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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.
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21556 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE THE MR. THE MR. THE MR. THE MR. October 25, 1989 VANCOUVER, B.C. REGISTRAR: Order in court. In the Supreme Court of British Columbia, this 25th day of October, 1989, in the matter of Delgamuukw versus Her Majesty the Queen at bar, my lord. COURT: Mr. Grant. GRANT: Good morning, my lord. Before my friend proceeds with the next witness, I have prepared a copy of Exhibit 1121-19 and a transcription of that exhibit. This was one that was tendered I believe in a -- it was tendered in the cross-examination of Walter Blackwater. It was also tendered at another time, but when it was tendered to your lordship you quite rightly said it was quite hard to read. We prepared a transcript and we have delivered it to our friends and they have no difficulty with the transcript, and I would ask that this go in as Exhibit 1121-19 and the transcription which I've stapled to it could be Exhibit 1121-19A. COURT: Yes. GRANT: And I have two copies, one for the exhibit and one for your lordship. COURT: All right. GRANT: The only other matter before my friend starts is that I'm not certain if your lordship was apprised of this yesterday or not, but that as you recall yesterday was scheduled for the out of court cross-examination of Mr. Hobenshield. COURT: Yes. GRANT: The affidavit of Mr. Hobenshield has been tendered, subject to the right of the plaintiffs to cross-examine him. I've been instructed that -- at three o'clock on Monday afternoon I received a fax letter from my friend Mr. Willms, who I understand was in the north as well as the court reporter and everyone else ready to go on Tuesday, indicating that his cross-examination would not proceed. My instructions are from people who know Mr. Hobenshield and have spoken to him that he had decided that he would not give evidence and that he, as was quoted to me, his decision was it was best for himself or it was best for the community and he had changed his mind. In these circumstances, my friends -- I spoke with -- I have written to my friend, Mr. Willms. He has suggested that he's leaving the matter open, and I 21557 Proceedings 1 spoke with him by telephone yesterday about this and 2 other matters. In the circumstances I would ask that 3 the exhibit -- the affidavit of Mr. Hobenshield be 4 withdrawn as an exhibit. If my friends -- if Mr. 5 Hobenshield later changes his mind and wishes to be 6 cross-examined, either before the close of my friend's 7 case or if they apply to reopen, then that's fine, but 8 I do not believe that it would be appropriate to leave 9 his affidavit in. 10 There is no suggestion of ill health or of any 11 other incapacity, as occurred unfortunately on some 12 occasions with the plaintiffs' witnesses. It was a 13 question that he had decided that he wouldn't give 14 evidence, and my friends took the judgment that they 15 would not subpoena him to. So I would ask that his 16 affidavit, and I'm not -- can't recall the exhibit 17 number off the top of my head, but that his affidavit 18 be withdrawn as an exhibit now because basically we 19 were denied our right of cross-examination if it 2 0 remains. 21 THE COURT: Mr. Willms. 22 MR. WILLMS: My lord, I'm handing up to you a news release that 23 the plaintiffs put out a couple of days ago along with 24 a statement signed by a number of the plaintiffs, a 25 notice on the second page, and I won't read the 26 details of the news release except to say that the 27 news release refers to blockades of Forest Service 28 roads in the north, not only in the Susqua area but 29 you'll see in the middle paragraph reference to the 30 Eagle blockade at Kitwanga. And the second page says, 31 and I will read the second page, it's a notice: 32 33 "This is to advise you that you stop all 34 unauthorized activities within the following 35 house territories." 36 37 And then it lists some territories. And it says: 38 39 "Trespassing will be dealt with according to 40 Gitksan law." 41 42 And your lordship has heard some evidence about 43 the Gitksan law on trespassing. 44 Now, my lord, we have been advised by Mr. 45 Hobenshield, who's a logging contractor in Kitwanga, 46 and I should say that his logging supply hasn't been 47 blocked yet, but he is a logging contractor in 2155? Proceedings 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 MS. THE MR. THE MR. THE MR. Kitwanga. He is concerned about the blockades. He did not say that he would never give evidence. He said that if the blockades were lifted, we should talk to him again. And it is my submission that the plaintiffs should not be able to benefit, which is the basis for my friend's submission, from the illegal action that these -- this news release and this notice represents. And it is my submission, and we are working through my friend or with my friend, and also looking into the matter of these blockades, and it may well be that the blockades will stop and the matter of Mr. Hobenshield's availability for cross-examination will change. But it is premature, in my submission, to withdraw the affidavit at this time, and I would like to speak to it further later on if it turns out that the decision of Mr. Hobenshield is irrevocable. But it is my submission, my lord, based on what is going on here, as exhibited by the news release forwarded by the plaintiffs, that it's completely understandable why a logging contractor from Kitwanga would feel a bit reluctant when he hasn't been stopped yet, and it's my submission that the affidavit should remain in and that we should revisit this submission at a later date when the decision of the witness is final, which I'm advised by the witness is not final at this time. COURT: Miss Koenigsberg? KOENIGSBERG: This is all news to me, my lord, and I don't have anything I can say at this time. Well, Mr. Grant — yes? Yes, my lord, Mr. Hobenshield -- I think first of all my friend -- Mr. Hobenshield has not been threatened in any way, shape, or form from his operation. Well, the last sentence is a threat, isn't it? Oh, but — It's the worst possible kind of threat. Well, this notice relates to certain events in the Susqua area. It has nothing to do with this. My friend has put together these two, but this notice has nothing to do with anything that is going on in the Kitwanga area. None of these chiefs and none of the territories related to there are anywhere near any of Mr. Hobenshield's operations. I can't comment on the wording of this. I mean, of course your lordship has heard evidence of traditional methods of dealing with COURT GRANT COURT GRANT COURT GRANT 21559 Proceedings 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 trespassers. Your lordship has also heard concerns about modern trespass, in fact, that these have long since never been used, any traditional method of punishment. And it was explained of course in the context of the transition of the society through the evidence of Dr. Daly and other expert witnesses. But what I'm referring -- but what I understand, and what I've been advised, Mr. Hobenshield is a -- was a good friend, for example, of Mr. Williams. Mr. Hobenshield attended Mr. Williams' funeral. I think that -- I think that Mr. -- I mean, Mr. Hobenshield -- my understanding is that it's not to do with this. It is to do with that he has decided that he does not wish to give evidence in this case. Now, what I say is is that my friend is -- if my friend -- if Mr. Hobenshield changes his mind, if he decides to give evidence or my friends decide to subpoena him or whatever, then of course they're at liberty to re-file but that they shouldn't be allowed to tender the affidavit and merely because -- THE COURT: Well, Mr. Grant, why are you pouncing on this at this moment when this thing has just happened? The affidavit has been here for some months. I've never read it I don't think. What's the need to deal with this matter in this kind of environment? I must say I'm terribly disturbed by this. Well, I'm just -- this -- my friends -- I'd asked them to send this to me yesterday. They made some reference to it. I haven't seen it until this morning myself. Why don't we just let things cool down a bit and maybe everybody will reconsider their position. I must say I find this terribly distressing. I'm prepared -- I'm just -- this is about the worst thing I've seen in this trial so far. Well, my lord, as I say, I have just seen this now. Yes. And my friends -- I'd asked them to send this to me yesterday because they had some discussions with me and -- THE COURT: Well, I think you better have a frank talk with them, Mr. Grant, and remind them that they are the plaintiffs and they've brought these proceedings. They have elected to bring these proceedings in this court and this is something that I really don't think should intrude into this case, and I would hope that MR. GRANT THE COURT MR. THE MR. THE MR. GRANT COURT GRANT COURT GRANT 21560 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE MR. THE MR. THE MR. COURT GRANT COURT GRANT COURT GRANT THE COURT with a little time and a little consideration that a more mature approach might be taken to this whole question because the plaintiffs can't expect to have the case properly tried if there is interference with witnesses. Now, I'm not going so far as to say there's been interference with witnesses, but it comes very close to this. This man made a decision to give an affidavit and he had made a decision at that time to give evidence. Now, something has happened to make him change his mind. Well, I think my friend confirmed with me yesterday that nobody has made any threats -- Oh, I'm sure they haven't directly. -- to this man whatsoever. I'm sure that's -- Mr. Hobenshield's brother is adopted into one of the houses and is on the genealogy of Lelt. Well, then he should be given some time to reconsider his decision if that's the case. I have no problem with that, and I'm not suggesting -- I'm just saying that I think we should have the right to cross-examine -- I think the matter should be just left the way it is, and I think counsel can speak to the matter again at a later date. Thank you. I must say, Mr. Grant, that I wish you would convey my comments to your client and tell them I think this last sentence is something that ought not to be. My clients will see what you have said. That sort of thing should not intrude into this case. Willms. My lord, I call Dr. Sheila Robinson. SHEILA PATRICIA ROBINSON, a witness called on behalf of the Province, having been duly sworn, testified as follows: THE REGISTRAR: Would you state your full name and spell your last name, please? THE WITNESS: Sheila Patricia Robinson, R-o-b-i-n-s-o-n. THE REGISTRAR: Thank you. Please be seated. MR. WILLMS: My lord, I'm handing up Dr. Robinson's report which is in two parts. It's the clear plastic cover and then a binder related to her report, which is in white, and I'll explain how everything fits together MR. THE MR. THE GRANT COURT GRANT COURT MR. WILLMS 21561 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 in due course through the evidence, but it would be 2 convenient to have this as we proceed through the 3 evidence. And I would suggest that the binder be 4 given an exhibit number at this time and as we 5 identify the documents within the binder they can 6 be -1, -2. 7 THE COURT: Yes. 8 THE REGISTRAR: Exhibit 1188. 9 10 (EXHIBIT 1188: Document binder of Dr. Sheila P. 11 Robinson) 12 13 MR. GRANT: Just my — I trust my friend — I — is not 14 tendering of course the report until she's been 15 qualified. 16 THE COURT: I don't think he's tendering it at all. 17 MR. WILLMS: I think I just handed it up. 18 THE COURT: Just the binder. 19 MR. GRANT: Just the binder. 20 MR. WILLMS: Although the report has already been marked as an 21 exhibit in these proceedings, my lord. 22 THE COURT: The report has? 23 MR. WILLMS: Oh, yes the report's marked as Exhibit 966-3 in 24 toto, so it's already an exhibit. I don't know what 25 my friend's referring to because it's an exhibit 26 already, but I suppose we'll hear in due course. 27 THE COURT: I'm sure she's as surprised as I am. 28 MR. GRANT: I think it was tendered for a very limited purpose, 29 my lord. It certainly -- 30 THE COURT: We're all surprised. 31 32 EXAMINATION IN CHIEF BY MR. WILLMS ON QUALIFICATIONS: 33 Q I'll advise my friend of the references and he can 34 read that. 35 Dr. Robinson, you reside in Vancouver, British 36 Columbia? 37 A Yes. 38 Q And could you turn to tab 1 of the white binder, 39 Exhibit 1188, and at tab 1 is a six-paged document. 40 Can you identify this as your curriculum vitae? 41 A Yes. 42 MR. WILLMS: Could that be 1188-1, my lord? 4 3 THE COURT: Yes. 44 45 (EXHIBIT 1188-1: Curriculum vitae of Dr. S.P. 46 Robinson) 47 21562 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 MR. WILLMS: 2 Q Now, starting with your education, you have a doctrate 3 in cultural geography, and can you explain what 4 cultural geography is generally? 5 A Yes. Cultural geography is a branch of geography and 6 it's concerned with the relationships between people 7 and environments and it specifically looks at changes 8 in those relationships through time. 9 Q Now, your dissertation and you've -- you have a 10 discussion of the dissertation "Men and resources on 11 the northern Northwest coast of North America, 12 1785-1840, a geographical approach to the maritime fur 13 trade", and you describe it: 14 15 "Records left by the first Europeans visiting 16 northern coastal British Columbia and 17 southeastern Alaska contain evidence of 18 prehistoric and early post-contact Haida and 19 Tlingit Indians' agriculture. This information 20 is assembled and interpreted in cultural- 21 environmental and cultural-evolutionary terms." 22 23 Can you explain briefly what you did in your 24 dissertation? 25 A Yes. I was interested in examining any evidence there 26 is of prehistoric and early post-contact Indian 27 agriculture on the northern north-west coast. 28 Q Why were you interested in agriculture? 29 A Well, agriculture has been used in evolutionary 30 studies as a marker that signifies a transition from 31 hunting-gathering populations to other kinds of 32 societies. 33 Q In your research did you rely -- you mentioned Haida 34 and Tlingit, did you rely solely on Haida and Tlingit 35 information or did you look at other information as 36 well? 37 A Well, in anthropological studies I was looking at 38 ethnography and analytical anthropology ranging from 39 Kodiac Island in the north to the Columbia River down 40 along the whole north-west coast region, and moving 41 into the interior as far as central Alberta. 42 Q And that reading, was that in areas of ethnography, 43 archaeology, history, and ethnohistory? 44 A Yes. And I also moved into the early historic 45 records, the land based, and particularly the maritime 46 fur trade records for the north-west coast region to 47 try to get additional information about not just the 21563 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 natives' economies, but to get some sense of how they 2 had fit agriculture into that configuration. 3 Q Those maritime fur trade records, can you just give a 4 general world-wide description of where the vessels 5 came from and where the trade was going? 6 A Well, by the early nineteenth century or around the 7 turn of the nineteenth century, the north-west coast 8 region had been drawn into quite a considerable 9 international commerce involving China, Hawaii, 10 Boston, and Britain. 11 Q Now, I've just -- and I won't mark it, my lord, but 12 the results of your research was an over 500-page 13 dissertation discussing the issues that are set out in 14 your curriculum vitae? 15 A Yes. 16 Q And this is it? 17 A Yes. 18 Q Now, your M.A. is in Prehistoric Archaeology and Human 19 Environment from the University of London. Can you 20 explain how archaeology fits in with cultural 21 geography? 22 A Yes. Archaeology and cultural geography are very 23 closely related disciplines. Archaeology provides the 24 material base from which cultural geographic studies 25 are generated. We use the data from archaeological 26 excavations. 27 Q And by material base do you mean the things that are 28 dug out of the ground? 29 A The things that are dug out of the ground, yes. 30 Q Your B.A. is in Anthropology from the University of 31 British Columbia, and can you explain how anthropology 32 fits in with cultural geography? 33 A Well, anthropology is the broad science or study of 34 mankind, and some aspects of anthropology, 35 particularly cultural anthropology, is very closely 36 related to cultural geography. Cultural geography and 37 cultural anthropology share common interests in this 38 man/land relationship and also changes in that 39 relationship through time. 40 Q And is one of those common interests an understanding 41 how pre-industrial people adapt to environmental 42 change situations? 43 A Yes, it is. 44 Q Now, we have heard evidence in this case from a 45 historical geographer, such as Dr. Ray and Dr. Galois. 46 Can you explain the difference between an historical 47 geographer and a cultural geographer? 21564 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 A I think the best way to describe a distinction is to 2 say the cultural geographers are more often interested 3 in pre-industrial and usually pre-literate societies, 4 and historical geographers are interested in European 5 or European-derived societies. 6 Q Now, if we can -- if you would please turn to page 2 7 of your curriculum vitae, 1188-1, under "Professional 8 Experience". We'll come back to the first item later, 9 but the second item you note that you're an 10 "archaeologist for and active member of the Underwater 11 Archaeological Society of British Columbia". You are 12 still involved in archaeological research? 13 A Yes, I am. 14 Q And you have set out in your curriculum vitae 15 experience in not only maritime archaeology, but also 16 land-based archaeology? 17 A Yes. I list in this CV land archaeology experience in 18 B.C., Alberta, and also some years ago in Belize. 19 Q So, for example, if you turn to page 3 of Exhibit 20 1188-1, you note in September of 1986 an 21 archaeological excavation in Jasper National Park? 22 A Yes. 23 Q And then the next two items relate to an 24 archaeological investigation for Parks Canada at Echo 25 Creek. What was your position on that? 26 A Well, I directed a project in Banff National Park 27 where the Trans Canada Highway was being twinned. It 28 was a salvage archaeological project and we excavated 29 the site. I directed the excavations, and then was 30 responsible for preparing a report, which I did 31 largely under contract. That's -- so the whole period 32 involved at that site went from August '84 until 33 November '85. 34 Q Now, once again I don't intend to mark it because it's 35 450 pages almost, but you then produced a document 36 "Archaeology of the Echo Creek site 515 R, Banff 37 National Park"? 38 A Yes, I did. 39 MR. WILLMS: Just carrying on, at the bottom of the page you -- 40 and I should note, my lord, I'm not going to -- in the 41 middle of the page there is "Research assistant for 42 the Historical Atlas of Canada". That plate has 43 already been marked. I can't recall -- 44 THE COURT: All right. 45 MR. WILLMS: 46 Q -- what the exhibit number is, but it's already been 47 marked. It was I think Dr. Ray was a co-author. 21565 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 A Dr. Galois. 2 MR. WILLMS: Dr. Galois, I'm sorry, was a co-author of that 3 plate. 4 At the bottom of the page you note you did 5 archaeological site work near Owikeno Lake, British 6 Columbia. Where's that? 7 THE COURT: Near River's Inlet. Everyone knows that, Mr. 8 Willms. 9 MR. WILLMS: 10 Q Thank you. And underneath that you were a part of a 11 team from June to August 1976 "excavating a 12 prehistoric habitation site at Crescent Beach"? 13 A Yes. 14 Q And could you just briefly describe that excavation? 15 A Well, Crescent Beach I think is going to turn out to 16 be one of the more important Coast Salish 17 archaeological sites. It was a multi-component or had 18 many stratifications, a habitation site that was 19 excavated I believe over two seasons. 20 Q The next page, page 4 of 1188-1, you note the third 21 dates down, August to September 1973, "Archaeologist 22 for the Department of Anthropology", and you were part 23 of a team excavating a coastal site at Musqueam. 24 Where exactly was that located? 25 A Well, Musqueam is at the foot of Dunbar in Vancouver 26 and it's -- it was an archaeological site on the 27 reserve land down there by the Fraser River and it was 28 particularly noteworthy for its more than 3,000 year 29 old water-logged baskets that were recovered. 30 THE COURT: I'm sorry, water-logged — 31 THE WITNESS: Baskets. 32 THE COURT: Yes. Thank you. 33 MR. WILLMS: 34 Q You then note the Belize excavation in 1973, and then 35 back to British Columbia in May '73 "excavating and 36 surveying on relict river terraces near Yale". Can 37 you just explain what that was? 38 A There was a team of about half a dozen of us working 39 on some probably several thousand year old terrace 40 sites that represented the former level that the river 41 had been at, and what we were doing was adding 42 basically to the Fraser River Canyon prehistory of the 43 area. 44 Q Then the final reference, and it's the first one in 45 time, June-August 1971, at Shuswap Lake "mapping, 46 excavating and instructing tourists about prehistoric 47 pit house remains"? 