did you ask a question? Yes. I said you characterized the Wet'suwet'en society as identified by reference to the Athabascan hunter-gatherers? I think I'm trying to say here -- perhaps it's not coming across clearly enough -- that the Wet'suwet'en had certain cultural traits in common with other Athabascan societies. That's what you want me to read for the words "The Wet'suwet'en seasonal round typifies this pattern and demonstrates the flexibility characteristic of many northern hunting peoples"? That's one of the traits they share, yes, the seasonal round, as we were saying earlier today. Well, indeed hunter-gatherers are people who must pursue their food source; isn't that right? Yes. And to be distinguished from people who plant? I'm sorry? Who distinguished -- distinguished from people who plant things to grow their food? Yes, or people who herd or people who slash and burn. There's a whole set of cultural groupings here. 1 Q 2 3 4 5 A 6 Q 7 8 A 9 10 11 12 Q 13 14 A 15 Q 16 17 A 18 19 20 21 Q 22 A 23 Q 24 25 26 A 27 Q 28 29 30 31 A 32 33 34 Q 35 36 37 38 39 40 41 A 42 Q 43 A 44 Q 45 46 A 47 Q 15511 I'm not suggesting that there is -- that that exhausts the range of characterizations, but I'm saying that is to be distinguished from people who plant, from agricultural societies? Although there are cultures that do both, of course. Oh, yes. I'm aware of that. But the hunter-gatherer typically is nomadic. He pursues his food source? Semi-nomadic, I think is the expression that anthropology prefers. There's no people who are purely nomadic. The point is it is a seasonal round. It is a system of land use of some sort. Yes. And as we saw earlier, you regarded the Beavers as a hunter-gathering society par excellence. That's a statement, yes. And, of course, as you explained earlier, the Wet'suwet'en are less so? Because they have at the centre of their economic and cultural geography this -- these villages, the two villages, with Moricetown and Hagwilget have fishing places. Their food came to them? That's in part, yes, that's right. And I suppose you would agree that they had developed a technology required to exploit that resource which was coming to them? Yes. And indeed the loss of that resource in 1820 at Moricetown caused by the rock fall at Hagwilget caused a group of them to go to Hagwilget and oust some Gitksan which they found there? No. I think they were offered, as I'm given to understand it, the use of a Gitksan fishing place because of the problems of Moricetown. I see. Well, the evidence of Father Morice was that they ousted some of them. If you turn to Tab 14, there are some extracts from his book, the first part of which is the introduction by Professor Sage. And then you turn to page 8 of the preface to Father Morice's book -- Father Morice's own writing. Do you see that? Page 8? Yes. Let me -- I have it. There are two page 8's. There's page 8 of Professor Sage. I see. That's the problem. Professor -- page 8 of Father Morice. 15512 1 A Yes. 2 Q And the first complete paragraph reads, and I quote: 3 "There they lived and thrived on the large 4 supply of salmon which the impediment in the 5 stream kept at their doors, until the year 6 1820, or thereabouts, when a large piece of 7 the rocky cliff overhanging the same river 8 at a place now called Ackwilgate, some 9 thirty miles below, having fallen across the 10 stream, this barred it so completely that it 11 formed a cataract of sufficient height to 12 prevent the fish from getting up to the 13 Moricetown fall. Threatened with 14 starvation, the Western Babines went in a 15 body, armed cap-a-pie, and forcibly took the 16 new terminus from its owners of Tsimpsian 17 parentage." 18 19 Your disagreement with that is not the event or the 20 time, but the characterization of the way in which the 21 people of Moricetown established themselves at 22 Hagwilget? 23 A That's part of my disagreement, yeah. It's a major 24 disagreement anyway. I've never received any 25 supporting evidence for that view that I can recall. 26 Q Well, doesn't Dr. Mills seem to agree with that? If 27 you look under Tab 13 there's an extract from her 28 cross-examination. And perhaps the -- Mr. MacKenzie 29 had referred to what Jenness said, and all he says is 30 they moved en masse to the canyon and built new homes 31 on a narrow shelf below it. And then he refers to 32 Morice. And Dr. Mills says "I referred to that in my 33 report as well, and I agreed". Now, it could be that 34 she's agreeing to Jenness or she could be agreeing to 35 Morice. But Morice had the advantages of interviewing 36 a person who made that trip, didn't he? 37 A I don't know. 38 Q Doesn't he say that the last survivor died at a 39 certain time? 40 A Where is that? 41 MR. GOLDIE: Well, I'll leave you to pursue that. In any 42 event -- 43 MR. JACKSON: My lord, I don't recall that being the tenor of 44 Dr. Mills' evidence at all. 45 MR. GOLDIE: Well, I've read what I consider to be the reference 46 that I made, and you -- I have acknowledged that she 47 could be referring to Jenness. 15513 1 THE COURT: Yes. This is the passage in the evidence of Dr. 2 Mills that you had in mind when you made the 3 suggestion to the witness? 4 MR. GOLDIE: Yes. That's correct. 5 THE COURT: Yes. All right. 6 THE WITNESS: Can you direct me to this passage of Dr. Mills' 7 evidence? I'm having difficulty finding it. 8 MR. GOLDIE: 9 Q Well it's under Tab 13, and the first page is 13153 10 and if you look at lines 13 to 30. 11 A I can't see that Dr. Mills says anywhere here that the 12 Wet'suwet'en from Moricetown forced their way into the 13 Hagwilget site. 14 Q No. I -- I said -- I suggested to you that she agreed 15 with Morice. 16 A No. I don't see her agreeing with Morice. There is 17 no -- 18 Q You say she's agreeing with Jenness; is that right? 19 A Yes. It seems to from here. 20 Q All right. In any event -- 21 A All that Jenness says here as I'm reading it -- I'm 22 having difficulty understanding what your question is 23 here. 24 THE COURT: The problem, Mr. Brody, is that at the end of the 25 quotation there's a question and that's what Father 26 Morice wrote as well. 27 THE WITNESS: I see, my lord. Thank you. Thank you. Well, I 28 would say that it isn't what Father Morice wrote as 29 well on the basis of what I just looked at. 30 MR. GOLDIE: 31 Q Well, Father Morice added the words that they ousted 32 them -- not words but the thought. 33 A He's adding the thought which is at issue here. The 34 thought that is at issue, as I understand it, is 35 whether or not the Wet'suwet'en forced the Gitksan 36 out. I am in no doubt at all as to the fact that the 37 Wet'suweten moved, as Jenness suggests and as Tonia 38 Mills agrees, to Hagwilget sometime in the 1820's. 39 That they forced the Gitksan out, I said to you a 4 0 moment ago I have no evidence. I've never heard any 41 evidence anyway other than this passage that you just 42 referred me to in Morice and it's not here in Jenness. 43 Q No. I didn't suggest it was. 44 A I think you did, actually. 45 MR. GOLDIE: I did not. Now, let us go on. 46 THE COURT: Before you do that, can I inquire whether — Mr. 47 Grant may be the one I should direct this question to. 1 2 3 MR. GRANT: 4 5 THE COURT: 6 ] 7 MR. GRANT: 8 9 THE COURT: 10 11 12 MR. GRANT: 13 14 THE COURT: 15 MR. GOLDIE 16 Q 17 18 19 ] 20 A 21 22 Q 23 24 25 A 26 Q 27 28 29 30 31 32 33 A 34 35 i 36 37 38 39 40 Q 41 42 43 A ' 44 Q 45 46 A 47 15514 Is that the rock slide that gives Roje Debull its name, or was there a separate rock slide? Roje Debull was the name given to the mountain behind because of the continuing falling of rocks. So it wasn't this rock slide that gave name to the mountain? No. But, of course, it's at the approximate location. They're close, but there is a -- there is a separate or a number of separate rock slides that give rise to the name of that magnificent peak? Yes. And I think what happens is there's a continuation of rock slides at certain times. Yes. Thank you. Sorry, Mr. Goldie. The -- I'm not terribly interested on that point. The point that I am interested in is that the indication that there is an almost total reliance upon salmon at Moricetown. Would you agree with that? Extensive reliance upon salmon, as I've said, is a feature of Wet'suwet'en society. Right. Now, in this, of course, as we have established, they differ from a hunting-gathering society? Yes. Now, there seems to be little doubt -- or perhaps I should put it in the form of a question. In the period we're talking about, which is 1820 and subsequently to the end of the 19th century, would you agree with me that what game there was in the Bulkley Valley would be found relatively nearby the villages of both the Gitksan and the Wet'suwet'en? I imagine that in the 1820's there was hunting of quite a productive kind to be had throughout the Wet'suwet'en area from Hagwilget and Moricetown in the north to Burns Lake in the south and across to the big lakes west of there. I imagine that would all have been quite productive, beaver and small species habitat anyway. Well, I'm now referring to the -- not necessarily just to the fur-bearing animals, but to any animal which would be useful for subsistence. Well, beaver is a very important part of subsistence. I know that, Mr. Brody. I'm broadening the question to include any animal available for subsistence. I think it would be easier for me if you identified the animals. 15515 1 MR. GOLDIE: Well, if I had to do that, I'd be suggesting an 2 answer to you. Let me put -- 3 MR. JACKSON: I have no objection to that, my lord. 4 MR. GOLDIE: 5 Q No doubt. The -- when Mr. Alfred Joseph gave his 6 evidence, he testified that there were certain open 7 ground. And if you look under Tab 16 at page 2248, 8 which is the last one, my lord. He's talking about 9 groundhog and he has also coupled that with caribou. 10 And question at line 26: 11 12 Q "That's for uses beyond just food uses 13 A Yes. 14 Q And the -- I think you gave us two 15 examples of that, the first one was 16 around Mount Cronin?" 17 18 Now, that's a relatively short distance away from 19 Moricetown, is it not, or do you know? 2 0 A I don't know where Mount Cronin is. 21 Q All right. The -- the proposition that I'm putting to 22 you was that prior to the arrival of the white 23 settlers, game, using that word in the broadest sense, 24 would be available at relatively close distances to 25 the villages of Moricetown and Hagwilget? 26 A There would have been -- 27 Q Deer, caribou? 28 A -- deer, caribou, groundhog in the alpine. 29 Q Yes. 30 A Just as there would have been all along that area. 31 Q Yes. In other words, extended trips away from the 32 permanent villages would not be required for purposes 33 of subsistence? 34 A Well, there's a very tricky matter here at issue, I 35 think, about what salmon can and cannot provide. I 36 mean salmon can provide protein, but it cannot provide 37 fat. You can't live on salmon. 38 Q I didn't suggest that. I said extended trips away 39 from the permanent villages would not be required for 40 purposes of subsistence? 41 A Well, I think it might well — 42 Q And I thought you'd agreed with me that game would be 43 available? 44 A Would, but for the purposes of subsistence in the 45 longer term, especially through the winter, if you are 46 placing a heavy reliance on salmon -- if a large 47 population was placing a heavy reliance on salmon, I 1 2 3 4 5 6 7 8 9 Q 10 A 11 12 13 14 15 16 Q 17 18 19 20 A 21 22 Q 23 24 25 A 26 27 28 29 Q 30 31 A 32 Q 33 34 35 A 36 Q 37 38 39 A 40 41 Q 42 A 43 44 Q 45 46 A 47 15516 suspect they would very soon be in severe nutritional difficulties. And one of the reasons, anthropologically speaking, for the widespread of hunters is to secure fat as well as meat, and I would think that one reason why the Wet'suwet'en required their large territories to the south was to provision themselves with a fat supply, particularly from beaver in the winter. Yes. I'll come to that. But I think that, therefore, I would be skeptical of the notion that all the people living at Moricetown could subsist on the resources available close to Moricetown. Perhaps a small number could, but the Moricetown fishery encouraged a large concentration of people. Right. But the technology that we are told about is almost exclusively -- for preservation, that is, is almost exclusively directed to the preservation of salmon, isn't it? There's a kungax, if I remember rightly, that refers to fat storage. But in terms of the bulk of the information that we are given, the emphasis is on the preservation of salmon; isn't that correct? Because salmon is difficult to preserve. Fat is not difficult to preserve. Therefore, there's bound to be a sophisticated technology of preservation of salmon in all societies. For whatever reason, the emphasis is on the preservation of the fish? Right. Yes. Now, your evidence in the Apsassin case made reference, for instance, to the preservation of meat, dried meat? Yes. I can recall no evidence of any such equivalent pemmican or whatever it was in any evidence that we've heard with respect to these two societies. Once you're west of The Rockies, making dry meat is a much trickier matter -- Okay. -- because of the climate. You can't make dry meat in a humid climate. All right. Well, that's a very good reason why we don't hear much about it, isn't it? We do hear about smokehouses in the southern territories. 15517 1 Q Now, the permanent villages were, of course, regarded 2 by the Wet'suwet'en as their home; isn't that right? 3 A Yes, in a -- there's a lot of evidence — I was very 4 struck by this -- in the way in which the winter -- 5 what might be called the winter villages were home 6 villages. 7 Q I'm talking about Moricetown and Hagwilget. 