21566 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications That was while I was an undergraduate. You are therefore aware of the methodology involved in conducting field research in archaeology? Yes, I am. Now, in your bibliography is there a good example of archaeological field work in the claim area? Yes. I think George MacDonald's report on the Kitwanga Hill Fort excavations which he did for Parks Canada is a good example. And could you turn to tab 2 of Exhibit 1188 and just confirm that that is a copy of Dr. MacDonald's archaeological work at Kitwanga? Yes, it is. : All right. Could that be 1188-2, my lord? Yes. (EXHIBIT 1188-2: Kitwanga Fort National Historic Site, Skeena River B.C.) We have excerpts from this already in other -- We do, my lord, and there are a number of other documents which I'm going to put the whole document in just because it's more convenient to have it all in one location, but there are excerpts of this already marked in the cross-examination, also examination in chief, of some of the plaintiffs' experts. Dr. Robinson, you're aware of the limits also on the use of archaeology in reconstructing prehistoric ways of life? Yes, I am. And is there a good general description of those limits for British Columbia? Yes. I think Dr. Fladmark's book "British Columbia Prehistory" sets out some of the limitations for archaeology in the province. Could you please turn to 3 of Exhibit 1188 and confirm that the extracts here are taken from the reference that you just referred to by Dr. Fladmark? Yes. : 1188-3, my lord. (EXHIBIT 1188-3: B.C. Prehistory - Fladmark) : Once again, my lord, extracts -- there is a very long book, most of which isn't relevant to this area, but the first part of it is methodology and then the 1 A 2 Q 3 4 A 5 Q 6 7 A 8 9 10 Q 11 12 13 A 14 MR. WILLMS 15 THE COURT: 16 17 18 19 20 THE COURT: 21 MR. WILLMS 22 Q 23 24 25 26 27 28 29 30 31 A 32 Q 33 34 A 35 36 37 Q 38 39 40 A 41 MR. WILLMS 42 43 44 45 MR. WILLMS 46 47 21567 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 middle part at 118 and 119 and 120 relate to the 2 north-west coast. It's already -- extracts have been 3 marked -- 4 THE COURT: All right. 5 MR. WILLMS: 6 Q -- during Susan Marsden's evidence. 7 I would like you to turn to page 4 of Exhibit 8 1188-3, where at the bottom of the page Dr. Fladmark 9 says this: 10 11 "A prehistoric archaeological culture is 12 really just a collection of artifacts and other 13 material remains thought to have been used at 14 about the same time by people sharing some kind 15 of socio-cultural relationship. Differences in 16 content between such collections through time 17 are taken to signify changes in the way of life 18 of the people involved and perhaps even the 19 occasional wholesale replacement of original 20 groups by newcomers. While most such 21 interpretations are probably valid, the 22 relationship between archaeological collections 23 of surviving material fragments and former 24 whole societies is far from clear, and it is 25 seldom possible to state confidently that a 26 specific archaeological culture is the 27 predecessor of any particular tribe of the 28 historic period. Our usual inability to 29 identify historical groups more than 1,000 - 30 1,500 years back into the archaeological record 31 will bother those who would have all 32 prehistoric peoples labelled in familiar terms. 33 However, in 11,000 or more years of prehistory 34 there undoubtedly were human groups who came 35 and went in British Columbia without leaving 36 any local descendants, while those tribes that 37 we do know historically probably developed 38 through a long process of movement, 39 fragmentation and coalescence of originally 40 different peoples. Because we cannot 'dig up' 41 languages spoken prehistorically, or any other 42 non-material aspects of culture, we may never 43 be able to unravel all such events. 44 Identifying real people in the past is 45 difficult, and the farther back we go in time 46 the more it becomes necessary to talk in 47 abstractions; named groups of tools and other 21568 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 things ordered in space and time, undoubtedly 2 made and used by Indians, but whose 3 relationship to any single historical tribe is 4 essentially unknown." 5 6 And I'm just -- is this accepted archaeological 7 theory for British Columbia? 8 A Yes. 9 Q Now, have you heard of a discipline or sub-discipline 10 called ethno-archaeology? 11 A Yes, I have. 12 Q And can you describe what ethno-archaeology is? 13 A Ethno-archaeology is a branch of archaeology which 14 relies on ethnographic information in its 15 interpretation of the archaeological remains. 16 Q And is there in your reference list an example of 17 ethno-archaeology in the claim area? 18 A Yes, I think there's a good example, again in George 19 MacDonald's report on the Kitwanga Hill Fort, that was 20 referred to in tab 2. 21 Q All right. 1188-2? 22 A Yes. 23 Q Now, what use have you made in your professional 24 career of ethnohistorical research? 25 A Well, my dissertation is basically ethnohistoric 26 research because it combined both the anthropological 27 sources of information from the Tlingit and Haida and 28 adjacent areas, and it combined those with records, 29 early historical records, from the maritime fur trade 30 period and somewhat later in the nineteenth century. 31 I also used an ethnohistoric approach in my opinion 32 report here. 33 Q Now, just if you could turn back to 1188-1, your 34 curriculum vitae, and turn to page 3 of 1188-1, you 35 have a note in the middle of the page, hopefully right 36 about -- by the three-hole punch: 37 38 "December 1983 - March 1984, Historian for Parks 39 Canada, Western Region - compiling annotated 40 bibliography about native trade trails in 41 British Columbia, southeastern Alaska, 42 southwestern Yukon Territory and Washington 43 State, in connection with the Federal- 44 Provincial Alexander Mackenzie Heritage Trail 45 Interpretation project." 46 47 Now, is that -- did you use an ethnohistorical 21569 S.P. Robinson (for Province) In chief by Mr. Willms On qualifications 1 research approach in getting that bibliography 2 together? 3 A Yes. That's a survey of records including 4 anthropological and historical. 5 Q Once again, I'm not going to mark this, but that work 6 led to three volumes and 800 pages of -- and an 7 annotated bibliography for the material in the area? 8 A Yes. 9 Q Now, in respect of ethnohistory, are there scholars 10 generally accepted in the field who discuss the limits 11 and methodology for the use of oral history? 12 A In ethnohistory, yes. Bruce Trigger is a very good 13 example of this and he's someone who's worked in the 14 Huron area in eastern Canada trying to reconstruct the 15 early history of the Huron. And examples from the 16 northern north-west coastal area come out of de Laguna 17 and McClellan, both of whom are listed in the 18 bibliography. 19 Q And De Laguna is d-e L-a-g-u-n-a? 20 A Yes, small d-e and then capital L-a-g-u-n-a. 21 Q And that's in your bibliography? 22 A Yes, it is. 23 Q And McClellan, M-c-C-1-e-l-l-a-n. 24 A Yes. 25 Q And that's also in your bibliography? 26 A Yes. Both of these women have written extensively in 27 their areas and I've just got some of their materials 28 listed. 29 MR. WILLMS: And, my lord, the Trigger reference has been marked 30 as Exhibit 888. 31 THE COURT: Yes. 32 MR. WILLMS: 33 Q During Dr. Daly's evidence in chief. 34 Now, if you can turn back to page 2 on your 35 curriculum vitae, February 1986 to present you note 36 "Contract researcher in ethnohistory and archaeology 37 for Russell and DuMoulin", and that's in respect of 38 this litigation? 39 A Yes. 40 Q And you have prepared a report dated May 12th, 1987? 41 A Yes. 42 Q Has that report changed since May 12th, 1987? 43 A No, it hasn't. 44 Q You have done other work since May 12th, 1987, for 45 Russell and DuMoulin in respect of this case. Can you 46 describe generally the character of that work and 47 whether at some time the character of that work 21570 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A Q A Q A Q MR. S.P. Robinson (for Province) In chief by Mr. Willms On qualifications changed? Basically I was assisting counsel on background research for other parts of the trial, and then in late September turned back to the opinion report to prepare it for today. That's September of this year? Yes. Now, between May 12th, 1987, and September of this year, what work did you do or what meetings did you have in respect of your evidence and your opinion report? None that I recall. Between May 12th, 1987, and today, have any of the opinions expressed in your opinion report changed? A No, they haven't. WILLMS: My lord, that concludes the evidence on qualifications. It is my submission that Dr. Robinson is qualified to give anthropological, archaeological, and cultural geographic opinions concerning the aboriginal peoples of north-western North America, but in particular north-western British Columbia. THE COURT: Miss Koenigsberg? MS. KOENIGSBERG: I have no submission. THE COURT: Thank you. Mr. Grant? Yes. Is my friend -- just to clarify before I start, is it -- when he says in specific respect to the north-west coast of North America, is he referring in specific respect to the Gitksan and Wet'suwet'en or more broadly? WILLMS: Well, my lord, when I talk about north-western British Columbia I include the claim area, but I also include the area to the north of the claim area, the Carrier, to the east. The witness has already said she's done research all over British Columbia, including into Alberta, as part of her maritime dissertation, but it is my submission, my lord, that whether or not she's actually done it before, and she has, she would be qualified because of her background in anthropology, archaeology, and cultural geography, to do first-time research in the area and give an opinion anyway. But she's done ample work, in my submission, in all of this area to qualify here. I was asking -- I just wanted a clarification of my friend's own terminology, that's all. I think he said north-west -- I think he's given me -- -- described it accurately. MR. GRANT: MR. MR. GRANT: THE COURT MR. GRANT THE COURT 21571 1 CROSS-EXAM 2 Q 3 4 A 5 Q 6 A 7 MR. GRANT: 8 9 THE COURT: 10 MR. GRANT: 11 THE COURT: 12 MR. WILLMS 13 MR. GRANT: 14 THE COURT: 15 MR. GRANT: 16 Q 17 18 19 20 21 22 A 23 Q 24 25 26 27 28 29 30 31 32 33 34 35 36 37 A 38 39 40 41 42 43 Q 44 A 45 46 47 Q GRANT ON QUALFICATIONS: I understand that you would describe cultural geographer? S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications -EXAMINATION BY MR. Dr. Robinson, yourself as a Yes. As distinct from a historical geographer? Yes. Now, I'm going to ask, and I'm referring here, my lord, to Volume 204, page 13525, lines 27 to 33. I'm sorry, what document? The transcript. I'm sorry, my lord. No, that's all right. I can follow. : What page? Page 13525. Possibly my friends -- Whose evidence is this? This is the evidence of Dr. Ray in cross-examination. You have that now. Thank you, Mr. Willms. And I'd like you -- you were asked for -- I'm sorry, Mr. Willms asked Dr. Ray: "What is the difference between a historical geographer and a cultural geographer?", at line 25? Yes. You have that. And Dr. Ray said: "The difference of focus. A cultural geographer and historical geographer are often interested in the same things, but one more interested in change in culture over time and the other would be more inclined often to deal with culture in a given cross-section, if you know what I mean, at a given point in time, looking at a people rather than looking at a people and their culture changing all the time." Do you agree with that explanation of the difference? Now, I'm just focusing on that. I would say that he's drawing a distinction there that's got some value. I'm not sure from this which one Dr. Ray is associating with which portrayal. I would say that most cultural geographers and historical geographers whose work I'm aware of are looking at cultures changing through time and that -- That's cultural geographers? And historical geographers, so I don't -- I can't say I would agree with this because I'm not really sure what he means here. Okay. Now, then he goes on and he's asked: 21572 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 2 "Isn't another difference that a historical 3 geographer usually works with historical 4 written records, whereas, a cultural geographer 5 goes beyond and uses anthropological and 6 archaeological tools as well?" 7 8 And he answers: 9 10 "Historical geographers use any historical 11 evidence that's useful. It may be archaeology, 12 it may be ethnography, it may be historical 13 documents. Even historians would not claim it 14 is to be restricted solely to documents." 15 16 And then he goes on to refer to oral histories. 17 Stopping there -- 18 A Uh-huh. 19 Q -- you agree with what Dr. Ray says there, don't you, 20 in terms of what historical geographers do, or do you 21 know? And I'm only asking you if you know because 22 you're defining yourself as a cultural geographer and 23 you may not -- 24 A Well, I would say that my exposure to working in 25 historical geography would make me agree with this, 26 yes. 27 Q Now, Dr. Robinson, what do you mean by the word 28 "culture" when you say cultural geographer? What do 29 you mean when you use the word "culture"? 30 A My own interest in cultural ecology and in cultural 31 evolutionary theories would perhaps make my own 32 definition narrower than some other cultural 33 geographers would use, but what I'm most interested in 34 and what I most often focus on is that core of 35 behaviour that relates to the economy of an area and 36 is most intimately connected with the relationship 37 between people and resources. There are broader 38 definitions of culture, and I would say a cultural 39 ecologist usually considers those other aspects 40 secondary. 41 Q Now, in reviewing your CV, is it not correct that your 42 major academic work was your Ph.D.? 43 A Yes. 44 Q And if we add your M.A. thesis on Prehistoric Human 45 Environments, Soil Analysis, Faunal, F-a-u-n-a-1, 46 Analysis, Middle and South American Archaeology -- I'm 47 sorry, those are the courses. Your M.A. thesis is a 21573 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications "Preliminary Review of Faunal Resources on the Northwest Coast of North America". If we add that to your Ph.D. that -- those are your two principal academic works that you have done in your career? Well, no, and actually I'd like to make a qualification or a correction there. I didn't write a Master's thesis in the North American sense of a Master's thesis. That's a major paper that was associated with one of the courses. Okay. I would say that the major academic work I've done, apart from my dissertation, is that one of the reports I did for the Echo Creek site for Parks Canada. Okay. Now, just a moment. Let me get to that. Do you recall when that was, so I can just -- I think '84. Okay. I'm not sure, '85, '84. Yes, you can refer to your CV. I don't remember where Echo Creek is. It's in Banff National Park. It's right at the junction of Norquay Road and the Trans Canada Highway. Thank you. Well-known junction for ski enthusiasts. Well, it used to be, but Norquay is not known as the prime ski hill anymore. Yes, Right. This would be on page 5 of your report, "Final Archaeological Report on Echo Creek Site"? Yes. Now, this report is defined -- is stated as a report in fulfilment of the terms of contract number KWR 1265 CN for Parks Canada Western Region? Uh-huh. So this report was done under a contract? Yes. Was this report published? No, I think it's being worked on now, but I'm not sure of that. Okay. If it is -- No, it's -- in that form it's unpublished. It hasn't been published to date? No. It -- has this report been critiqued by other archaeologists? It's being subjected to in-house critique by other Parks Canada archaeologists. 1 2 3 4 5 A 6 7 8 9 10 Q 11 A 12 13 14 Q 15 16 A 17 Q 18 A 19 MR. GRANT: 20 THE COURT: 21 THE WITNES 22 23 THE COURT: 24 MR. GRANT: 25 THE COURT: 26 27 MR. GRANT: 28 Q 29 30 A 31 Q 32 33 34 A 35 Q 36 A 37 Q 38 A 39 40 Q 41 A 42 Q 43 A 44 Q 45 46 A 47 21574 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 Q Do you know who they are? 2 A Yes, I can name two of them. 3 Q Uh-huh? 4 A Rod Pickard. 5 Q Rob? 6 A Rod Pickard. 7 Q P-i-c-a-r-d? 8 A P-i-c-k-a-r-d, project archaeologist for Parks Western 9 Region, and it's being critiqued by Darrell Fedje, 10 who's currently I think the head of that division for 11 Calgary. 12 Q What's his spelling again? 13 A Darrell Fedje, F-e-d-j-e, and also by Don Steer, who 14 was the head of archaeology for that division at the 15 time I wrote the report, and possibly by others. I 16 don't know. 17 Q Are all three of these gentlemen archaeologists? 18 A Yes. 19 Q And have you seen the results of their critiques of 20 this? 21 A Not recently. I was speaking to Rod earlier this 22 summer about ongoing work on it because the intent I 23 believe is to have it submitted as a manuscript 24 report. 25 Q Okay. 26 A In a series similar to the one George MacDonald's 27 report is in, but that's all I know of it. 28 Q Okay. You don't know what the nature of their 29 critique of this is? 30 A No. 31 Q And you've never -- they've never come back to you to 32 say that it must be revised or edited or that they 33 agree with it or disagree with it? They haven't given 34 you any of their comments, in other words? 35 A Oh, I had verbal comments at the time it was submitted 36 and it was fine for the terms of reference of that 37 contract. Nothing further. 38 Q Well, that's the point, isn't it, what you did was you 39 fulfilled the terms of your contract and that's what 40 your objective was, rather than preparing an academic 41 report? 42 A Yes. 43 Q Okay. And it hasn't been subject to peer review by 44 other archaeologists other than these three? 45 A Well, I would think those three are an adequate team. 46 Q Other than those three I said. 47 A I honestly don't know. There are other archaeologists 21575 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 who work for Parks in Calgary. 2 Q Okay. Now, I'd like to refer you to page 4 of your 3 CV, and I'm going to go up from the bottom. My friend 4 made reference to this Shuswap Lake reference. You 5 were only a student when you were doing that? 6 A Yes, and that's why I've indicated I'm a field 7 technician in my CV because I wasn't an archaeologist 8 then. 9 Q And you were basically -- it was a summer -- I take it 10 this was a summer job? 11 A Yes. 12 Q And you weren't working under the direction of other 13 archaeologists on that job? 14 A I was working under the direction of other 15 archaeologists. 16 Q Okay. And were you actually involved in a dig? 17 A Yes. 18 Q Okay. And so you would be what was called part of a 19 field team? 2 0 A Uh-huh. 21 Q Okay. 22 A Yes. 23 Q Similarily in -- your 1972 experience is similar, you 24 were a student working with others? 25 A Yes. 26 Q And similarily in May 1973, once again you were part 27 of -- a student on an archaeological field team? 2 8 A Yes. And I had graduated that summer. 29 Q Okay. You graduated with your Bachelor of Arts? 30 A Yes. 31 Q Okay. But you were not running that or you were not 32 a -- 33 A No, I wasn't. 34 Q -- fully qualified archaeologist at that point, you 35 had your Bachelor's degree? 36 A Well, I think that gave me qualification to be an 37 archaeologist. 38 Q Okay. 39 A And I might mention that everyone working on that 40 particular project was an archaeologist. 41 Q How many were working on it? 42 A Seven or eight. 43 Q Okay. You didn't publish any report out of that? 44 A No. 45 Q Okay. And the Balize experience was once again were 46 you -- you were part of a team I think you've 47 described it? 21576 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 A Yes. 2 Q Okay. And that was -- you were -- again, this was 3 part of a dig I gather or an excavation was it? 4 A A survey. 5 Q A survey. Okay. And August to September of '73 -- I 6 see that May '73 through to September '73 you actually 7 were involved in three different areas, and this is 8 the Musqueam one, and once again you were in the same 9 capacity, part of a team as you were in the Balize and 10 the Yale experience? 11 A Yes. 12 Q And in none of these you published any reports? 13 A No. 14 Q Okay. And you were not in charge of the team or 15 anything like that? 16 A No. 17 Q Now, in reviewing your work and your CV I've taken the 18 liberty of -- I've got a copy of the CV where I've 19 numbered items and it will be easier for you to follow 20 to expedite things a little bit here. 21 A Thank you. 22 Q I've just put numbers on this starting on page 2? 23 A Uh-huh. 24 Q And so it just will make it easier so you see what I'm 25 referring to fairly quickly. 26 With respect to your professional -- your work, 27 after you've done your Ph.D. thesis, would it be 28 correct to say that item -- that you have primarily 29 been engaged in contract work? 30 A Yes. 31 Q Okay. And that would apply to items on page 2, items 32 1 to 4? I'm sorry, 1 and 4 to 8; is that right? 33 A With the exception of item 8. 34 Q Okay. That was not contract work? 35 A No, I was -- 36 Q Okay. 37 A No. 38 Q Okay. And on the next page all of the items on that 39 page were contract work? 40 A With the exception of item 12. 41 Q Thank you. I'm sorry, this was -- this is the work -- 42 the Echo Creek work, was it? 43 A Yes. Well, the Echo Creek work, if you look at items 44 11 and 12, the Echo Creek work started when I was 45 hired as a term employee for Parks Canada, so I was on 46 staff. 47 Q That's the August '84 to '85 item 12 — 21577 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 A Yes. 2 Q -- is when you were a term employee? 