8 A Oh. Then we're at odds here. Moricetown and 9 Hagwilget were very important as summer villages and, 10 as I think I say somewhere in my opinion, the Gitksan 11 would refer to Moricetown as the abandoned place, 12 presumably because people were often away from it. 13 Q Down at the coast at the canneries? 14 A No. I don't think so. Way in their territories to 15 the south, which is where they would be provisioning 16 themselves and subsisting for much if not most of the 17 year. 18 Q I put it to you again that the Gitksan — the 19 Wet'suwet'en regarded the Moricetown and Hagwilget as 20 home. You disagree with that? 21 A I think they regard both places as home. It was home 22 for the summer for the salmon fishery at Moricetown or 23 Hagwilget and home for the autumn, winter, early 24 spring in the territories. 25 Q So they've got two homes? 26 A It's the characteristic of people who move between 27 winter resources and summer resources, yes. 28 Q Well, now, the -- for instance, berries. Where would 29 you expect people to go for berries? 30 A They're picking berries in late spring and early fall, 31 so they might well have berry picking patches close to 32 where they'd be living at those times of year. 33 MR. GOLDIE: Well, Mr. Joseph's evidence appeared to be that the 34 berries were picked around the village of Moricetown 35 or Hagwilget. 36 MR. JACKSON: Which tab is this, Mr. Goldie? 37 MR. GOLDIE: 38 Q This is Tab 16, page 2238. 39 A 22? 40 Q 38. Question 10: 41 42 Q "Now Mr. Joseph, can you tell His 43 Lordship when people pick huckleberries? 44 A In about mid-August and on. 45 Q Yeah. And blueberries are what, a 46 little later? 47 A No. They are about the same time. 15518 1 Q About the same time? 2 A Yeah. 3 Q The -- your people when you were growing 4 up, did not use the territory in the 5 summer time, did they? 6 A They did for berries. 7 Q Did they go down from the village of 8 Hagwilget to the -- to Gisdaywa's 9 territory to pick berries? 10 A Yes. 11 Q That's a long way to pick berries, is it 12 not? 13 A It's -- they have to -- well some of 14 them lived there year round at the time, 15 some of my grandparents. 16 Q And your uncle? 17 A Yes. 18 Q Yeah. Are those the people you are 19 referring to? 2 0 A Yes." 21 22 Now, his uncle, his evidence was, Mr. Thomas George, 23 lived on a farm in this area. 24 Continuing: 25 26 Q "In particular, you and your family? 27 A Yes. 28 Q And berries that, for instance, your 29 grandmother Cecilia wanted, were 30 picked around the village? 31 A Yes. 32 Q I think you told His Lordship where she 33 picked was subdivided and towns are -- 34 or buildings on it and some commercial 35 building on that area, so that was 36 where? 37 A Around New Hazelton." 38 39 Q So that would indicate that unless you were living 40 permanently outside those villages, you got your 41 berries right around them. That's a logical 42 proposition? 43 A Confirmed what I just said, that I think you pick your 44 berries adjacent to where you were, although I'm 45 reminded reading that of people making long journeys 46 to pick berries. When I was there, there were 47 favourite berry patches, of course, areas that had 15519 1 been burned and looked after long periods of time to 2 maintain them as productive berry patches which people 3 would travel quite a long ways. 4 Q In automobiles and trucks? 5 A In modern times, yes. 6 MR. GOLDIE: Yes. Thank you. 7 THE COURT: Can we adjourn? 8 MR. GOLDIE: Thank you, my lord. 9 THE COURT: Two o'clock, please. 10 THE REGISTRAR: Order in court. Court will adjourn until two. 11 12 13 (PROCEEDINGS ADJOURNED) 14 15 I hereby certify the foregoing to be 16 a true and accurate transcript of the 17 proceedings transcribed to the best 18 of my skill and ability. 19 20 21 22 Kathie Tanaka, Official Reporter 23 UNITED REPORTING SERVICE LTD. 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 15520 1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT) 2 3 THE COURT: Mr. Goldie. 4 MR. GOLDIE: Thank you, my lord. My lord, the preface to Mr. 5 Brody's book "Maps and Dreams" to which I've referred 6 him -- 7 THE COURT: Yes. 8 MR. GOLDIE: — could that be inserted under tab 37 — 9 THE COURT: Yes. All right. 10 MR. GOLDIE: — of the book. 11 THE COURT: All right. That will be 992-37. 12 MR. GOLDIE: Yes. 13 THE REGISTRAR: No. 995. 14 MR. GOLDIE: 995. 15 THE COURT: Oh. 995. There were a couple of other items you 16 mentioned this morning, Mr. Goldie, that were not 17 marked. 18 MR. GOLDIE: That's right. I had got along fairly far. I 19 propose leaving in the book. 20 THE COURT: You don't have to deal with them now unless you wish 21 to — 22 MR. GOLDIE: Well, it might as well be done now while it's fresh 23 in my recollection. 24 THE COURT: All right. 25 MR. GOLDIE: Under tab 4, I don't propose marking the extract 26 from Mr. Brody's evidence in chief. It's identified 27 as Volume 211. But I'd like to leave it in the book. 2 8 THE COURT: Yes. 29 MR. GOLDIE: Tab five I haven't referred to yet; nor six. 30 THE REGISTRAR: That's 13, 14, 16. 31 MR. GOLDIE: Yes. Thank you. 13 is proceedings at the trial 32 Antonia Mills. That's Volume 200. I don't propose 33 marking that. The extracts from Father Morice's book 34 at tab 14 I'd like that marked. 35 THE COURT: That will be 995-14. 36 THE REGISTRAR: 14. 37 38 (EXHIBIT 955-14: Tab 14 - Extracts from Works of 39 Father Morice) 40 41 MR. JACKSON: I think that's already been marked as an exhibit. 42 I have no objection to it being marked again. 43 THE COURT: Oh, it's 955-3 isn't it? 4 4 MR. JACKSON: Yes, my lord. 45 THE COURT: All right. Well, it's convenient to have it marked 46 again. 47 MR. GOLDIE: Yes, that's right. 15521 1 THE REGISTRAR: And 16, Mr. Goldie. 2 MR. GOLDIE: And 16, yes. That's proceedings at trial Volume 3 135. 4 THE COURT: Yes. 5 MR. GOLDIE: Extracts which I'll leave in the book which I don't 6 propose marking. 7 THE COURT: All right. 8 9 (EXHIBIT 995-37: Tab 37 - Preface to "Maps and 10 Dreams" - H. Brody) 11 12 MR. GOLDIE: And that, I think, brings me down to the point I'm 13 at now. 14 THE COURT: All right. 15 16 CROSS-EXAMINATION BY MR. GOLDIE (Cont'd): 17 Q Now, Mr. Brody, before lunch we were discussing some 18 of the aspects of hunting-gathering societies and I 19 have got to the point where I was discussing with you 20 the Wet'suwet'en use of the resource which came to its 21 doorstep, namely salmon. And we had got on to some 22 discussion of game. So far as subsistence is 23 concerned, there wasn't that much game in this area 24 anyway, was there? 25 A Which area are you referring to? 26 Q The Wet'suwet'en area. 27 A No, I think there was probably quite a lot of game in 28 the area, if you take into account the groundhog in 29 the alpine, beaver, the caribou in the mountains, you 30 were saying earlier on yourself, in the 1800s. Time 31 period is important here because of the spread of 32 moose populations. So we need to be careful. But of 33 course in the relatively fertile lowlands of the 34 Bulkley/Morice system there would be many small 35 species, and as anthropologists can tell us, the small 36 species are very important in the hunting-gathering 37 system. Often of underrated importance. Grouse, 38 rabbits, whitefish, permanent populations of trout in 39 lakes and so on. So it's a difficult thing to 40 summarize, but I would think there would be quite a 41 lot of game, yeah. 42 Q Do you have any particular references that you have in 43 mind for that, for those statements? 44 A No. That's the impression I got from talking to 45 people about living memory and from some of the 46 accounts of the past. 47 Q Well, we have here Professor Ray's evidence that 15522 1 salmon was the only truly abundant resource. Would 2 you agree with that? 3 A Well, salmon came, as you said, to one spot in many 4 thousands in a predictable manner. It's a question of 5 how Dr. Ray is using the term abundant as a way in 6 which salmon are abundant unlike any other resource. 7 Q Well, I — 8 A Or unlike most other resources. 9 Q I refer you to tab 18 which is an extract from his 10 report, and the second paragraph starts off: "The 11 truly abundant resource was salmon." Can you accept 12 that as a general statement? 13 A Yes. As I just said, salmon is abundant. 14 Q Thank you. And he also gave some evidence, if I 15 understand what he said correctly, that there really 16 wasn't enough food of the game character that would 17 support Fort Connelly and I am referring to -- if he's 18 referring to Fort Connelly and I'm not sure, but I'm 19 referring to his evidence at under tab 17, page -- 20 A Tab 17? 21 Q Page 13373. 22 A Which line? 23 Q 34 to 37, he's talking about the people in the 24 Hudson's Bay post and he said -- he is talking about 25 the documents and: 26 27 "I might add, the still very tedious, but it's 28 clear the men are preoccupied with getting enough 29 fish because there wasn't enough game in New 30 Caledonia to keep the post going." 31 32 MR. JACKSON: This is the last part of a long answer, my lord. 33 Could the witness be given a moment to read the whole 34 answer? 35 MR. GOLDIE: 36 Q Oh certainly. 37 A Well, you might be right that he's referring here to 38 Fort Connelly on Bear Lake, whereas I think I said in 39 my opinion on Bear Lake there was perhaps a bit of a 40 resource problem, because it lies in a difficult 41 environmental circumstance and is very, very high up 42 the Skeena salmon system. You have to make a very 43 careful distinction when looking at these kinds of 44 opinions between persons dependent on the Fraser 45 salmon resource or the very headwaters of the Skeena 46 at Bear Lake on the one hand and people dependent on 47 the salmon resource on the Bulkley, Moricetown on the 1 2 3 4 5 6 7 8 9 10 11 Q 12 13 14 15 16 A 17 18 Q 19 20 A 21 Q 22 23 24 25 A 26 27 28 Q 29 30 31 A 32 Q 33 34 A 35 Q 36 37 38 A 39 Q 40 A 41 Q 42 43 A 44 Q 45 46 47 15523 other. And as I said, I think when talking about Bear Lake or when writing about Bear Lake, that is an area where I can imagine people would not have centred in large numbers, because there is not a good combination of reliable salmon and reliable hunting territories. Unlike the circumstances at Moricetown/Hagwilget where there is both a very reliable salmon resource, subject to the rare catastrophe of a rock slide, and relatively rich hunting territories stretching far to the south. Yes, you expanded on that in your evidence in chief. It's not so much a question of the watersheds. It's a question of who were trading at the fort, is it not? If Mr. Ray is talking about the dependence of the fort people on native people? Well, this is 17. I just flipped forward to the other one that you gave me. Yes. The people who traded at the fort didn't go by watersheds. They crossed watersheds, didn't they? Yes, they did. Yes. So when he says there wasn't enough game in New Caledonia, he is making a reference to the people who traded at the fort and their ability to supply the fort, isn't that correct? Well, the ability of the fort to get supplies is different from the ability of the people to supply the fort. Mr. Brody, his entire answer starts off with the words "in my opinion the company was very dependent on the native people." Yes. Would you please assume that for the purposes of my question? Yes, I will. Yes. All right. So it's a question of the dependence of the fort on the people who were trading at the fort? Yes. Isn't it? Yes. And his opinion is that there wasn't that much game, enough game in New Caledonia to keep the posts going? Well, that's the opinion of the trader, is it, here? Well, that's his opinion as I understand it. And it was Professor Ray's conclusion, was it not, that anybody was free to hunt large game and to take fish, but that there was relatively little large game 15524 1 hunting? 2 A Around the Bear Lake post are you saying? 3 Q Well — 4 A I don't -- I can't believe you are asking me to give 5 an opinion about the resources in the whole of New 6 Caledonia here. 7 Q No, I am not asking you to give an opinion. I am just 8 drawing to your attention the opinion of Professor 9 Ray. Now, if you would look under tab 19, page 10 1354 -- 13580, this is the evidence of Professor Ray 11 in Volume 204, my lord. 12 THE COURT: What volume? 13 MR. GOLDIE: It's volume -- it's under tab 19 and the volume is 14 from Volume 2 04. 15 THE COURT: Yes. 16 MR. GOLDIE: 17 Q And, well, actually I should start at 13579 so that 18 you get the context. And at line 35 Mr. Willms is 19 asking Professor Ray why he changed a word in his 20 report from wealth to resources. And the question is. 21 22 "Q In the final. And this is why I am just 23 wondering about your change from 'wealth' to 24 resources, because on page 25 you say: 25 26 'In contrast to beaver some other resources 27 were not as carefully husbanded.' 28 2 9 And then you say: 30 31 'Men who did not have a land stake were 32 allowed to trap marten.'. 33 34 And then you say: 35 36 'This no mention is made about prohibitions 37 concerning the hunting of large game or the 38 taking of fish.' 39 40 No mention is made of those two. Now, 41 certainly those two might be called 42 subsistence items, correct? 43 A First of all, they took — 44 Q Well, would you agree that those were 45 subsistence? 46 A Yes. 47 Q Large game and fish? 15525 1 A Yes." 2 3 Now, just pausing there. You follow what Professor 4 Ray is saying up till now? 5 A Yes, I do, yes. 6 Q Then it goes on to say: 7 8 "A First of all, relatively little large 9 game hunting was done in this area and as 10 far as fish was concerned Brown and others 11 make it clear that most of the fishing was a 12 communal activity except he doesn't explain 13 the exception may be with regard to the 14 Hot-sett and the dip net scenario, but these 15 other groups, including the Gitksan, were -- 16 they fished with barriers and those were 17 collectively put together. So -- and they 18 belonged to a particular village. So -- 19 Q Well, the Babine — 20 A It wouldn't surprise me in that sense, if 21 you want to use it in that sense it's 22 commonly available to the members of the 23 house since they collectively are engaged in 24 the activity of obtaining it. 25 Q And the Babines had nets and in fact they 26 sold the nets to Trader Brown and Trader 27 Brown used the nets to get fish?" 28 29 And then he goes on -- well, I'll stop at that point 30 and ask you to go back to the statement at line 12: 31 32 "First of all, relatively little large game 33 hunting was done in this area." 34 35 Do you have any reason to doubt that? 36 A If that's Dr. Ray's opinion based on the documents 37 he's looked at, I am interested in that -- in that 38 opinion. However, I assume that large game is not 39 being used to include beaver or groundhog and they 40 would be tremendously important resources in that 41 period. 42 Q Yes. 43 A And of course this is before the movement of the moose 44 in substantial numbers back into the area. 45 Q Yes. We have had Dr. Hatler give us the date when 46 moose came into the area. What is the date? 47 A Tell me. I haven't heard -- I haven't seen Dr. 1 2 Q 3 A 4 5 6 7 Q 8 9 A 10 11 12 13 Q 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 A 34 35 Q 36 37 A 38 39 40 41 Q 42 43 44 A 45 46 Q 47 A 15526 Hatler's evidence. I see. Well, you don't know then? I know it was in the nineteenth century -- well, I am given to understand it was in the nineteenth century. I don't have a -- I am not an expert of moose population. So that's a span of a hundred years. So it could be anywhere in the nineteenth century? If I remember rightly it was in the first half of the nineteenth century that they appeared and became relatively abundant through the century. But I am dredging around in memories, so I am not sure about. Yes. Now, the -- going back to page 548, 13548 under the same tab, and this again is Professor Ray's evidence. Mr. Willms put this question to him at line 13: "Q One thing that you noted on your review of the Hudson's Bay documents was that putting aside fur trapping, the exploitation of animals by the Atnahs or the Babine/Wet'suwet'en was pretty minimal? A Uh-huh. Q Is that correct? A Uh-huh. Q You have to say yes or no. A Oh sorry. Yes. This I assume means in terms of food and that sort of thing. I would have to say it would have some for clothing." Would you agree with that? I agree with that being Dr. Ray's assessment of his evidence. Yes. Well, your assessment is based on what people have told you of their recollection? Yes. And I'm also having to ask questions of myself all the time about how the system was likely to have functioned, how people deal with the fact they are on a high protein source and so on. Yes, of course. Now, let me put this to you, though: Nobody in his right mind would spend all winter out in a territory looking for just clothing, would he? You can't separate clothing from fat and meat anyway in these economies. Well — If you kill the animal you have the skin for the 1 2 Q 3 4 5 A 6 7 Q 8 9 10 A 11 Q 12 A 13 Q 14 15 16 17 18 A 19 20 Q 21 A 22 Q 23 24 A 25 26 Q 27 A 28 29 30 Q 31 32 33 A 34 35 36 37 Q 38 39 40 41 A 42 43 Q 44 A 45 46 47 15527 clothes and you have the fat and meat for your diet. But if you are 90 miles away from your home, you would not be able to carry very much meat, whereas you might be able to carry a skin quite easily? That's right. Which may explain some of the documents here. Yes. And for instance, in Mr. Alfred Joseph's case that was the distance between his home in Hagwilget and his territory, 90 miles? You were giving me a piece of information? Yes, I am. Yes. And I take it, having given you that piece of information that based upon your acceptance of that you would agree with me that you wouldn't be able to pack much food home, but you might very well be able to pack a skin? In my experience in travelling with hunters it's startling what people can pack and do pack. Yes, we're -- So — I accept that. If you are talking, as I think you are, of a hunting-gathering society. I am talking of a society where hunting and gathering is an important part of the seasonal round. Yes. There may be a need to bring fat to a summer fishing place, for example, and I can well imagine people carrying large amounts of fat. And this is -- we are now talking about the Wet'suwet'en at a time when they didn't have a horse or any other means of transportation than their back? Oh, no, there is a very remarkable ability to carry things on the back in these cultures. I am sure it's very well documented in all the literature -- in much of the literature. Let me put this proposition to you that the only reason that people would spend an extended period of time 90 miles away from their home during the winter would be to carry on an economic activity? There is a kind of concealed assumption in your question, if I might say, sir. I thought I'd stated my assumption. They are 90 miles away from their home, I think we said earlier that they have more than one home. They have a home that is in the hunting territories. There are winter homes and summer homes, and people may be 1 2 3 4 5 6 Q 7 A 8 9 10 11 Q 12 13 14 15 16 A 17 18 19 Q 20 21 22 23 24 A 25 Q 26 A 27 28 Q 29 30 A 31 32 Q 33 A 34 Q 35 36 A 37 38 Q 39 40 A 41 Q 42 43 44 45 A 46 47 Q 15528 moving from home to home, and it may well be as I think some elders have said that they felt that the winter home where they spent more of their time was more of a home than the summer home at the fishing grounds. Yes. That — that — So I wouldn't agree that people are suffering the discomfort of packing stuff from a long way from home. They are at home or close to home when they are doing their hunting. Yes. Mr. -- or Dr. -- Mr. Brody, please make the assumption that the home is Hagwilget and that the person who is moving between his home is moving a distance of 90 miles. I ask you to make that assumption. Well, I have to say I am very troubled by being asked to make an assumption -- by being asked to assume something that I don't believe is the case. Yes. All right. I ask you to make that assumption and I suggest to you that if people were 90 miles away from their home they would be there to carry on an economic activity and my question included the assumption of extended time. The assumption of? Extended time in the territory. I don't know what you mean by the second assumption. Perhaps you could unpack the second assumption for me. Well, what assumption -- what do you take out of the word extended time? Are you talking about people spending a long period in the winter territory? Yes, I am. Or a long period in history, a long historical span? No, not long period in history. I am talking about a long period seasonally. That people would spend seven months on their winter hunting territories. Is that -- is that -- are you comfortable with that assumption? Yes. I can make that assumption if ask me to, yes. All right. Well, with those assumptions I suggest to you that the only reasonable explanation for being out in the winter territory for that length of time would be to carry on an economic activity? Economic activities include subsistence hunting. In my experience -- Exclude those, please. 15529 1 A Please let me finish, Mr. Goldie. 2 Q Excuse me, Mr. Brody. 3 MR. JACKSON: My lord — 4 MR. GOLDIE: I want to state — 5 MR. JACKSON: My lord, I must object at this point. 6 THE COURT: Mr. Goldie, Mr. Jackson is entitled to make an 7 objection. 8 MR. GOLDIE: All right. Well, carry on, please. 9 MR. JACKSON: My lord, Mr. Goldie has asked Mr. Brody to make a 10 set of assumptions which seem to be pyramiding one 11 upon another. At this particular point I am 12 completely unable to follow the assumptions upon which 13 Mr. Brody is being asked a particular question and 14 perhaps if Mr. Goldie can restate it and set out 15 clearly the assumptions which are being made, the 16 witness may be able to complete his answer. 17 MR. GOLDIE: 18 Q All right. Let us restate the assumptions that I am 19 asking you to make. One, the primary food source is 20 at the doorstep of the home in Hagwilget. You accept 21 that? 22 A Do I accept it as a truth or as an assumption? 23 Q No. I said an assumption. Please listen to what I am 24 saying, Mr. Brody, and we will get along much faster. 25 The second assumption is that the territory in which 26 the hunting is carried out is 90 miles away from that 27 home. Number three, that subsistence is not an 28 economic activity in the question I am about to ask 29 you. Number four, that extended time is a period in 30 the wintertime of up to seven months. You understand 31 those assumptions? 32 A Yes. 33 Q Now, on those assumptions I suggest to you that the 34 only logical reason for somebody being away from his 35 home 90 miles for an extended period in the wintertime 36 would be to carry on an economic activity other than 37 subsistence? 38 A Well, your assumptions logically compel the 39 conclusion, because you have defined economic activity 40 to exclude subsistence in your assumptions. 41 Q Yes. 42 A So it follows logically, not as a matter of any 43 empirical interest, but as a matter of logic that they 44 are out there pursuing an economic activity. 45 Q Thank you. And if subsistence can be satisfied near 46 at hand and not -- does not need a trip of some 90 47 miles, would you not agree with me that subsistence is 1 2 3 A 4 5 Q 6 A 7 Q 8 9 A 10 Q 11 12 A 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Q 28 A 29 30 31 32 Q 33 A 34 35 36 37 Q 38 39 40 41 A 42 43 Q 44 A 45 46 47 15530 not an economic activity that would be pursued for an extended period in the territory? I am sorry, you will have to rephrase that question. It's far too long to grasp. You don't understand that? I didn't understand that question. All right. I suggest to you that subsistence can be satisfied close at hand -- No. Well, I think I said -- -- from the river and from hunting grounds near at hand. I think I said before lunch I didn't think that was the case. In my understanding of the reliance upon the river as an abundance -- a source of an abundant supply of salmon lies in the fact that it becomes possible for a relatively large number of people to live there during the summer when the salmon are running and when people can be laying in big supplies of protein. But once the salmon aren't there, there is the protein/fat ratio problem and the large numbers of people will not be able as a whole to subsist on the available fat resources that are adjacent to the community. So they are therefore ever pressed into spreading out onto hunting territories, pressed into going into their winter homes where they will be able to subsist properly. And that is speculation on your part? Well, it's speculation based on a good deal of anthropological data from other places and it's based on what people tell me and it's based on many of the suggestive parts of the Kungax in particular. Your reliance is upon experience elsewhere? I said my reliance is upon all those different basis including what people tell me about that area and including what anthropology tells me about the way the system in that area is likely to have functioned. Well, I am suggesting to you, if you haven't already guessed it, that the economic activity which is carried on in the manner I've suggested is trapping. Now, would you agree with that? Trapping is an important part of what people have used those territories for in recent times, yes. Define recent times, please. Since trapping with steel traps, I -- by the way, when I say trapping I mean trapping with steel traps, not with deadfalls and so on. Trapping for the fur trade, for sale of furs to white traders is something that 15531 goes back to the early part of the nineteenth century in that area. Early being the first 25 years? Yes, I imagine that Wet'suwet'en would have probably have begun to acquire steel traps by the 1820s. I am not sure of this. In fact, now you asked me I would be interested to find that out. Well, have you read Simon Fraser's account? Yes, I have. It's a long time ago. Do you remember his reference to ironworks? No, I don't. No. You understand that to be traps, do you not? Ironworks. I'd have to see the text. All right. I — Fraser went into Fort Fraser, what is now Fort Fraser in 1806? Yes, that's right. And did he not find people from the west who said they got their ironworks from the west? I'd have to look at the passage. I am not able to comment. All right. Now, you referred in your evidence to the McKenna -- evidence before the Royal Commission and I am referring to Exhibit 993, my lord, which is -- 26 THE REGISTRAR: Book 2. 27 MR. GOLDIE: Book 2 or Volume 2 at tab 17. 2 8 MR. JACKSON: Volume 3. 29 MR. GOLDIE: Volume 3, yes, thank you. 30 THE REGISTRAR: Tab 17? 31 MR. GOLDIE: Yes, if that could be placed in front of the 32 witness. 33 THE COURT: Volume 3 you say? 34 THE REGISTRAR: Yes, it is, my lord. 35 MR. GOLDIE: Yes, it is, my lord. 36 A Thank you. 37 MR. GOLDIE: 38 Q That extract is almost entirely taken up with 39 statements made by Father Godfrey? 40 A That's right, yes. 41 Q And he was the missionary at Moricetown? 42 A Yes. 43 Q Which -- and I -- am I correct in my understanding 44 that he was -- Hagwilget was also under his charge? 45 A Yeah, the Catholic community in the area, the 46 Wet'suwet'en Catholic community in the area would have 47 been under his charge. 1 2 3 Q 4 A 5 6 7 8 Q 9 A 10 Q 11 A 12 Q 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 21 A 22 23 Q 24 25 15532 1 Q Yes. I am not sure the purpose for which you 2 introduced that evidence. 