3 A And when the term position came to an end, I completed 4 the report under contract. 5 Q Okay. 6 A So that's -- and that's not uncommon in that kind of 7 office. 8 Q Okay. And on page 4 your contract work -- well, 9 you've already explained you were working as in the 10 summer positions and -- but number 19 at the top of 11 page 4 was contract work? 12 A Yes. 13 Q Now, except for -- except for your work -- and you 14 worked for I believe, oh, yes, number 5 on page 2 you 15 were a consultant for the Pacific Fishermen's Defence 16 Alliance and other groups, including the Fisheries 17 Council, in preparing an affidavit to intervene in the 18 Sparrow case, which is presently before the Supreme 19 Court of Canada; is that right? 20 A Yes. 21 Q And those groups were -- your research for them was to 22 assist in the preparation to oppose the claim at the 23 Musqueam to the fishing rights they were seeking; is 24 that right? 25 A Yes. 26 Q And except for that work, and the work item number 1, 27 the contract work for Russell and DuMoulin, you -- 28 none of the other work that you've listed connects to 29 your Ph.D. dissertation in that type of research, does 30 it? Those are the only two that connect to that 31 dissertation -- and I'm sorry, number 6. I meant to 32 say number 6 as well on page 2, those three, 1, 5 and 33 6? 34 A Well, basically I think that it all connects because I 35 think it's becoming increasingly familiar with a broad 36 range of pertinent materials that have to do with the 37 history and prehistory of the region. 38 Q Okay. Well, I understand that what you did in your 39 Ph.D. thesis was an analysis of, and I think you've 40 said, "Men and resources on the northern Northwest 41 Coast of North America 1785 - 1840"? That's the 42 title? 43 A Yes. 44 Q "A geographical approach to the maritime fur trade". 45 Now, subsequent to the preparation of that 46 dissertation, you have done work in which you rely on 47 this for counsel for the defendants here; is that 21578 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 right? You rely in your -- the research you did in 2 preparing your opinion report relies in part on your 3 research in your dissertation? 4 A Yes. 5 Q You say that? 6 A Yes. 7 Q And I take it from what you've described relating to 8 the spring of 1988 work on Sparrow for the Pacific 9 Fishermen Defence Alliance is that once again you 10 prepared -- you researched historical and other 11 material relating to the fishing rights of the 12 Musqueam? 13 A Yes. 14 Q That would be a fair statement of that. 15 And in the spring of '88 you prepared a 16 comprehensive reference base of published and 17 unpublished materials relating to ethnography, 18 ethnology, and history of the lower Fraser River; is 19 that correct? 20 A Yes. 21 Q Okay. Now, those connect to the type of work, if not 22 directly to the maritime fur trade itself, except for 23 your present report, those connect to the type of work 24 you did in your thesis; is that right? 25 A Yes. 26 Q Okay. Now, let's look at number 2 on page 1. You are 27 a member of the Underwater Archaeological Society of 28 British Columbia. Now, this is a private society, 29 isn't it? It's not yet considered a professional 30 association is it? 31 A Oh, I'm sorry, I wasn't clear on the distinction you 32 were making. It's a group of people who are 33 interested in the shipwrecks of the province and other 34 archaeological sites that are submerged. 35 Q And your work with them has been relating to ships off 36 the coast of the province? 37 A Not exclusively. Two weeks ago several of us were 38 involved in doing some pre-historic excavations at 39 Montague Harbour on Galiano Island. We're also 40 interested in the submerged prehistoric components of 41 native archaeological sites in the province. 42 Shipwrecks has been a focus, but it's not the only 43 focus. 44 Q But your work in your CV you have listed experiences 45 on the underwater archaeology relating to shipwrecks? 46 A Not exclusively. 47 Q Okay. 21579 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 A It doesn't have -- I didn't mention shipwrecks 2 specifically. I have done some work in connection 3 with -- 4 Q Well, number 8 is shipwrecks? 5 A Yes. For instance, with number 4, some of the work 6 that I did with a person called Jim Ringer in 7 connection with the work with Parks and Pacific Rim 8 was investigating fishing weir sites through the 9 Broken Group area. 10 Q Well, is there a reason that you didn't describe that 11 in your CV? 12 A Because it was lengthy enough as it was. 13 Q Your CV was lengthy enough as it was? 14 A Yes, that's a -- well, this is sort of an esoteric 15 field. 16 Q Underwater archaeology? 17 A Yes. 18 Q And — 19 A But there -- some were connected with fishing weir 20 sites through the Broken Group as well during that 21 survey mentioned in number 4. 22 Q Were you directly involved in any of that? 23 A Yes. 24 Q Okay. Does the Underwater Archaeological Society 25 publish a scholarly journal? 26 A It has not -- 27 Q Or a journal? 28 A — to date. 29 Q Okay. Do you belong to any other association, and 30 here I'm referring to do you belong to any 31 professional association except this one, the 32 Underwater Archaeological Society? 33 A Currently, no. 34 Q Do you belong to the American Ethnology Society? 35 A No. 36 Q The American Association of Geographers? 37 A No. 38 Q The American Society of Ethnohistory? 39 A No. 40 Q The American Anthropological Association? 41 A No. 42 Q Or the Canadian counterparts of those associations? 43 A Well, the Canadian counterpart, the CAA, Canadian 44 Anthropological Association. 45 Q Do you belong to that? 46 A I'm not sure if my membership's current to date, but 47 it has been until very recently. 21580 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications Is there a reason you didn't put that in your CV? I don't think I listed any professional associations. Well, you did list the Underwater Archaeology Society? Because I'm an active member with that, as I'm an active member on the Maritime Museum committee for collections. And that's relating to -- Maritime Museum is again relating to shipwrecks is it? Yes. You would agree that the associations that I've just asked you about are reputable and established associations? Oh, yes. And do you -- would you agree with me that there is a benefit for professionals in this field to belong to these associations? Sometimes. That you then get access to recent publications and discussions in the field? I haven't found that membership makes any difference to my access to either learned discussions or those publications. Except for this two -- this event two weeks ago at Galiano Island and the comments about your 1988 diving, it would be fair to say that your underwater archaeology work that you've done thus far was primarily focused on shipwrecks, would it not? Yes, I would like to mention, however, that the problems with shipwreck archaeology associated with conservation and preservation, for instance, are paralleled by problems in prehistoric excavation so that basically the kinds of things I learn in the context of shipwrecks are often applicable to other archaeological situations. In other words, in field work, in doing digs -- Yes. -- in other fields? Right. But the findings that you make with respect to shipwrecks have not -- you have not relied on that in any way in your expertise in preparing the opinion report? No. : Now, so let's put underwater archaeology just to one side a moment, and you've explained that. The other -- between the time of your dissertation and the present time, would it be correct to say that except for the kind of work you did for this opinion report, your primary work has been in archaeology, and I'm now 1 Q 2 A 3 Q 4 A 5 6 7 Q 8 9 A 10 Q 11 12 13 A 14 Q 15 16 17 A 18 Q 19 20 A 21 22 23 Q 24 25 26 27 28 A 29 30 31 32 33 34 35 Q 36 A 37 Q 38 39 40 41 A 42 ] MR. GRANT 43 44 45 46 47 21581 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 referring to the type of work you've done with the 2 Parks, for example, with Parks Canada? And on page 2 3 I'm referring to -- I'm referring to item number 10, 4 11, 12, 17, 18, and of course your 19 through to 24 on 5 page 4, your earlier work, all appears to be 6 archaeology related? 7 MR. WILLMS: My lord, I think my friend started that question 8 with after the dissertation in 1983, and then went 9 back before '83. 10 MR. GRANT: Yes, I — 11 MR. WILLMS: Maybe he wanted to stop at 14 the three volume 12 bibliography? 13 THE WITNESS: I wonder if you could start the numbers again? 14 MR. GRANT: 15 Q Except for -- okay. In a review of your professional 16 experience, if we just put aside your underwater 17 archaeology experience, and we put aside what you've 18 done in this case, okay? 19 A Uh-huh. 20 Q That is number 1 on your professional experience. 21 Would you not agree that your primary experience has 22 been in archaeological work, such as the work you 23 described you did with Parks Canada, and I'm -- I want 24 to be fair to you, Doctor, I'm only here -- what I'm 25 doing is referring -- what I have is your CV and it 26 appears to me that in the largest number, aside from 27 underwater archaeology, relates to that? 28 A Well, numbers 5, 6, 7 and 13 -- 2 9 Q Right. 30 A -- are not archaeology and 8, 9, 10, 11, 12, are. So 31 I'd say there's some of -- some ethnohistory and some 32 archaeology. 33 Q Okay. And I didn't -- I'm not limiting now to the 34 time of your -- post your thesis, and that's why I say 35 at 17 and 18 and the items 19 to 24 are -- all are 36 archaeology related? 37 A Oh, are generally while I was at university and did 38 summer field work. 39 Q That's the summer field work, yes. Now, would it be 40 correct to say that your true area of expertise, based 41 on this and your experience, is more in the field of 42 archaeology than cultural geography? 43 A No. 44 Q Okay. Did you do any archaeological digs in the 45 territory of the Gitksan and Wet'suwet'en? 46 A No, I did not. 47 Q Now, in the preparation -- I'm sorry, one other item 21582 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications is that you referred to in 1985 you did work with the federal government and this was research on the Office of Native Claims relating to -- with the Office of Native Claims of the federal government relating to the Kwakiutl comprehensive claim? Yes. And that was an analysis of the claim by the Kwakiutl people? Yes. Has there been any occasion on which you have worked, other than on behalf -- well, let me say this: Your work in this field, in this area, that is with respect to aboriginal claims, has focused in British Columbia; would that be fair to say? Yes. You haven't done any outside of B.C.? In ethnohistory? Sorry. In history -- in your work on research of native claims? That's correct. Yes. It's been in B.C. And you have in this case of course been retained by the provincial crown? Yes. And the Kwakiutl comprehensive claims by the federal government? Yes. And in the Sparrow case by the interveners, the Pacific Fishermen's Defence Alliance, and the others that you list? Yes. Who were in opposition to the native claims? Uh-huh. : Would it be correct to say that all of your work in native claims has been in opposition to native claims in the province of British Columbia? 3: My lord, if I can just rise, okay, because I don't know whether my friend is suggesting that all of the comprehensive claims in British Columbia are against the native people. I understood that they made the claims and that this witness commented on the claims, so I don't understand -- frankly, I don't understand the question, and I object. : Well, I thought I understood the question, and let me see if you agree with me, that that was simply this: Is all the work that you have done on native claims in British Columbia been in opposition to the claimants? 1 2 3 4 5 6 A 7 Q 8 9 A 10 Q 11 12 13 14 15 A 16 Q 17 A 18 Q 19 20 A 21 Q 22 23 A 24 Q 25 26 A 27 Q 28 29 30 A 31 Q 32 A 33 MR. GRANT 34 35 36 MR. WILLM 37 38 39 40 41 42 43 THE COURT 44 45 46 47 21583 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 3S: I think my hesitation there was with regards to the overview I did for the federal government with the Office of Native Claims. The overview or the report I produced was, in my understanding, and I know it's some time ago, nothing but that. It was a document to assist in the analysis of the claims, so it was an overview of the available information. It wasn't -- it wasn't a critique of a claims or claims statement or anything. But — So I'm sorry, I'm not quite clear on your question. Well, we can say that your work in this case of course is in opposition to the native claim? Yes. We can say that your work in Sparrow was in opposition to the native claim? Yes. And the third -- there's three times in which you've been involved in native claims, the third is Kwakiutl? Yes, and I saw that. My understanding of that is -- That's the one you're questioning. Now -- And I'm not sure in recollection. Do you have a copy of your report relating to the Office of Native Claims? Yes, I do. Okay. Have you provided it to your counsel? No. It was my understanding that materials in the Office of Comprehensive Claims are confidential, and I spoke with a person called Mike Fiery(ph) about that a few days ago, and I don't know if anyone's proceeded since to get access to a copy. I've retained one because I produced it, but I'm not sure I can release it. There is the one that is -- just a moment. This is the one that is on -- if you look at mine because I have them numbered, it's listed in your CV, isn't it? Yes. Okay. I think. : Can we take the morning adjournment? : Certainly. I'd asked my friend, and he can speak to me and then say what he wants to the court after. TRAR: Order in court. Court stands adjourned for a brief recess. 1 THE WITNE 2 3 4 5 6 7 8 9 10 MR. GRANT 11 Q 12 A 13 Q 14 15 A 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 A 24 Q 25 26 A 27 Q 28 A 29 30 31 32 33 34 35 Q 36 37 38 A 39 Q 40 A 41 THE COURT 42 MR. GRANT 43 44 THE REGIS1 45 46 47 21584 S.P. Robinson (for Province) Cross-exam by Mr. Grant On qualifications 1 2 (PROCEEDINGS ADJOURNED FOR THE MORNING RECESS) 3 4 I hereby certify the foregoing to 5 be a true and accurate transcript 6 of the proceedings herein to the 7 best of my skill and ability. 8 9 10 Tanita S. French 11 Official Reporter 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 21585 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Grant. 5 MR. GRANT: My lord, I was advised by madam registrar that 6 Exhibit 1121-19 is presently marked for 7 identification. I believe that in fact it actually is 8 an exhibit in the cross-examination of Walter 9 Blackwater as well, and I would be asking that the 10 identification be removed. I don't believe either of 11 my friends object to that because I think we were 12 operating on the premise it was an exhibit proper. 13 MR. WILLMS: No. 14 THE COURT: All right. It will now be 1121-19A not for 15 identification. 16 MR. GRANT: Yes, that would be the transcript, and the 19 would 17 be marked. 18 THE COURT: Yes. 19 20 (EXHIBIT 1121-19 - LETTER DATED JUNE 7, 1908, FROM LORING 21 TO WHOM IT MAY CONCERN) 22 23 (EXHIBIT 1121-19A - TRANSCRIPT - EXHIBIT 1121-19) 24 2 5 MR. GRANT: 26 Q Dr. Robinson, how long have you had this -- your paper 27 that you prepared for the Office of Native Claims, the 28 copy that you have? 29 A Since I wrote it. 30 Q Have you showed it to anybody? 31 A I think one graduate student in Calgary may have read 32 it. He was aware that I had written it. I'm not sure 33 if he read it. A fellow called Dave Friesen. 34 Q Dave? 35 A Friesen. 36 Q F-r-i-e-s-e-n? 37 A Yes. He was interested in the Tahltan area, and we 38 were just chatting about things that we had both 39 written or read. So he's the only person I think that 40 is even aware that it was around. 41 Q Okay. Okay. The counsel for the province, of course, 42 was aware because it's listed in your C.V.? 43 A Yes, I suppose. 44 Q You did not show it to them? 45 A No. 46 MR. GRANT: Well, my lord, I have requested production, and my 47 friend generally has endeavoured to co-operate in this 21586 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 regard, of the publications and manuscripts listed in 2 the CV. of the witness with the exception of some of 3 the longer ones, which my friend has made available 4 for me to review. I had not received a response to 5 this particular one up to now. My friend had made a 6 general response that the witness did not have or at 7 least he didn't have a number of these, and he has 8 since gathered them. In light of the fact that this 9 witness has shown this or disclosed this paper on the 10 Office of Native Claims and the fact that it is one of 11 the only three papers relating to native claims in 12 British Columbia, I would be asking for production of 13 this so that I could review it. It does not, of 14 course -- and I understand that the party to which 15 opposition is being taken may be Mr. Macaulay as 16 opposed to Mr. Willms. It's my position that in this 17 situation that -- where this witness has relied 18 upon -- that is part of her -- to demonstrate her 19 expertise, that I would be entitled to review that, 20 and, in particular, where it has that kind of a 21 bearing. And she has disclosed it to a third party, 22 so any privilege that was attached to it I would say 23 is gone. 24 THE COURT: Well, surely that's not so, Mr. Grant. Showing it 25 to a party must be with the consent of the person 26 who's contending the privilege. 27 MR. MACAULAY: My lord, I don't know if privilege attaches to 28 this document. It was apparently done for a client, 29 that is the I.A., a client of the Attorney-General of 30 Canada. I would like the opportunity of speaking to 31 the solicitor for the Office of Native Claims to 32 determine first whether or not there is privilege, to 33 determine whether there is some statutory provision 34 that applies, and to determine what the Government of 35 Canada wishes to do in regard to that. I should say 36 this, it appears that this doesn't go to qualifi- 37 cations but rather to bias and -- 38 THE COURT: Well, I have no way of knowing what it might go to, 39 nor does Mr. Grant, I suppose. 40 MR. MACAULAY: It's the tenor of the cross-examination. And so 41 that no harm will be done by -- your lordship will be 42 in a position to determine whether or not this witness 43 is properly qualified to give this expert evidence. 4 4 THE COURT: Right. 45 MR. MACAULAY: Without your lordship having read that, then we 46 can address, when I have been able to contact the 47 relevant people, we will be able to address the 21587 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications question of whether or not it should be produced. : Is that satisfactory, Mr. Grant? : I think that if my friend is going to take the steps that he's suggesting and then can speak to it, I don't think that it needs delay my cross-examination on qualifications. : All right. : I would -- depending on your lordship's ruling on qualifications, I would -- it may ultimately go to weight or I would be able to argue it. : You can bring it up again if you wish. : So I am requesting production, and I'd ask my friend to advise me of his position as soon as he knows. uAY: I'll do that, my lord. And I hope -- I would like to have it before I begin my cross-examintion in chief if she's qualified. You referred to the Canadian Anthropological Association before the break. Do you remember that? Yes. There is not such an association by that name, is there? Well, the CAA. It's probably Canadian Archaeological. And my association with that has been in the context of attending conferences, and I'm not honestly sure if my membership with that association is up to date today as well. I think it's Canadian Archaeological Association. You know the Canadian Ethnological Society? I know of it. You know of that. You're not a member of that? No, unless my subscription to "Anthropologica" entitles me to membership. I'm not sure on that detail. The Canadian Sociological and Anthropological Association, you're not a member of that? No. It would be fair to -- would it not be correct that -- I'm sorry. It would not be correct to refer to you as an anthropologist, would it? That is different than a cultural geographer and different than an archaeologist? I would call myself an archaeologist as well as a cultural geographer. Right. And as archaeology is part of anthropology, I would call myself an anthropologist. 1 2 THE COURT 3 MR. GRANT 4 5 6 7 THE COURT 8 MR. GRANT 9 10 11 THE COURT 12 MR. GRANT 13 14 MR. MACAU 15 MR. GRANT 16 Q 17 18 19 20 A 21 Q 22 23 A 24 25 26 27 28 29 Q 30 A 31 Q 32 A 33 34 35 Q 36 37 A 38 Q 39 40 41 42 43 A 44 45 Q 46 A 47 21588 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 Q But each of these are distinctive fields, aren't they? 2 Archaeology is distinctive from cultural geography? 3 When I say distinctive, I don't mean that there's no 4 cross-over in exchange of information, but I'm saying 5 persons who engage in archaeology are different than 6 persons that engage in cultural geography? 7 A I began to have problems with the -- maintaining the 8 distinctions, if you would have it that way, when 9 while I was doing a Ph.D. in cultural geography my 10 supervisor became chair of the Institute of 11 Archaeology's department in human environment. So in 12 Britain there seems not to be quite as much a 13 distinction made between these disciplinary 14 boundaries, and people who share research interests 15 often congregate or identify themselves in terms of 16 their shared research interests. So I tend not to 17 create as firm a distinction say between cultural 18 geography and archaeology seeing that the two are very 19 closely interrelated in the kind of work I'm 20 interested in. I don't know if that's -- 21 Q But history is distinctive from those two? 22 A No, not in the context of ethnohistory, where people 23 are using historic records to inform their 24 interpretation of changes in pre-industrial or pre- 25 literate societies. It depends very much on the 26 research definition rather than on the disciplinary 27 boundaries. 