3 MR. JACKSON: My lord, I introduced the evidence. I don't think 4 Mr. Brody introduced the evidence. 5 MR. GOLDIE: Well, he -- I accept my friend's correction. I am 6 not sure for what purpose. 7 Q You consulted this, my recollection is that this is 8 one of the things that you consulted? 9 A I read this Stuart Lake agency McKenna McBride 10 hearings and this is part of it. 11 Q Yes. All right. Well, I am going to suggest to you 12 that the only economic activity which the Wet'suwet'en 13 carried on was trapping in the wintertime and the 14 selling of the furs in the spring so far as the 15 territories were concerned. Now, you can agree or 16 disagree with that and then we can proceed. 17 A Are you going to suggest that to me? 18 Q Yes. 19 A Well — 20 Q Do you agree or disagree? 21 A Well, if you are defining economic as the only 22 activity which generated a tradeable product, i.e. 23 tradeable with the trading posts or other white 24 traders in the area, yes, then I can agree with that. 25 Q All right. And the only reason for the demarcation of 26 clan or house territories was to mark off exclusive 27 trapping areas? 28 A No, I can't agree with that at all. Anthropologically 29 that doesn't make a lot of sense to me. 30 Q Well, it was -- of the animals trapped, was it not Dr. 31 Ray's conclusion that only the beaver was regarded as 32 exclusively reserved to the owner of territory? 33 A I am not sure what Dr. Ray's opinion is. 34 Q Well, let's go to tab 19, page 578, my lord. Well, 35 perhaps 579 if you want to. 36 THE COURT: I am sorry, you said tab 19? 37 MR. GOLDIE: Tab 19 there are a series of pages, my lord. 38 THE COURT: I am sorry. 39 MR. GOLDIE: I am sorry, it's tab 19 of the orange book. 4 0 THE COURT: Thank you. Yes, I have it. 41 MR. GOLDIE: 42 Q And the context really starts in 578, and again he's 43 being asked to explain certain changes he made between 44 his final draft report and his original draft and 45 question at line 30 in 578, quote: 46 47 " 'In which tracts of land' and you said in 15533 1 your draft 'the tracts were owned by clans 2 but subdivided and apportioned to men of 3 property who were the lineage house heads' 4 and I take it when you used the word 'clans' 5 in your draft you mean tribe? 6 A Yes. I was thinking of these larger 7 groupings of these families." 8 9 And then he talks about subdivision and apportionment 10 and over on the page -- well, his answer at line 43: 11 12 "A Because I'm talking here -- I shifted the 13 emphasis somewhat and talking about -- first 14 of all, I think we'll agree that furs, wild 15 game on the land is a resource, right, which 16 is converted into wealth -- well it can be 17 a wealth in itself, but it's a raw material, 18 right? 19 Q Like marten? 20 A Yeah. marten, beaver, fish, salmon, all 21 these resources are products of the land and 22 the heads of those families manage those 23 tracts of lands, but they are also - a bit 24 loose writing on my part, I suppose, they 25 were also by the record, the record clearly 26 says they owned those properties. So in 27 that respect they should have probably left 28 the original on that point as it was," 29 30 And then we go down to line 14: 31 32 "Q They managed the beaver trapping. Isn't 33 that what the Brown record shows, beaver 34 trapping? 35 A He specifically addresses himself to that, 36 because that was one of his preoccupations, 37 yes. But the problem is that ideally the 38 record should have given us more detail than 39 it did. We are not totally clear what 40 happens to the rest of the resource. It 41 seems to me it would be reasonable to 42 suppose that the things like marten, members 43 of a house, we are talking -- I mean, okay. 44 What term would you like me to use? If we 45 are talking about members of the same family 46 on a given family's territory, it seems the 47 way the the context of the record works I 15534 1 would say that these other resources were 2 accessible to the members of that group in 3 that territory, but beaver which was closely 4 tied to the feasting complex, was more 5 tightly controlled by the head. That was -- 6 that would be the way I would interpret it." 7 8 Now, isn't that consistent with your understanding 9 that beaver was exclusively reserved to the owner of 10 the territory? 11 A No, that's not my understanding at all. My 12 understanding is that the resources of each house 13 territory were under the jurisdiction of the head of 14 each house and that persons had special responsibility 15 for those resources and that would go to all the 16 resources in the area. I have no reason for thinking 17 that people were prepared to let someone else trap 18 marten or hunt grouse on their territory but not let 19 them hunt or trap beaver on their territory. 20 Q Well, isn't he saying that the beaver is more closely 21 controlled? 22 A He says the beaver has special importance in the 23 Wet'suwet'en Feast system. 24 Q Yes. But — 25 A And it also had importance for traders. 26 Q Well, he said was more tightly controlled by the head. 27 Do you accept that? 28 A Well, I think that with all due respect Dr. Ray is 29 venturing an anthropological opinion here which is not 30 based on the documents which are under the discussion. 31 It's not something that anything here goes to that as 32 I can understand the page and I haven't read all these 33 two pages you put to me of all this. 34 Q Yes. 35 A But I don't quite see where he is getting this opinion 36 from. 37 Q Well, go down to line 35: 38 39 "Q In the final. And this is why I am just 4 0 wondering about your change from 'wealth' to 41 resources, because on page 25 you say: 42 43 'In contrast to beaver some other resources 44 were not as carefully husbanded.'. 45 4 6 And then you say: 47 15535 1 'Men who did not have a land stake were 2 allowed to trap marten.'. 3 4 And then you say this: 5 6 'this -- " 7 8 I think that means "there is no mention": 9 10 'This no mention is made about prohibitions 11 concerning the hunting of large game or the 12 taking of fish.'" 13 14 And I read this to you before: 15 16 "No mention is made of those two. Now, 17 certainly those two might be called 18 subsistent items, correct?" 19 20 21 And then he goes on to talk about that. 22 A But as he pointed -- sorry. 23 Q I am now directing your attention to his report which 24 makes a distinction between beaver and the right of 25 men who do not have a land stake to trap marten. Now, 26 doesn't that suggest to you that there is a tighter 27 control with respect to beaver? 28 A As I understand Dr. Ray on line 16, 17 of this page 29 13579 here that you've asked me to read, he is saying 30 that he's basing what he says on the Hudson's Bay 31 Company records and he complains that the record is 32 not adequate when it comes to anything but beaver. 33 Therefore, there is a distortionate emphasis on beaver 34 as a result of the trader's preoccupation with beaver 35 which is reflected in the documents he's consulting. 36 That's what I understand him to be saying here. 37 Q Yes. But he -- Dr. -- Mr. Brody, I directed your 38 attention to his opinion. 39 A I haven't got a copy of his opinion in front of me. 40 Q Which is quoted -- it is quoted at line 39. 41 A Well, I'd like to have a look at his opinion. I 42 haven't read his opinion. 43 Q Well, I am directing your attention to, quote: 44 45 "'In contrast to beaver some other resources were 46 not as carefully husbanded.'" 47 15536 1 A I can't judge how Dr. Ray is using the evidence here 2 from one short sentence. I would need to read that 3 section of the report, which I can do if you pass it 4 to me. 5 Q Mr. Brody, isn't it a perfectly logical proposition 6 that beaver which inhabit streams and don't stray very 7 far away from them are less mobile than marten and are 8 more valuable? They possess those two 9 characteristics? 10 A It would follow they would be more carefully 11 husbanded? 12 Q No. More tightly controlled. 13 A Well, I'd have to look at the evidence, Mr. Goldie. 14 You are asking me to go into something here that -- 15 Q Let me go back to something that you have expressed 16 views on. 17 A Uh-huh. 18 Q Why would hunter-gatherers divide land up anyway? 19 A Well, you are asking one of the most difficult 20 questions that anthropologists face and -- 21 Q Well, instead of characterizing the difficulty, you 22 have expressed opinions on this, haven't you? 23 A There is a connection between -- 24 Q Well, can you express -- can you answer my question? 25 MR. JACKSON: Well, Mr. Goldie has asked a question. Perhaps he 26 could give the witness an opportunity to respond. 27 THE COURT: Well, I took the sense that the witness was seeking 28 to discuss something else without answering the 29 question. The question was a very simple one. Why 30 would hunter-gatherers divide up the land anyway? 31 That's the question. It seems to me that is one that 32 is capable of being answered or of not being answered. 33 No discussion is required. We can have discussion 34 afterwards if the witness wishes. 35 A It's a — 36 THE COURT: Do you understand the question? 37 A It's a simple question, my lord, I agree. But it's 38 one that has a rather complicated answer. First of 39 all, hunter-gatherers in my experience do divide up 40 the land in various ways, either by convention over 41 long periods of time. There is an association between 42 families and areas or between subcultural groups and 43 areas, and there is also a connection between 44 hunter-gatherers who are focused on a large resource 45 which comes to them and a great preoccupation with 46 territoriality. And in the anthropological literature 47 there seems to be evidence for a simple correlation 15537 1 between peoples who rely on a large resource that 2 comes to them at one place, thanks to which they spend 3 a part of the year there in large numbers, the people 4 I mean are there in large numbers, a correlation 5 between that and a great deal of territoriality and 6 preoccupation with property relations and boundaries 7 and so on. Now, that's not an explanation of why it 8 happens. Only that there is this correlation. And if 9 you ask me why it happens, I would want you to give me 10 time to think and try and review the anthropological 11 theory in this matter. 12 MR. GOLDIE: 13 Q Well, you gave the answer in the Apsassin case, didn't 14 you? 15 A Well, you can refer me to it. 16 Q No. I mean did you or did you not? 17 A I don't remember asking and answering that particular 18 question, but I might have done. It's quite long time 19 since I wrote it. 20 Q Well, you — 21 A Mr. Goldie, if in the Apsassin case you have somewhere 22 where I deal with this, perhaps you can direct me to 23 it and I can refresh my memory. 24 Q Well, I have directed you to it. 25 A Well — 26 Q If you would like to look back under tab 3, and this 27 is only a part of it. You were testifying to the 28 effect that the imposition of the trapline 29 registration created divisions and that that confined 30 the people, and you said the result of that was to 31 divide the people. Do you recall that? 32 A I recall this part of the -- 33 Q Yes. 34 A -- the argument, yes. 35 Q Yes. And then you went on to say: "I don't 36 understand how -- " 37 38 I am sorry, the court went on at about line five, 1839 39 under tab 3, my lord, and I read -- I have read this. 40 41 "I don't understand how the confinement then to 42 smaller areas would divide the people. Would you 43 explain that, because it seems to me that at first 44 blush the wider the area you're roaming about, the 45 more you're likely to be divided. That's what I 46 don't understand." 47 1 2 3 4 A 5 Q 6 7 8 9 10 11 12 13 A 14 15 16 17 18 19 20 21 22 23 24 Q 25 A 26 Q 27 28 A 29 30 31 32 33 34 35 36 37 38 39 40 41 Q 42 A 43 44 45 Q 46 47 A 15538 Now, just pausing there. You had testified that the Beaver people roamed at large at the area and you confirmed that this morning? I think I talked about this this morning, yes. Yes. And your answer to that question was: "The more you're roaming, the more the hunting system can work well." Now, just pausing there. The less restrictions within the territory the better the hunting is, isn't that correct? Yes. Which helps explain why the southern Wet'suwet'en territories are very large in extent and why the Wet'suwet'en laws provide for the possibility of hunting in adjacent territories in many cases. There is an attempt in the Wet'suwet'en arrangements within the legal system of the Wet'suwet'ens so to speak to combine a great attention to territoriality which coincides with there being focused on a large salmon resource and the requirements of hunting and trapping which, as you point out, is made easier if people have relatively large areas to move over. Well, are you -- This goes a lot -- I am sorry. You were talking about a hunting -- hunter-gathering society which had no internal boundaries? No visible internal boundaries, but does have habits of seasonal rounds. There are places to which families tend to go. One could draw a pattern. I think it came up in the Apsassin case. I think we had a lot of evidence on these patterns in which where we could see that one particular set of relations went in one area and one case I remember the northeast area of the Dunne-za total territory tended always to be used by one family and then the western area by another family. And those are patterns of land use without clear boundaries in the case of the Dunne-za, because they are as we are saying earlier a more flexible Athabaskan. They criss-crossed? They criss-crossed and during the winter they would move back and forth. That was the evidence of the people. They roamed at large. Now, we have been over this several times, and -- Roamed at large is your expression and not mine, you 15539 1 know. 2 Q Well — 3 A They roamed, but at large implies to is no concern at 4 all with where they might be. They are very clear 5 about where their families tend to go. And of course 6 you go where you know the territory, and you acquire 7 your knowledge from going with your elders, and so 8 there tends to be always be a groove warning in a 9 hunter-gatherer's system by the habit that you have 10 acquired through a lifetime. 11 Q Yes. Your answer was the more you are roaming the 12 more the hunting system can work well and the more 13 that as you roam you will criss-cross with other 14 people's paths. I guess that's what I have in mind. 15 Now, did you give that evidence? 16 A Yes, that's right. 17 Q All right. Thank you. And then the court said: 18 19 " If you're in a similar area, aren't you more 20 likely to criss-cross each other? 21 22 A Well, no because the people with whom you 23 would want to criss-cross paths are in another 24 area, which you're not supposed to go, according 25 to the registration rules." 26 27 Now, doesn't that -- weren't you intending to suggest 28 by that that the hunting system works less well where 29 the roaming is confined? 30 A Yes, that's in a very general way true, but as I was 31 saying a moment ago in hunting-gathering systems where 32 there is a concern with boundaries and territoriality, 33 the culture seems to be seeking to establish a balance 34 between the advantages that they evidently find in 35 territoriality and the advantages they evidently find 36 in having large hunting territories. 37 Q The concern that you speak of arises because there has 38 been a division made for the purposes of the economic 39 activity of trapping, isn't that correct? 40 A A division -- a division where? 41 Q A division of territory, the creation of 42 territoriality. 43 A The creation of traplines in the registration 44 program -- 45 Q No, I am sorry. I don't want you to go off on that, 46 because I am not talking about registration. I'm 47 talking about Wet'suwet'en now. And of course, the 1 2 3 A 4 Q 5 A 6 Q 7 A 8 9 Q 10 11 A 12 13 14 15 16 Q 17 18 19 20 21 A 22 Q 23 A 24 25 26 27 28 29 30 31 32 33 34 35 Q 36 A 37 Q 38 39 40 A 41 42 43 44 45 46 47 15540 territoriality concept long antedates the registration system of traplines, doesn't it? Oh, it long antedates the white man's fur trade. Yes. Yes. Well, that's your belief? Well, I think you just agreed to it and it's widely accepted. Excuse me. I am talking about before registration of traplines which you've testified took place in 1926. Oh, yes, it's long before then. I mean it's long before I would expect again from an anthropological view, it's very unlikely that the territoriality is anything but a considerable historical depth, time depth. Mr. Brody, can you now explain why a hunting-gathering society which maximizes the gathering of food in the fashion you described the Beaver did, would ever want to impose upon itself any restrictions, to use your word, on the roaming? Why do cultures preoccupy themselves -- Can you answer that? -- in territoriality? I mean it goes to the whole question of the nature of culture. There are many societies in the world which have great concerns with territoriality which seem not to be maximizing economic advantage. Life is not shaped by the maximizing of economic advantage. One can speculate as an ecologist or a biologist about what arrangement of human life would best yield the fruit of the land. But actually people don't do what ecologists and biologists expect them to do. They have cultural systems. Cultural systems are about all sorts of things that may not seem quite rational to you or me. Well, what's your explanation for the Wet'suwet'en -- I don't have an explanation. -- imposing upon themselves a system of territoriality which reduces the effectiveness of the hunting-gathering system? Well, I -- my understanding of the Wet'suwet'en use of their southern territories is that it really didn't severely impair their ability to harvest effectively. As I was saying, it's very striking when you look at those territories how large the Wet'suwet'en southern territories are. It's very striking when you look at Wet'suwet'en law, how flexible it is when it comes to having access to farthest territory, the caretaking 15541 1 laws and so. It's quite striking that Wet'suwet'en 2 have one or two areas that although owned by the 3 houses according to their arrangement nonetheless 4 constitution semi-open areas. There is a balancing 5 going on here in the culture between the 6 territoriality that seems to be important and the 7 hunting that seems to be important. 8 Q Mr. Brody, would you not agree with me that the 9 territoriality became important when it became 10 important to maximize the trapping, the returns from 11 trapping? 12 A Can you just ask that again? I was diverting my mind. 13 Q I suggest to you that the territoriality became 14 important when it became important to maximize the 15 returns from the trapping activity? 16 A Well, I don't think that's the case. 17 Q Well, you may not think it's the case, but would you 18 agree with it or disagree? 19 A I am disagreeing with you. 20 Q All right. Now, can you tell me on what basis you 21 disagree? And we're talking about the Wet'suwet'en. 22 A We're talking about the Wet'suwet'en, I realize. The 23 earliest accounts of Wet'suwet'en life in the records 24 indicate that there is already in place, and this is 25 in the 1820s, 30s, there is already in place a Feast 26 system. There is nowhere in the anthropological world 27 where there is something like a Feast system without 28 territoriality. So if territory is in place inside 29 the Feast system in the early nineteenth century, then 30 I imagine it's been in place for quite a long time. 31 Q That's your imagination at work? 32 A It's my anthropology at work. 33 Q I see. And if the Feast was introduced or adopted 34 from the Gitksan? 35 A It wouldn't have been in place in the 1820s. 36 THE COURT: I am sorry, it wouldn't have been? 37 A I don't think it would have been in place in the 38 1820s. 39 MR. GOLDIE: 40 Q Why not? 41 A Because it would take a very long time for an 42 institution as complicated as that to establish itself 43 at the centre of another culture's way of organizing 44 itself. 45 Q Well, in your report do you not suggest that these two 46 groups have been influencing each other for many, many 47 years? 1 A 2 Q 3 A 4 Q 5 6 7 8 A 9 Q 10 11 12 13 A 14 15 Q 16 A 17 18 19 Q 20 A 21 22 23 24 25 Q 26 27 28 A 29 30 31 Q 32 33 34 35 36 A 37 38 39 40 41 42 43 44 45 46 47 15542 Many hundreds of years, yes. Yes. I — I suggest that. Is the Feast -- well, you have already testified or you have told us that the Feast system is not a feature of the hunter-gatherer society that is exemplified by the Beaver? Beaver don't have a Feast system, no. No. Well, now -- and you would agree with me, I take it, that the trapping activity is one that is entirely related to the white man, trapping I mean by that trapping for exchange? Well, exchange and trade were part of Wet'suwet'en and Gitksan life long before the coming of the white man. I said trapping for exchange. Well, they probably trapped for exchange using deadfalls. There is a lot of indication of a deadfall trapping technology. Yes. And snares, snaring in a way is one of the most productive forms of what we would call trapping and snaring is an ancient technology too and probably was done for trade with neighbouring groups, in particular with the peoples to the north. Yes. To use your own definition, a trapping with steel traps or what I understand to be called ironworks -- I don't understand to be called ironworks. That seems to be coming from Fraser. That steel perhaps provided by the traders is what I have in mind, yes. Yes. That activity trapping with those implements and for the purposes of trading with the fur traders is a reason, is it not, for subdividing territories on an exclusive use basis at least so far as the Beaver is concerned? I don't see why it's a reason for so doing unless the culture already has these divisions. If you go to cultures to the east or cultures in the Arctic, the fur trade comes along, introduces the steel traps, encourages people successfully to become involved in very intensive fur trading relations and there is no development of subdivision of territories, nothing among the Inuit and only vis-a-vis trapline registration among the Dunne-za, many cultures in Northern Canada where the fur trade does not produce this subdivision, this territoriality, and this leads me to believe that insofar as the fur trade with 15543 1 whites is associated with territoriality, the 2 territoriality is already there and what it may have 3 done is intensify it. But its pre-existence seems the 4 most plausible way of seeing the historical flow of 5 circumstances. 6 Q It may seem the most plausible to you, but I'm 7 suggesting to you that a hunter-gathering society 8 which is in a period of transition would find that at 9 least convenient to adopt a territorial system as a 10 means of exploiting the steel trapping relationship 11 with the fur trade, for example? 12 A It didn't happen among the Dunne-za who were in 13 transition. Very similar moment of history. Didn't 14 happen amongst the Athabaskans along the Mackenzie 15 Valley in a period of transition, same moment of 16 cultural history. Didn't happen amongst the Inuit of 17 the Mackenzie delta, the Inuvialuit. It didn't happen 18 amongst the Central Eskimo. It didn't happen among 19 the -- 20 Q And they were all trapping -- 21 A Let me finish. It didn't happen -- it's very 22 important, this. 23 Q Excuse me. 24 A There is no evidence to suggest from the -- 25 THE COURT: We will take the adjournment now. 26 2 7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 28 2 9 THE COURT: All right. Thank you, Mr. Goldie. 30 MR. JACKSON: My lord, I had a point I wished to make, my lord. 31 THE COURT: Yes. 32 MR. JACKSON: Might I suggest it would be appropriate, I have 33 asked Madam Reporter to locate the point which the 34 last question -- 35 THE COURT: No, Mr. Jackson. Mr. Goldie can put the question 36 again. The worst thing you can ever ask a reporter to 37 do is to read something back. You are asking them to 38 change gears in a way that lawyers have never been 39 able to do themselves and I don't think we should 40 expect it of them. 41 MR. JACKSON: The court reporter has in fact located the 42 question. 43 THE COURT: It's an unfair thing to ask a reporter to do. Go 44 ahead, Mr. Goldie. 45 MR. GOLDIE: Thank you, my lord. 46 Q Mr. Brodie, I interrupted you. You were in the course 47 of giving an answer, because I understood you to be 1 2 3 4 5 A 6 7 Q 8 9 10 A 11 12 Q 13 14 A 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q 29 30 31 32 33 A 34 35 36 Q 37 A 38 39 40 41 42 43 44 45 46 Q 47 A 15544 answering a question that I hadn't asked. Now, I may have been wrong in that understanding. Would you like to complete the answer that you felt I interrupted you in giving? I think it probably would be more helpful if you would restate the question rather than have me -- I don't want to restate a question which give rise to any ambiguity, so I am going to put another question to you. Is that satisfactory? Well, I can remember where I was when we broke and we can go back to it. Well, if you remember where you were, you may want to complete what you wanted to say. I think I was pointing out that if you look at the arrival at the fur trade, that is the white fur trade, in societies in northern Canada, you see that they can be there for a long period of time, involve people in trading relations, people using steel traps, exchanging their furs for other goods and then later in the history for money, and yet not develop a preoccupation with territoriality. And I was giving some examples of this from across the Canadian north and I think I got as far as the Inuvialuit and I was going to give the Inuit of the eastern Arctic and the Naskapi of Labrador and the Inuit of the Labrador coast, and it came into my mind I remember and that is what I was doing. Thank you. Well, now, I want to put this question to you: Would you agree with me that the exploitation of the beaver by the Wet'suwet'en in the fur trade could be a reason why the concept of territoriality would be fostered? Well, it seems to me unlikely if it's not the case in other regions. You know, your question is could be, I suppose. Yes. Territoriality could be intensified by a great deal of importance attaching to one particular resource. My understanding of Wet'suwet'en territoriality is that it was attached to that same resource, beaver, for the Feast system. Beaver was very important for the Feast system, and therefore insofar as territoriality would be associated with a preoccupation with beaver, that would pre-date preoccupation with the beaver for the fur trade. Does that complete your answer? Yes. 15545 1 Q Yes. Would you tell me, then, please, when these 2 territories were divided up? 3 A Well, so long ago that nobody knows I think is my 4 short answer. 5 Q Or the process by which these territories were divided 6 up? 7 A Again, we must be clear we're talking about the 8 Wet'suwet'en house territories, not traplines as 9 registered. 10 Q No, no. 11 A Yes. 12 Q I am sorry if I didn't make that clear. 13 A No. It was clear before the break, but I was just 14 making sure that I'm not getting the question wrong 15 here. Ask it again, sorry, Mr. Goldie. I've lost 16 you. 17 Q Well, I asked you when the territories were divided up 18 and you said so long ago that nobody knows, is that 19 correct? 20 A That's what I just said, yes. 21 Q Yes. What do you mean by that, a hundred years ago? 22 THE COURT: Mr. Goldie, your next question was what was the 23 process? 