28 Q Can you turn to page 4 of your CV. The one I gave 29 you may be of help because I've put the numbers on it. 30 The publications and manuscripts. With respect to 31 these publications, you are not the principal author 32 of the first two publications on page 4, are you, one 33 and two? 34 A No, I'm a compiler for the first and a joint author 35 with Margaret Waddington on the second. 36 Q You are not the principal author on the second page of 37 item number 4 at the very top? 38 A No, I'm a co-author. 39 Q Item number 11? 40 A Co-author. 41 Q And item number 12? 42 A A co-author. 43 Q Now, going back to page 4, would you agree that the 44 following have not been published and are not 45 generally available: item number 1, item number 2, 46 item number 3? 47 A I believe I submitted a copy of item number 3. 21589 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications To who? To Mr. Willms. Well, when I say -- yes. What I'm saying here, they're not -- they're not published, they're not in the public realm? With the exception of the report we've discussed earlier for comprehensive claims, most of the materials I produced are -- have been for government departments, and they are available in manuscript form. They have to be asked for. They're not deposited in public repositories, such as libraries. They're not available for general public review unless somebody goes to the department and the department deems it fit to release it, right? No, I think a phone call would send them to you. That's been my experience, is that I've had no -- I've had no difficulty getting manuscript reports from government departments. Item number 3 is a consultant's report on file with Parks Canada Western Region, right? Yes. Now, that is not something that has been subject to review by other persons in your field or fields, if I may say that? It was specifically requested by Dr. Richard Stuart, who was at that time the head of history in Western Region for Calgary, and I was asked along with several other people to do an opinion review of the Inglis and Haggarty report. It's my understanding that Dr. Stuart made that report or any of the other reviews available to researchers who were interested in working in the Pacific Rim area. I didn't myself look at anyone else's, but my understanding was that they were generally available. They weren't published? No. And this report is a report that's five pages long? Yes. And the same on page 2 with 9? Page 2? Page? Page 5. I'm sorry. The second page of your publications. Number 9, that's something that has not been published? No, and that's the item we've seen earlier, the light blue one over here. Yes, I understand. Mr. Willms is showing it again. 1 Q 2 A 3 Q 4 5 6 A 7 8 9 10 11 12 Q 13 14 15 A 16 17 18 19 Q 20 21 A 22 Q 23 24 25 A 26 27 28 29 30 31 32 33 34 35 Q 36 A 37 Q 38 A 39 Q 40 MR. WILLMS 41 A 42 Q 43 44 45 A 46 47 Q 21590 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 And item 12 to 18, none of those have been published, 2 have they? 3 A Item 12 has. It's in the Manuscript Report Series. I 4 don't myself have a copy. But that's -- 5 Q What about 13 through to 18? 6 A But that goes in an annual report. 13 through 18? 7 Q Um hum. None of those have been published? 8 A No. 9 Q Would you agree with me that of all of the material 10 listed the -- first of all, do you recognize the term 11 peer review? 12 A I'm not sure I understand how you're using the term 13 peer review. 14 Q Do you know what -- in your field what is understood 15 by peer review? 16 A Not really. 17 Q Do you have any peers in your field? 18 A Yes. 19 Q Who do you consider your peers? 20 A Well, one person I've been in correspondence with is 21 Dr. Catharine McClellan at the University of 22 Wisconsin, and she's someone who since 1950 has been 23 interested in ethnohistory in the Yukon, southwestern 24 Yukon and adjacent Alaskan coastal region. 25 Q Okay. 26 A I had some earlier correspondence with some people 27 that were involved in the Russian-American documents 28 in Tlingit area. 29 Q Who is that? 30 A Richard Pierce is one at Kingston. 31 Q P-e-a-r-c-e? 32 A P-i-e-r-c-e. 33 Q I'm sorry. Thank you. 34 A I would say that within the context of any of the 35 Parks Canada archaeological reports I've written or 36 been involved with the peer review is built right in 37 because there are four or five archaeologists on 38 staff, professional. 39 Q Those are those three people, for example, that you 40 mentioned earlier? 41 A Yes. 42 Q Yes. 43 A And there are also members in the Calgary context. 44 There are also the people associated with the 45 University of Calgary. It's quite a lively 46 archaeology community. 47 Q Do you consider persons who are in the departments of 21591 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 history, geography or anthropology, for example, at 2 U.B.C as your peers? 3 A I have very little direct connection with them right 4 now. I have some friends and acquaintances, yes. 5 Q Are they your peers in the field? 6 A Yes, I would say so. 7 Q Would you agree with me that there is some importance 8 in -- in your field which is -- there is some 9 importance in your field in having peer review of 10 opinions, and I'm not talking here necessarily about 11 legal opinions, but the academic opinions that persons 12 in your field present? 13 A On -- sometimes. 14 Q Okay. When is that not important? 15 A Well, I would say that one -- one thing that 16 characterizes graduate research is an ability to 17 formulate one's own opinions and express them in 18 writing and in other situations as something that are 19 your own, and constant reference to a peer group, 20 especially through that formulating process, might 21 detract from that ability. But that's -- 22 Q Are you talking here in graduate work like, for 23 example, in your thesis? 24 A Yes. 25 Q Dissertation, that sort of thing? 26 A Yes. 27 Q Would you agree that, again going back to page 4, that 28 items 1 to 4 -- I'm sorry -- 1 to 3, 6 to 16, and 18 29 have no bearing on the opinions you prepared for this 30 case? 31 A Items -- I'm sorry -- 1 to 4. 32 Q 1 to 3. That's all the ones on the bottom of page 4, 33 6 to 16, and 18 have no bearing on your opinions in 34 this case? 35 A Most of them are not directly pertinent. I mention 36 number 16 as an exception only because after 37 completing my dissertation I had an opportunity in 38 preparation of number 16 to extend my reading base 39 even further when I was investigating the early 40 historic and prehistoric use of native trade trails, 41 so that I had a good sense from my dissertation of 42 where a lot of relevant materials might be and then 43 had the opportunity through that contract work with 44 Parks to go after them, particularly in places like 45 Ottawa and Winnipeg, which I hadn't had direct access 46 to earlier. 47 Q When were you doing this research in Ottawa and 21592 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications Winnipeg? Oh, that would 'be 84, early winter of '84. So that number 16 and number 17 -- number 16 follows pretty closely on the heels of number 17 and allowed me to really extend that base of materials I had surveyed. So except for number 16 you agree with what I've said? Oh, pretty well. I would think though that the more exposure you get to general archaeological materials in the area you can't help but continue to be exposed to new thoughts, new ideas, new articles, and so on by doing related work that's not directly pertinent. You have not presented any academic papers to conferences of learned societies, have you? No, except for the co-chairing of a session of the CAA, Canadian Anthropological Association conference in connection with getting shipwreck research involved in the larger archaeological forum in Canada. Is that number 8? Let me see. Yes. No, no. It's number 6. 6. Yes. I'm sorry. And you were primarily involved in the organizing of that session? Yes, and giving a paper representing the activities in British Columbia of the Underwater Archaeology Society here. Did any of the occupations that you've -- except for your work on the Historical Atlas of Canada, did any of your contracts in your work since 1983 require a Ph.D.? I don't know if I can answer that. I would say that it was probably helpful in me being hired to do various j obs. : Okay. Would it be fair to say that in your opinion you critique historical data in part? 3: My lord, I wonder if my friend is getting ahead of himself here. That sounds like a question directed to a document that hasn't been marked yet. It's a foundation. Do you deal with historical documents? Yes, I do. You have not been engaged in the academic field of history since completion of your degree, have you? No. You critique anthropology in your report? Yes. You have not been engaged in the academic field in anthropology since completion of your Ph.D. thesis, 1 2 A 3 4 5 6 Q 7 A 8 9 10 11 12 Q 13 14 A 15 16 17 18 Q 19 A 20 Q 21 22 A 23 24 25 Q 26 27 28 29 A 30 31 32 MR. GRANT 33 34 MR. WILLM 35 36 37 MR. GRANT 38 Q 39 40 A 41 Q 42 43 A 44 Q 45 A 46 Q 47 21593 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 have you? 2 A No. 3 Q And you critique archaeology in your report? 4 A Yes. 5 Q And you have not been engaged in the academic field in 6 that area since completion of your degree, have you? 7 A I don't know how else I would describe participation 8 at the Canadian Archaeological Association meetings in 9 '87 except as being directly involved with the 10 academic community. 11 Q Okay. 12 A And I would similarly say that the work that's done by 13 Parks Canada's archaeologists out of Calgary is 14 intimately tied with the archaeological department, 15 particularly since a lot of the analysis of the 16 materials that are excavated in park sites are handled 17 by researchers at the university. It's quite a direct 18 connection there with the academic community. 19 Q Okay. You have not subjected your opinions that you 20 are being tendered to give evidence here to any type 21 of peer review, have you? 22 A No. 23 Q You have not published any refereed articles or books 24 on the subject of your dissertation, have you? 25 A No. 26 Q Your dissertation remains unpublished? 27 A Yes. Probably the closest that I got to distributing 28 it was submitting a copy to the National Library of 29 Canada, where I believe it's been on microfiche or 30 it's in that collection, which means it's available to 31 any scholar in Canada, and that's pretty standard 32 procedure even for Canadians who study abroad. 33 Q You haven't prepared any refereed articles or books on 34 the subject matter of your opinion report, have you? 35 A No. 36 Q And you haven't prepared any refereed articles, books 37 on any of the subjects related to your dissertation or 38 opinion report? 39 A No, I have not. 40 Q I believe, as my friend has indicated, plate 66 is an 41 exhibit, and I can't recall what exhibit number it is. 42 I'm showing you plate 66 of the Historical Atlas, and 43 this is the plate that you were involved in? 44 A Yes. 45 Q And it says up in the upper right-hand corner that you 46 were involved in the fur trade aspect; is that right? 47 A Yes. So it's on this plate, my contribution. 21594 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 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications MR. GRANT: Yeah, it would be the right-hand side -- page of the plate. Now, that right-hand plate, except for the Fort Fraser and Fort St. James, it has a recording of where those are? THE COURT: Mr. Grant, is this cross-examination on qualifications? MR. GRANT: Well, let me -- well, I would submit it certainly goes to what she has done. She relies on this work in terms of -- THE COURT: Well, if you're challenging whether she did it or not, it would be relevant to qualification, but if you're just asking her about her work in the sense of suggesting, for example -- asking her to explain it or suggesting it's incorrectly done or something -- MR. GRANT: No, I'm not going to that. This was just introductory to the question that I go to. THE COURT: Well, I think you know the trend of rulings on qualifications in this trial, Mr. Grant, and it's going to take quite a bit to stop the witness from giving evidence, but it seems to me that your cross- examination has to relate to that general question of qualification. I think you're going beyond that. MR. GRANT: Q A Q A Okay. Well, with respect to this work on plate 66, you didn't do any specific work with respect to the Gitksan and Wet'suwet'en area, did you? No, no. Okay. Now, on page 5 of your C.V., item 11 and 12, would it be correct to say that those are actually -- that was based on the same work that was published in two different sources or -- Yes and no. And one of the reasons I included those in my curriculum vitae was because my job in association with both of those reports was to do the overarching editing and compiling of the different reports produced by different archaeologists within Parks for that summary so -- I forget now, but the one that went into the Parks Canada Manuscript Report Series, the second item, number 12, was I believe the one that was considerably longer and more detailed and had different sections in it than the other. Now, I may have the order reversed, but they were -- one of them was a bigger version of the other, and my main job was to edit and compile as well as submit my own section of that report. Okay. You've not done any primary research among the Gitksan and Wet'suwet'en, have you? 21595 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications No, I have not. : You have not done any primary research among the Haida, Tlingit or Coast Tsimshian, have you? 3: My lord, if my friend means primary research, I think we understand it, but talking to Gitksan and Wet'suwet'en people, is that what he means or does he mean something different because it's unclear to me what he means by primary research. Do you understand what I mean? Well, I don't, Mr. Grant. Okay. In this I'm talking about ethnological field- work, that kind of work. No, I did not do any ethnological field-work amongst the Gitksan and Wet'suwet'en or the Haida and Tlingit. Or the Coast Tsimshian? Or the Coast Tsimshian. Have you done any ethnological field-work anywhere? No. Your dissertation was -- your Ph.D. dissertation was based on published sources; is that correct? Largely. It was also based on manuscript sources, particularly of maritime fur trade documents. Okay. Did you -- did you have a specialist on -- was there a committee that refereed that or -- Yes. -- that you defended it before? Was there a specialist in Northwest Coast culture on that committee? R. Cole Harris, the editor of the Canadian Historical Atlas, was my external examiner and is a Canadian specialist and someone who's quite knowledgeable about B.C. He was the Canadian representative. Would it be fair to say that your dissertation focused on the Haida and Tlingit? My dissertation research initially focused on the Haida and Tlingit in order to put pre-historic and early post-contact agriculture into an appropriate context. The survey of anthropological materials got quite a lot broader. I was really working from Kodiac Island down, down the coast and into the adjacent interior, particularly from the -- the Athabaskan groups adjacent to the Tlingit, down to the Chilcotin and Carrier adjacent to the Bella Coola. I was looking at that whole coastal and adjacent interior strip of interaction. So the Haida and Tlingit were the primary focus for the maritime fur trade 1 A 2 MR. GRANT 3 4 MR. WILLM 5 6 7 8 9 MR. GRANT 10 THE COURT 11 MR. GRANT 12 Q 13 14 A 15 16 Q 17 A 18 Q 19 A 20 Q 21 22 A 23 24 Q 25 26 A 27 Q 28 29 30 A 31 32 33 34 Q 35 36 A 37 38 39 40 41 42 43 44 45 46 47 21596 S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications 1 documents, but in order to put that early historic 2 material into some kind of perspective I was ranging 3 around that. 4 Q But you did not study the Gitksan at that time? 5 A Not specifically. 6 Q You did not refer to John Adams in your dissertation? 7 A Probably I didn't, but I might note right here that 8 the -- although it's a fairly extensive bibliography 9 that's listed in my dissertation, that doesn't cover 10 all of the materials I read while I was doing research 11 for the area. That only lists those items that were 12 cited in the dissertation. I was familiar with John 13 Adams' work some time ago. I don't remember if I 14 listed it in the dissertation. 15 Q Well, it's not listed in the dissertation that I've 16 seen. 17 A Oh, okay. But it was something that I was aware of 18 some time ago and had reviewed along with other 19 materials. 20 Q But you hadn't -- you didn't focus on his -- 21 A No. 22 Q -- work at all? 23 You didn't rely upon it in your conclusions in 24 your dissertation because you didn't cite it? 25 A No. 2 6 Q And the same would apply to Julian Steward? You did 27 not cite Julian Steward in your dissertation? 28 A No, but Julian Steward is at the core of a lot of the 29 cultural ecological, cultural evolutionary theory, and 30 I'm certainly familiar with his works dating back to 31 my undergraduate years along with several others that 32 are possibly not listed in the dissertation. 33 Q Kobrinsky you did not refer to in your dissertation? 34 A No. 35 Q In connection with your opinion report, your research 36 here, you've done no archival research for this 37 opinion report that you're tendering in court today? 38 A Not specifically for this opinion report, I don't 39 believe. Although I would say that some of the 40 materials at U.B.C. special collections may not be 41 available elsewhere. The one I'm thinking of offhand 42 is John Bartlett's log. Because I do often find 43 myself working out of special collections. I'm not 44 sure if you'd consider that archives. I do. 45 Q I'm referring you to an extract from your report, 46 which is on pages 2 and 3. 47 A Thank you. 21597 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT S.P. Robinson (for Province) Cross-exam by Mr. Grant on qualifications Q And this is from your report, and this is a continuous paragraph. A Yeah. MR. GRANT: And this is where you explain what you've done, and you say it's based on a review and interpretation of existing information largely contained in secondary sources, and that's correct? That's the basis of your opinion, isn't it? MR. WILLMS: My lord, I object. This is getting into the weight to be given to the opinion. We've been through this witness after witness after witness, and my friend has referred to the St. John's case time and time again in support of propositions that Dr. Daly is admissible, Dr. Mills is admissible, and your lordship has been consistently, in my submission, ruling that that goes to weight at the end of the day and not to the admissibility or the qualifications, and in my submission my friend has now crossed the bright line between qualifications and weight. I'm having trouble categorizing what's happening here. I had no trouble a moment ago, but I'm older and wiser now. I think that you are really attacking the opinion, are you not, Mr. Grant, in one sense, but on the other -- and it seems to me that perhaps if you narrowed it down to -- perhaps it's permissible because you have narrowed it down to what she's actually done, and in that sense it seems to me that perhaps it does in one aspect or one dimension go to qualification. If, for example, you were to say to her you went to secondary sources and she agreed with you and then you said and those secondary sources were all kept in the children's section of the Kerrisdale Library, that would probably go to qualification. But unless your approach is along that line or something, then I think you are over the line that Mr. Willms described a moment ago. That is, if you're identifying what she relied upon to show that it's not -- it's not an approach that entitles her to qualification or to expert status, then I don't think it's going to help much. But I'm not going to stop you. You've only got one page. I'll take some comfort from that and hope that perhaps we can get through this with less time than it might take to have a further debate on it. MR. GRANT: Q Yes. On the on that page you state: 2159? Submission by Mr. Grant 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 "Nor have I conducted archival research in connection with this report although I am familiar with many of the archival sources." You didn't conduct any archival research for your opinions in this case, did you? A Well, I think that maybe if I could clarify what I've written there that might help us all. Q Well, is that wrong, what you've written there? A What I mean by archival research is spending a considerable amount of time with the primary source materials for different time periods and trying to reconstruct a scenario through time. Some of the materials that I do cite in my report are primary archival documents, but it was not an exclusive focus in the preparation of my opinion reports. So archival research to me means settling into an archives for some months at a time. I did read some primary source materials, documents which are listed in the bibliography. For example, there are some of the Fort Babine journals or Fort St. James district reports. There are also ships' logs mentioned in the bibliography. Q Bibliography of what? A Or the references for my opinion report. Q In the back of your opinion report? A Yes. MR. GRANT: Just a moment, my lord. Thank you, Dr. Robinson. Those are all my questions on qualifications, my lord. THE COURT: Thank you. MR. WILLMS: No re-examination, my lord. THE COURT: All right. Mr. Grant. Mr. Grant. MR. GRANT: My lord, I would submit that this witness is qualified in the field of archaeology and cultural geography in the areas -- to give opinions on the areas that my friend submits, but with respect to anthropology I submit that there is -- that this witness is not -- she has no -- virtually no experience in the field of anthropology, except for her undergraduate work, and has not engaged in anthropology as has been understood in this litigation, and ethnography is that kind of work, and I would submit that she's not qualified in that area. This witness is, I think, somewhat different to a degree than other witnesses in that she's a collective witness it appears. She is being tendered in three different fields, albeit interconnected, but -- and 21599 Ruling by the Court S.P. Robinson (for Province) In chief by Mr. Willms 1 she clearly has experience in archaeology, and she, 2 through her dissertation, has experience in the field 3 of cultural geography, but I would submit that she has 4 no qualifications to give opinion evidence in the 5 field of ethnography or anthropology, and I would ask 6 that she not be qualified in that field. 