24 MR. GOLDIE: 25 Q Yes. That's correct. After that answer. 26 A Ah. Well, having looked at the available evidence 27 which is the Kungax, I suppose is a very important 28 source of insights here, and having thought about it a 29 lot, I find that I don't have any picture of this 30 process. I have a sense of migrations a very long 31 time ago, but I have no sense of a process by virtue 32 of which people become territorial. I have the 33 impression that it was in place at least several 34 hundreds of years ago. 35 Q You would not accept the proposition that it came 36 about in the early 1800s, and by early 1800s I mean 37 the date that you placed a few minutes ago as the date 38 of the relationship between the Wet'suwet'en and the 39 fur trader? 40 A No, I wouldn't, because the record suggests that in 41 the early 1800s the Feast system was in place and 42 anthropologically it's hard to imagine a Feast system 43 without this kind of territoriality. 44 Q Is that the only reason why you cannot accept my 45 suggestion to you? 46 A I have the impression from available evidence that 47 Gitksan-Wet'suwet'en had had long and peaceful 15546 1 relations and this suggests some clear understanding 2 about that boundary and that may go to the question of 3 territoriality. But all the evidence that I've seen 4 indicates and very long-standing Feast/territorial 5 system with a salmon fishery centred on Moricetown. I 6 am struck by the fact that the archeological record 7 indicates some thousands of years of occupation in 8 Moricetown. Insofar as I am looking at this 9 correlation between reliance upon a very abundant 10 salmon resource on the one hand and territoriality on 11 the other and insofar as there is this — there is 12 evidence of this long occupation in Moricetown I'm 13 inclined to believe that there was a long history of 14 territoriality as well. 15 Q But you can't put a date on it and you can't give us a 16 sense of the process? 17 A No, I can't. 18 Q I'm going to ask you to consider a -- some evidence in 19 this case, Mr. Brody. Are you familiar with -- I 20 think it's Exhibit 88A, but it is a letter from Mr. 21 Thomas George to Mr. S. Malinson, Indian agent, and 22 it's dated September 7, 1945. Was that letter drawn 23 to your attention? 24 A Doesn't ring any bells at the moment. I'll have a 25 look. Telkwa, is it? 26 Q You may assume that the stamp "Gitksan-Carrier Tribal 27 Council Document Resource Centre" was not on the 28 original. 29 THE COURT: Where do I find this document, Mr. Goldie? 30 MR. GOLDIE: It's — it's tab 12. Excuse me, Mr. Brody. It's 31 tab 12, my lord, in -- it's in the documents for Dr. 32 Mills, Exhibit 955. 33 THE COURT: All right. Thank you. 34 MR. GOLDIE: But it was also put before Mr. Joseph, Alfred 35 Joseph. 36 THE COURT: Yes. All right. 37 THE REGISTRAR: It's also Exhibit 88A, my lord, or 955-12, 38 Antonia Mills cross-examine Book 1. 3 9 THE COURT: Thank you. 40 MR. JACKSON: Could I ask if Mr. Goldie has another copy. 41 Counsel for the plaintiffs are unable to locate it. 42 MR. GOLDIE: I am sorry, I don't. It's just what I have here. 43 A Of course I am taking a long time reading this. 44 MR. GOLDIE: 45 Q Yes. Please do. 46 A My answer to your question is I haven't seen it 47 before. 15547 1 Q Well, do you know who Mr. Thomas George is or was? 2 A No, I can't place him in my -- 3 Q Well, the evidence here is that he held the name 4 Gisday wa. 5 A Which is Alfred Joseph. 6 Q Mr. Alfred Joseph's uncle? 7 A Ah, yes. 8 Q And he is writing here to Mr. Malinson, the Indian 9 agent and you have read the letter. It relates 10 primarily to a dispute over the incursion by Mr. 11 Matthew Sam on the trapping territory which Mr. Thomas 12 George says is his or his family's. And he says in 13 his letter: 14 15 "Remember at the meeting in Telkwa when the 16 other -- the older people who knew better swore to 17 prove that the Owen Lake was given to our 18 ancestors according to Indian rights years and 19 years ago. And lately it was known as my uncle 20 Joseph's trapping ground. Our uncle Joseph now is 21 the fifth generation from the time this trapping 22 place was given to our ancestors. In our family 23 according to Indian ways uncle Joseph is still the 24 owner of the lower lake and its vicinities." 25 26 Now, would that not suggest to you that there were 27 ways in which these trapping grounds were divided up 28 according to Indian rights? 29 A Well, I don't quite see why that follows. Perhaps I 30 can look at that passage again. It doesn't seem to 31 follow out what you are reading out to me, but that 32 people try and establish their rights to a land by 33 virtue of ancient or many generational histories of 34 course is something which we are very familiar in 35 Wet'suwet'en culture. Where is the passage that you 36 are reading out here? 37 Q The first paragraph. 38 A Well, there are ways in which the people acquired 39 their territories years and years ago, to use the 40 expression of the paragraph. Well evidenced in 41 accounts given by Gitksan and Wet'suwet'en elders. If 42 that's what you are asking about. 43 Q Well, the exact words that "Owen Lake was given to our 44 ancestors according to Indian rights years and years 45 ago." Now, firstly, doesn't that suggest to you that 46 there were Indian rights which provided for the 47 division of territory? 1 A 2 3 4 5 6 7 8 9 10 11 12 13 Q 14 A 15 Q 16 A 17 Q 18 19 20 21 22 23 24 25 26 A 27 28 29 30 31 32 Q 33 A 34 35 Q 36 A 37 Q 38 A 39 40 Q 41 42 43 44 A 45 Q 46 A 47 Q 15548 Well, it might -- there might be Indian rights that provide for the acquiring of territory by 'siisxw, for example, and there is an equivalent of siisxw in Wet'suwet'en law and I can't remember the name for it, as compensation, that is to say siisxw, s-i-i-s-x-w. There are ways of acquiring pieces of territory and compensation. There are very small pieces of territory I know in the Gitksan system that have passed from one house to another as compensation and that has entailled a division years and years ago as in some cases and in other cases not so many years ago. This is placed more precisely than that, isn't it? More precisely than what? Years and years ago? It's five generations, does it say there? "Known as my uncle Joseph's trapping ground our Uncle Joseph now is the fifth generation from the time this trapping place was given to our ancestors. In our family according to Indian ways uncle Joseph is still the owner of the lower lake and its vicinities." Unquote. Well, that suggests the possibility that at some point five generations ago, though in my experience Wet'suwet'en and Gitksan used generations rather loosely, and it certainly it suggests that some time ago this territory changed hands according to Indian law. Perhaps there was the equivalent of a siisxw. Yes. And forgive me for not remember the Wet'suwet'en word for it. You know of no Kungax to that effect, do you? In relation to that territory? Yes. Well, I'd have to do an awful lot of reading to find out the answer to that. Well, that's not the only view that has been taken that five generations has a certain significance in terms of the territorial aspects of the Wet'suwet'en people, is it? I don't know. Well, there is a -- tab 13 in Exhibit 955 is -- 995. No, no. I am sorry, it's -- it's 955, the book of 1 2 3 A 4 Q 5 A 6 7 Q 8 9 A 10 Q 11 12 13 14 15 16 17 A 18 Q 19 A 20 Q 21 22 23 24 A 25 26 27 28 29 30 31 32 33 Q 34 A 35 36 Q 37 38 A 39 Q 40 41 42 A 43 44 45 Q 46 A 47 Q 15549 documents of Dr. Mills and this is a letter from Julian Steward. Do you know who he is? Yes. And can you tell his lordship? Julian Steward was an anthropologist who worked in the area, Carrier area. And June 30, 1940 he wrote to Dr. Jenness. You know who he is? Yes. Anthropologist who worked in the area also. He says apropos of his investigation under phratries: "Five generations ago the Stuart Lake hunting lands were distributed in two solid blocks, one belonging to each phratry." Had you heard that proposition? Yeah, I have heard that proposition. And I take it you don't accept it? No, I don't find a lot of evidence to support it. Yes. Well, I have just shown you a letter which was written some five years after Dr. Steward by Mr. Thomas George in which the same thing appears with respect to a particular territory? It's not the same thing at all, Mr. Goldie. As I understand the Steward opinion, it is that Wet'suwet'en territories were divided into two large areas by phratry. The letter you showed me suggests there was a transfer of territory from an unknown person to the family of the writer of the letter. Who knows whether it was from the other phratry to his own or within the phratry or among three or four phratries or whatever. Why not the distribution within the phratry? I just don't know. That is not a piece of evidence in support of the Steward opinion in my view. Well, I just want to be sure that how much of these you are rejecting. How much of what that I am -- The Steward opinion is that there was a distribution of two blocks of the Stuart Lake hunting area, is that right? Well, perhaps would you let me look at what you have got of Steward's there and I can tell you what I think it means. Yes. Where is the passage that you are -- It's in the top of the second page. 1 A 2 3 4 5 6 7 8 9 10 11 Q 12 13 14 15 16 A 17 18 19 20 Q 21 A 22 Q 23 A 24 25 26 Q 27 2 8 THE COURT 2 9 MR. GOLDI 30 THE COURT 31 MR. GOLDI 32 Q 33 34 35 36 37 38 39 40 41 42 A 43 Q 44 A 45 46 47 Q 15550 All right. Well, I'm struck reading this by him saying that he finds two phratries at Stuart Lake which, of course, is not Wet'suwet'en territory, and four at Babine Lake, which is at least in part -- no, which is much closer to Wet'suwet'en territory. It's not in Wet'suwet'en territory. So if you are asking me to say that a letter that is written about Wet'suwet'en territory supports a theory that is about Stuart Lake territory, I am confessed to being puzzled. I am not suggesting that one is written with respect to the other. I'm just suggesting that five generations ago one's from 1940 and one's from 1945, events happened which are consistent with the creation of exclusive trapping rights or territories? Steward's account of the phratries at Stuart Lake doesn't seem to me to have a lot to do with the letter you're giving me, apart from the coincidence of the five generations. Yes. An episode. An episode? Of a transfer of territory five generations ago. I am sure there were transfers of territory in every generation. Well, Mr. Brody, would you not agree with me that Mr. Thomas George's statement -- : Tab 13 -- sorry, tab 12. E: No. I am going to -- his is at tab 12, my lord. : Yes. 12. E: "Owen Lake was given to our ancestors according to Indian rights years and years ago and lately was known as my uncle Joseph's trapping ground. Our uncle Joseph now is the fifth generation from the time this trapping place was given to our ancestors. In my family according to Indian ways uncle Joseph is still the owner of the Owen Lake and its vicinities." How old was uncle Joseph at at the time, do we know? He was an elderly man. So we would be talking about six generations, not five. His uncle Joseph is at the fifth generation as an elderly man. Now is the fifth generation? 1 A 2 Q 3 A 4 Q 5 A 6 7 8 Q 9 10 A 11 12 Q 13 14 A 15 Q 16 A 17 Q 18 A 19 20 Q 21 22 23 24 25 A 26 27 28 29 30 31 32 33 Q 34 A 35 36 Q 37 A 38 39 40 41 42 43 44 Q 45 46 A 47 15551 Uncle Joseph is the fifth generation. At the time this letter was written. 1945. Yes. And Steward is talking about five generations. So that's six generations So we are one generation adrift here. Well, perhaps they are. You would not expect complete -- No. People are very loose when they are talking about generations my experience. Yes. But we are talking about events which happened in the 1820s? Well, we are in the case of the letter. Yes. The Gisday wa territory. And we are in the case of Steward? I am not so sure about that. I cannot quite fathom the Steward document. Let me get on to the point I want to put to you. And that is, would you not agree that the event described by Thomas George is consistent with events relating to the creation of exclusive territories for the exploitation of fur bearing animals? It's not inconsistent with it, if that's what you mean. It doesn't seem to bear much relation to it. All I understand from the letter is that a transfer of territory took place these five or six generations ago. And I am sure if we, you know, looked into it you might find some account in the Wet'suwet'en oral tradition of this event. We might find out something about it. That's pure speculation on your part? If I wasn't under cross I could perhaps conduct some interviews and find out some of the background to it. Yes. But typically we would -- we know that there are many shifts of territories in relation to as I said things things like siisxw and pieces of territory. Siisxw was a rare example. It's a compensatory system that uses territory as an aspect of the compensation. So we are going to get in each generations shifts of territory according to Indian law. But the best you can do is to say that this is not inconsistent with the creation of territories? Well, it doesn't say anything to me about the creation of territories. It says that territories exist. It 1 2 3 4 Q 5 6 A 7 8 9 10 11 12 Q 13 14 15 A 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Q 32 33 34 35 A 36 37 38 39 Q 40 A 41 Q 42 43 A 44 45 Q 46 A 47 Q 15552 suggests to me that territories existed six generations ago, but we'd have to look into it more closely vis-a-vis that particular territory. Yes. And you think -- you are unable to give me any date at which time these territories were created? My opinion is that these territories are a very -- I am trying to choose my words carefully here. That my opinion is that the Wet'suwet'en have had these kinds of house and clan territories for some hundreds of years and certainly a long time prior to the fur trade. And you are unable of course to agree with me because that would be inconsistent with the support you are providing the plaintiff in this case? Inconsistent with the evidence I've reviewed. I have reviewed a lot of evidence in this regard. I have talked to lots of people. I've read the articles that pertain to this issue. I have thought a lot about it. There are many anthropological questions that it gives rise to which interests me greatly, particularly the connection between persons dependent on this salmon resource and the formal institution of a Feast and territorial system. These are matters of great interest to anthropologists and therefore of great interest to me. And I have noted a lot of evidence and the conclusion I have come to is that the Wet'suwet'en have had this system for some hundreds of years at least and perhaps a lot longer. To push it further back in time one starts to look at the archeological record and that's not my speciality. Now, I want to go to another subject. You spend considerable time in describing the removal of Wet'suwet'en from farms. I think that's a page starts at page a hundred and -- Sorry. I don't think I spend any time talking about the removal of Wet'suwet'en from farms. From their homes and villages and cabins I think. You were about to refer me to a page. Yes. Well, you start off by saying -- You haven't given me the page. 114 you start off by saying "since the first farmers moved in." Just a moment, please. I am just relieved of this pile of things. Thank you. Have you got the page? Yes. You start off by saying: 15553 1 2 "Since the first farmers moved in at the very end 3 of the last century, Wet'suwet'en history has been 4 marked by the way in which whites have taken and 5 used the Bulkley Valley." 6 7 And then you say: 8 9 ".... family after family of Wet'suwet'en were 10 forced from their homes, and even out of ancient. 11 villages." 12 13 And down the page, midway down the page you say: 14 15 "Wet'suwet'en houses were burnt; their farms 16 seized; clusters of houses and buildings razed to 17 the ground." 18 19 A You correct me. In some of those villages there were 20 clearings for grazing that amounted to farms, yes. 21 Q Well, it's your word is it not, farms? 22 A Yes. Inter alia. 23 THE COURT: We haven't found that at the page? 24 A It's the middle of the page, my lord. 25 MR. GOLDIE: It's about midway down the first complete 26 paragraph, my lord, about halfway down the page. 27 THE COURT: On page 114? 28 MR. GOLDIE: 114. 2 9 THE COURT: All right. 30 MR. GOLDIE: It's one, two, three — 31 THE COURT: Oh, yes I have it. Yes. Thank you. Thank you. 32 Where did you start reading? 33 MR. GOLDIE: Well, I drew the witness' attention to the first 34 four lines on the page. 35 THE COURT: Oh, yes. All right. Yes, all right. 36 MR. GOLDIE: Mark the event. And then to the sentence that 37 begins "Wet'suwet'en houses were burnt; their farms 38 seized," etc. 3 9 THE COURT: Thank you. 40 MR. GOLDIE: 41 Q And farming, of course, is not an activity of 42 hunter-gatherers. I think we established that this 43 morning? 44 A I think we established this morning it was an activity 45 within the mixed economy. 46 Q Yes. And again, it is a product of technology and the 47 example which the Wet'suwet'en didn't possess until 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 MR. 32 MR. 33 THE 34 MR. 35 36 37 38 39 40 THE 41 MR. 42 THE 43 MR. 44 45 MR. 46 THE 47 MR. 15554 the white man came, whether it was the priest or the farm, it doesn't really matter? A That's right. When we are talking about farming here you must remember we are talking about hay and grazing, not about plowing and seeding. Q Are you serious about that? A I think the early farms in the area were among the Wet'suwet'en the grazing of land and hay. If you are talking about the earliest, the earliest use of land for this purpose. Q Well, I thought that your evidence in this section related to fairly specific incidents arising out of settling the Bulkley River by white farmers or white settlers in the first two decades of the century? A That's right, yes. Q All right. Are you suggesting that the Wet'suwet'en were not farming in the sense of plowing, tilling, raising crops by that time? A I am not sure what these farms included. What the Wet'suwet'en referred to in McKenna McBride, if I remember rightly, in the 1908 petition is barns, fenced and cleared land. Q Well — A I'd have to look again at the record in order to put together the nature of the farming at different points of the history. Q Well, let's take the document that I referred to earlier. It's under tab 17 of Volume 2 and it's a statement made by Father Godfrey to the Royal Commission on April 26, 1915. JACKSON: It's Volume 3, Mr. Goldie. GOLDIE: Three, I am sorry, thank you. COURT: What tab? GOLDIE: Tab 17, my lord. Now, Father Godfrey is recorded as saying that he's glad to see the commission there and that the Indians have been asking him almost every day when the commission was going to come and then he says -- does your lordship have the sentence beginning the words "the reason for this desire"? COURT: On the first page? GOLDIE: Yes. COURT: Wait a minute. I'll find it. GOLDIE: It's about two, four, six, eight, nine lines down. A Nine lines down from where it says "Godfrey." GOLDIE: Where it says "Mr. Chairman." COURT: Yes, I have it. GOLDIE: 15555 1 Q 2 "The reason for this desire on the part of the 3 Indians is that they feel that they have some real 4 grievances, or at least they have needs which they 5 expect that this Commission is able to help them 6 with, and they have asked me to talk for them. 7 The main grievance around here which may be summed 8 up in the general way is that they desire to have 9 a little more land allotted to them than they have 10 at the present time. A large portion of the land 11 in and around the Moricetown Reserve is not what 12 you would call exactly good agricultural land." 13 14 Now, that implies something more than grazing, does it 15 not? 16 A I am -- I am not sure what he would have meant. Let's 17 keep going for a moment. 18 Q All right. Well, what do you understand is meant by 19 the word agricultural? 2 0 A Well, my image of the Wet'suwet'en farms is much more 21 clearing that are fenced, hayed and grazed, barns for 22 storing hay, in the southern parts of their 23 territories, particularly up the Bulkley Valley, 24 Bulkley/Morrice Valley. Not -- my image isn't 25 agricultural activity beyond gardening. That is my 26 image has never been of them plowing large areas of 27 land. But it may not be an issue here. 28 Q That wasn't my question. I asked what you understand 29 by the word agricultural? 30 A Oh, in my own mind. The use of land for farming. 31 Q Yes. And then he goes on to say: 32 33 "There are large stretches of land on both sides 34 of the river, but owing to action of the river in 35 washing away the banks, there is practically 36 nothing else left but gravel benches. I have 37 examined this place a good many times, and in a 38 good many instances I find there is only one, two 39 or three inches of good soil, and sometimes hardly 40 one inch, which makes this part of the country, as 41 far as the Indians are concerned, very poor from 42 an agricultural standpoint, it not being fit even 43 for pasturage land." 44 45 Now, what is your understanding of pasturage? 46 A Well, what I was just saying about grazing. 47 Q Yes. 15556 1 "The local Indians feel here that they want to 2 keep an even step with the white man. They have 3 looked into the ways and the means of living of 4 the white population, and for the past ten years, 5 or ever since they came into contact with the 6 white man, and especially during the last three or 7 four years, during the railway construction days, 8 they have endeavored as far, as they were able, to 9 get work from the white man and also take out 10 contracts for them and, in every instance, as far 11 as I am advised they have carried out their work 12 to the satisfaction of both parties. Moreover 13 they have, since they have come into contact with 14 the white man, gone in more towards making a 15 living by the tilling soil." 16 17 If I may just pause for a moment. Tilling soil is 18 according to your understanding would include plowing? 19 A Yes. I'm -- that's what Godfrey is saying here. 20 Q 21 "But as I have said before the land here is not of 22 the very best and they have had a rather hard time 23 of it, especially now that their hunting and 24 trapping grounds have in a great measure been 25 depleted. In coming to the stock and cattle owned 26 by the Indians, we have figured that on those 27 three reserves of ours there are owned by these 28 men 192 horses at the present time, and we have 29 figured up as high as 72 head of cattle which are 30 actually owned by the Indian population on these 31 three Indian reserves. There is a great desire on 32 the part of the Indians towards the increasing of 33 their stock, and, I dare say, every one of them 34 wants to launch into cattle raising, and in order 35 to do this, they desire to have a little more 36 land, so that they will be better able to feed 37 their stock than they are at the present time. 38 The agricultural implements which are owned by 39 these men, individually purchased by their own 40 money during the construction days, are in keeping 41 exactly with their general intentions. I see on 42 the list here, which they have given me, ten 43 mowing machines, eight hay racks." 44 45 Something -- 4 6 THE COURT: 14 plows? 47 A 14 plows. 1 MR. GOLDIE 2 Q 3 4 5 6 7 A 8 Q 9 10 11 12 13 14 15 16 17 18 19 20 A ' 21 22 23 24 25 26 27 28 Q 29 A ' 30 31 32 33 34 35 36 37 38 39 40 Q 41 42 43 44 45 46 47 A 15557 "14 plows, 21 wagons and 7 harrows, actually owned by these men." Now, the plows and harrows of course are implements which are involved in the cultivation of land? Yes. And I go on, quote: "On the other side some of the Indians have gone into raising pigs and chickens and I dare say most of the Indians here will, in a short time, be doing the same, providing they get the necessary land so as to enable them to raise the feed necessary for that kind of stock." Now, just pausing there. Is there anything in the factual description that Father Godfrey is quoted as having given with which you disagree? Well, I can't disagree with his numbers. In fact I am remembering as you read that some D.I.A. annual reports which give these numbers to the Wet'suwet'en which I looked at in 1983 and it would be interesting to check these numbers against those numbers. As to his characterization of the Wet'suwet'en's intention and their view of land, I have to confess to some uncertainty. Why? Well, first of all, Father Godfrey is a missionary and has a particular point of view, a particular idea of what civilization is, a particular wish for the Indian people's futures. He is also, I am sure, very upset on behalf of the Indians. He knew about them and I know a little bit of his views from the Barbeau Beynon archives. He's talked about a little bit by Barbeau in one of the accounts, and I think he's probably very upset about the poverty of the people at Moricetown and wishes to help them in whatever way he sees is appropriate. Then I go on: "May I draw the attention of this Commission to the fact that the general situation of the Indians is continually changing." You wouldn't disagree with that? There is mixed economy again. 15558 1 Q Yes. 2 3 "Formerly, all these men made their living by 4 hunting, going out in the wintertime about 5 September till about Christmas and from the middle 6 of January to -- " 7 8 Something or other. 9 THE COURT: To the end of June. 10 MR. GOLDIE: 11 Q 12 13 " -- the end of June or the middle of July. Those 14 Indians were engaged in hunting all the various 15 fur-bearing animals, and then, after that, selling 16 their pack to the local stores." 17 18 Now, just pausing there. That is a description of the 19 trading -- of the trapping, is it not? 20 A Yes. He's probably including the hunting as well. 21 When he says the various fur-bearing animals I imagine 22 at this period he's also talking about moose whose 23 furs were not usually traded. 24 Q But then he goes on to say: 25 26 "And then, after that, selling their pack to the 27 local stores." 28 29 That's to the local traders, is that not correct? 30 A Yes. 31 Q Yes. So Father Godfrey uses the word hunting as a 32 synonym or interchangeably with trapping, doesn't he? 33 A Hunting all the various fur-bearing animals, he's 34 using hunting to mean hunting and trapping I suppose. 35 Q Yes. I suggest it's interchangeable in his mind. 36 A It's interchangeable in the context of that sentence. 37 I don't know about his mind. 38 Q All right. Well, his mind so far as is revealed by 39 that sentence? 40 A Yes. 41 Q Then he goes on: 42 43 "But now, owing to the influx of whites into this 44 part of the country, a great many of their hunting 45 grounds are occupied by homesteads or have been 4 6 purchased by them, the whites, from the Government 47 so that you can easily understand, gentlemen, that 15559 1 there may be a natural race feeling between the 2 whites and the Indian population, though, I dare 3 say, this feeling is not acute in any way. I have 4 had very few examples of any disputes which could 5 not have been smoothed over by mutual consent; in 6 fact, I, myself, as missionary, with the Indians 7 of this part of the country for a great many 8 years, never had to deal with any questions of 9 that kind, but I dare say there may be a danger in 10 the future if the Indians are still prevented from 11 getting their living in the way they formerly did. 12 An Indian looks upon his hunting ground as his own 13 farm." 14 15 Would you agree with that proposition? 