7 THE COURT: All right. Thank you, Mr. Grant. I'm not going to 8 give effect to your objection. It may be a matter of 9 weight, but as I think I have held on a number of 10 previous occasions, I don't think that witnesses who 11 work in multi-disciplinary fields or in fields which 12 are exposed to multi-disciplinary learning that their 13 evidence should be too closely circumscribed, nor do I 14 think it advances the evidence to try and confine the 15 witnesses strictly to one field rather than allow them 16 to stray from time to time into related fields because 17 I have no doubt that the currents or streams of 18 thought within these disciplines are interconnected 19 and interwoven each with the other, and for that 20 reason I think the witness should be allowed to give 21 her evidence without always trying to artificially 22 confine it. If at the end of the day it appears that 23 her evidence is far more heavily weighted with facts 24 and opinions which are not within her primary 25 qualification, well, that can be dealt with by the 26 application of the principles of weighing evidence, 27 and for that reason I think the examination should 28 proceed without giving effect to the objection Mr. 29 Grant has made, which in my respectful view is too 30 subtle for me to give effect to it. You may proceed, 31 Mr. Willms. 32 EXAMINATION IN CHIEF BY MR. WILLMS: 33 Q Thank you, my lord. 34 Dr. Robinson, do you have before you Parts I and 35 II of your report dated May 12th, 1987? 36 A Yes. 37 MR. WILLMS: And I'd like to explain how these -- start out by 38 explaining how they interrelate. Perhaps, my lord, 39 this could be marked 1189-1 and -2 for the two parts. 40 MR. GRANT: I'd ask that those numbers be reserved. At the 41 completion of my cross-examination I will have a 42 submission with respect to the admissibility of this 43 report as an opinion report of this witness for all 44 purposes. 45 THE COURT: All right. The numbers will be reserved. Part I 46 will be 1189 -- 47 THE REGISTRAR: Yes, my lord. 21600 S.P. Robinson (for Province) In chief by Mr. Willms 1 THE COURT: 1189-1 and 1189-2. 2 MR. WILLMS: Perhaps just for identification, my lord. Then we 3 can just remove that later, unless your lordship -- 4 THE COURT: All right. I don't think it makes any difference. 5 6 (EXHIBIT 1189-1 FOR IDENTIFICATION - REPORT OF S.P. 7 ROBINSON DATED MAY 12, 1987, PART I) 8 9 (EXHIBIT 1189-2 FOR IDENTIFICATION - REPORT OF S.P. 10 ROBINSON DATED MAY 12, 1987, PART II) 11 12 MR. WILLMS: Dr. Robinson, if you could open your 1189-1 to page 13 1 and at the same time open 1189-2 to page 30. 14 THE COURT: The first is what page, please? 15 MR. WILLMS: Page 1 of volume 1, my lord, page 30 of volume 2. 16 It should be the first typed page in each volume. 17 THE COURT: Yes. 18 MR. WILLMS: 19 Q Now, on -- starting in your report from pages 1 20 through 5 you have numbered footnotes. For example, 21 on page 1 of Part I at the end of the first paragraph 22 that's a footnote 1, correct? 23 A Yes. 24 Q And to find the footnote reference you go to page 30, 25 and beside 1 is the reference support for the 26 propositions that you're stating in your report -- 27 A Yes. 28 Q -- correct? 29 A In that paragraph on page 1. 30 Q In that paragraph. And you have for the first five 31 pages of your report, which is entitled "Section I. 32 Introduction," five footnotes, and those five 33 footnotes are on page 30 and 31 of Part II? 34 A Yes, that's right. 35 Q All right. So that when you are looking for support 36 in that part for some of the propositions put in the 37 paragraphs, that's where you would go? 38 A Yes. 39 Q Okay. Now, for the balance of the report, and if you 40 could turn to page 5 of Part I and at the same time 41 page 31 of Part II, what you have done there is you've 42 started numbering the paragraphs in the report Part I 43 numerically 1 all the way through to 49 -- 44 A Yes. 45 Q -- on page 28; is that correct? 46 A Yes, it is. 47 Q And then if you want to find the reference, the 21601 S.P. Robinson (for Province) In chief by Mr. Willms 1 support reference in Part II, the references are 2 referenced paragraph number by paragraph number with 3 lettered subparagraphs? 4 A Yes. 5 Q So that if we're looking in your Part II for the 6 support for the propositions that you are making in 7 paragraph 1 of page 5 of your report, those references 8 run from page 31 through to page 35, and you have 9 lettered them "a" through "1"? 10 A Yes. 11 Q So that if I can call it a road map through 12 understanding how your reports, Part I and Part II, 13 match, as you carry on through your report paragraph 14 number by number you can look to the Part II and there 15 will be a reference to the paragraph number? For 16 example, on page 36 of Part II of the report you start 17 your references that support paragraph 2 of Part I of 18 the report? 19 A Yes, that's right. 20 Q Okay. 21 A I'd just like to make a correction. On the -- 22 about -- 23 Q Paragraph 1 goes to page 36? 24 A Paragraph 1 goes to letter "p" on page 36. 25 MR. WILLMS: Yes. Thank you. 26 THE COURT: Well, looking at page 36, paragraph 2, on page 38 we 27 seem to be into note "g," but there's a heading 28 "Protohistoric Trade in European commodities." 29 THE WITNESS: There are two subheadings associated with 30 paragraph 2 because there are two different -- 31 THE COURT: Oh, I see. 32 THE WITNESS: — two different points raised in — 33 THE COURT: All right. One's trade with Europeans — 34 THE WITNESS: Yes. 35 THE COURT: — and the other is the protohistoric part? 36 THE WITNESS: But as they both address paragraph 2 in the 37 opinion -- 38 THE COURT: Yes. All right. 39 THE WITNESS: — they're consecutive. 40 MR. WILLMS: 41 Q And so you have broken down some of your footnotes 42 into sub-parts to deal with the separate propositions 43 in some of the paragraphs? 44 A Yes. 45 Q But if you looked in Part II of your report from pages 46 36 to 47, you would find the material that you rely on 47 in support of the propositions that you make in 21602 S.P. Robinson (for Province) In chief by Mr. Willms 1 paragraph 2, pages 5 and 6 of Part I of your report? 2 A Yes. 3 Q At the very back of Part II of the report starting at 4 page 84 and running through to page 97 are the 5 references that you have cited in your report? 6 A Yes, this is a list of the references cited. It's not 7 representative of all the materials I reviewed for the 8 report. 9 Q So these are the materials that you relied on, but you 10 read broader than what is listed here? 11 A Yes. 12 MR. WILLMS: Now, can you turn in — 13 THE COURT: Are you starting on the report now? 14 MR. WILLMS: I was going to, yes, my lord. 15 THE COURT: I think we should adjourn before you do that. 16 MR. MACAULAY: My lord, could I speak at two o'clock briefly 17 about scheduling -- 18 THE COURT: Certainly. 19 MR. MACAULAY: — before my friend starts? 20 THE COURT: Certainly. 21 THE REGISTRAR: Order in court. Court stands adjourned until 22 two o'clock. 23 2 4 (PROCEEDINGS ADJOURNED AT 12:30 P.M.) 25 26 I hereby certify the foregoing to be 27 a true and accurate transcript of the 28 proceedings herein to the best of my 29 skill and ability. 30 31 32 33 Leanna Smith 34 Official Reporter 35 United Reporting Service Ltd. 36 37 38 39 40 41 42 43 44 45 46 47 21603 Proceedings In chief by Mr. Willms 1 (PROCEEDINGS RECONVENED PURSUANT TO LUNCH RECESS) 2 3 THE REGISTRAR: Order in court. 4 MR. MACAULAY: My lord, may I refer to the schedule? The 5 Attorney-General of Canada is hoping -- there's a 6 schedule now for the 8th of November. I understand 7 from speaking to my friend Mr. Grant this morning 8 that, although he can't tell whether this is going to 9 happen, he may not finish his cross-examination until 10 the 6th, and I understand that Mr. Goldie has said he 11 needs two days in order to finish off his case. If 12 all those things happen, and probably they will 13 happen, we will not get on on the 8th as advertised. 14 It's for not only a question of the convenience of 15 witnesses and the desirability of planning for 16 specific days, but this is an important witness and we 17 will be in court listening to the cross-examination of 18 course until the 6th if it goes on that long. It's 19 very difficult for us to be in a position where we 20 don't know when we're going to start, and in the 21 circumstances I ask that your lordship consider 22 allowing us to start on the following Monday rather 23 than on the Thursday, as it looks like now -- when I 24 say following Monday, the Monday that we next sit. 25 THE COURT: That's not the following Monday. 2 6 MR. MACAULAY: No, it's not the following Monday. The 27 plaintiffs have told your lordship that they aren't 28 available the following Monday. 29 THE COURT: I'm sorry, Mr. Macaulay, you're telling me something 30 I didn't know. I thought that it was believed by 31 counsel for either parties that if we sat Saturday of 32 this week that we would finish the evidence and the 33 reading in in the two days of the week starting on the 34 Monday before you would open on the Wednesday. 35 MR. MACAULAY: Yes. 36 THE COURT: That those two days would be enough. 37 MR. MACAULAY: Well, those two days are enough, provided this 38 cross-examination finishes this Saturday. 39 THE COURT: I did not understand Mr. Goldie to say he needed two 40 days to read. Did he say that? 41 MR. GUENTHER: He said he needed one day to read and one day for 42 other what he called loose ends, and I assumed those 43 were various housekeeping matters. 44 THE COURT: I wouldn't understand the housekeeping to be of that 45 moment our concern. 46 MR. MACAULAY: I looked at the transcript and he said two days. 47 THE COURT: All right. Well, then I'm learning something I 21604 Proceedings In chief by Mr. Willms 1 didn't know. 2 MR. MACAULAY: We have -- we could complete our viva voce 3 evidence in two weeks. We have reduced the number of 4 Fisheries witnesses from four to three, and it's 5 probable that we will call -- or we will call only one 6 expert witness, a Mr. Palmer, and it's probable that 7 we will call only one additional Indian agent. I say 8 that because we have already taken commission evidence 9 from an elderly Indian agent who covers a good deal of 10 the ground. 11 THE COURT: Well, you're saying that if we started then on 12 the -- it wouldn't be the following Monday. 13 MR. MACAULAY: Monday the 20th. 14 THE COURT: The 2 0th. 15 MR. MACAULAY: We would be finished by the end of the week of 16 the 27th. 17 THE COURT: Yes. 18 MR. MACAULAY: That's the 1st, is it? 19 THE COURT: Yes, that's the 1st. 20 MR. MACAULAY: The 1st. Now, we have custodial affidavits and 21 that kind of thing relating to some maps, not many 22 maps, and some documents, again not many, that there 23 was a discussion about that and it was suggested, and 24 I think that's quite workable, that the -- any 25 cross-examinations that Mr. Grant may care to conduct 26 could take place during the next down week, the 4th, 27 the week of the 4th. 28 THE COURT: Well, I have no difficulty particularly with that 29 Mr. Macaulay except that it leaves a little bit at 30 risk the completion date. May I ask whether it would 31 be equally convenient if we were to start with you on 32 the 8th as scheduled on a guaranteed basis, and that 33 any clean-up that Mr. Goldie has to do he do on 34 Saturday the 11th, so that you can start on the 35 Wednesday the 8th. I anticipate or I discern some 36 difficulty in that suggestion. 37 MR. MACAULAY: Well, it's difficult to do that. I don't know if 38 one or two days here and there is going to make a lot 39 of difference to the end of the trial. 4 0 THE COURT: Well, I would hope it wouldn't. I think the only 41 figure I was given by Mr. Rush for rebuttal, if leave 42 is granted, was two weeks. 43 MR. GRANT: I think that that — at the time Mr. Rush raised 44 that, and it was discussed, he said if there was 45 rebuttal he was optimistic that it wouldn't be longer 4 6 than two weeks. 47 THE COURT: Yes. Is that a still good safe-holding and 21605 Proceedings In chief by Mr. Willms 1 marketable representation? 2 MR. GRANT 3 THE COURT 4 MR. GRANT I believe that that's probably still safe. Yes. All right. Of course there's been more evidence and water under 5 the bridge, part of which I wasn't here for, but I 6 think that both he and I are assuming that if need be 7 to call rebuttal evidence our estimate would be two 8 weeks. 9 THE COURT: Well, on that basis I think, unless Mr. Willms or 10 Mr. Grant objects, and I haven't heard any yet, I 11 would be disposed to fix the start of your case Mr. 12 Macaulay for November 20. 13 MR. MACAULAY: We are still compressing our case on the grounds 14 that enough is enough. 15 THE COURT: Sometimes enough is too much. 16 MR. MACAULAY: We enjoy reading the 13 volumes that the 17 province -- of documents the province has delivered to 18 us, and that may reduce the number of documents that 19 we may have to hand in considerably. 2 0 THE COURT: All right. November 2 0th then. 21 MR. MACAULAY: Thank you. 22 MR. GRANT: The only — and I understand my friend — this 23 probably assists them in their scheduling, but I 24 raised it, and my friends have now corresponded, with 25 respect to the witnesses. I had understood that Mr. 26 Macaulay had raised the last scheduling that the 8th, 27 9th, and 10th, would all be taken up with opening and 28 there would not be any witness. Now, what I would 29 like to confirm is whether now he is saying that the 30 20th, 21st, and 22nd would be taken up with opening. 31 MR. MACAULAY: I will not take three days to open now. I will 32 compress that and we will start with witnesses that 33 week. I may surprise my friend and start calling the 34 first witness on the afternoon of the 20th or the 35 morning of the 21st. 36 MR. GRANT: Well, that's of some help. My friends also have 37 clarified that there's only one expert that they 38 intend to call now and that's Dr. Palmer, and in order 39 for us to, now that they're compressing, in order for 40 us to organize ourselves around that, as well as the 41 lay witnesses they're calling, it is very important 42 that we know whether they anticipate calling him first 43 or near the end because we have to orchestrate 44 ourselves around that, and now's the time we have to 45 straighten that out. I don't know whether they know 46 that today or they can advise me tomorrow morning. 47 MR. MACAULAY: I'll inform my friend the best I can of the 21606 Proceedings In chief by Mr. Willms 1 2 3 MR. GRANT: 4 THE COURT: 5 MR. WILLMS 6 7 8 9 THE COURT: 10 11 MR. GRANT: 12 13 14 15 16 17 18 19 20 21 THE COURT: 22 MR. GRANT: 23 24 THE COURT: 25 26 MR. GRANT: 27 28 29 30 THE COURT: 31 32 33 MR. GRANT: 34 35 THE COURT: 36 37 38 39 MR. GRANT: 40 41 42 43 THE COURT: 44 MR. GRANT: 45 46 THE COURT: 47 MR. WILLMS schedules. He has the names. He'll have our schedule shortly. Thank you. All right. Mr. Grant -- I'm sorry, Mr. Willms. : Thank you, my lord. I'm -- it is the first I'd heard that cross-examination may go to the 6th. The last my friend spoke to me he thought he would be at least a day, but not much more. Yes. Well, we seem to have some luxury of time. I hope it turns out to be that. Yes. I may speak to that. I don't think I said not much more. I said I would take at least a day yesterday, but the question as I had been under the impression, knowing Dr. Robinson's report, that my friend would probably -- and Mr. Goldie's estimates, my friends would probably be a couple of days in her evidence. I now have discovered my friend is endeavouring to complete today or first thing tomorrow morning, and that juggled my -- I only knew that later, so -- Yes. Well — -- I'd anticipated I would be going into the 6th. I just don't know now. Well, are we looking at sitting on Saturday? I understand we are. I understood that in my absence a whole scenario was there. I'm certainly available for Saturday. I had also understood I would be in a certain phase of my cross-examination then. I may be further along. Well, it seems foolish to sit Saturdays and then have down days, but I would rather sit Saturday and dispose of this part of the case if we possibly can. I would only ask that I be able to speak to that on Friday depending on where I am then in cross. Yes. Thank you. Well, I'm not sure that it's just that. If you're finished I think we'll ask Mr. Goldie to entertain us with some more light reading on Saturday. What I'm saying is that I had in my mind until late yesterday that I would be going to the 6th on cross, so if you wish that we would sit Saturday in any event -- I do. -- I'm available, cross-examination. Thank you. I just may want to stand down my 21607 S.P. Robinson (for Province) In chief by Mr. Willms 1 Q Now, Dr. Robinson, could you turn in Part 1 of your 2 report, page 1, and I won't -- we've heard the terms a 3 number of times, protohistoric, prehistoric, and 4 historic, and you've defined that on the first page 5 and I won't go through that. That's self-evident. 6 But you -- I want to direct you to the second page of 7 your report and that first full paragraph on the 8 second page where you say this. 9 10 "Recognition that protohistoric 11 European-influenced developments took place and 12 were significant has one very important 13 implication. It casts suspicion on any 14 portrayal of a 'pristine' or truly aboriginal 15 way of life based on contemporary knowledge." 16 17 Can you explain what you mean by pristine? 18 A Yes. I mean unaffected by European influence. 19 Q And you've elaborated, and if you could turn at the 20 same time to the very -- to page 30 of Part II, you 21 say in page 30 of Part II, this is 1189-2, in the 22 footnote 3: 23 24 "I am generally suspicious of writers who tend 25 towards a static or structural treatment of any 26 society. The ideal models may outline rules of 27 behaviour, but do not adequately account for 28 ongoing adjustments in population, 29 distribution, and density, as poorly understood 30 as are the processes of change occurring in the 31 protohistoric and early historic eras, the fact 32 that changes were occurring is irrefutable." 33 34 And just pausing there. That's an expansion of 35 the influence that you mean by when you describe 36 pristine and European influence, those changes in that 37 period? 38 A Yes. 39 Q Okay. Now, you conclude the footnote on page 30 of 40 Part II: 41 42 "Gitksan and Wet'suwet'en societies were never 43 static. There are many examples of social and 44 economic changes, wars fought, truces forged, 45 houses amalgamating, and houses splitting, for 46 instance." 47 2160? S.P. Robinson (for Province) In chief by Mr. Willms 1 And can you give some examples from your 2 references of wars fought and truces forged? 3 A Yes. There are many instances of this given in the 4 oral traditions, some of which have been described by 5 MacDonald in the Epic of Nekt, Mike Robinson in the 6 Sea Otter Chiefs, Adams mentions this, and also Brian 7 Ferguson for the north-west coast region in general. 8 Q All right. And with reference to Ferguson, could you 9 turn in the white volume to Exhibit 11 -- in Exhibit 10 1188 to tab 8. And you referred to Ferguson and this 11 is "Warfare and Redistributive Exchange on the 12 Northwest Coast"? 13 A Yes. 14 Q Is this the Ferguson you're referring to? 15 A Yes. 16 MR. WILLMS: And if you can turn to page 134, this is on the 17 left-hand side of the page, the author says this in 18 the second paragraph: 19 20 "The clear picture emerging from available 21 data is that, up to the 1860s, peoples of the 22 Northwest Coast were living in a constant 23 'state of war'. Endemic warfare can have a 24 profound effect on other areas of social life. 25 It may be the greatest single hazard faced by a 26 people, a challenge that must be met. As one 27 of Gunther's Klallum informants put it, 'all 28 they (his ancestors) wanted was enough to eat 29 and to be ready for war.' Throughout the 30 Northwest Coast, preparations were taken 31 against the threat of war." 32 33 And I won't take you through the references 34 because you'll see MacDonald and Drucker and other 35 references are cited, carrying on, and Oberg, other 36 references from your report, but is that statement 37 consistent with the research that you did in preparing 38 your report for this area? 39 MR. GRANT: For which area? 40 MR. WILLMS: 41 Q The north-west coast? 42 A In general, yes. And I think what Ferguson's done 43 with this article is bring together more of the 44 references in one piece, one piece of writing, to show 45 that there is a consistent pattern through much of the 46 north-west coast and adjacent interior regions. 47 Q Now, the other examples that you mentioned at Part II, 21609 S.P. Robinson (for Province) In chief by Mr. Willms 1 page 30, in the third numbered paragraph, was "houses 2 amalgamating and houses splitting", and can you just 3 name the references which you're relying on for the 4 examples of houses amalgamating and houses splitting? 5 A Well, I can give some examples. It's commonly 6 described for the Tsimshian, in general Garfield 7 describes this, for the Gitksan particularly Adams 8 describes it, and for the Wet'suwet'en or Carrier in 9 general I think both Jenness and Steward have written 10 about this. 11 MR. WILLMS: All right. And — 12 THE COURT: What was the name for the Tsimshian? 13 THE WITNESS: Garfield, Viola Garfield. 14 THE COURT: Thank you. 15 MR. WILLMS: And I'm just going to turn to those in the white 16 book, my lord, but I should mark the Ferguson, tender 17 that as 1188-8. 18 THE COURT: Yes. 19 20 (EXHIBIT 1188-8: "Warfare and Redistributive Exchange 21 on the Northwest Coast") 22 23 MR. WILLMS: 24 Q And then ask, you referred to John Adams. Can you 25 turn to tab 4 which is "The Gitksan Potlatch" by John 26 Adams. Is this the Adams' reference? 27 A Yes. 28 MR. WILLMS: All right. And, my lord, can that be 1188-4? 2 9 THE COURT: Yes. 30 31 (EXHIBIT 1188-4: "The Gitksan Potlatch" by John Adams) 32 33 MR. WILLMS: 34 Q And then you also mentioned Viola Garfield for the 35 Tsimshian. Could you turn to tab 5 where "The 36 Tsimshian and Their Neighbours" by Viola Garfield is. 37 Is that the Garfield reference? 38 A Yes, it is. 39 MR. GRANT: Before my friend proceeds, is 1188-4 the entire 40 book? I just haven't had a chance to look at it. 41 MR. WILLMS: Yes, I hope it is. It's intended to be the entire 42 Gitksan Potlatch. 43 MR. GRANT: And with respect to 1188 — well, the one you're now 44 putting to the one witness, Garfield? 45 MR. WILLMS: I didn't check it page for page, but they're both 46 intended to be the entire works. And I'd ask that the 47 Garfield reference, my lord, be 1188-5. 21610 S.P. Robinson (for Province) In chief by Mr. Willms 1 THE COURT: Yes. 2 3 (EXHIBIT 1188-5: "The Tsimshian Indians and Their 4 Art") 5 6 THE COURT: And Jenness isn't in this collection? 7 MR. WILLMS: Jenness, my lord, was marked and I cannot remember, 8 but I think it's almost all of it has been marked 9 somewhere. 10 THE COURT: All right. 11 MR. WILLMS: My lord, parts have been marked during Dr. Galois, 12 Dr. Mills, and Dr. Albright. 13 THE COURT: Yes. 14 MR. WILLMS: 15 Q And it may be another one that in argument the whole 16 thing could be put together. 17 Now, if you could turn back to page 2 of your 18 report, 1189-1, carrying on in that second paragraph, 19 I'll just skip the middle -- the second -- third line, 20 but you say this: 21 22 "More to the point, reconstructions of 23 traditional native socioeconomies which fail to 24 account for indirect European influence deny 25 the dynamic dimensions of ongoing cultural 26 adaptations and resign their subjects to an 27 untenable -- however romantic -- 'snapshot' 28 stasis. In this context, Gitksan and 29 Wet'suwet'en claims about 'traditionally' 30 having owned and managed certain territories 31 are questionable." 32 33 Now, you mentioned Europe, indirect European 34 influence, in that sentence. Can you explain with 35 what you mean by that? 36 A Well, particularly for this area we know that European 37 trade goods were being introduced long before there 38 were any Europeans present in the area. One source of 39 those trade goods was the far north because we know 40 that Russian goods or goods were coming from Siberia 41 into the North American continent and trickling down 42 along the coast. We also know from the continental 43 side of things that as early as MacKenzie there were 44 European observations of Sekani Indians receiving 45 European trade goods from the coast. 46 Q Was there an effect of the land-based fur trade? 47 A Well, the Northwest Company was starting to push into 21611 S.P. Robinson (for Province) In chief by Mr. Willms 1 northeastern or north central British Columbia as 2 early as 1805. By 1806 they had established a base at 3 Fort St. James on Stuart Lake, and this was somewhat 4 to the east of the claims area and it's fairly 5 certain, although it's some years before there's any 6 direct record from the area, that trade goods were 7 being circulated in that direction as well. 8 Q Now, you mentioned earlier in your evidence the 9 maritime fur trade. Can you say the earliest dates 10 that you're aware of for the commencement of the 11 maritime fur trade? 12 A Well, the earliest voyages of exploration coming in 13 close to the claims area start as early as 1741 with 14 the Chirikov party coming into southeastern Alaska 15 around Yakutat Bay. The Spanish were coming up to the 16 Queen Charlottes by 1774. Cook was coming onto the 17 north-west coast in the late 1770's, and by the 18 mid-1780's the first commercial voyages are starting. 19 Q Right. And the first commercial voyage that you're 20 aware of -- 21 A Well, after the reports of Cook's expedition got out, 22 when he had found -- he had got -- or sorry, his crew 23 had got sea otter first from the coast. James Hanna 24 is known to have been the first, and he came out on 25 the coast in 1786. 2 6 Q And you've mentioned that Fort St. James was 27 established in 1806? 28 A Yes. 29 Q Now, in your bibliography you have referred to the 30 Hudson's Bay Company Fort Babine post journals, and 31 you have referred to the Fort St. James district 32 report for the land based fur trade. Is there written 33 information for the maritime fur trade? 34 A Yes, in the form of ships' logs and journals kept by 35 various members of the crew for several of the 36 maritime fur trading voyages on to the coast. An 37 example from the bibliography is Bartlett's journal. 38 There's a published primary source record, and William 39 Sturgis' journal is also given in the bibliography. 40 THE COURT: What's the name, please? 41 THE WITNESS: William Sturgis. I think it's 1799 he was in the 42 northern coast. 43 MR. WILLMS: 44 Q And that is in your bibliography? 45 A Yes. 46 Q All right. Now with that, bearing that in mind, you 47 say at the bottom of page 2 of your report: 21612 S.P. Robinson (for Province) In chief by Mr. Willms 1 2 "This report is based on a review and 3 interpretation of existing information, largely 4 contained in secondary sources, both published 5 and unpublished, concerning the Gitksan and 6 Carrier, as well as other northwest coast and 7 interior native groups." 8 9 And now when you use secondary sources, can you 10 describe what you meant, what you mean by that? 11 A Well, yes. A lot of the materials that I was relying 12 on are anthropologists' reports which are themselves 13 based on a lot of primary information, including 14 linguistic evidence, ethnographic reports, interviews 15 with people, oral traditions, maps, and so on. The 16 published materials that I relied on were often in the 17 form of articles and books. 18 Q In the form of? 19 A Articles and books, published books. 20 Q But as already been -- you've already given evidence 21 during the cross-examine on qualifications, you didn't 22 do any direct ethnographic work here? You didn't 23 interview any of the plaintiffs? 24 A No, I did not. 25 Q Now if you can turn to page 3 of your report, 1189-1, 26 the first part, and at the bottom of page 3 and over 27 to page 4 you say this. 28 29 "A note about terminology is required. The term 30 Gitksan is well established in the 31 anthropological literature and is generally 32 used to describe the inhabitants of seven 33 tribal villages of the upper Skeena River in 34 north-central British Columbia, villages now 35 known as Kitwancool, Kitwanga, Kispiox, 36 Gitanmax (Hazelton), Kitsegucla, Kuldo and 37 Kisgegas." 38 39 Now, Dr. Robinson, you know that during the course 40 of this trial that the term Gitksan has been used by 41 the plaintiffs to describe themselves, by some of 42 them. In relation to that, can you describe how you 43 used the term Gitksan in your report? 44 A Well, I was using the term Gitksan to refer to those 45 Indians living in these villages or generally in that 46 area around the time of contact, and I have no opinion 47 about the relationship between those people and the 21613 S.P. Robinson (for Province) In chief by Mr. Willms 1 modern people who call themselves Gitksan. 2 Q Just carrying on, on page 4, you then say: 3 4 "The term Wet'suwet'en, which is used by the 5 Plaintiffs in this case, is of very recent 6 origin and appears to be intended to refer to 7 those Carrier Indians who inhabited the 8 villages now known as Hagwilget and Moricetown 9 on the Bulkley River." 10 11 Now, you know that during the course of this trial 12 the term Wet'suwet'en has been used to describe some 13 of the plaintiffs in this action, and in relation to 14 that, can you describe how you used the term 15 Wet'suwet'en in your report? 16 A Well, I was using the term Wet'suwet'en to refer to 17 those Indians on the Bulkley River around the time of 18 contact or even perhaps as late as the early 19 nineteenth century when Jenness refers to them. But I 20 don't express an opinion about the relationship 21 between those people then and the modern people who 22 call themselves Wet'suwet'en. 23 Q And can you describe the general time frame for your 24 report? 25 A Basically it's covering the period from the late 26 eighteenth century to approximately the mid-nineteenth 27 century, as late as 1860. 28 Q And it's within that definition of Gitksan and 29 Wet'suwet'en and that time constraint that these 30 opinions are based? 31 A Yes. 32 Q Now, on page 4, the middle paragraph, you say this, 33 and I'm on page 4 of your report: 34 35 "It is important to emphasize the limitations 36 inherent in any theory of aboriginal land use 37 which attempts to reconstruct a reality that 38 existed before any relevant written records 39 were kept and long before the memory of living 40 man. In my research I have discovered no 41 conclusive evidence that suggestions that, 42 prior to the advent of European influence in 43 the claim area, the Gitksan and Wet'suwet'en 44 lineages and families identified ownership 45 rights to large and precisely defined tracts of 46 hunting territories." 47 21614 S.P. Robinson (for Province) In chief by Mr. Willms 1 Now, just stopping there, what do you mean when 2 you use the word "evidence"? 3 A I'm talking about the information that's derived from 4 descriptive anthropology, analytical anthropology, 5 descriptive history, and analytical history. 6 Q And could you give an example from your reference list 7 of descriptive anthropology? 8 A Well, we have published information such as Boas' work 9 of the Tsimshian mythology, of Tsimshians text and 10 Tsimshian mythology. We also have the Barbeau-Beynon 11 field notes. 12 Q Can you give an example or examples from your 13 reference list of analytical anthropology? 14 A Works by writers such as Jenness and Steward and John 15 Adams and Viola Garfield. 16 Q All right. And by John Adams like "The Gitksan 17 Potlatch"? 18 A Yes. 19 Q All right. Now, you mentioned Steward. Can you turn 20 in Exhibit 1188, the white book, to tab 6, which is 21 entitled "Determinism in Primitive Society?" by Dr. 22 Julian Steward. Is this the -- one of the references 23 to analytical anthropology that you're referring to? 24 A Yes. 25 MR. WILLMS: My lord, 1188-6. 2 6 THE COURT: Yes. 27 28 (EXHIBIT 1188-6: "Determinism in Primitive Society" by 29 Julian Steward) 30 31 MR. WILLMS: 32 Q And how would you classify Dr. MacDonald's work, "The 33 Epic of Nekt"? 34 A Well, this is another example of analytical 35 ethnohistory, analytical anthropology and history, 36 because it uses both -- well, it uses archaeological, 37 anthropological, and historic information, to 38 reconstruct some developments that were occurring in 39 the area in the late eighteenth century. 4 0 Q Okay. Can you give an example or examples from your 41 reference list to descriptive history? 42 A Oh, yes, we've made mention of them a bit earlier. 43 There are some Hudson's Bay Company records listed in 44 the reference list for Fort Babine or Fort Kilmaurs 45 and also for the Fort St. James reports, and also the 46 maritime fur traders journals such as Bartlett's or 47 William Sturgis'. 21615 S.P. Robinson (for Province) In chief by Mr. Willms 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. MR. THE MR. THE MR. Q And how about an example of analytical history? You've already referred to "The Epic of Nekt" as being analytical anthropology and analytical history. Is there a reference in your list which is perhaps more closely analytical history? A Well, I think the work by Bishop "Limiting Access to Limited Goods" is a good example of this. WILLMS: And, my lord, once again, I don't recall -- that whole article's been marked probably during Dr. Ray. GRANT: I'm sorry, I missed what she said. WITNESS: Charles Bishop, "Limiting Access to Limited Goods" Oh, Dr. Kari, I'm sorry. GRANT: COURT: WILLMS Dr. Kari, great Can you MR. THE THE MR. THE MR. THE MR. Q I think the exhibit is 881A-8. Now, in your reference list there is not deal of primary archaeological data included explain why that is? A Well, there are two reasons really. One is that I know that there's been so little work done in the area in terms of survey and excavation that I think it would be very difficult to assess any information that was gained through archaeological excavations right now. A second reason is that questions that have to do with continuity through time or territory are very difficult to interpret through the archaeological evidence alone. Q Now, you have cited some archaeological field work, and one of them is the Skeena River Prehistory? A Yes. WILLMS: My lord, this is, as I said earlier, it's been marked here and there, but I would like -- extracts have been marked and I'd like to mark the whole volume as the next exhibit. COURT: All right. 11. REGISTRAR: 118 9. WILLMS: No, that's 1190. COURT: 118 9 I think. WILLMS: 1189 is the report. COURT: Is it? Oh, yes. All right. 1190. (EXHIBIT 1190: Book - Skeena River Prehistory) WILLMS: Q Now, you've given a description of what you mean by evidence when you use the term on page 4 of your 21616 S.P. Robinson (for Province) In chief by Mr. Willms 1 report. You said "conclusive evidence". What do you 2 mean by that? 3 A I mean more likely than not. 4 Q Now, after the extract that I read to you, you then 5 say on page 4: 6 7 "Such evidence as exists, which varies in its 8 reliability, may support more than one theory 9 of pre-contact land and resource use." 10 11 What do you mean when you say "varies in its 12 reliability"? 13 A Well, there's corroboration for some of the 14 information which lends it weight or makes it seem 15 sounder. Now, to give you an example, we have 16 information about Legaix or the Legaix dynasty coming 17 upriver, coming up the Skeena River from the coast, 18 and that's coming not only from the oral traditions, 19 but also from the Hudson's Bay Company records we get 20 information about Chief Legaix or Chiefs Legaix. 21 Q So some of the evidence that you've referred to, the 22 descriptive evidence, is corroborated by other 23 evidence, some isn't? 24 A Yes. 25 Q Okay. Now, at the bottom of page 4 of your report, 26 and carrying over to the top of page 5 you say: 27 28 "Speaking generally, one may expect that some 29 form of organized control would have been 30 exercised over access to the fisheries and 31 other resources which were necessary for 32 survival and over the local trails and bridges 33 which facilitated prehistoric trade networks." 34 35 Can you give an example of prehistoric trade in 36 that context? 37 A Yes. One good example we have is obsidian trade. 38 Q All right. And how do you know that the obsidian was 39 traded rather than being acquired through warfare or 40 say moved through migration? 41 A Well, archaeological excavations have shown that 42 there's widespread distribution of obsidian coming 43 from a single source or definitely known sources, and 44 the extent of these distributions is most easily 45 inferred as resulting from trade rather than from any 46 other explanation. 47 Q Then you use the word "trade network". Can you 21617 S.P. Robinson (for Province) In chief by Mr. Willms 1 explain what you mean by "trade network"? 2 A Well, it seems that there were lines of communication 3 or systems of communication linking up nodes of 4 activity or inhabitation. 5 Q And by lines of communication, is there something 6 within this particular region, based on the material 7 you reviewed, which would indicate where the lines 8 would be? 9 A Well, it seems it's a matter of pretty straightforward 10 geography where major routes of transportation and 11 communication were along waterways, and there was also 12 a system of overland trails, which followed easy 13 routes of access or passes. 14 Q And you also just referred to nodes of activity. Can 15 you explain what you mean by that? 16 A Well, it seems that there was almost a patchwork 17 configuration, if you'd have it, where people would go 18 from place to place along trails or passes of 19 communication, and such nodes of communications would 20 be fishing spots, village sites, hunting campsites, 21 and other resource use areas. 22 Q Now, you complete that paragraph at the top of page 5 23 of your report with this. You say: 24 25 "But prior to the intensification of pressure on 26 interior fur resources sparked by European 27 demands for furs there would appear to have 28 been no need for a sophisticated and elaborate 29 body of rules governing access to resources or 30 for extensive and defined areas of land for 31 exploitation. In the absence of competition 32 over scarce resources, there is no reason for 33 the rules to exist." 34 35 And in there, that paragraph, what do you mean by 36 "interior fur resources"? 37 A I'm describing those fur resources that would have 38 been sought by the European market, and particularly 39 beaver, and there's also marten, foxes, beavers, or 40 bears, and so on. 41 Q Now, carrying on on page 5, you say in paragraph one. 42 43 "Gitksan and Wet'suwet'en claims of traditional 44 ownership and occupation of certain territories 45 can be challenged on the basis that they do not 46 account for developments which occurred during 47 the protohistoric period. These changes 2161? S.P. Robinson (for Province) In chief by Mr. Willms 1 include adjustments in boundaries between the 2 Gitksan and Wet'suwet'en and their neighbours 3 as well as a more precise delineation of 4 boundaries within and at the margins of Gitksan 5 and Wet'suwet'en territories." 6 7 Now, just stopping there, what adjustments are you 8 referring to between the Gitksan and the Wet'suwet'en? 9 A Well, we know that in the early 1820's, following a 10 slide, the inhabitants of Moricetown moved up to 11 Hagwilget. 12 Q How about an example between the Gitksan and their 13 neighbours? 14 A Well, there's a lot of converging information to 15 suggest that the Gitksan were pushing north at the 16 expense of their Tsetso neighbours up as far as the 17 Stikine, and that they were pushing against the Sekani 18 and also the Tahltan more to the northeast. There's 19 also some suggestion in Jenness, I think it's the 1943 20 publication, that the Gitksan were driving a wedge 21 down between the Kitimat and Bulkley River Carrier. 22 MR. GRANT: What's the witness' source relating to this 23 northward push? It's not cited here at all, my lord. 24 That's why I'm asking. 25 MR. WILLMS: 26 Q You've described the northward push at the expense of 27 the Tsetso and other Athapaskan neighbours. Do you 2 8 have -- 29 A I think there were several references cited in the 30 notes. If I could have a minute to browse for them I 31 could give you page numbers. 32 MR. WILLMS: I think if my friend -- my lord, it might help my 33 friend if he just looks at the footnotes running from 34 page 32 to page 36 to paragraph one, there are 35 references from Adams, Jenness -- 36 MR. GRANT: I appreciate that, my lord, but the witness has said 37 something very specific, and I wanted to know which of 38 these authors, if she says it's in here, then that's 39 fine, but -- 40 THE WITNESS: Yes. 41 MR. GRANT: — that she's relying on in support of that 42 proposition of the northward push. 43 THE WITNESS: Well, I'm relying on several of them, and if we 44 were to go through them we could see that. Just for 45 that one, for example, Adams refers to it, Note C on 46 page 32, but Adams isn't the only one, and I've made 47 some attempts to bring the references together that 21619 S.P. Robinson (for Province) In chief by Mr. Willms 1 are in support of these propositions. 2 MR. WILLMS: 3 Q Can you turn to page 34, footnote J. Is this one of 4 the references -- 5 A Yes. 6 Q -- to the push north at the expense of the Tsetso and 7 other Athapaskan neighbours? 8 A Yes, and that's a reference to MacDonald's article 9 "The Epic of Nekt". 10 Q "The Epic of Nekt", my lord, was marked by the 11 plaintiffs during Miss Albright's evidence. 12 A This is a theme actually that MacDonald has also 13 referred to repeatedly in his Skeena River Prehistory 14 and also the Kitwanga Hill Fort publication as well, 15 in support of the footnote J. Duff I believe also 16 talks about, in the history laws and territories as a 17 Kitwancool, talks about the northward expansion. 18 Q Now, you also mentioned on page 5 adjustments in the 19 boundaries between the Wet'suwet'en and their 20 neighbours. What examples are you referring to there? 21 A Well, one specifically is the example recorded by 22 Jenness in 43 of the 1838 depopulation of the Eutsuk 23 Lake area and the southward movement into the Eutsuk 24 Lake area of people from the Bulkley River. 25 THE COURT: You say the depopulation was 1838? 26 THE WITNESS: Yes, that's in the early historic period. It's 27 something that's also been described by Steward and 28 Bishop for the Carrier in passing. I think there's 29 another note here on 36. 30 MR. WILLMS: 31 Q Now, you conclude paragraph one on page 5 of your 32 report with the sentence: 33 34 "Both process of territorial demarcation are 35 linked to and were stimulated by indirect 36 contact with Europeans through the eighteenth 37 and early nineteenth centuries." 38 39 And by that "indirect contact", is that a 40 reference to the maritime and land-based fur trade 41 that you've described earlier? 42 A Yes, it's a reference to both. 43 Q Now, could you turn to page 6 of your report? In 44 paragraph two you discuss the introduction of European 45 commodities, and then you conclude paragraph two at 46 the top of page 6 by saying: 47 21620 S.P. Robinson (for Province) In chief by Mr. Willms 1 "Prior to fur trade influence, native 2 territorial holdings were in all likelihood 3 more limited in size, to include mainly the 4 area surrounding villages." 5 6 Why do you say that? 7 A Well, cultural ecologists tend to look for an economic 8 rationale or a rational kind of behaviour underlying 9 most human behaviour, and if there's no need to go 10 beyond the village bases very far, then it's unlikely 11 that people would have in terms of their resource 12 exploitation. 13 Q Now, the cultural-ecological theory that you're 14 talking about, are those based on world-wide 15 comparisons of human societies? 16 A Yes, they are, and I might point out that Julian 17 Steward's work on the Carrier was very seminal in the 18 establishment of the field. 19 MR. WILLMS: Are there societies with strong areal aspects and 20 societies with weak areal aspects? 21 THE COURT: What are areal aspects? 22 MR. WILLMS: Area. 23 THE COURT: Oh, all right. 24 MR. WILLMS: Sorry. 25 THE COURT: Territorial? 26 MR. WILLMS: Territorial. 2 7 THE COURT: Yes. 28 MR. WILLMS: But I think think areal — I'm told areal is the 29 word in the business. 30 MR. GRANT: I don't understand the question, my lord. The 31 strong and weak of area, areal, strongly and weakly, I 32 think my friend should rephrase it to make some sense 33 to me anyway. 34 MR. WILLMS: 35 Q Are there societies with firmer boundary definitions 36 than others? 37 A Yes, and one of the things I was interested in in 38 my -- with my dissertation was looking at the 39 difference between hunter-gatherer and agricultural 40 populations because agriculturists tend to have 41 perimeters that are defended and delineated more 42 clearly than do hunter-gatherers, who usually have 43 more of a patchwork kind of configuration to their 44 resource work. In other words, they exert some kind 45 of use rights over those areas or resources that they 46 actually use, whereas an agriculturist will define a 47 boundary around those areas. 21621 S.P. Robinson (for Province) In chief by Mr. Willms 1 Q All right. Now, going to paragraph four on page 6 of 2 your report, you discuss peaceful territorial 3 adjustments in that paragraph, and I would like you to 4 turn to your footnotes for the paragraph which are at 5 Part II, that's 1189-2, at page 48. Now, the 6 footnotes start at page 47, but could you turn to 7 page -- sorry, the footnotes start at page 48, and 8 here starting on page 48 you have, and at the top of 9 49, set out references for that proposition on page 6 10 of your report, and you say on page 48 of Part II: 11 12 "The Gitksan, unlike the Wet'suwet'en, may have 13 been essentially Tsimshianized prior to 14 European influence. In the process of adopting 15 cultural traits from the northern coast, they 16 probably assimilated some coastal customs 17 relating to resource use which were more 18 clearly defined and more rigorously exclusive 19 than those they had previously." 20 21 Now, first of all, can you describe what you mean 22 by Tsimshianized? 23 A Yes. It seems that several groups of people living 24 adjacent to the coast or the north-west coast adopted 25 traits including language, some customs, crests, 26 titles, and so on. And I'm following McClellan here, 27 Catharine McClellan, who uses the term Tlingitized to 28 describe the adoption of coastal customs by some 29 Athapaskan groups adjacent to the Tlingit area, and 30 I'm applying that term to the Tsimshian, the Gitksan 31 adopting coastal customs from the Tsimshian. 32 Q And is there anyone in the reference list who also 33 refers to that, or one who refers to that concept for 34 the Gitksan? 35 A I think Adams does for the Gitksan. Garfield does in 36 passing, talks about the Gitksan having adopted some 37 customs. 38 Q Now, at the last line of that particular footnote you 39 say: 40 41 "Oral traditions do list furs and hides among 42 prestige goods used by coastal dwellers. 43 European demands for furs intensified pressure 44 on interior fur resources, but did not initiate 45 an interest in the fine fur-bearing species." 46 47 And can you explain what you mean by "intensified 21622 S.P. Robinson (for Province) In chief by Mr. Willms 1 pressure"? 2 A Well, my understanding is that the European market or 3 the European demand for furs was extraordinary and 4 considerably larger than anything that had gone on 5 precontact. When we talk about sea otter furs, for 6 example, going off the north-west coast of China, the 7 records left by some of the maritime fur traders 8 indicates that these were in the thousands, being 9 thousands and thousands of sea otter pelts being taken 10 off the coast every year. Similarily, we have large 11 numbers of interior furs being drained both to the 12 coast and to the interior in the late nineteenth -- 13 late eighteenth century, early nineteenth century. 14 Q In terms of your analysis of the intensification, does 15 the fact that the oral traditions lists furs and hides 16 as prestige goods, how does that fit in? 17 A Well, it seems consistent for the northern coastal 18 region and adjacent areas that things that were 19 prestigious were also scarce or rather limited in 20 quantity, so I would say in contrast we have a fairly 21 clear suggestion that furs were fairly limited or fur 22 production was fairly limited certainly relative to 23 after European demands were expressed for those furs. 24 Q Now, I'd like you to turn back to part one of your 25 report back on page 6 again to paragraph five, and you 26 say in paragraph five: 27 28 "For interior populations such as the Gitksan 29 and Wet'suwet'en who directly or indirectly 30 traded with Northwest Coast populations, the 31 clearer delineation of territories and rights 32 of resource use reflected both increasing 33 pressure on certain resources, and their 34 societies' increasing acceptance of coastal 35 customs relating to resource management." 36 37 What do you mean by "certain resources"? 38 A I'm referring to furs. 39 Q And what do you mean by "increasing acceptance of 40 coastal customs"? 41 A It seems that the coastal customs with regard to the 42 use of resources were fairly specific and discreet, or 43 probably more discreet than they were for the interior 44 areas. And so by those coastal customs I'm referring 45 to definite ownership of village sites, campsites, 46 burying areas, egg-gathering areas, fishing grounds. 47 Q And that's related to a resource? 21623 S.P. Robinson (for Province) In chief by Mr. Willms 1 A 2 Q 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A 17 Q 18 19 20 A 21 Q 22 23 A 24 Q 25 A 26 Q 27 28 29 A 30 31 Q 32 33 34 35 36 37 A 38 Q 39 40 A 41 Q 42 A 43 Q 44 45 A 46 THE COURT: 47 MR. WILLMS Yes, a specific resource. Could you turn to page 7 of your report and paragraph seven, and in that paragraph you say: "Protohistoric and early historic expansionist tendencies were inevitably expressed in intratribal, as well as intertribal levels, as competition for resources essentially involved resource-controlling groups -- the Gitksan houses and wilnad'ahl, (people with a common migration myth), not larger corporate entities." And first of all, what resources were competed for in the protohistoric period? Well, particularly the furs. Now, is there any evidence that you're aware of, and you've just defined what you mean by evidence before, for prehistoric competition for fish? No. Now, is there any evidence that you're aware of of prehistoric competition for fur-bearing animals? None that I'm aware of. And how about prehistoric competition for big game? None that I'm aware of. Now, in that paragraph you refer to Gitksan houses and wilnad'ahl. What definition are you using for a Gitksan house? I'm following Adams in "The Gitksan Potlatch" with his definition of house. All right. And if you could turn to tab 4, Exhibit 1188-4, to page 25, Dr. Adams refers to houses from page 25 through to 27, and I won't ask you to go through it, but you'll see he has a diagram on page 24 which depicts his definition of houses, and that's the use that you used? Yes. Right. And for wilnad'ahl, the people with a common migration myth, you also used -- Similarly. -- Adams? Yes. I was using Adams. And once again, the description that Adams uses is on page 23, starting on page 23? Yes. Shall we take the afternoon adjournment, Mr. Willms? : Yes, my lord. 21624 S.P. Robinson (for Province) In chief by Mr. Willms 1 THE COURT: Thank you. 2 THE REGISTRAR: Order in court. Court stands adjourned for a 3 short recess. 4 5 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS) 6 7 I hereby certify the foregoing to 8 be a true and accurate transcript 9 of the proceedings herein to the 10 best of my skill and ability. 11 12 13 Tanita S. French 14 Official Reporter 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 21625 S.P. Robinson (for Province) In chief by Mr. Willms 1 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Willms. 5 MR. WILLMS: 6 Q My lord. Dr. Robinson, I had just referred you to 7 paragraph 7 on page 7 of your report, and I would like 8 you to refer to one of the footnotes, and that is at 9 page 57 of Part II of the report. At paragraph "d" 10 you have in square brackets "Gitksan Political 11 organization," and then: 12 13 "...tribes are nothing but villages, or casual 14 geographic units, seven in all among the 15 Gitksan." 16 17 Can you explain how that relates to the statements 18 that you've made in paragraph 7 of your report? 19 A Yes. What I'm referring to with that footnote and 20 back to paragraph 7 is that villages were comprised, 21 as far as I understand, of several houses or 22 households, each of which had its own chief or leader, 23 and there were no corporate leaders in charge of 24 people other than their own houses or households. 25 There were no village chiefs that I'm aware of. 26 Q And how about relationships between villages? 27 A There's no form of leadership that's expressed over 28 more than one corporate area or one geographic base. 29 There may have been -- there may have been chiefs who 30 appeared to be leaders of villages in the sense that 31 there were sometimes stronger individuals than others 32 who would have had some sway over several houses, for 33 instance, but this was informal, not institutionalized 34 as any kind of corporate leadership. And certainly 35 there's no evidence at all that I found of any Gitksan 36 individuals having control over more than one village. 37 Q Okay. Now, you mentioned the seven Gitksan villages, 38 and you also mentioned Moricetown and Hagwilget. As a 39 cultural ecologist, are those locations significant? 40 A Well, they all seem to coincide with opportunities to 41 harvest the abundant fish resources. 42 Q Now, on page 7 of your report, carrying on to 43 paragraph 8, you say: 44 45 "As intensified Coast Tsimshian-Gitksan exchange 46 during the protohistoric period put increasing 47 pressure on fine-fur species, competition among 21626 S.P. Robinson (for Province) In chief by Mr. Willms 1 Gitksan resource-controlling groups certainly 2 resulted in increasing emphasis on, if not more 3 thorough assimilation of, Coast Tsimshian- 4 derived rules of resource management relating 5 to the use of clearly defined territories by 6 groups with exclusive membership." 7 8 And then in paragraph 9 at the bottom of page 7 9 and over to page 8 you say respecting the 10 Wet'suwet'en: 11 12 "Most important was the assimilation of resource 13 management-related coastal traits from their 14 Gitksan neighbours." 15 16 Now, it appears that you're describing an assimilation 17 from west to east. Is that the intention? 18 A Yes, that's correct. 19 Q And is that something that is described in -- for 20 other neighbouring groups in your reference material? 21 A Yes, it's -- it's paralleled by examples from a lot of 22 the northern and central Northwest Coast region and 23 the adjacent interior areas ranging from Yakutat Bay 24 in the northern part of the Alaskan archipelago down 25 to the Bella Coola-Chilcotin area. 26 Q Now, one of the references to paragraph 9 of your 27 report is a reference on page 59 of the footnotes to 28 footnote 49g, and I just ask that you turn to 49g, 29 which is at page 83 of Part II, 1189-2. And 49g is 30 the following quote from Yerbury: 31 32 "The Denes or Northern Athabascans of the 33 Alaskan subarctic and the Canadian western and 34 central subarctic, the Pacific drainage and the 35 Plains have long been regarded as having a 36 regional variation in social structure of which 37 the most evident variation is the east-west 38 gradient from relative cultural simplicity 39 towards relative complexity... It is my 40 contention that this is not a traditional 41 feature of their culture. Rather, it is the 42 result of adjustment to new circumstances 43 inflicted through European contact." 44 45 Now, did you notice that same complexity in your 46 research here? 47 A Yes, and I think the best way to describe it is to say 21627 S.P. Robinson (for Province) In chief by Mr. Willms 1 that several writers, notably Garfield and Adams, have 2 described how the Coast Tsimshian people are more 3 complex than the Gitksan or have more complex social 4 forums, the Gitksan have more complex social forums 5 than their Wet'suwet'en or Bulkley River Carrier 6 neighbours, and in the Carrier area generally there 7 seems to be a decrease in cultural complexity from 8 west to east. 9 Q Now, for the other areas that you referred to, and you 10 referred to Yakutat Bay and then south, who are the 11 other writers and the people that you've referred to 12 in your reference list that discussed this same topic, 13 same contention? 14 A Well, for the Tlingit in the north and their nearby 15 neighbours writers such as Oberg, Krause, and 16 McClellan and De Laguna have written about this. 17 Moving down to the Tsimshian area, there's Garfield 18 and Adams. With regards to the Carrier, generally 19 something that's been described by Jenness, Bishop, 20 Steward. With a bit of an archaeological flavour, 21 Mike Cranny. Doug Hudson has written about this. And 22 I think one of the more important works was done in 23 the '40s or a couple of articles were done by Goldman 24 about the Bella Coola and Carrier-Chilcotin 25 connections. 26 MR. GRANT: What was the last one? 27 MR. WILLMS: 2 8 Q Goldman. 2 9 A Goldman. 30 Q And also Dr. Kobrinsky? 31 A Yes, one of the more recent writers in this area whose 32 work, along with that of Charles Bishop, is quite 33 important. 34 Q And that comes up later on in your report. You start 35 Section III of your report on page 8, and you note 36 that in this section you are describing the late 37 eighteenth century after the maritime fur traders 38 began to deal directly with the Coast Tsimshian, and I 39 take it that in Section II you went a little bit 40 further into the past to also take into account the 41 Russian influence? 42 A Yes, and to show that there were strong connections of 43 indirect European influence that can be traced back to 44 the mid-seventeenth century. Vitus Bering -- first 45 name is V-i-t-u-s, and the second name is Bering, 46 B-e-r-i-n-g -- he was noticing in the mid -- well, in 47 the 1740s that as early as the 1640s there was 2162? S.P. Robinson (for Province) In chief by Mr. Willms 1 European trade iron coming across from Siberia into 2 continental North America, and that's sort of the 3 beginning of us having any record of European iron 4 coming in. 5 Q And as I understand the make-up of the report, there 6 is an overlap between Section II and Section III in 7 that Section III has got more detail of the later time 8 period that's covered generally in Section II? 9 A Yes, that's correct. 10 Q Now, you described the maritime fur trade earlier with 11 the Tlingit and the Coast Tsimshian and the first 12 European voyage to the area, and I take it that would 13 be the beginning of the historic people for the -- 14 historic period for the Tlingit and the Coast 15 Tsimshian? 16 A Yes. 17 Q Was there a protohistoric period on the coast -- 18 A Yes. 19 Q — for the Tlingit? 20 A Yes, there would have been, and -- now, I think -- I 21 think MacDonald's given us the best kind of 22 encapsulated version of some of the changes that were 23 going on in the early eighteenth century that seemed 24 to be linked to indirect European influence on the 25 northern coast. For instance, the Haida are known to 26 have pushed north from the Queen Charlotte Islands 27 into the southeastern Alaskan islands in the early 28 eighteenth century. There is record in the oral 29 traditions of the Tsimshian pushing the Tlingit north, 30 perhaps even from the mouth of the Skeena River, up 31 towards the Stikine. We know that the Tlingit were 32 pushing northward up into Eyak territory around the 33 same time, and it's in that what they call 34 protohistoric period for the northern coast that 35 McClellan links the push from the coast into the 36 Athabaskan interior adjacent to Alaska. 37 Q Now, on page 9 of your report at the bottom, paragraph 38 10, you note -- discuss the arrival of maritime fur 39 traders and then at the top of page 10 say this: 40 41 "While the seeds of these cultural changes can 42 be traced back through the protohistoric 43 period, there is no doubt that intensified and 44 direct contact with Europeans provoked 45 significant adjustments in northern coastal 46 social and economic relations." 47 21629 S.P. Robinson (for Province) In chief by Mr. Willms 1 Now, the seeds of these cultural changes, can you say 2 what you mean by those -- what those seeds were? 3 A Well, from the earliest maritime fur trade records we 4 seem to have some evidence of -- of networks of 5 exchange occurring between different groups of people 6 in the northern coastal region, and there's no -- no 7 question from the earliest maritime fur trade records 8 that there was an increase in inter-village or inter- 9 community warfare, skirmishes, and also some evidence 10 of what seemed to be intensified potlatching 11 situations or exchanges of wealth. 12 Q Now, page 10, paragraph 11 you discuss trade with the 13 Europeans and competition among coastal groups, and 14 then you say this: 15 16 "The early historic period is marked by an 17 increase in economically motivated conflict, 18 expressed in outbreaks of warfare and 19 increasingly competitive potlatching." 20 21 What do you mean by competitive potlatching? 22 A Well, I think in simplest terms it's important to 23 remember that ranking amongst groups throughout this 24 region was flexible, and that meant that people were 25 continually vying for position, and there seems to be 26 an increase with both an influx of wealth and 27 opportunities to gain wealth through the production of 28 furs, which was manifest in an increase in frequency 29 and quantities of goods that were exchanged in the 30 potlatch situations. 31 Q You refer in paragraph 10 -- sorry -- paragraph 12 on 32 page 10 to chiefdoms such as Cuneah, Tsebassa, and 33 Legaik and then say this at the bottom of page 10: 34 35 "What essentially made chiefdom chiefs different 36 than tribal chiefs was that their influence 37 extended to people who were not their kin: the 38 resource bases upon which they depended were 39 consequently larger, and they were wealthier 40 and more powerful than tribal chiefs." 41 42 Now, when you say "influence extended to people who 43 are not their kin," can you describe what you mean by 44 that? 45 A Well, yes, and as I was mentioning with reference to 46 the Gitksan villages and leadership in those villages, 47 in a traditional setting a tribal chief or a household 21630 S.P. Robinson (for Province) In chief by Mr. Willms 1 chief did not extend any authority or influence over 2 people who were not his immediate kin. It seems clear 3 from the historic records both in the oral tradition 4 and also the Hudson's Bay Company accounts there were 5 certainly individuals, such as Legaik, who were able 6 during the early historic period on the coast to exert 7 influence over people who were not their immediate 8 relatives. This has been regarded by people like 9 Garfield and more recently Donald Mitchell as 10 something that was definitely an historic aberration. 11 Q Now, we've heard quite a bit about Legaik, and you 12 discuss that later on in your report. Can you -- who 13 was Cuneah and where did he -- where was his village? 14 A Oh, Cuneah was the chief at a village called Kiusta on 15 the northwestern tip of the Queen Charlotte Islands, 16 one of the first Haida Indians to be frequently 17 contacted by the first maritime fur traders, and he 18 seemed to capitalize on his position in the trade 19 quite effectively and was able to hold some kind of 20 influence over the northern island or is it Graham 21 Island on the Queen Charlottes. Some of his 22 activities are reflected in the Sturgis journal as 23 well as in Mike Robinson's report on the Sea Otter 24 Chiefs. 25 Q Now, what about Tsebassa? 26 A Tsebassa seems to be a name connected with the Tlingit 27 chief controlling the mouth of the Stikine River. I 2 8 don't know much about him except that he seemed to be 29 ranging from the mouth of the Stikine down to Heiltsuk 30 territory, H-e-i-1-t-s-u-k, in the early historic 31 period and was feared by all sorts of people. 32 Q And who refers to Tsebassa? 33 A Well, again, he's described as one of the -- well, as 34 one of several chiefs that seemed to come to some kind 35 of prominence during the proto -- or during what was 36 for the Gitskan the protohistoric and for the coast 37 the historic period. He's referred to by Garfield. 38 He's also referred to by Mike Robinson in the "Sea 39 Otter Chiefs." And MacDonald also refers to some of 40 these chiefs in his Epic of Nekt. 41 MR. WILLMS: Was there a difference between the tribal chiefs 42 like Legaik and Cuneah and Tsebassa and traditional 43 chiefs, chiefs in respect of acquisition of resources? 44 THE COURT: Well, Mr. Willms, I thought the witness said that 45 tribal chiefs were more like the household chiefs. 46 Have I got that wrong? 47 MR. WILLMS: 21631 S.P. Robinson (for Province) In chief by Mr. Willms 1 Q Oh, sorry. Yes, I meant chiefdom chief. Was there a 2 difference between the chiefdom chiefs. Thank you, my 3 lord. 4 A As an aside comment I might mention that Donald 5 Mitchell's article on the Tsimshian chiefs, where he's 6 looking particularly at Legaik's emergence as a 7 chiefdom chief, is useful for straightening out this 8 business about who's a band, tribal or chief level 9 chief, and it's a carefully written piece that might 10 sort of explain this. But my understanding is that 11 there were -- there was no leadership expressed in an 12 institutionalized manner beyond the household chief 13 and that basically there was an element of charisma, 14 if you'd have it, or achievement that would allow 15 certain individuals under some extraordinary 16 circumstances, unusual circumstances to gain influence 17 over more than their immediate kin, and such 18 individuals as Legaik and Cuneah in the historic 19 period seemed to have been able to take advantage of 20 the trade with Europeans to both attract followers and 21 expand their influence. How that was expressed over 22 territories per se is not entirely clear, but it does 23 seem that there was what's described as an 24 expansionist tendency, and some of these individuals 25 appear to have been keen to expand their spheres of 26 influence either to attract more tribute or to 27 actually seize properties. And we have descriptions 28 of individuals such as Haimas and Legaik in the oral 29 traditions, in the Barbeau-Beynon field notes, and 30 MacDonald has written about these extensively in the 31 Epic of Nekt, and Mike Robinson has with his "Sea 32 Otter Chiefs." 33 THE COURT: I'm not sure now if I have the synonyms right. Are 34 you equating the tribal chief to a household chief or 35 are you equating a tribal chief to someone like 36 Legaik? 37 THE WITNESS: Terminology seems to vary, but Garfield, who's one 38 writer I've been referring to, would call these 39 chiefdom chiefs the Legaiks of the world. 4 0 THE COURT: They're chiefdom chiefs? 41 THE WITNESS: Chiefdom chiefs. 42 THE COURT: Not tribal chiefs? 43 THE WITNESS: No. And tribal chief is used more often on the 44 coast than it is in the Gitksan area to refer to what 45 appears to be the leader of a village, and he might 46 have several households that appear to be under his 47 authority, although there were no mechanisms, as far 21632 S.P. Robinson (for Province) In chief by Mr. Willms 1 as I understand, that would give him real authority in 2 the sense of being able to pass that office on to the 3 next generation. Household chiefs seem to have been 4 the operative level where authority sat. 5 MR. WILLMS: 6 Q Now, at the bottom of page 11 of your report in 7 paragraph 15 you say: 8 9 "Gitksan and Wet'suwet'en people were 10 increasingly drawn into the coastal fur trade. 11 It is around this time, according to oral 12 traditions, that the first Legaik and his 13 nephew-successor began their efforts to 14 monopolize Skeena River trade." 15 16 What do you mean by "around this time"? 17 A Around the turn of the nineteenth century. 18 Q We've heard evidence of a number of Legaiks. When you 19 refer to the first Legaik, which Legaik are you 20 referring to? 21 A The one that was killed at Kitselas Canyon. 22 Q And the Legaik who ultimately dominated the Skeena 23 River trade, which Legaik was that? 24 A I believe that was Legaik II, and he's the one that's 25 referred to in the Hudson's Bay Company records, the 26 Fort Simpson journals. 27 Q And so that's the nephew-successor that you're 28 referring to? 29 A Yes. 30 Q Now, I won't -- from paragraph 16 to 22 on pages 12 to 31 15 of Part I you discuss in detail the Legaiks and 32 their exploits on the Skeena River, and it's self- 33 explanatory, but this generally covers the period from 34 the end of the eighteenth century to about the mid- 35 nineteenth century? 36 A Yes. There are references in the Hudson's Bay Company 37 journals of Fort Simpson on the coast to Legaik, who 38 seems to be the second Legaik, and I think the last 39 ones of those or that are mentioned by Michael 40 Robinson in "Sea Otter Chiefs" comes in somewhere 41 around 1860. 42 Q I would like you to turn to the page 16 of your report 43 after your discussion -- and this is after you've 44 discussed the burning of Kispiox on page 15 by Legaik, 45 I suppose Legaik II, and then in paragraph 23 over on 46 page 16, referring to these stories or the oral 47 traditions about the Legaik, you say this about 21633 S.P. Robinson (for Province) In chief by Mr. Willms 1 halfway down: 2 3 "There are certainly no indications in these 4 stories that the Gitksan recognized that they 5 could secure European goods from sources 6 further inland--particularly from the Northwest 7 Company then Hudson's Bay Company posts in New 8 Caledonia. It was less a matter of what goods 9 they acquired than who furnished them, and how 10 they were used. There was considerably more 11 status to be gained through relations with the 12 'superior' coast people than through exchange 13 with 'inferior,'" 14 15 and you have that in quotes, 16 17 "Athabascans." 18 19 Now, are you suggesting that there was a trade 20 preference? 21 A Yes, there was, as far as I understand and from all of 22 the other anthropological reports I've read from the 23 region. 24 Q And that trade preference you're suggesting was from 25 the coast? 26 A Was to the coast. 27 Q To the coast? 28 A Yes. 29 Q And why? What is your understanding of why that took 30 place? 31 A Well, there seems to be generally a recognition that 32 the coastal people were more complex, had more 33 elaborate ceremony, had more intricate crests, titles, 34 and privilege attributes in their cultures and that 35 these were sought after by the interior people with 36 whom they traded, and the general understanding from 37 cultural ecological theory is that more complex 38 societies tend to dominate and influence less complex 39 ones and that there's generally a pattern of dominant 40 subordination that's expressed in terms of superior 41 and inferior. The anthropological use of those words 42 inferior, superior doesn't mean that one group was 43 better than or less than the other. It's simply 44 expressing this notion that the dominant, more complex 45 people were influencing the less complex people. 4 6 Q Now, why would that cause -- and we've heard about the 47 Atnahs trading with the coast rather than Trader 21634 S.P. Robinson (for Province) In chief by Mr. Willms 1 Brown. Why would that lead the Atnahs to trade with 2 the coast rather than Trader Brown at Babine Lake? 3 A Well, there was clearly an advantage in terms of 4 intercultural relations to be gained by trading 5 towards the coast by the interior people. When they 6 were trading with Trader Brown, there were only 7 economic considerations. There was a much richer 8 complex of things to be gained by trading with the 9 coastal people. 10 Q Now, I did read an extract from your references from 11 Yerbury earlier talking about coastal complexity and 12 that. Are there references -- wait a minute. We've 13 already dealt with that, so I won't deal with that 14 again. 15 Now, on page 16 in paragraph 24 you say that: 16 17 "The Gitksan were not represented by any one 18 chief during their struggles with Legaik, and 19 seemed to have lacked the political cohesion 20 that might have swung the trade wars in their 21 favour. Viola Garfield states in her 22 description of Tsimshian chiefs and 23 chiefdoms...that...'The Gitksan did not have 24 the wealth of the coastal tribes and therefore 25 did not place so much emphasis on chiefs' 26 positions. They had no tribal chiefs...'" 27 28 And in terms of tribal chiefs, that term, you 29 described that earlier as somebody who was a village 30 chief, is that -- 31 A Yes. I think the clearest example of that, although 32 it comes from just outside this region, is in the 33 Haida area there appear to have been village chiefs, 34 who also would be tribal chiefs, and they were 35 representatives of the most important house in the 36 village, the highest ranking house in the village, 37 usually the largest house in the village, and this 38 would be a position -- the tribal chief would have a 39 position that was inherited through time by his 40 nephew-successors. In the Gitksan area, according to 41 Garfield, there was more autonomy amongst the 42 constituent houses, and there was no single authority 43 prevailing over those villages. And that's what's 44 meant there in this passage. 45 Q Now, on page 17 of your report, Section IV, you 46 discuss Gitksan territorial ownership, traditional, 47 and have an overview, if I can put it this way, in 21635 S.P. Robinson (for Province) In chief by Mr. Willms 1 paragraph 25 of some of the oral traditions and the 2 settlers, and then in paragraph 26 you say this: 3 4 "Control was probably expressed most clearly 5 over areas used frequently or intensively. 6 Where conflict over resources was minimal, 7 boundaries were probably vague and faded away 8 from the village cores. I envision a patchwork 9 configuration where controlled resource- 10 producing areas away from village bases were 11 linked up by a system of trails." 12 13 Now, can you explain what you mean by this patchwork 14 configuration? 15 A A system of lines and nodes. 16 THE COURT: I'm sorry. 17 THE WITNESS: A system of lines and nodes. 18 THE COURT: Nodes? 19 THE WITNESS: Lines of transportation and communication, and 20 nodes of activity. 21 MR. WILLMS: 22 Q Now, in your references what evidence is there to 23 support the lines of communication and transportation? 24 A MacDonald has provided a couple of really detailed 25 syntheses of lines of communication through his 26 summaries of trails that went through the Gitksan 27 area. One summary is in the Kitwanga Hill Fort 28 manuscript, and the other is in the Epic of Nekt. 29 Q How about nodes of activity, other than village 30 locations? 31 A There's some historic references to hunting camps and 32 fishing stations. I'm thinking more in general terms 33 of berrying-producing grounds. 34 Q Now, I won't take you through the next paragraphs. 35 They are all, in my submission, or in my view, 36 explanatory, but if you go to page 21, paragraph 34, 37 you say in paragraph 34: 38 39 "Although rights to territorial resources were, 40 in theory, inalienable, there were several ways 41 in which these rights could be transferred from 42 one household to another." 43 44 And then the very first line in paragraph 35 you say: 45 46 "Some people in each village owned no 47 territories." 21636 S.P. Robinson (for Province) In chief by Mr. Willms 1 And in your report you have mentioned ownership from 2 time to time. Can you explain what you mean in your 3 report when you use the term owned or ownership? 4 A I'm referring to some kind of assertion of a right to 5 use exclusively. 6 Q Okay. To use what exclusively? 7 A To use a specific resource or resource-producing area 8 exclusively. 9 Q And can you -- do you have an example of that from the 10 descriptive history? 11 A Well, in the Fort Kilmaurs journals and also in the 12 Fort St. James district reports there's references to 13 beaver hunting territories that seem to have been 14 owned by certain individuals, who are called 15 respectable men. 16 Q Now, when you use the word territory, what do you mean 17 by territory? 18 A I'm referring to some discrete area defined in space 19 or definable in space over which some kind of 20 ownership, as I have defined it, is expressed. 21 Q All right. 22 A So some kind of use right is expressed over a discrete 23 resource or area. 24 Q And can you give an example once again from say the 25 descriptive history of a territorial use right, 26 exclusive use right? 27 A Well, again there seem to be territories associated 28 with beaver or beaver trapping in the historic 29 records, such as the 1822 and 1826 district reports, 30 Fort St. James. 31 Q When you speak of territory and territoriality in your 32 report, are you speaking of it in a different sense 33 than the sense that we speak of it in terms of defined 34 boundaries and things like that? 35 A Yes, and I think some of the -- the factors in 36 defining territory needs to be clarified. One thing 37 that I'm aware of is that territories could be 38 abandoned or seem to be occasionally abandoned and 39 then reclaimed by other people, and there's also 40 indication that resources could be shared, so that 41 although claims of ownership could be asserted towards 42 them, other people could use them. I'm not sure 43 exactly how these might differ from our own 44 definitions, but they seem to be things that might be 45 useful considerations. 46 Q Now, do these ownership rights, that is the right to 47 exclusive use of a particular resource and the 21637 S.P. Robinson (for Province) In chief by Mr. Willms 1 territoriality associated with it, does that vary from 2 resource to resource or is it constant? 3 A It seems to have varied. Probably better examples I 4 can draw on are from the coastal area, where discrete 5 ownership would be asserted sometimes with regards to 6 berrying grounds or berry patches and yet they seem to 7 have been used by all the women members of a 8 community. In contrast to that, and I'm using another 9 historic example, it seems that sea otter hunting was 10 communal, and there were very specific regulations 11 regarding who got what, allocate what part of the 12 catch. 13 Q Now, is there a general example from your ethnographic 14 references of the same kind of territoriality and 15 ownership that you're speaking of from an adjacent 16 area? 17 A Well, I think -- I think Catharine McClellan describes 18 some kinds of territorial use. For the hunting 19 territories that we were discussing earlier from the 20 historic records, Bishop describes those in some 21 detail and assigns them to the protohistoric period. 22 Q All right. Now, could you turn to Exhibit 1188 and 23 turn to tab 7, and at tab 7 is an extract from 24 Catharine McClellan, "My Old People Say." Is this the 25 reference that you were referring to? 26 A Yes. 27 Q There's an extract from page 481. And if you turn to 28 page 482, from the extract you'll see she has a title 29 "Concepts of Territoriality and Land Ownership," and I 30 won't go through -- first of all I should ask you 31 without -- is this a section of this reference which 32 defines concepts of territoriality and land ownership 33 in a manner similar to your definitions here? 34 A Yes. And what's particularly useful about McClellan's 35 description is that she's looking at three different 36 groups of people adjacent to the Coast Tsimshian -- or 37 Coast Tlingit people who had variously adopted some of 38 the coastal customs, some of which pertained to the 39 use of -- of territories, and so she's able to look at 40 ownership and rights of use in terms of those. 41 Q Now, in particular, on page 483 in the right-hand 42 column Dr. McClellan says this in that paragraph 43 beginning, "People..." 44 45 "People think of the land primarily in terms of 46 drainage systems. It is probably significant 47 that 'free' lands seem usually to have 2163? S.P. Robinson (for Province) In chief by Mr. Willms 1 consisted of the heights of land between 2 drainage systems or stretches of flats or bog 3 which had no prolonged seasonal value. They 4 contained no good fishing spots, no great 5 concentration of fur bearers, no localities 6 where easily exploited caribou migrations might 7 be expected. In short, 'free land' had no 8 definite economic attraction which would bring 9 people to it on a regular annual basis so that 10 a family would attempt to build up exploitive 11 rights by returning to the same place year 12 after year." 13 14 Now, can you comment on that and the relationship 15 between that description and the evidence concerning 16 the Gitksan and the Wet'suwet'en area? 17 A Yes. What she's describing here is something that 18 several of the other authors I've mentioned earlier 19 also picked up on. Mike Cranny describes this as a 20 coarse-grained kind of resource use, where areas that 21 are not productive or known to be particularly 22 productive are simply not laid claim to. And what we 23 have in the system of nodes and lines is that the 24 nodes are productive resource areas or areas that 25 people are actually inhabiting at one time of year or 26 another, and the lines of communication and 27 transportation are what link them up in the system. 28 So McClellan's description here is just another 29 example of this. 30 Q Now, you mentioned a moment ago of instances where 31 territories could become vacant and then be 32 reacquired, and I wonder if you could turn to page 71 33 of Part II of your report, and here on page 71 you 34 have reference -- your support references for 35 paragraph 34, and the first reference from Garfield: 36 37 "Lineage heads also acquired exclusive rights 38 [to exploit resources districts] by gift, as 39 compensation for murder of a relative or other 40 wrong, by occupying and using unclaimed 41 territory, by discovery and by seizure...In 42 theory, right to territories, properly 43 validated in potlatches and established by use 44 and occupancy, were inalienable. Actually, 45 there is amply," 46 47 and it must be ample. 21639 S.P. Robinson (for Province) In chief by Mr. Willms Ample. 1 A 2 Q 3 4 5 6 7 8 9 10 11 12 13 14 A 15 16 17 18 19 20 21 MR. WILLM 22 23 THE COURT 24 25 MR. WILLM 26 27 THE COURT 28 29 30 31 MR. GRANT 32 33 THE COURT 34 35 36 MR. GRANT 37 38 39 THE COURT 40 MR. GRANT 41 THE COURT 42 MR. GRANT 43 44 THE COURT 45 MR. GRANT 46 47 THE COURT "...evidence that these rights did change hands even before the Whites arrived to disrupt former patterns. Right extended as a temporary courtesy to newcomers sometimes became permanent through occupation. Failure to use an area was regarded as abandonment and the district was opened to new claimants." Now, is that one of the references to the evidence that you gave a moment ago about vacancy and acquisition? Yes. And another reason why I've talked about this changing, this scenario changing through time is that some areas might be used and then abandoned in later years and then reused again, and perhaps by different groups. That seems to be generally the pattern that holds for the whole northwestern region as far as I can determine. : Now, my lord, I'm not quite finished, but I am going to turn to a different topic. All right. You say you're not quite finished. Will you finish early tomorrow? : My lord, I expect I will be finished probably within half an hour. All right. Well, in view of that, Mr. Grant, is there any reason why we shouldn't carry on on Saturday and finish this witness rather than divert ourselves to something else? I'm going to make the effort to -- for that strategy. Yes. I don't think you should feel under any obligation to finish on Friday. We can easily sit Saturday. No, I understand. I understand you wish to sit on Saturday for this witness or for reading in if necessary. For some reason. For some reason. Yes. I -- I also understand you'd prefer it if I could deal with this witness on Saturday. Yes. And that's where -- I'm keeping that in mind now that my friend is much shorter than I had anticipated. All right. Thank you. Ten o'clock. 21640 S.P. Robinson (for Province) In chief by Mr. Willms 1 THE REGISTRAR: Order in court. Court stands adjourned until 2 ten o'clock tomorrow. 3 4 (PROCEEDINGS ADJOURNED AT 4:00 P.M.) 5 6 I hereby certify the foregoing to be 7 a true and accurate transcript of the 8 proceedings herein to the best of my 9 skill and ability 10 11 12 13 Leanna Smith 14 Official Reporter 15 United Reporting Service Ltd. 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
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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Original Format: University of British Columbia. Library. Law Library.
[Proceedings of the Supreme Court of British Columbia 1989-10-25]
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