16 A Yes, of course he is using the word farm 17 metaphorically there. The farm that produces the 18 resources that he depends upon. The farm that 19 produces the hunting as well the trapping. 20 Q He goes on -- I am sorry, yes. 21 A And the grazing lands. 22 Q Then he goes on: 23 24 "Many times they tell me I have so many beaver on 25 my hunting grounds, and I know as a matter of fact 26 that no Indian ever trespasses on the grounds of 27 his neighbour." 28 29 I suppose you would agree with that? 30 A Yes. 31 Q And then he goes on to say: 32 33 "And long as that system was in vogue and as long 34 as the Indians are in a position to use these 35 hunting grounds, I don't think there will be any 36 trouble. With one accord they said to me 'When 37 the Commissioners come here you speak to them and 38 tell them that we want to follow the white man's 39 ways of living. We have actually gone into it 40 seriously and we see there is only one chance of 41 us of making a living for ourselves and our 42 children, in following the example of the whites, 43 namely in ploughing our ground, raising cattle, 44 raising horses, and in this way we will be able to 45 make our living." 46 47 Unquote. Do you have any question but what that is? 15560 1 A Could you just give me -- 2 Q That the missionary is accurate in his summation of 3 the instructions given him by his parishioners? 4 A I am very skeptical about missionaries in their view 5 of the instructions they are given. Missionaries have 6 particular ideas of what is appropriate for Indian 7 people. The job of a missionary and many missionaries 8 are perfectly helpful in their relations towards 9 Indians as they see helpfulness, but missionaries are 10 there to change people. The job of the missionary is 11 to change people's way of being in the world. To 12 change their way of describing the world, thinking 13 about the world, to change their habits, to make them 14 Christian, thrifty, and so on and so forth. It's a 15 whole package. And when a missionary says I have been 16 told by the people they wanted to be Christians, I 17 would be pretty -- you know, I would wonder. Or they 18 say I have been told by the people we want to be 19 farmers, we want to raise chickens, I am afraid I ask 20 myself well, to what extent is this man speaking, with 21 a very special interest. He wants the people to want 22 that. Fits in with his idea of what's best for them. 23 And I therefore am very disinclined to believe this 24 document in those regards anyway at face value. 25 Q And then he goes on: 26 27 "When I asked them 'What do you think is most 28 necessary for you in order to do that, well,' some 29 of them say," 30 31 And then he goes on to quote them about getting more 32 land. And that goes on over the page. 33 A What page are you turning over to now? 34 Q I wasn't going to read you all of page 3. 35 A My copy of page 3 seems to come after. Oh, yes. I am 36 confused by the numbering here. 37 THE COURT: At the top, Mr. Goldie, using the numbers at the 38 top, Mr. Goldie? 39 MR. GOLDIE: I beg your pardon? 40 THE COURT: Using the numbers at top? 41 MR. GOLDIE: Yes, I am. I appreciate there are numbers at the 42 top and bottom, and the right-hand side. 43 A And the five on my copy looks very like a three. I 44 wonder if you mean -- 45 THE COURT: Use the typewritten number at the top. 46 MR. GOLDIE: Yes. 47 Q Now, as I say, I simply summarize that he purports to 15561 1 quote a number of conversations with people about the 2 inadequacy of their land, the poor quality of the land 3 and the -- then at midway down the page after he talks 4 about summer pasture land? 5 A On which page are we now? 6 Q This is four. He says: 7 8 "There is another thing they want in order to 9 afford then better facilities to cope with the 10 white men which at the present time they are 11 unable to do owing to lack of education." 12 13 And they talk about disputes and the desire to have 14 schools. And then at the bottom, medical assistance, 15 and then over the page at about halfway down the page 16 you see in the left-hand column margin the word 17 "claims and grievances." 18 A Yes. 19 Q The sentence that precedes that: 20 21 "Another point I am asked to draw your attention 22 to is regarding some special claims and grievances 23 which have existed in the past. We have had cases 24 - I dare say seven, eight or nine cases where 25 certain families have taken possession of certain 26 pieces of land conveniently located near a 27 beautiful lake, which land naturally offered 28 facilities for cutting hay, especially formerly 29 when there were no mowing machines. Some of these 30 pieces of land have now been alienated by the 31 Government and have come into the possession of 32 some white settlers. I dare say that one of these 33 cases is the case of a family around Tyee Lake or 34 McClure Lake. Those living there are Tyee Lake 35 David, John Baptiste and Big Pierre. Another 36 instance of this kind is a case of two of families 37 living at Canyon Creek." 38 39 And then he gives two names: 40 41 "Canyon Creek Thomas'widow and Canyon Creek 42 William. Another case is that of Round Lake Tommy 43 and his brothers Jack Eugene, Louis Patrice and 44 George, together with their mother. Another case 45 of this kind is the case of Bulkley Lake Isaac and 46 his family. Another case of that is of Patrick 47 Kuldee; he is located around the railroad line-- " 15562 1 And so on. He's there describing --. Oh, and at the 2 top of the next page: 3 4 "Another case of this kind is that of Adam Michel 5 and his brother Nazare and young Denis and Joseph 6 Gokaha. One more case is that of Mooseskin 7 Johnnie and August Peter." 8 9 And then those are all the people that you are talking 10 about in your report, is that not correct? 11 A Yes. A good proportion of them are referred to here. 12 Q Yes. So he's now bringing before the commission the 13 particular instances which you describe at -- starting 14 at page 114? 15 A Yes. Yes. He's bringing forward some of the cases 16 of -- especially are notes of these villages that 17 where people have created grazing. 18 Q Yes. 19 THE COURT: Do you want to finish something in connection with 2 0 this document? 21 MR. GOLDIE: 22 Q I was just going to say that without reading all of 23 it, I want to draw your attention to what was said at 24 the conclusion and that's page seven. 25 A I don't have a page seven here. 26 Q Well, perhaps that wasn't included in your -- in the 27 excerpt, but it goes on. 2 8 THE COURT: I don't have a page seven either. 29 MR. GOLDIE: Well, your excerpt ends with the written words at 30 end "may I add another name?" 31 THE COURT: "In my request No. 4"? 32 MR. GOLDIE: Yes. 33 THE COURT: Yes. That's where mine ends. 34 MR. GOLDIE: 35 Q Well, it goes on: 36 37 "regarding the claims of Indians. There is one 38 man who has his own living house on the place 39 - Peter Michel is his name - and a smokehouse 40 which was burned down by the settler who took up 41 that land. This, in a general way, I think is the 42 principal demands of the Indian population - 43 their idea is to remain law-abiding citizens in 44 this country and to be able to live in peace and 45 harmony, and they have this Commission to give 46 them the necessary means to fulfill this ambition 47 of theirs, and they are quite confident that if 15563 1 this Commission looks thoroughly into their 2 claims, at least if they cannot get some of these 3 places which they owned since time immemorial, at 4 least a reasonable compensation should be given 5 to them." 6 7 And then he goes on to complete, and the chief was 8 called and sworn. 9 10 "Mr. Commissioner Macdowall: You have heard the 11 address made by the Reverend Father on your 12 behalf - do you take that as being your own 13 address? 14 A The priest he said right." 15 16 Now, do you accept then that the evidence given at the 17 Commission or the statement given at the Commission by 18 Father Godfrey was confirmed immediately thereafter? 19 A No, I don't. "The priest he said right" is somebody 20 saying whatever the priest said is right. I am sure 21 he didn't understand very much of it. The whole 22 reason and rational for Father Godfrey — let me start 23 that again, that sentence again. One of the reasons 24 for Father Godfrey taking it upon himself to speak at 25 the Commission lies in the fact that the people do not 26 speak English -- 27 Q Excuse me? 28 A -- at all fluently, and I am sure they would have not 29 understood what he said. There is a great deal of 30 evidence being given, and that's a presumption, I have 31 heard a great deal of evidence in my own work to 32 suggest a kind of influence the priest exercised over 33 the Wet'suwet'en. Father Morice, and it's 34 incidentally revealed in Barbeau I think in 1922 or 35 '23, there is a remarkable account of Barbeau's 36 conversations with this very Father Godfrey, which 37 again are indicative of the way in which the people 38 are to some extent enthralled to the priest. 39 Q Well, my lord, this is as good a time as any. 4 0 THE COURT: All right. Thank you. Could we be furnished with 41 page seven of that document? I guess it's out of your 42 collection, is it? 43 MR. JACKSON: Yes, I can make that available, my lord. 44 THE COURT: All right. Thank you. 9:30 tomorrow. 45 MR. GOLDIE: Yes, that's satisfactory. 4 6 THE COURT: Will you finish tomorrow? 47 MR. GOLDIE: Yes, I certainly will be. 15564 1 THE COURT: Okay. 2 MR. GRANT: My lord, there was one matter. 3 THE COURT: Just a moment please. Miss Koenigsberg? 4 MS. KOENIGSBERG: I would hope we would be able to finish. I do 5 have some difficulty I can perhaps report on the Bear 6 Lake tape problem. 7 THE COURT: Yes. 8 MS. KOENIGSBERG: I have been having people try and listen to 9 that and try and make a transcript and we are not 10 getting very far very fast, I can assure your 11 lordship. I can't imagine in fact that it will be 12 available to me in any form that would be useful by 13 tomorrow. Despite, I might say, considerable efforts. 14 To that end I note in Mr. Brody's report that he had 15 in fact made some transcript of some of those tapes 16 and I believe he gave evidence that he did have such 17 notes and they have not been provided to us and 18 despite our having asked for them and it would be of 19 great assistance I'm sure in deciphering at least some 20 of it if we had what notes he does have. But having 21 said that, it will be my submission on the assumption 22 that a miracle doesn't occur overnight that in this 23 instance we have not had notice of the facts upon 24 which he relied at least for that chapter and I will 25 be making a submissions appropriately. 26 THE COURT: Where do you live, Mr. Brody? 27 A I live in the north of England in the Scottish border, 28 my lord, but the notes I made were simply transcribing 29 the portion of the tape as I listened to it that I 30 wanted to use in my report and I don't have any notes 31 that go beyond the passages in my report. And I 32 looked for these. Mr. Grant or Mr. Rush called me in 33 England when this issue first arose and asked me if I 34 had copies and I looked through my notes and couldn't 35 find anything beyond the passages that I had chosen. 36 I can understand your difficulty with the tape, I 37 might say, because it is difficult to understand. 38 THE COURT: All right. Well, I will hear you on that tomorrow 39 Ms. Koenigsberg. Mr. Grant? 40 MR. GRANT: Yes. Sorry, Miss Koenigsberg. 41 MS. KOENIGSBERG: That's fine. 42 MR. GRANT: Sorry, my lord. Just a question of scheduling, my 43 lord. I just wanted to advise the court regarding two 44 of the witnesses coming up in May and I have advised 45 both of my friends and this just came to my attention 46 this afternoon. As a result of the plaintiffs' 47 position it appears that we will be proposing and we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. COURT: GRANT: THE COURT: 15565 are proposing that Mr. Galois who is scheduled for May 15 would actually proceed on the week of May 8 and Miss Marsden who is scheduled for May 8 would proceed on May 15. Now, my friends, I just advised them of this this afternoon, as soon as it came to my attention, so they could enquire and of course I'm not -- Mr. Goldie indicated he would just raise this with Mr. Willms who's involved and I believe Miss Koenigsberg will raise it with Mr. Macaulay who's involved. So I am just putting them on notice of this and this is what we would be recommending and -- Yes. -- if it's -- if it's at all possible that will certainly familiarize his honour. It is as awkward for plaintiffs' counsel as it is for defence counsel. It's not something that we -- What your doing is you are giving your friends notice now that your present plan is to call Dr. Galois on the 8th and Miss Marsden on the 15th? Yes. Yes. And you are going to let us know if that's a problem Mr. Goldie. MR. GOLDIE: Well, it is a problem, my lord, because of my commitment in the Supreme Court of Canada and Mr. Willms has to take both those witnesses. Oh, yes, I see. Yes. Well, all right. I don't think there is anything more that I can say about it at the moment. I will leave those difficult matters for counsel to struggle with. All right 9:30. (PROCEEDINGS ADJOURNED UNTIL SATURDAY, APRIL 15, 1989 AT 9:30 A.M.) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein to the best of my skill and ability. Laara Yardley, Official Reporter, United Reporting Service Ltd. MR. THE GRANT: COURT: THE COURT: