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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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26903 Submissions by Mr. Willms 1 MAY 18, 1990 2 VANCOUVER, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 18th day of May, 1990, Delgamuukw 6 versus Her Majesty the Queen at bar, my lord. 7 THE COURT: Mr. Willms, I omitted to remember — I forgot when 8 you mentioned an evening sitting on Tuesday that I had 9 made a commitment for Tuesday. I didn't make it until 10 I was told that we weren't going to be having the 11 evening sitting. 12 MR. WILLMS: Yes. 13 THE COURT: It isn't essential that I be there. I could hang in 14 here and carry on. It was arranged partly for my 15 convenience. I could sit Tuesday or Wednesday. 16 MR. WILLMS: You mean Wednesday or Thursday. 17 THE COURT: Wednesday, Thursday evening. 18 MR. WILLMS: All right. It's just — I will see how I am at the 19 end of the day, and maybe I can -- we won't need it. 20 But it wouldn't matter which day. We just wanted to 21 pick one day next week. 22 THE COURT: As I say, I can sit either Wednesday or Thursday, or 23 we can hang in here if we have to. 24 MR. WILLMS: I would still like to sit until 5:30 on Tuesday, 25 and then perhaps we could tentatively mark in Thursday 26 night then. 27 THE COURT: I won't make any more commitments next week, unless 28 I get a better offer. 29 MR. WILLMS: My lord, I was on page 25 of my argument in 30 paragraph 42. And I had referred to the diagram from 31 Dr. Bishop and Dr. Ray's report, and I am going to 32 carry on in the middle of the page. And I submit that 33 Dr. Mills and Dr. Daly relied wholly on what they were 34 told by their informants, not only as to present 35 events, but past events as well. As Dr. Mills said 36 and accepted, the Wet'suwet'en perceived themselves as 37 having been in situ in the location where they are 38 found now since the very earliest times that this is 39 basically their homeland. And I submit, my lord, that 40 perception is not evidence that they were actually in 41 situ since the earliest times. 42 I also submit, my lord, and this is at the bottom 43 of page 25, that in coming to their conclusions about 44 occupation, this is prehistoric occupation, both Dr. 45 Mills and Dr. Daly appear to have substituted partisan 46 subjectivity for scientific objectivity. 47 At the top of page 26 I say the opinions of Dr. 26904 Submissions by Mr. Willms 1 Mills and Dr. Daly ignore or misinterpret the 2 historic, linguistic and archaeological evidence 3 respecting where people lived in the prehistoric past 4 and deserve no weight. A fundamental problem with the 5 evidence given by Dr. Daly, Dr. Mills and Mr. Brody is 6 that they think it is in the best interest of the 7 Gitksan and Wet'suwet'en for the anthropologists to 8 help reconstruct and record their history. That was 9 put by my friend Mr. Grant, that proposition was put 10 to Dr. Robinson, and her response, in my submission, 11 was the appropriate response for an anthropologist, 12 and it was that she would not want to speak for the 13 Gitksan and the Wet'suwet'en about what is in their 14 best interest. She wouldn't presume to do so. And I 15 take from that that what she would do is do her 16 anthropological, archaeological or cultural geographic 17 work without interest to anybody's so-called best 18 interests. 19 MR. GRANT: Just so that I can be clear. That quote of the — 20 "it is in the best interest", was that something put 21 to Dr. Daly, Dr. Mills or Mr. Brody by my friend? 22 MR. WILLMS: No. It's one handy thing about the yellow binders, 23 and this is how the yellow binders work. My friend 24 can go to tab 43 and find the evidence in support of 25 the submission, and so at tab 43 you will see there, 26 my lord, my friend Mr. Grant putting that proposition 27 to Dr. Robinson as if that's the appropriate way to do 28 research. And what I am submitting is that since Mr. 29 Grant is putting that to Dr. Robinson as the 30 appropriate way to do research, that must have been 31 the way that Dr. Daly, Dr. Mills and Mr. Brody did it. 32 THE COURT: Of course there is a quality that's missing in your 33 submission, and is presumably of the question that 34 it's in their interest to help them reconstruct and 35 record their history is presumed to be that that's to 36 be done objectively. That would be in their interest. 37 MR. WILLMS: And I deal with that in the next paragraph, My 38 Lord. 39 THE COURT: All right. 40 MR. WILLMS: I will deal with the approach that was taken, I 41 say, by Dr. Mills, Dr. Daly and Mr. Brody. I say 42 first of all that it appears clear from the contracts 43 signed by the experts for the plaintiffs, and your 44 lordship has seen those contracts where everything is 45 basically subject to the okay of the Gitksan, 46 Wet'suwet'en Tribal Council, that they were ready to 47 present the Native Canadian viewpoint when called upon 26905 Submissions by Mr. Willms 1 to interpret the cultural historical record. And, my 2 lord, if you can turn to tab 44 in the yellow book, 3 you will see Dr. Robinson's cross-examination by Mr. 4 Grant, and Mr. Grant is putting -- starting to put a 5 proposition to Dr. Robinson here at line 29. And what 6 Mr. Grant is reading from is a work by Dr. Leacock. 7 And he reads this: 8 9 "Indeed, it is sheer racism to imply that 10 somehow the latter should not have changed 11 greatly over time, and straight chicanery to 12 argue that since they have they are no longer 13 the same peoples." 14 15 And I emphasize the next. 16 17 "In the end, it is more than meticulous 18 scholarship that counts." 19 20 Which take to be objective scholarship. 21 22 "It is an anthropologist's ability and readiness 23 to participate in public hearings and present 24 the Native Canadian viewpoint when called upon 25 to interpret the culture historical record." 26 27 And I say, my lord, that that is the big 28 difference in the approach that Dr. Robinson took to 29 the approach of Dr. Daly, Dr. Mills and Mr. Brody. 30 All there's of the plaintiffs' experts that I have 31 mentioned, and you can put Dr. Galois in there as 32 well, because he admitted as much in his 33 cross-examination, were approaching everything from 34 the plaintiffs' viewpoint. And that is the approach 35 that they brought to bear. 36 What I say is that Dr. Robinson didn't go in with 37 any approach. She went in with an idea. She went in 38 with a theory, a theory that she developed in the 39 dissertation, and a theory which she fleshed out in 40 her evidence presented to this court, so that she had 41 a theory before she started, and then found further 42 evidence to support that theory. Here the plaintiffs' 43 experts have all, in my submission, been advocates for 44 the plaintiffs' point of view, not for their own 45 theories. 46 I'll come back to Dr. Ray in a moment, my lord, 47 because that's clear from Dr. Ray when he changed his 26906 Submissions by Mr. Willms 1 opinion, and it's clear as well from the fact that Mr. 2 Overstall deleted part of Dr. Rigsby's opinion, in my 3 submission. 4 Now, I am in particular in paragraph 44 dealing 5 with Dr. Mills, because Dr. Mills then herself wrote, 6 and this is a note to Dr. Galois: 7 8 "We are commissioning Lame Arthur's son 9 now." 10 11 We are now -- she as part of the plaintiffs' team 12 was taking part in the commission evidence of a lay 13 witness, and we are commissioning him now. And 14 then -- and I would like to read the part of the 15 flowery funeral speech, and that's her words, at the 16 service for Moses David, and that's at page 8, my 17 lord, of tab 44. And here is -- starting at line 13 18 of page 8. This is quoting from what Dr. Mills 19 herself wrote. She said: 20 21 Q 'I am working for the G.W.T.C. on the land 22 claims case.' 23 Do you see that? 24 A Yes. 25 Q And then you went on to say how you would come 26 to know Moses David? 27 A Uh-huh. 2 8 Q And you recount some meetings you had with 29 Moses David? 30 A Yes. 31 Q And at the bottom you say: 32 'Moses is no longer in the body so he 33 cannot carry on the land claims work, but 34 from wherever he is he is looking down and 35 hoping the injustice will end and that it 36 will be on earth as it is in heaven.' 37 A My goodness. Flowery funeral speech." 38 39 Now, it is my submission, my lord, that in 40 assessing the evidence of the experts in this case, 41 that comments like that, and I will come to a comment 42 by Dr. Daly a little later in my submission, and I 43 will come to Mr. Brody later in my submission as well, 44 but when you are considering those three individuals, 45 they were not only advocating a viewpoint, they were 46 partisan in their advocacy. So it's more than just a 47 scientist who is advocating their own scientific 26907 Submissions by Mr. Willms 1 viewpoint. In my submission these people were 2 advocating the plaintiffs' point of view as well. And 3 I say that at the bottom, my lord, I say that the best 4 that can be said about the plaintiffs' anthropologists 5 is that they were advocates for the plaintiffs in 6 presenting the plaintiffs' viewpoint. The other 7 alternative is that these anthropologists feel obliged 8 to provide expert paternalism and guardianship to the 9 plaintiffs. And I say that because they appear to 10 think that they know what's in the plaintiffs' best 11 interests, in my submission. This is a submission. 12 MR. GRANT: I just want to be clear that that quote my friend 13 referred to that's in tab 43 is a quote from Eleanor 14 Leacock, which I asked Miss Robinson about. But I 15 wonder if my friend has any evidence in support of 16 that last statement that he makes there. I say there 17 is no evidence of that, and my friend, of course, 18 doesn't have any citation in support of that 19 proposition. 20 MR. WILLMS: My lord, what I rely on is I rely on my friend Mr. 21 Grant's question to Dr. Robinson as my friend not 22 trying to mislead Dr. Robinson, but seriously 23 suggesting to Dr. Robinson that what he's quoting is 24 the appropriate way to do field work. That's what I 25 am relying on to start with, that my friend wasn't 26 trying to trick Dr. Robinson, that he actually meant 27 what he said, and that that was an appropriate way do 28 field work. 29 The second thing that I am relying on in that 30 case, my lord, is the evidence of the witnesses 31 themselves. And I have talked a bit about Dr. Mills. 32 The last line on the top of page 27 where I say the 33 only people who appear to have no say in what is in 34 their best interests are the inhabitants of the claim 35 area, native and non-native, who do not happen to be 36 hereditary chiefs. And I say that because Dr. Mills 37 acknowledged -- Dr. Daly acknowledged that they only 38 talked to, except for very few exceptions, hereditary 39 chiefs in coming to their conclusions. 40 Dr. Daly in coming to his conclusions about the 41 seasonal round didn't consider that the seasonal round 42 for the native population might be very close to the 43 seasonal round for the non-native population in 44 Kispiox. They might both go hunting for moose, and 45 your lordship heard some evidence from witnesses who 46 live in the land claim area, that they carried on 47 their lifestyle very similar to the way that the 2690? Submissions 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 plaintiffs carried on their lifestyle. So that's the non-natives. And in respect of the native people who aren't chiefs, just rely on Dr. Daly's admission, which I am going to come to later, and Dr. Mills' acknowledgement, that they basically talked to hereditary chiefs and that was it. I'll get to that later on in my submission when I talk about Simgiget, Lixgiget and the class society. THE COURT: Mr. Grant, it seems to me that the bottom of page 26 Mr. Willms made it clear that he was making an argument. He said the other alternatives were that these anthropologists feel obliged. Seems to me that is a submission. Just the two sentences. I just -- I mean, it's just that none of this kind of a proposition was in my submission put to the three experts which he is now dealing with. I think it clearly was put to them that they were not objective. The suggestion was made to them. They refuted it, as most subjective people do. Most of us think we are objective. Sometimes we are. Well, yes, and he's made it clear now what he is referring to by reference to Eleanor Leacock's statement to Dr. Robinson, and that's what he is relying on, and that answered that question. COURT: All right. Thank you. WILLMS: Carrying on, my lord, in paragraph 45. I say that if there is any consistent interpretational thread to prehistoric, proto-historic and historic occupation in the area, it is that the fur trade seems to have spurred the Gitksan occupation of the middle Nass and especially the Upper Nass and the Upper Skeena. And on that point, my lord, at tab 45, if I could ask your lordship to turn to page 7, and at the top of the page, my lord -- and this is Dr. Ames from the Skeena River pre-history exhibit, but this is Dr. Ames speaking. Dr. Ames says in the first -- Excuse me a minute, Mr. Willms. If I could find out where the reference is that you are referring to, it would make it easier for me to find it. WILLMS: The reference is Exhibit 881A-7, and, my lord, what I have done in this document is the exhibit numbers are on the first page. When you go through the yellow book. COURT: Yes. WILLMS: For example, if you look back two pages from page 7, if you look back to page 5, you will see up in the MR. GRANT: THE COURT: MR. GRANT: THE MR. THE COURT: MR. THE MR. 26909 Submissions by Mr. Willms 1 upper corner 881A-7. And that's the way the book is 2 set up, so that if there is an exhibit in here on the 3 very first page that comes from that exhibit. 4 THE COURT: I haven't found it yet, but — 5 MR. WILLMS: It's right across from the middle three-hole punch 6 on that page over the right-hand side, 881A-7. 7 THE COURT: All right. Thank you. 8 MR. WILLMS: All right. And, my lord, I am going to point to 9 two places in this exhibit. The first line: 10 11 "Linguistic and ethnographic evidence indicated 12 that the Gitksan, the interior extension of the 13 Tsimshian, were the result of the enculturation 14 of Athapaskan speakers." 15 16 And Dr. Ames refers to Rigsby 1969 and John Adams, 17 "The Gitksan and Potlatch 1973". And then over to 18 page 10. 19 THE COURT: He says there was a major Gitksan settlement in 20 Hazelton in 1820. 21 MR. WILLMS: In 1820. 22 THE COURT: Yes. 23 MR. WILLMS: My lord, I think the reference there may be to the 24 divided village, and there are some references to the 25 divided village. But he does say that. He says that 26 there is a village there at 1820. We have been 27 through the historical documents, my lord, but he says 28 that. 2 9 THE COURT: Yes. 30 MR. WILLMS: My lord, over to page 10. 31 THE COURT: Yes. 32 MR. WILLMS: "From the data outlined above". It's the last 33 paragraph. 34 THE COURT: Yes. 35 MR. WILLMS: 36 37 "... we can develop a tentative schedule for the 38 upriver extension of Tsimshian social 39 organization within the last two millenia. 40 Some form of ranked society probably developed 41 within the Prince Rupert Harbour by 500 B.C. 42 This system had extended up the Lower Skeena by 43 A.D. 1000, relying upon both Rigsby's and 44 Allaire's dates. It would appear that the 45 process above Kitselas had not been completed 46 by the 1830's judging by Adams' reading of 47 Barbeau's notes. It may be that enculturation 26910 Submissions by Mr. Willms 1 was intensified by a development of a closed 2 population system within the last hundred years 3 or so." 4 5 Now, I am going to turn to the two references, the 6 Rigsby reference and the Adams reference, because they 7 were both the subject of comment by Dr. Kari. 8 THE COURT: What do you think is a closed population system? 9 MR. WILLMS: I think a closed population system, my lord, is 10 where there are -- there is no more enculturation 11 taking place, that things have settled down. 12 THE COURT: Where culture is static? 13 MR. WILLMS: My lord, the whole article deals with closed 14 population systems, and all I can do is commend the 15 article to you. 16 THE COURT: You can't tell me what they suggested -- you think 17 it means -- 18 MR. WILLMS: The closed pop -- the theory of closed population 19 system, as I understand it, is that they are 20 attempting to determine where you get a stable 21 population in a particular location, and then you 22 figure out whether there are enough resources around 23 to maintain that population level, without in 24 migration and out migration. That's what I understand 25 it to be. 2 6 THE COURT: All right. 27 MR. WILLMS: Now, the next reference, my lord, is to page 17 of 28 this tab, and this is to exhibit -- page 17. This is 29 883-1. That's the exhibit that is being referred to 30 here. And this was a draft of the Rigsby, Kari 31 report. And in the draft starting at the top of the 32 page the draft said: 33 34 "There is also some tantalizing evidence for 35 transitional bilingualism involving language 36 shift from Athabaskan to Gitksan. Adams says: 37 38 ... as recently perhaps as the 1830s half the 39 inhabitants of Gitsegyukla spoke the Hagwilget 40 language and the village of Kitwancool was 41 'half Stikene'. 42 43 Adams was one of the Northwest Coast 44 Ethnologists for the National Museum of Canada 45 and he worked through many of Marius Barbeau's 46 unpublished fieldnotes. And Jenness says: 47 26911 Submissions by Mr. Willms 1 "...Some Wet'suwet'en assert, indeed, that the 2 inhabitants of Gitwinkul itself once spoke the 3 T'set'saut Athabaskan tongue ..." 4 5 If these reports are correct, this provides 6 further support for the proposition that the 7 Gitksan were a primary reference group for 8 Athabaskan speakers rather than vice-versa." 9 10 Now, at page 18 you will see that I put that 11 deletion to Dr. Kari starting at line 34. I said: 12 13 "Q At the bottom of the page you have got the 14 words 'Thus the linguistic evidence', but the 15 whole paragraph about the tantalizing evidence 16 about transitional bilingualism -- 17 A That's missing, isn't it? 18 Q That's all been deleted, hasn't it? 19 A Gee, I didn't know that. I certainly wouldn't 20 want to take that out. 21 Q No. You would want that in, wouldn't you? 22 A Yeah. There is nothing controversial about it, 23 I mentioned it here in court yesterday, and I 24 guess you are right, it really wasn't in our 25 report, was it, the Adams' quote is not in our 26 report? 27 Q No. 28 A That's a good point. Can we add it? 29 Q Well, all I want to know, the first page is if 30 you adopt that it can be added. You think that 31 should be in? 32 A Well, I —" 33 34 And your lordship said: 35 36 "It is in." 37 38 And there is a section of the report that was 39 taken out and put back in, and I submit it was taken 40 out by Richard Overstall, because it's inconsistent 41 with the plaintiffs' theory. 42 THE COURT: When I said "It is in", I was referring to the fact 43 that it had already been read. 44 MR. WILLMS: I would say not only that when your lordship said 45 that it's in, you are referring to the fact that it's 46 already read, but Dr. Kari clearly adopted it as part 47 of his evidence. He thought it was great. 26912 Submissions by Mr. Willms 1 Now, turning over to page 21, I put another -- and 2 this is to Dr. Kari again. I put another deletion, 3 and this is a deletion from the draft -- this did not 4 go into the final, but starting at line 9: 5 6 "Many small Athabaskan-speaking hamlets and 7 local groups, such as the Gitxsinjihl of 8 Caribou Creek must have been gradually and 9 peacefully Gitksanized in socioculture and 10 speach. The fur trade seems to have spurred 11 the Gitksan occupation of the Middle Nass, and 12 especially the Upper Nass and Upper Skeena 13 territories. As many oral traditions testify, 14 this was not a peaceful gradual process, but 15 some Athabaskan place names were retained. It 16 is interesting to note that there were no 17 Gitksan permanent winter villages on the Middle 18 or Upper Nass, nor on the far Upper Skeena. 19 There were summer fishing camps and 20 hunting-trapping grounds in these territories, 21 but the real bases of operation were the large 22 winter villages at Kitwancool, Kispiox, 23 Kisgegas and Kuldoe. It was during this same 24 period of the fur trade that the Nishga and the 25 Tlingit, along with epidemic disease, reduced 26 the Tsetsaut Athabaskans of Portland Canal to a 27 handful of survivors by the turn of the 2 8 century." 29 Now, just first of all, Dr. Kari, did you 30 have anything to do with taking that out of the 31 final? 32 A No. 33 Q But recognize that this is Dr. Rigsby's view in 34 1987? 35 A Yes. I think you are right." 36 37 So it is my submission, my lord, that the 38 statement that I make in the first part of the 39 paragraph on page 27 is not only supported -- and I 40 haven't read the other references, the references to 41 Dr. Robinson, the references to the "Epic of Nekt", 42 and the other references which are all consistent with 43 the Gitksan move into the Upper Skeena and the middle 44 and the Upper Nass in response to the fur trade. 45 The next point, my lord, carrying on after all of 46 the references that I have given there. Well, perhaps 47 I will, my lord, refer to what Ms. Albright said, 26913 Submissions by Mr. Willms 1 because it's at page 29 of the -- I'll add one more 2 reference. It's at page 29 of the yellow book, and I 3 ask Ms. Albright this because she did work with the 4 Tahltans, Tahltan Ethnoarchaeology. And the question 5 is at line 4: 6 7 "Q In your Tahltan ethnoarchaeology, did you 8 become aware during your research there or your 9 research in preparing for your 10 ethnoarchaeological evidence here, aware that 11 Tsetsault? 12 A Yes. 13 Q And at one point the Tsetsault were located as 14 a group somewhere between the Tahltans, who you 15 investigated, and the Gitksan? 16 A Yes." 17 18 Now, the next point, my lord -- 19 THE COURT: I have lost a little bit of my recollection. Is it 20 the case that at the present time there are no 21 T'set'saut in that area? 22 MR. WILLMS: I don't think there are any T'set'saut at all. And 23 I understand from the evidence that the language is 24 extinct, and that it was a combination of warfare and 25 disease. 26 THE COURT: A moment ago we saw some reference, was it, that the 27 T'set'saut were at the Portland Canal. 28 MR. WILLMS: Portland Canal across, my lord. And I wanted to 29 put up Exhibit 875 on the board, and I may turn to 30 that later, but Exhibit 875 is the Suttles map. Dr. 31 Kari gave evidence that that map represented 32 linguistic divisions at the time of contact. 33 THE COURT: Yes. 34 MR. WILLMS: And the Suttles — perhaps I could get the exhibit 35 and come back to this, My Lord. But the Suttles map, 36 if you took a pen and went and drew a line from Kuldoe 37 about over to Bear Lake and went north, the word 38 "T'set'saut" is in there from that line north. 39 THE COURT: Do you know the number of the Suttles map? 40 MR. WILLMS: Exhibit 875. Perhaps while we are waiting for the 41 map, I'll just finish -- I say towards the bottom of 42 page 27 the Gitksan also appear to have "lodged 43 between the Kitimat and the Bulkley River Carrier like 44 a wedge" in the last few centuries. And the reference 45 there, my lord, is at page 36 of the yellow book, 46 which is an extract from Jenness. 47 THE COURT: I'm sorry, you move to where? 26914 Submissions by Mr. Willms 1 MR. WILLMS: I have now moved to page 36. 2 THE COURT: Yes. 3 MR. WILLMS: And this is from Exhibit 908, which was marked 4 during Dr. Mills' evidence in chief, and at the bottom 5 of page 36, this is Dr. Jenness speaking: 6 7 "Still another coast people with whom the 8 Bulkley Carrier came into conflict were the 9 Kitimat Indians of Douglas Channel, a Kwakiutl 10 speaking people who sometimes hunted beyond the 11 divide of the Cascade Mountains within the 12 basin drained by the Zymoetz and Telkwa Rivers. 13 It is noteworthy that both the Kitimat and the 14 Carrier Indians were divided into five 15 phratries, one of which was named the Beaver, 16 and that neither a five-phratry division nor a 17 phratry called the Beaver seems to appear 18 anywhere else in Briitsh Columbia. This 19 supports the tradition of the Bulkley Carrier 20 that they borrowed several features in their 21 peculiar social organization from the Kitimat 22 Indians, and suggests that a few centuries ago 23 the contact between the two peoples may have 24 been more intimate than in recent times when 25 the Gitksan have lodged between them like a 2 6 wedge." 27 28 THE COURT: The two people he is talking about is the Kitimat and 29 Bulkley Carrier. 30 MR. WILLMS: The Kitimat and the Bulkley Carrier? 31 THE COURT: Yes. 32 MR. WILLMS: And for another movement of the Carrier, my lord, I 33 carry on at the bottom of page 2. The Bulkley River 34 Carrier appears to have moved south around Eutsuk Lake 35 in the 1830s. And my reference there is to the 36 cross-examination of Dr. Kari at page 39 of this tab 37 of the yellow book. And here Dr. Borden is being 38 quoted to Dr. Kari here, but Dr. Jenness came to the 39 same conclusion. And here is the conclusion: 40 41 "The Cheslatta made annual trips to Tahtsa, 42 Whitesail, Eutsuk, and other lakes of this area 43 to hunt mountain-goat, bear, and caribou, and 44 to gather berries." 45 46 And then a little further down the author mentions 47 that: 26915 Submissions by Mr. Willms 1 2 "The Cheslatta are now almost extinct. Only a 3 few of their ancestors survived repeated 4 smallpox epidemics in the late part of the last 5 century. Later in the nineteenth century the 6 Bulkley River Carrier took over much of the 7 former hunting territory of their ill-fated 8 neighbours." 9 10 And then he refers to Jenness at page 475, which 11 is also an exhibit. 12 13 "Q And you hadn't seen that anthropological 14 reference? 15 A That is correct. I've never seen this article 16 before. 17 Q And you're not in a position to say whether or 18 not that is a reasonably accurate 19 reconstruction of what had happened in the 20 southern area? 21 A I haven't researched Cheslatta territory and 22 it -- from what I know about Athabaskan 23 territory, I mean these folks could easily have 24 mutual territory." 25 26 And I take Dr. Kari's answer to apply to all of 27 the Babine, Wet'suwet'en and the Athabaskan people 28 that he studied. This didn't surprise him in the 29 least, that Dr. Jenness had come to this conclusion 30 and Dr. Borden had come to the conclusion. 31 THE COURT: These two quotes on your page 39 are from Dr. 32 Borden? 33 MR. WILLMS: Both from Dr. Borden. The quote from Dr. Jenness 34 is at page 42 of the yellow book. 35 MR. GRANT: My friend said that Dr. Kari adopted Borden. Is 36 that statement that my friend's quoted, is that where 37 he says he adopts Borden? Is that what he is relying 38 on? 39 MR. WILLMS: What I am suggesting is what I said just a moment 40 ago, that Dr. Kari was certainly not surprised that 41 the Cheslatta people might have been there, because 42 common or mutually held territory, as I understand Dr. 43 Kari's evidence, is quite common. But on page 475, my 44 lord, at the very bottom of the page: 45 46 "Two or three families even roam occasionally as 47 far south as the Eutsuk Lake area, which the 26916 Submissions by Mr. Willms 1 Bulkley people incorporated into their 2 territory after the earlier inhabitants, who 3 seem to have formed a distinct subtribe, were 4 destroyed by an epidemic of smallpox about 5 1838." 6 7 And that's the reference to the Cheslatta people. 8 And I haven't read all the references, my lord. All 9 the references are in this tab that I have cited, but 10 it is my submission that from the evidence as recently 11 as the time of contact there were massive population 12 dislocations in this area, and that the Gitksan moved 13 up the Skeena River in response to the fur trade and 14 into the Upper Nass in response to the fur trade, that 15 they moved into an area to interpose themselves 16 between the Bulkley River Carrier and the Kitimat 17 Indians, and further that the Bulkley River Carrier 18 moved south from the Bulkley River into the area 19 around Eutsuk Lake. And that's in the 1830's. 20 Now, my lord, I will come back to this later on 21 when I talk about reputation evidence as to 22 boundaries, and also when I deal with the overlap 23 maps. But it's very interesting to note that the 24 Carrier Sekani overlap coincides with Dr. Jenness's 25 conclusion and Dr. Borden's conclusion, and that the 26 Carrier Sekani are claiming this same territory. 27 My lord, this is the Suttles map, and over -- it's 28 the same view. 2 9 THE COURT: I'll come down. 30 MR. WILLMS: And you can see, my lord, that the Nass Gitksan 31 language is shown about the middle coming up, and you 32 will see Kuldoe named there, and then to the north 33 T'set'saut, and then immediately if you follow to the 34 north end of Takla Lake, there is a lake there which 35 could be Bear Lake. It's in that vicinity. And the 36 Sekani area you got Thutade Lake further over to the 37 left. 38 THE COURT: Yes, right. Thank you. 39 MR. GRANT: I just wanted -- where did he say the Gitksan -- my 40 note was you said the Gitksan moved up the Skeena in 41 response to the fur trade, and in my friend's 42 proposition where is he saying they moved from? 43 MR. WILLMS: From down the river, my lord, then they moved up 44 the river. Now, if I can carry on. 45 MR. GRANT: Well, I'm sorry, was that -- there -- is he saying 46 that they moved from across all the way from the coast 47 inland, or from the interior part of the river up? 26917 Submissions by Mr. Willms 1 That's what I am trying to get clear. 2 MR. WILLMS: Well, my lord, Dr. Rigsby and Dr. Adams talk about 3 a process that appears to have been settled to 4 Kitselas Canyon, but not settled beyond Kitselas 5 Canyon even as late as the 1830's. So up river from 6 at least Kitselas Canyon. 7 Now, there is no question, my lord, that, for 8 example, the archaeological evidence of Dr. MacDonald 9 shows in the late prehistoric period someone 10 inhabiting Kitwanga Fort, that fortress site, which is 11 to north. 12 THE COURT: I'm sorry, when? 13 MR. WILLMS: In the late prehistoric period you will recall that 14 from the extract that I read there were five artifacts 15 that he assigned to the prehistoric level. 16 THE COURT: Yes. 17 MR. WILLMS: Late prehistoric. The real point, though, my lord, 18 is that when you put Adams' work into this, and the 19 fact that you have Stikene speakers as late as 1830 in 20 Kitsegukla, and I am going to get to the oral 21 histories in a minute, the oral histories of all of 22 the warfare that is going on at this time between the 23 people called the T'set'saut people and the Kuldoe 24 people and the Kitwancool people, that what these 25 experts have concluded is supported by the plaintiffs' 26 own oral histories. 27 And that's where I turn to next, my lord, at page 28 28. And I submit in paragraph 46 that it has been 29 suggested that the oral histories themselves are 30 evidence of occupation by the plaintiffs in the claim 31 area since time immemorial. Although the use and the 32 value of oral histories has been dealt with in greater 33 detail in Part II.3 of this summary, here it is 34 sufficient to say that the oral histories in and of 35 themselves, where they contain mechanisms for dating, 36 are consistent with the recency of occupation. 37 And the appendix to follow, my lord, if I can hand 38 that up. And this can be an appendix to this part, my 39 lord. And I'll just describe how the appendix works. 40 In the appendix it starts off by listing the name of 41 where the oral histories are from and the exhibit 42 number. So these are only the histories that are 43 exhibited in these proceedings. And then throughout 44 what are pointed out here, and I don't intend to go 45 through these, but what are pointed out here are what 46 I submit are historical indicators in each of the 47 adaawks. And some of the historical indicators, and 2691? Submissions by Mr. Willms 1 your lordship may recall this from some of my 2 cross-examination of Ms. Marsden, are things like 3 copper shields, guns, sailing ships, sails, moose, 4 umbrellas, references to illnesses like smallpox. And 5 I think it's pretty self-evident, my lord, when you go 6 through the way that it's set up, I tried to put a 7 page reference within the oral history and maybe a 8 better example, because the first -- "The Men of 9 Mediik" and "The Wars of Mediik", as I understand 10 them, are said to have a depth going back to Temlaxam. 11 And Temlaxam starts on page 6 here of the 12 appendix, and you will see I am suggesting that a two 13 story house is historic. That's not a traditional 14 Daak style house. 15 I am suggesting that light hair, for example, in 16 1047-20 is an indicator. 17 I am suggesting that guns, and then down to 18 1047-62, Hai'mas, and that's because Miss Marsden 19 acknowledged that Hai'mas was really a pre-eminent 20 figure in the proto-historical period. And then it 21 carries on. Hudson's Bay Posts, copper shields and 22 going down to Victoria. 23 So what I submit, my lord -- as I have said, I 24 don't intend to go through this, but I submit in that 25 passage that when the oral histories are reviewed, 26 there are internal clues to date them, and of course 27 you may recall that Miss Marsden, except for the 28 grizzly bear which was a landslide or the landslide 29 which was a grizzly bear, hasn't attempted to date, 30 independently date anything which she's done. 31 Now, I do want to deal with one point, my lord, 32 and this is a point that was made in this trial, and 33 it's at the bottom I describe an instance at the 34 bottom of page 28 where when you read a story, an oral 35 history, it appears to be in the historic period, 36 because it says Kispiox was founded by an informant's 37 great grandfather, and further the great grandfathger 38 lived at Temlaxam. And I say this would place the 39 founding of Kispiox and the existence of Temlaxam in 40 the proto-historic period. 41 Now, its been suggested from time to time, my 42 lord, that great grandfather just means ancestor, and 43 that you can't take a great grandfather from an adaawk 44 as meaning anything. It doesn't mean great 45 grandfather. Well, in my submission when you look at 46 the oral histories, and the oral history I would ask 47 your lordship to turn to is one at page 12 of tab 46. 26919 Submissions by Mr. Willms 1 THE COURT: I'm sorry, look where? 2 MR. WILLMS: I am at tab 46 of the yellow book, paragraph 46, 3 tab 46. 4 THE COURT: Yes. 5 MR. WILLMS: First of all -- and I also understand there may 6 have been a suggestion somewhere during this trial 7 that great grandfather and grandfather even mean the 8 same thing. That when you read grandfather in an 9 adaawk it might mean an ancestor, and it doesn't mean 10 a grandfather. So if you turn to page 12, and I've 11 taken this from one of the adaawks, Exhibit 1047-7, 12 the adaawk and its -- the informant is John Brown. 13 You will see: 14 15 "My great grandfather Neestarhoq". 16 17 And then if you go down about seven lines it says: 18 19 "My grandfather Kwiyaihl". 20 21 So that there is a distinction drawn in this 22 adaawk between great grandfather and grandfather. 23 The next one I would ask you to turn to, my lord, is 24 at page 14, and at page 14 this is an extract from 25 Exhibit 1043-9, which is another adaawk. 26 THE COURT: What was the first one? 27 MR. WILLMS: The first exhibit was — 28 THE COURT: Yes, I have it. 1043-97. 29 MR. WILLMS: The next one is 1043-97, and it's — you will see 30 partway down the first about seven lines down of their 31 uncles and grandfathers, the words of their uncles and 32 grandfathers, there is a circle around grandfathers. 33 THE COURT: Oh, yes. 34 MR. WILLMS: And then if you go down a little further, it says: 35 36 "They were now avenged on those that had killed 37 their ancestors." 38 39 So that there is a distinction drawn between 40 grandfathers and ancestors. Now, the final point is 41 from evidence of Stanley Williams, which is at page 16 42 here in this tab. And this was interpreted evidence. 43 It's from Exhibit 446-A, and there was an interpreter 44 there. And you will see at the very bottom when he's 45 asked about feast where he took the name Gwisgyen, he 46 answered at line 46: 47 26920 Submissions by Mr. Willms 1 "I went -- I went through it. I follow the 2 footsteps of my ancestors and my grandfather 3 ..." 4 5 The very bottom of the page. Now, it's my 6 submission, my lord, that when you read the oral 7 histories, and it says grandfather or it says great 8 grandfather, or it says ancestor, that they mean what 9 they say. And that contrary to an assertion that has 10 been made, you can trust the informant who relates to 11 the translator who takes these adaawks down to get it 12 right, and they got it right. 13 Now, on that point -- do you want to -- 14 THE COURT: I was going to take a break, split the morning in 15 half. Another five minutes. 16 MR. WILLMS: That's fine, my lord. I will try to get over to 17 page 29, paragraph 47. I say that -- and Dr. Barbeau 18 tried to date some of the oral histories. 19 THE COURT: You say he dated. You say now he tried to date. 20 MR. WILLMS: He did date. He engaged in that exercise. He did 21 date this one. He dated the begin -- I am at the top 22 of page 29. 23 MR. WILLMS: He dated the beginning of the Eagle Clan to 24 historic times on the coast. And that reference, if 25 you can -- if, my lord, you turn to page 11. 26 THE COURT: Of tab 47. 27 MR. WILLMS: Of tab 47, yes, you have here an extract from 28 Exhibit 902-5. 29 MR. GRANT: Is this the summary -- Barbeau did summaries and 30 also did the actual transcription. This is his 31 summary that you are referring to? 32 MR. WILLMS: Yes. 33 THE COURT: What exhibit number is this? 34 MR. WILLMS: Exhibit 902-5. 35 THE COURT: This is a Barbeau summary. 36 MR. WILLMS: What he was trying to do was summarize or 37 chronologize, I don't like that word, but its been 38 used, Raven Clan Outlaws. And he makes the point at 39 the top of the page, at page 11: 40 41 "The wolves split up into halves or moieties - 42 one of them, the Wolves proper, and the other, 43 the Eagles, in imitation of the Russian 44 imperial crest. The Eagle moiety or phratry, 45 at the height of the fur trade with the 46 Russians and the British, rose to the first 47 rank among the Tsimsyans, the Haidas, and the 26921 Submissions by Mr. Willms 1 southern Tlingits. But their Tlingit 2 originators, on the whole, maintained their 3 former allegiance to the older dual moieties of 4 the Ravens and the Wolves. And the Eagles have 5 tended to remain the allies of their former 6 sires the Wolves. 7 The Kanhaades or Ravens, no less than the 8 Wolves and the Eagles, were still, in the last 9 century, on their way south along the seacost. 10 Of this there is no move vivid proof than the 11 fantastic adventures of their notorious leader, 12 Copper-Shield (Haimas), who at no time was a 13 match for the famous Stone-Cliff (Lewgyarh). 14 These two extraordinary leaders and 15 contemporaries, Copper-Shield and Stone-Cliff, 16 stand close comparison in the limelight of a 17 turbulent century. Their backgrounds did not 18 senisibly differ, nor the span of their 19 existence; their forebears in the North were 20 Tlingitk yet with a souther admixture of 21 Kwakiutl blood; and their adopted nation and 22 field of action were Tsimsyan. 23 The name 'Legyarh' in Kwakiutl signifies 24 'Stone-Cliff,' and that of 'Haimas' in the same 25 language seems to have meant 'Southwest-Gale' 26 or Southwest-Rain'. However, 'Haimas' might 27 mean, in Tsimsyan, 'bark sheath for copper 28 shield', or 'copper-shield case'." 29 30 Now that's just one point. Then what Dr. Barbeau 31 also -- excuse me. 32 THE COURT: When he says the last century, he is meaning the 33 eighteen hundreds, is he? 34 MR. WILLMS: Yes. 35 THE COURT: He is writing the nineteen hundreds. 36 MR. WILLMS: He is talking about the turn of the eighteen -- 37 going from the eighteenth into the nineteenth century. 38 Now, I put -- of course Dr. Daly didn't agree, and I 39 am not going to suggest that any of the plaintiffs' 40 experts agreed with this proposition. In fact I think 41 they universally didn't agree with it. 42 MR. GRANT: My lord, Phillip Drucker or Dr. Wilson Duff — 43 MR. WILLMS: I'll get to that in a moment. My friend should be 44 patient. But I would like to turn to what Dr. Daly 45 said about what the appropriateness of what Dr. 46 Barbeau is trying to do. And that's at page 36. And 47 this is in contradiction to what Miss Marsden did. 26922 Submissions by Mr. Willms 1 And I am at page 36, which is the cross-examination of 2 Dr. Daly at line 47. 3 4 "Q But one thing that Dr. Barbeau did was he 5 actually tried to date the oral history by 6 reference to real things?" 7 8 Dr. Daly acknowledged that yes, he did try to do 9 that. 10 Now, the next point, my lord, is that Dr. Barbeau 11 and Miss Marsden gave a lot of evidence about the 12 dispersal from what she called Lachweep, which she 13 said was at the headwaters of the Stikene, the Nass 14 and the Skeena, somewhere in the headwaters area, and 15 that dispersal -- the dispersal in the oral histories. 16 Dr. Barbeau, I suggest, dated that to between 200 and 17 400 years ago. And if you turn, my lord -- and this 18 is in the cross-examination. I put these to Dr. Daly 19 starting at page 87. 20 THE COURT: Who said it was 200 years ago? 21 MR. WILLMS: Dr. Barbeau. Between 200 and 400. And I will read 22 the extracts. 2 3 THE COURT: Yes. 24 MR. WILLMS: Starting at page 87. 25 THE COURT: Of the tab? 26 MR. WILLMS: Of the tab, my lord. And here what I am doing is I 27 am putting these extracts to Dr. Daly, and I am 28 putting Dr. Barbeau to Dr. Daly starting at line 33. 2 9 THE COURT: Yes. 30 MR. WILLMS: And the quote, whatever is in the quote is Dr. 31 Barbeau. 32 33 "The passages is familiar enough and the 34 traditions of the Eagle and Wolf clans not to 35 be a mere episodic pattern in a folktale devoid 36 of historical contents. Experts -- the late 37 John Muir, explorer and geologist, the late 38 Forrest A. Kerr, and George Hanson, geologists 39 versed in the formation of the Stikene 40 region -- all accept the Indian narrative as a 41 fair indication of what the Stikene Glacier 42 must have been at one time not so long ago in 43 when the Indians were confronted with it in 44 their drives down this river. It is now 45 receded a very short distance from the Stikene 46 River, perhaps less than a mile, after having 47 somewhat pushed it out of its course. 26923 Submissions by Mr. Willms 1 Now, just pausing there and turning to the 2 top of the next page, I won't read it to you, 3 but what Dr. Barbeau does from that is in his 4 first reference to time he dates that arch 5 ..." 6 7 My lord, this was an arch described in the adaawk 8 of Fladmark, "Glass and Ice". 9 10 "Q ...from perhaps 200 to 400 years ago based upon 11 the geological evidence that he's referred to 12 and the explorer that he's referred to. That's 13 what he does. I'm not asking you whether you 14 agree with it. 15 A Yes. That's what he does. 16 Q That's what he does. And that is to do 17 something like that is an appropriate method, 18 is it not, to estimate, to date an oral 19 history? 20 A Yes, it's an appropriate method." 21 22 Now, when he goes to page 11 he says this: 23 24 "The reference in this glacier tradition to 25 sea-otter hunting, after the Chiefs Hill 26 fugitives have reached the salt water and 27 joined a cross tribe is another detail 28 suggesting a historical date. Intensive 29 sea-otter hunting developed only after the 30 Russians and other sea traders began to press 31 the natives from the Aleutian Islands down to 32 the Tlingit country, into their service; that 33 is less than 200 years ago." 34 Now, once again Dr. Barbeau has looked for 35 something in the historical record to compare 36 the oral traditional with, correct? 37 A Yes. That's right. 38 Q And it's appropriate to do that, to search the 39 historical record in an attempt to date the 40 oral tradition? 41 A Yes." 42 43 Now, finally at the top of the next page he draws 44 in the third comparative and says this: 45 46 "The passage under the glacier may not be much 47 older than two hundred years. For the Wolf 26924 Submissions by Mr. Willms 1 fugitives no sooner had crossed the Tlingit 2 country, and entered the Nass River to the 3 south, than they experienced a fantastic 4 cataclysm, which deeply impressed itself upon 5 tribal memories. They were smothered by 6 poisoned fumes and thrown back by a volcano in 7 full eruption." 8 Once again, pausing there, that's another 9 appropriate historical tool to use to date oral 10 history? 11 A Yes, it is." 12 13 Now, the final point on this particular one, my 14 lord, is at page 104. And page 104 is an extract from 15 Exhibit 1051-12, which was a history of the great 16 glacier area that was prepared for the 17 Gitksan-Wet'suwet'en Tribal Council. 18 THE COURT: We know the author? 19 MR. WILLMS: The author is -- her name is June Ryder, R-y-d-e-r. 20 And she is referring to the same glacier, my lord. 21 And she says this just above the word "possibilities". 22 23 "When the ice stood at that Moraine the river 24 would have flowed very cross to it, probably at 25 the foot of a steep ice slope, and possibly in 26 a canyon with one side of steep rock and the 27 other of steep ice. Could this have been the 28 'tunnel?'" 29 30 She asks. And then she dates it down at the 31 bottom on age of moraines. She says: 32 33 "The heavily forested outermost ridges could 34 have been formed during an early phase of 35 late-Neoglacial expansion (i.e., late 17th to 36 early 18th century), thus allowing about 250 37 years for development of the present forest. 38 Alternatively, they could date from an earlier 39 (2,000 year) advance. The first possibility is 40 most likely." 41 42 Now, Miss Ryder was not called as a witness by the 43 plaintiffs, but what she says is perfectly in keeping 44 with what Dr. Barbeau concluded. And if I can just -- 45 with one minute I will finish this paragraph, my lord. 4 6 THE COURT: Yes. 47 MR. WILLMS: Because Lachweep is the name that Susan Marsden 26925 Submissions by Mr. Willms 1 uses, and that's in the adaawk. Lachweep is in the 2 original adaawk with the rainbow houses and the 3 dispersal, and I say this: 4 5 "People known as the Lachweep appear to have 6 lived near the headwaters of the Nass and the 7 Stikene in historic times and Miss Marsden 8 acknowledged that Lachweep is another name for 9 T'set'saut, and the only Eagle village in the 10 claim area is Kitwanga, although the Eagle 11 clans significant on the Nass." 12 13 And what I suggest there, my lord, is that not 14 only is the Eagle clan recent, but that's further 15 evidence of the recency of the arrival of the Gitksan, 16 that they haven't gone beyond Kitwanga, which your 17 lordship will recall is at the end of the grease trail 18 from the mouth of the Nass River or the end of one of 19 the grease trails. 20 MR. GRANT: That grease trail continues across, as I recall. 21 It's not the end of the grease trail. 22 MR. WILLMS: Okay. It's the part of the grease trail when it 23 gets to the Skeena. 24 THE COURT: All right. We'll adjourn. Thank you. 25 THE REGISTRAR: Order in court. Court stands adjourned for a 26 short recess. 27 28 (PROCEEDINGS ADJOURNED AT 11:30 A.M.) 29 30 I HEREBY CERTIFY THE FOREGOING TO BE 31 A TRUE AND ACCURATE TRANSCRIPT OF THE 32 PROCEEDINGS HEREIN TO THE BEST OF MY 33 SKILL AND ABILITY. 34 35 3 6 LORI OXLEY 37 OFFICIAL REPORTER 38 UNITED REPORTING SERVICE LTD. 39 40 41 42 43 44 45 46 47 26926 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 (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS) THE COURT: Mr. Grant. MR. GRANT: My lord, before my friend starts, there was a question -- two questions I had. And one was in discussions with Mr. Rush he and I had two -- we were not clear about the schedule you proposed for the end of the month after June 1st. My basic question is whether there was going to be one week off or two weeks off commencing June 1st? THE COURT: A week. MR. GRANT: Okay. That's — THE COURT: The week of June 4th. MR. GRANT: The week of June 4th. THE COURT: I could even be back on the Friday. MR. GRANT: Okay. THE COURT: Whether you want to — MR. GRANT: That's what I had thought, but between us there was some mix up. There was some suggestion there was two. I was sure there was only one. The other question I just raised with my friend is if there was any possibility he could stop today at four instead of 4:30. I know the problems, but it would give me some latitude to leave this evening rather than in the morning. I have to be back Tuesday morning, of course. I think being a long weekend, and the Queen's birthday, and I do recognize that important fact, if four o'clock is the convenient time to adjourn this afternoon by all means. I discussed this with my friend. He suggested if the court is concerned a half hour could be made up. COURT: We'll make it up sometime. WILLMS: A short lunch today or some other time. COURT: I can't do that. I think counsel should consider whether they would like to sit that Friday the end of the week of June 4th. WILLMS: Yes, we would. COURT: All right. WILLMS: Yes. That's the 8th, is that — COURT: Yes. I have the conference. And knowing Miss Rosie Abella is a member of our committee, and she's getting a degree in Halifax on the Friday so we can't sit that day I know we'll be back on Thursday night and we can sit on Friday. You'll have to keep me awake. MR. WILLMS: Yes. THE COURT: You've been able to do so up to now. THE COURT MR. GRANT THE MR. THE MR. THE MR. THE 26927 Proceedings Submissions by Mr. Willms 1 MR. WILLMS: This is all exciting, my lord, but we'll have the 2 most exciting part of the argument for that day. 3 THE COURT: All right. Now, we'll settle now that we'll sit 4 that day. Thank you. 5 MR. WILLMS: My lord, I was up to the bottom of page 29. And I 6 say that, when Dr. MacDonald reviewed oral histories 7 in conjunction with the archeological evidence at 8 Prince Rupert, Kitselas Canyon, Kitwanga and Hagwilget 9 he concluded -- and, my lord, this may look familiar. 10 This is from The Epic of Nekt based on his excavations 11 at Kitwanga, and he talks about population 12 stablization. And he said: 13 14 "From those times, a situation of relative 15 stability appears to have prevailed until the 16 early 1700s. By that time there is evidence 17 for a widespread destabilization of populations 18 throughout much of the Northwest Coast. From 19 the central coast there was a northern shift, 20 presumably to get closer to the source of the 21 new trade goods filtering through from Siberia. 22 The Haida from the Queen Charlotte Islands 23 pushed the Tlingits further north from the 24 Prince of Wales archipelago about 1720. At the 25 same time, the Tsimshian pushed out of the 26 Skeena estuary and dislodged the Tlingit, 27 possibly from the Prince Rupert Harbout as well 28 as from such islands as Dundas at the mouth of 29 the Nass River. The Tlingits in turn pushed on 30 the Eyaks to their north. In the interior, it 31 appears that Kitwankul and other Gitksan tribes 32 were pushing north at the expense of their 33 Tsetsaut and other Athapaskan neighbours to 34 secure the trading trails that ultimately 35 connected through to southeast Alaska and the 36 new sources of wealth. In the interior, the 37 Chilcotin and Carrier were also locked in a 38 struggle over trade. Southward from the 39 central coast, the shift may have been in the 40 opposite direction, as seen in the southern 41 movement of the Kwakiutl. 42 43 The pattern of warfare became endemic as the 44 destabilization of traditional boundaries 45 continued throughout the eighteenth century. 46 Small forts proliferated at the pressure points 47 along the networks of trails. The causes for 2692? Submissions by Mr. Willms 1 warfare also changed radically. Oral accounts 2 are consistent that the traditional objectives 3 of warfare were mainly to capture food (Skeena 4 smoke houses were full of fish) and secondarily 5 to capture slaves (who were food producers). 6 The acquisition of new territory was not a 7 traditional cause for war. Origin myths all 8 stated how certain tribes were created in 9 certain localities, and it was not just a crime 10 but a sacrilege for one tribe to displace 11 another from it's ancestral territory. 12 13 Warfare on the Northwest Coast in the 14 eighteenth century, I suggest, was motivated by 15 the desire to control a new and scarce valuable 16 resource. These trade items include metal, and 17 especially such weapons as guns and knives." 18 19 And I have a number of other references, my lord, 20 at tab 48. And the first one is at page six of that 21 tab. And this is, my lord, an extract from Exhibit 22 1191A-46. It was marked by my friend in his 23 cross-examination of Dr. Robinson. And it's Dr. 24 Robinson's work of 1987. And he says this in respect 25 of warfare, my lord, on page six, which is page 75 26 from his work, on the left-hand side. 27 28 "It is argued..." 29 30 It's just underneath the quote. 31 THE COURT: Yes. 32 MR. WILLMS: 33 "It is argued that the juxtaposition of trade, 34 ranking, and conflict. Is not coincidental. 35 If control over trade networks generated 36 ranking, then such control could have been a 37 source of intergroup conflict. Certainly, 38 during the early historic periods, wars were 39 not only fought to capture slaves and material 40 goods, but also to control trade networks. 41 Early European traders noted that certain 42 Indian groups forcefully attempted to prevent 43 others from trading with the ships. Fisher 44 states many coastal groups obtained most of the 45 furs that they traded to Europeans from other 46 Indians at large profits. Coastal Indians 47 'collected furs from those who lived deeper 26929 Submissions by Mr. Willms 1 inland either as plunder or trade. Some chiefs 2 quite frankly told white traders that if they 3 would wait they would go and fight for furs.'" 4 5 And I'm not going to read, my lord, the extract 6 that follows which is Ferguson on warfare, the next 7 page, Warfare and Redistributive Exchange on the 8 Northwest Coast, but the next few pages are some 9 detail of the change in warfare that Dr. MacDonald 10 mentions only briefly in The Epic of Nekt, and the 11 causes and the changing causes for warfare. 12 THE COURT: The passage you read in the last was from The Epic 13 of Nekt, was it? 14 MR. WILLMS: The passage that I read from my argument is from 15 The Epic of Nekt. 16 THE COURT: I'm sorry. 17 MR. WILLMS: This is — what I read from the yellow book was Dr. 18 Bishop. 19 THE COURT: This is — 20 MR. WILLMS: Yes. 21 MR. GRANT: Just if — my friend's left out at the beginning of 22 his quote on page 30 of his argument "it's from those 23 times", my lord, "a situation of relative stability 24 appears." From those times Dr. MacDonald is saying is 25 that -- is referring to the first millenium B.C.. 26 That's in the sentence immediately before. And I 27 think that should be noted. My friend excluded that 28 previous sentence. 29 MR. WILLMS: Right. Even that part's inconsistent with Ms. 30 Marsden's theory, because she's got stability from 31 7000 years ago. But, in any event, I thank my friend 32 very much for that. 33 I have more evidence, my lord, at page 13 of the 34 yellow book. And this is a meeting between O'Reilly 35 and the Indians at Kitwanga in 1893. And Chief Kawk, 36 for example, says this to the commissioner: 37 38 "I am glad to see you, you have come to do us 39 good. My grandfather told me what you did 40 before long ago. He did not want strangers 41 here. Then we fought for the land now we 42 don't. That is why we are glad to see you, it 43 will settle all disputes." 44 45 And then from the same extract over to page 16. 46 And then over to page 16, again the same chief: 47 26930 Submissions by Mr. Willms 1 "I was here when you were here before." 2 3 O'Reilly was there in 1891. 4 5 "Before my grandfather's time I did not want 6 white men here before we had to fight about the 7 land now we don't fight. I am glad you have 8 come to settle our land troubles." 9 10 And your lordship may recall that Mr. Grant -- 11 sorry. That Mr. Plant read an extract to you from the 12 1900s about the Kitwanga people complaining about the 13 Kitsegukla people coming on to their reserve, and that 14 they didn't want strangers on their reserve. And this 15 was foreshadowed by what Mr. O'Reilly ran into in 16 1893, a frank acknowledgement they used to fight for 17 land before and now Mr. O'Reilly was going to settle 18 all that. 19 THE COURT: Well, do you think that's what he refers to, "we had 20 to fight about the land", he's talking about 1891? 21 MR. WILLMS: No. No. I think he's talking about an earlier 22 time than 1891. When O'Reilly came up he did lay out 23 some reserves at both Kitsegukla and Kitwanga, but 24 there was a dispute about An de marl. The dispute 25 about An de marl was the subject of the correspondence 26 that Mr. Plant read to you two days ago. 27 THE COURT: Yes. All right. 28 MR. WILLMS: The Loring letter and the statement from the chiefs 2 9 at Kitwanga. 30 MR. GRANT: That letter was read — I think Mr. Plant referred 31 to Gook or Sakxum Higootx. It's probably the same 32 chief's name here that's significant. 33 MR. WILLMS: I think it is Gook Simadiik. 34 MR. GRANT: It's — it's Gook, G-O-O-K. Simadiik. 35 S-I-M-A-D-I-I-K. That letters of the 1905, I believe, 36 or 1884 was written by that same person. 37 THE COURT: Thank you. 38 MR. WILLMS: All right. 39 Now, carrying on in my argument, my lord, at page 40 49. Sorry. Page 31. 41 The clear picture emerging from the available data 42 is that, up to the 1860s, peoples of the Northwest 43 Coast were living in a constant state of war. 44 Furthermore, and this is from Dyen and Aberle, and 45 this will have more importance in the next part of my 46 argument. This is what Dyen and Aberle noted about a 47 linguistic impact. 26931 Submissions by Mr. Willms 1 "such an impact from the Northwest Coast could 2 have resulted from trading relationship and 3 inter marriage predating the fur trade, but the 4 relative recency of these innovations may 5 indicate that the impact of the Northwest Coast 6 was more recent and resulted from the fur 7 trade, which impelled the Northwest Coast 8 tribes to strengthen ties with the interior and 9 in some instances to expand into the interior." 10 11 Now, I say at the bottom of page 31, oral 12 histories, especially the oral histories of warfare, 13 are certainly consistent with this theory of movement. 14 And, my lord, I won't turn to any -- I've listed a 15 number of adaawks which are at the tab in the yellow 16 book. But the interesting point to note from all of 17 these is that the adaawks describe warfare between the 18 Kispiox and the Nishga, for example, Kuldo and the 19 Tsetsaut, Kisgegas and the Nishga, Kitwancool and the 20 Tsetsaut, Kuldo and the Nishga, and Kisgegas and the 21 Tsetsaut. 22 And there's two points to take from that, my lord. 23 The first point is, of course, as my colleague Mr. 24 Plant urged two days ago, you can see the strong 25 village reference in these oral traditions. People 26 refer to themselves by villages in the oral 27 traditions, not by houses and not by calling 28 themselves Gitksan, but by their village. 29 The second thing is that it is quite clear that 30 the Nishga, the Tsetsaut and the Gitksan were all 31 battling over the same areas, because the warfares 32 that took place took place not only on the Nass and on 33 the Skeena, but the other raiding parties came to 34 Kispiox and came to Kisgegas and came to Kuldo. So 35 that when you look at the oral histories of warfare 36 not only are the people who now call themselves 37 Gitksan battling with the Nishga on the Nass, and 38 battling with the Tsetsaut up north, but the Tsetsaut 39 and the Nishga are coming to Kuldo, to Kisgegas, to 40 Kitwancool, and to Kispiox. 41 Now, I then go on to say at page 32, nothing in 42 the historical record refutes the proposition that 43 Tsimshian speaking groups expanded their territory 44 along the trade routes at the expense of Athapaskan 45 speakers. I refer there to Dr. Ray, and it's at the 46 yellow book, page 21, my lord, at tab 50. Sorry, 121. 47 THE COURT: Tab 32? 26932 Submissions by Mr. Willms 1 MR. WILLMS: At tab 50. Tab 50 is a very thick tab because I 2 put all the oral histories in that I referred to 3 there. 4 THE COURT: Yes. 5 MR. WILLMS: If you go -- it might be easier to work in from the 6 back, because it's page 121. 7 THE COURT: Yes, I have it. 8 MR. WILLMS: And this is in the cross-examination of Dr. Ray. 9 And I put the proposition to him at line 41. 10 11 "Q Let me put this proposition to you: There 12 is nothing in the Hudson's Bay records that 13 you reviewed that would refute the 14 proposition that MacDonald makes, that 15 Tsimshian speaking groups expanded their 16 territory along these trade routes at the 17 expense of the Athapaskan speakers? 18 A I never said there was. What I am saying 19 is there is no evidence to the contrary 20 position." 21 22 And certainly there's no historical evidence, 23 because it was prehistoric. But there is other 24 evidence, and that's the evidence that Dr. Robinson 25 and Dr. MacDonald and Dr. Rigsby and all of the other 26 people who have come to the same conclusion relied on. 27 And I'm not faulting Dr. Ray, because Dr. Ray did not 28 have an anthropological background so he couldn't make 29 use of anthropological tools to interpret the 30 historical record, he just had to make due with the 31 record that he had. But fortunately Dr. Robinson did 32 have the tools to make use of the anthropological 33 record, as did Dr. MacDonald and Dr. Rigsby and Dr. 34 Bishop, and the legion of other people who have come 35 to the same conclusions. And I'll be getting to those 36 people in a later argument -- later part of the 37 argument. 38 Now, I carry on, my lord, at page 32 by concluding 39 here and saying, that linguistic evidence suggests 40 that Gitksan speaking people and Babine Wet'suwet'en 41 speaking people did not live in parts of the claim 42 area even as late as the time of contact, about 1850. 43 And there, my lord, I refer to the Suttles map during 44 the examination in chief of Dr. Kari. I already 45 referred your lordship to the boundary line between 46 the Tsetsaut and the Nass Gitksan speakers. And if 47 you look on the map there is also the Babine speaking 26933 Submissions by Mr. Willms 1 group distinguished from the Carrier speaking group. 2 And the Babine speaking group boundary on the 3 linguistic map does not accord with Exhibit 646-9B. 4 It's far smaller. It's around the Babine -- north end 5 of Babine Lake and around the Bulkley River. 6 Now, I say this, my lord, in paragraph 51. The 7 plaintiffs said in their outline of argument at page 8 59: 9 10 "The era of dispersal, first from the north, 11 and then from Temlaxam, is the last era of 12 large scale population movement into and within 13 the Gitksan territory. It ends the Temlaxam 14 era and ushers in another, in which Gitksan 15 villages, as we know them today, were formed 16 and House territories as opposed to the larger 17 clan/village territories, were delineated. On 18 the basis of years of careful analysis and 19 comparison with data such as Dr. Mathewes, Ms. 20 Marsden concluded that this happened between 21 4,000 and 3,000 years B.P.." 22 23 And, my lord, I submit not only when you consider 24 the hard evidence, but when you consider the oral 25 histories that statement is without foundation. 26 And, I say that, the plaintiffs acknowledge as 27 much when, relying on Dr. MacDonald's work, in another 28 part of their outline they quote from those times, a 29 situation of relative stability appears to have 30 prevailed until the early 1700s. 31 Now they quote that for a different purpose at 32 another part of their outline. That's Dr. MacDonald, 33 The Epic of Nekt. 34 So I conclude this section, my lord, by pointing 35 out that the first reliable census in the claim area, 36 and Dr. Galois said it was the first reliable census, 37 placed the populations of seven villages: Kispiox 33, 38 Kitenmax 182, Kuldo 57, Kitsegukla 196, Kitwanga 225 39 and Kisgegas 270 at 1263, and the largest village 40 being Kispiox. Hagwilget was enumerated in 1866 as 41 having 260 inhabitants. From all of the evidence I 42 submit that the villages; Gitenmax, Kisgegas, Kuldo 43 and Hagwilget, that is the villages that were first 44 occupied in historic times. I submit that the 45 location of villages called Kitwanga and Kitsegukela 46 changed in the proto-historic/historic period and that 47 Kispiox may have become a village in the 26934 Submissions by Mr. Willms 1 proto-historic period. And I say that relying on the 2 oral history Moricetown was occupied by the Bulkley 3 River Carrier in the historic period after being 4 abandoned in the 1820s for a period of time. 5 And to sum up, there is no location in the claim 6 area where prehistoric occupation continued at the 7 same location to the present day. Even where sites 8 were occupied at more than one time, the occupations 9 were discontinous. 10 Now, my lord, the next section is B, and I have 11 another yellow book. 12 THE COURT: Mr. Willms, with these addendums and other changes I 13 suppose I'll get an amended or revised diskette some 14 time? 15 MR. WILLMS: What I'm going to do -- what I will do, my lord, is 16 for the most part the references that are in the 17 exhibit. 18 THE COURT: Yes. 19 MR. WILLMS: Sorry. In the argument are the ones in the 20 exhibit. The only thing that I've done is I've added 21 some more references and I will provide an erratum 22 sheet that lists the exhibits that I've added and 23 points out to which paragraphs they relate. Now, is 24 that — 25 THE COURT: But in the sections that you've added, like for 2 6 example the adaawks, will that be on an amended 27 diskette? 28 MR. WILLMS: I'll get a diskette for the adaawks section. I 29 don't think I've added anything else. Yes, wherever 30 there has been a change or addition we'll provide an 31 additional diskette or amended diskette. 32 THE COURT: All right. You will provide disketts, of course, 33 for everything in the yellow books as well? Probably 34 not. 35 MR. WILLMS: When did you want that, my lord? 36 THE COURT: Well, I wouldn't be long, but we wouldn't be 37 ready -- we're experimenting with scanners and they're 38 not working too well yet. 39 MR. WILLMS: The next section, my lord, is entitled "Resources 40 and Society in the Claim Area". And, once again, the 41 focus of this section will be, as with the focus to 42 the previous section, the prehistoric, proto-historic, 43 late prehistoric, proto-historic and historic period. 44 That is at about the time of contact ranging from 1750 45 through the 1800s, late 1800s. 46 And I say in paragraph one that, historical 47 documents can provide direct or descriptive evidence 26935 Submissions by Mr. Willms 1 of historic, but not prehistoric, resource use and 2 social organization. Since archeological data has 3 limited use for the interpretation of anything to do 4 with resource use and management, prehistoric society 5 and resource use must be inferred from archeological 6 and historical evidence. Archeology does not 7 specifically tell you about social organization, and 8 you have to imply social organization from it. 9 Inferences of resource use and society are based on 10 historical records and comparative studies of culture 11 change. And I say that inference is the foundation 12 for all opinions concerning prehistoric and 13 proto-historic resource use and society. 14 The artifacts unearthed at Moricetown appear to be 15 consistent with fishing and hunting. The geographic 16 location is consistent with exploitation of fish, and 17 I say that notwithstanding the dearth of artifacts 18 related to fishing, I think Miss Albright was only 19 able to find one bone point that she could tie solely 20 to fishing. But I say that it is a reasonable 21 inference from the archeological evidence of the claim 22 area and geographical location of occupation sites, 23 that the salmon resource appears to have been abundant 24 and exploited at canyon locations. 25 The early historic records indicate that game was 26 never really plentiful in the claim area, and that 27 fishing was the mainstay of the economy. The 28 exploitation of animals by the Atnahs or the Carrier 2 9 was pretty minimal in terms of food. And that's from 30 Dr. Ray. 31 The plaintiffs' expert biological evidence 32 indicates two things. First, moose and deer came into 33 the claim area relatively recently, and the caribou 34 population has declined, probably in response to 35 climatic changes. Second, there is no doubt from the 36 evidence that the climate in the claim area was colder 37 during the period known as the Little Ice Age which 38 extended into the mid-19th century and that glaciers 39 expanded and came down to levels as low as 1200 40 metres. And that's the first -- the first reference 41 I'd like to take your lordship to is at tab 4, at page 42 13, from the evidence of Dr. Hatler. And this is 43 where I'm asking at page 13 of tab 4, my lord -- 4 4 THE COURT: Yes. 45 MR. WILLMS: And what I'm asking Dr. Hatler about is the maps 46 that he prepared here. And I say at line eight: 47 26936 Submissions by Mr. Willms 1 "Q In all of these maps, you've assumed that 2 the vegetation in relation to climate and 3 major disturbances like fire have been 4 relatively constant over time, is that 5 correct? 6 A Constant over time. You mean within a 7 short time period or long time period? I 8 think that the early discussions were -- or 9 the discussions of the records since the 10 glaciation were designed to show that in 11 fact that has not been the case. 12 Q All right. And maybe if I can get to that. 13 You know from the research that you've done 14 on this report, that the climate in the 15 area has gotten warmer since the Little Ice 16 Age? 17 A Apparently it has, yes. 18 Q And so it's likely that the habitat that 19 you've discussed with respect to some of 20 these animals is different today than it 21 was at the beginning or even in the 22 mid-1800s. 23 A Yes. 24 Q And I think -- and correct me if I'm 25 wrong -- your premise with almost all of 26 these animals, or maybe all of them, is 27 that habitat is of primary importance in 28 the ability of each species to populate a 29 particular area? 30 A It's the basic perimeter that decides 31 whether or not a species can occur in an 32 area for sure. 33 Q Now, I'm going to suggest that since the 34 habitat has likely changed since the Little 35 Ice Age, you cannot say today what the 36 range and distribution of these species was 37 in early 1800s. 38 A I don't think what I have said what the 39 range and distribution was in the early 40 1800s. I've indicated sightings pre-1860, 41 but I haven't by any means tried to map 42 those out, because although I don't expect 43 that the habitat has changed as much as the 44 climate, and in that time -- and that was 45 my thesis with regard to the moose -- that 46 it seems like a lot of those same habitats 47 were there but yhe -- under the climatic 26937 Submissions 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 conditions pertaining, it was difficult for the animals to subsist anyway. Q So what you have depicted here is a -- within a relatively recent history, a snapshot of the distribution and range of each of those animals? A Basically, yes. Although there is some additional information on the moose sheet and on the caribou sheet and deer sheet as well. There was enough infromation to indicate changes, so there are more than one snapshot for some of them. Q All right. You've mentioned moose and then -- which you, I think, said came down from the north and the east and the deer which came up from the south and the west? A That's right. And the caribou range has receeded." Now -- THE COURT: What do you say is the start of the Little Ice Age? MR. WILLMS: The start of the Little Ice Age it ranges, but I think the 1300s. MR. GRANT: I don't think you make reference in this tab of yours to Mr. Chilton, do you? MR. WILLMS: I get to Mr. Chilton. I definitely get to Mr. Chilton's the mountains and the west wind. I wouldn't leave that out for a minute. Now, but the next expert, plaintiffs' expert is Dr. Gottesfeld at page 15 of the yellow book. And Dr. Gottesfeld is a geologist. And he puts it to about 1500. THE COURT: Yes. MR. WILLMS: But I'm at line 29, my lord. "Q And just on the Little Ice Age, that's from about 1500 AD to about 1800 AD? A Or even 1850. Q Or even 1850. From your experience as a geologist in the Pacific Northwest, northwest British Columbia, you've noted that since about 2500 years ago, the regional climate has been more conducive to glacier expansion? A Yes. Q And just generally, does that mean that the regional climate has become generally cooler to at least the Little Ice Age? 2693? Submissions by Mr. Willms 1 A Or wetter or both. Cooler or wetter or 2 both cooler and wetter. 3 Q And in fact, during the Little Ice Age, 4 some of the glaciers in the mountains 5 expanded as much as a kilometre and reached 6 elevations below 1200 metres? 7 A Yes. Some even more than a kilometre, two 8 or three or four. 9 Q Since the Little Ice Age, the climate in 10 northwestern British Columbia has been 11 warming? 12 A Yes. Apparently consistently warming or 13 drying or both." 14 15 Now, the next plaintiffs' expert, my lord, is Dr. 16 Mathewes, the palaeobotonist. Someone who 17 specifically is concerned with climate change over 18 time. That's his expertise. Page 17, my lord, line 19 26. 20 21 "Q What was the Little Ice Age? 22 A The Little Ice Age is a geological term 23 which refers to a period beginning around 24 five to 6000 years ago, well after the main 25 ice age had ended, when there is evidence 26 in various parts of western North America 27 of glacier activity starting again in the 28 higher mountain areas. And different 29 authors have used different definitions for 30 exactly what the neoglacial or the Little 31 Ice Age is. Some people talk only of 32 events since the year 1400, othere people 33 talk about the neoglacial ice age as 34 representing several thousands of years. I 35 don't think there is a clear consensus 36 exactly on how that term should be applied, 37 but it definitely refers to relatively 38 recent, in the order of a few thousand 39 years, resurgence of glacial activity, 40 particularly in North America. 41 Q All right. Is that something that you are 42 able to detect in your palaeoenvironmental 43 research? 44 A Yes. In fact, evidence of climates 45 becoming wetter and/or colder in the pollen 46 diagrams that are constructed for various 47 areas. Effects such as the growth of 26939 Submissions by Mr. Willms 1 peatbogs where previously there weren't any 2 growing on level terrain indicates that the 3 conditions for peatbog growth have 4 improved, which is generally an indication 5 of increased wetness and perhaps cooling. 6 And I've just directed a masters 7 degree student in Simon Fraser University 8 who completed a thesis on muskeg growth in 9 the Queen Charlotte Islands which confirmed 10 very nicely, and we are hoping to publish 11 it soon, that there was clearly an 12 expansion of the peat lands on the Queen 13 Charlottes during the period that's 14 generally referred to as the Little Ice 15 Age, within the last 5,000 years. 16 Q And in fact, perhaps, leading up to as late 17 as 1850, mid-1800s? 18 A Yes." 19 20 Now, as Dr. Hatler -- oh, and there's one other 21 reference to the Little Ice Age, my lord. You'll see 22 at page 19 of the yellow book the first page of the 23 Holocene Glacial History of the Great Glacier Area by 24 June Ryder, which is Exhibit 1051-12. That's at page 25 19. And then I have an extract from her report at 26 page 20, or her outline, and what she says about the: 27 28 "Late-Neoglacial Advance (the most recent 29 glacial expansion; commonly referred to as the 30 Little Ice Age). 31 32 Glacier advance began as early as about 900 33 B.P. ..." 34 35 I think that means B.P., before present, carbon 36 dated. 37 38 "(1000 A.D.) at some sites (e.g. southern Coast 39 Mountains, see Ryder and Thomson manuscript), 40 and is generally considered to have been well 41 underway during the 15th to 17th centuries. 42 Glaciers reached their maximum extent during 43 the 18th and 19th centuries (the actual date of 44 the maximum varies from glacier to glacier 45 dependent on local conditions. Recession then 46 commenced and continued at varying rates until 47 close to the present time. (Some glaciers are 26940 Submissions by Mr. Willms 1 now expanding once again.) 2 3 In the Coast Mountains, most glaciers were 4 larger during this time interval than at any 5 time during the preceding 11,000 years (i.e. 6 since the melting of the last Pleistocene ice 7 sheet)." 8 9 What I suggest from that, my lord, is that on 10 the -- and I'll get to Dr. -- Mr. Chilton, sorry, a 11 little later on. But Dr. Hatler, Dr. Mathewes and Dr. 12 Gottesfeld and June Ryder, whose report was introduced 13 during cross-examination, all acknowledge the Little 14 Ice Age in this area. 15 And the effect of the Little Ice Age is 16 acknowledged, as I say, on page three by Dr. Hatler. 17 The climate during the Little Ice Age would have been 18 hard on everything. That's what Dr. Hatler said. And 19 I'm right at -- on page three, my lord. In fact, he 20 said that -- he said that in re-examination by Mr. 21 Grant including the vegetation. And I say that while 22 some areas for drying may still have been better than 23 other areas for drying in the claim area, drying 24 capabilities would generally be lower when the climate 25 was colder and wetter and the climate difference may 26 also affect the relative ability to dry anything. 27 Aboriginal exploitation of alpine and subalpine 28 resources diminished in the last few thousand years of 29 prehistory up to the culmination of the Little Ice 3 0 Age. 31 And, my lord, if you could turn to page 39 at the 32 yellow book. Page 39 is from Dr. Fladmark. It's 33 Exhibit 849A-36. And it's from his book called Glass 34 and Ice. You'll cover -- the cover page is the 35 previous page. And he says in that last paragraph, my 36 lord: 37 38 "An hypothesis of diminishing aboriginal 39 exploitation of alpine and subalpine zones in 40 the las few thousand years of prehistory 41 satisfies both the apparent relative absence of 42 recent cultural horizon markers, and the 43 implications of palaeoenvironmental studies in 44 the Edziza region and adjacent areas. As noted 45 earlier, the neoglacial period locally began 46 about 3000 B.P., culminating in the 47 particularly cool episodes of the Little Ice 26941 Submissions by Mr. Willms 1 Age circa 200-400 years ago. This cooling 2 trend saw renewed and greatly expanded 3 glaciation in alpine regions, particularly in 4 the St. Elias and Boundary Ranges. Glaciation 5 could have physically impeded access to some 6 alpine areas, while the growth of permanent 7 snow cover may have reduced the value of high 8 altitude lithic resources and hunting areas." 9 10 Now, the point that is particularly important, my 11 lord, is that the historic evidence backs up this 12 scientific evidence, in my submission. And I make 13 that point at the bottom of page three. The early 14 historic observations of the relative scarcity of game 15 and Dr. Ray's conclusion that salmon was the mainstay 16 of the economy is supported and explained by the 17 different climate in the early 19th century. 18 Now, I say this: Surprisingly, the plaintiffs 19 make the following bald assertion in Part I, page 161 20 of the outline of their argument: 21 22 "The biophysical, archeological and linguistic 23 evidence of Mathewes, Gottesfeld, Haeussler, 24 Chilton, Hatler, Morrell, Albright and Kari 25 suggests that there has been a remarkable 26 degree of ecological continuity through time in 27 the claim area and the surrounding regions." 28 29 And I say that the assertion is surprising not 30 only because it is contradicted by the plaintiffs' own 31 evidence, it is also difficult to reconcile with the 32 statement at pages 160 to 161 of their outline of 33 argument that: 34 35 "Summing up his evidence on the species range 36 and distribution, Hatler stated that of the 37 nine species mapped, six have maintained their 38 general abundance and range since 1860." 39 40 So it is since 1860 for Dr. Hatler, and for all of 41 those maps for the very recent time. That is since 42 the end of the Little Ice Age. 43 Now, I say, and this assertion is not supported by 44 the evidence unless the plaintiffs mean by ecological 45 continuity that the claim area still had the mountains 46 and still had the air flow from the west generally. 47 Now, that's Dr. Chilton's, or Mr. Chilton's 26942 Submissions by Mr. Willms 1 observation which I say is an unremarkable 2 observation. 3 The plaintiffs' experts acknowledged, and it is 4 common sense, that the existence or abundance of 5 vegetation and animals is directly related to the 6 climate. 7 And at this point, my lord, at tab 5, I'd ask your 8 lordship to turn to page five, and here my friend Mr. 9 Grant is leading the evidence of Dr. Hatler. At line 10 34 he says: 11 12 "Q Okay. Well, just referring to the preface 13 of -- I take it Professor Darlington and 14 his text on zoogeography is an accepted 15 text in the field of biology on 16 zoogeography; is that right? 17 A It would probably be described as a classic 18 in the field. It was the first major, 19 major text, and was the text that I used 20 when I took a course in zoogeography in 21 university. 22 Q And its a standard reference for biologists 23 I gather? 24 A It would be referred to in most -- in most 25 commentaries on zoogeography I'm sure. 2 6 Yes." 27 28 And now I'm going to turn to a couple of points 29 and then I can end this. The next page, my lord. 30 THE COURT: How long will it take, Mr. Willms? 31 MR. WILLMS: My lord, I'm only going to read three or four lines 32 over the next three pages. 33 THE COURT: All right. 34 MR. WILLMS: Because on the next page at page six of the yellow 35 book -- 3 6 THE COURT: Yes. 37 MR. WILLMS: — This is Darlington. You'll see under climate: 38 39 "Climate is principally a matter of temperature 40 and rainfall." 41 42 And I harken back to cooler and wetter or both. 43 Then over to the next page, which is page eight 44 from Darlington, under vegetation. 45 46 "Vegetation, the plant cover of the world, is 47 distributed primarily according to climate, 26943 Submissions by Mr. Willms 1 especially temperature and rainfall, modified 2 by the nature and history of land and by other 3 things." 4 5 And then over to the next page talking about range 6 of animal distribution. 7 8 "The particular area occupied by a group of 9 animals. Ranges often have to be shown on maps 10 as if they had fixed, continuous boundaries, or 11 as if they were solid blocks. Zoogeographers 12 sometimes make the mistake of thinking of them 13 that, as if ranges were blocks which could be 14 taken from their places and moved about and 15 fitted together like building blocks. They are 16 not. They are areas inhabited by living 17 populations, and they are as complex, unstable, 18 and dependent on their particular environments 19 as living populations are. 20 21 And I just conclude before the break, my lord, to 22 say that it is clear from the evidence that the 23 climate was different during the contact period than 24 it is today. That it was cooler -- to use Dr. 25 Gottesfeld's words, cooler or wetter or both, and that 2 6 that had a direct impact on animal range and 27 distribution and vegetation. 28 And I also, as I said before, I say that the early 29 historic records confirm that there was just no big 30 game in this area at all. 31 THE COURT: Well, you'd include caribou in big game? 32 MR. WILLMS: I would include caribou, my lord. But even for 33 caribou the one thing we've got to watch is Dr. 34 Hatler's range and distribution doesn't say how many, 35 and even today it's not that many. We are not talking 36 about large populations. I just rely, and I refer 37 later on, my lord, to the Hudson's Bay records where 38 you see references like New Caledonia is destitute of 39 large game. 4 0 THE COURT: All right. Thank you. Two o'clock. 41 MR. WILLMS: Thank you, my lord. 42 THE REGISTRAR: Order in court. Court stands adjourned until 43 two o'clock. 44 45 46 47 26944 Submissions by Mr. Willms 1 (PROCEEDINGS ADJOURNED) 2 3 I hereby certify the foregoing to 4 be a true and accurate transcript 5 of the proceedings transcribed to 6 the best of my skill and ability. 7 8 9 10 11 12 Peri McHale, 13 Official Reporter, 14 UNITED REPORTING SERVICE LTD. 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 26945 Submissions by Mr. Willms 1 (PROCEEDINGS RESUMED AT 2:00 O'CLOCK P.M.) 2 3 THE COURT: Mr. Willms? 4 5 MR. WILLMS: My lord, I was on the Little Ice Age and my friend 6 reminded me of Mr. Chilton, and I apologize that I 7 don't have this portion of the evidence in the binder. 8 But your lordship may want to make a note, the note 9 could be where we left off. 10 THE COURT: Yes. Page five? 11 MR. WILLMS: At the top of page five, about the Little Ice Age. 12 Because this is on -- transcript 147, 9402, starting 13 at line two and, this is after Mr. Chilton had said 14 that he just -- he didn't know whether the Little Ice 15 Age had any effect on this area. And then your 16 lordship asked him: 17 18 "THE COURT: You say you don't know whether the 19 Little Ice Age, as it's called, had any effect 20 on this area at all?" 21 22 Then Mr. Chilton said this: 23 24 "No, I don't. There has certainly been warmer 25 periods and colder periods. Back 12,000 years 26 ago there was a colder period right after the 27 glaciers retreated and a warmer period around 28 7000 years ago. But most of the work, it looks 29 at pollen samples and so on and they don't 30 consider that time frame." 31 32 33 Now, I just refer to that point for two points, my 34 lord. First of all, Dr. Matthews does consider pollen 35 samples as a paleobotanist and in fact he used pollen 36 samples to reach his conclusions in this case. And so 37 to that extent I take it that Mr. Chilton is certainly 38 deferring to Dr. Matthews. But the second point is 39 that Mr. Chilton quite frankly said right there, he 40 doesn't know whether it had any effect or not on the 41 area. That's just something that Mr. Chilton doesn't 42 know. However, fortunately, Dr. Matthews knew, Dr. 43 Gottfeld knew, Dr. Hatler knew and apparently June 4 4 Ryder. 45 MR. GRANT: Well, just if your lordship is making reference I 46 think it's very important that the reference commence 47 at -- where your lordship asked Mr. Chilton questions 26946 Submissions by Mr. Willms 1 on page 9401 of the same volume, starting at line 22 2 and following. Because Mr. Chilton makes it clear 3 that the analogy in your -- is from Europe, which has 4 a far longer record. 5 MR. WILLMS: Yes, he says that's what he knows about but, you 6 know, he says "I am not aware of any great degree of 7 work that's been done in that area here." He just 8 didn't know. But, yes, I do, as my friend indicated, 9 I commend the previous page as well because it amounts 10 to the same thing. 11 THE COURT: All right. 12 MR. WILLMS: Now I am at page five, my lord, of my argument, 13 paragraph 6. And there I say that although the 14 eastern Carrier appear to be clothed in fur, some 15 clothing in the Claim Area was made of fish skins, a 16 fact that was not known to Dr. Ray. 17 I say that people in the Claim Area were at times 18 poorly clothed and, my lord, if, for example, if your 19 lordship turns at tab 6 in the yellow book to page 10, 20 and you will see that this is from Trader Brown, 1822 21 to 1823, and you will see the third line in the second 22 paragraph, the third line down: 23 24 "Their shoes are made of the skins of these 25 fish..." 26 27 That's referring to salmon, 28 29 "...which with a Siffleux..." 30 31 And Siffleux, my lord, is a groundhog or marmot, 32 33 "...with a Siffleux robe composed the dress of 34 the greatest part of them." 35 36 And this is a reference to the Atnah. 37 THE COURT: And this is 1822? 38 MR. WILLMS: 1822-23. The report is written in '23. 39 Going over to the next page, my lord, at page 11, 40 this is an exhibit from Turner-Turner, and at page 12, 41 and I won't read it, my lord, but there is a 42 description on page 12 of Mr. Turner and the interior 43 of a lodge at Hazelton and what the people were 44 wearing in the lodge. 45 MR. GRANT: Is that an exhibit, Turner-Turner? 46 MR. WILLMS: Yes, my lord, Turner-Turner is Exhibit 1035-73. It 47 was marked in the evidence of Dr. Galois in chief. 26947 Submissions by Mr. Willms 1 The next reference, my lord at page 14, this is a 2 note of McGillivray in 1833 on his voyage to the forks 3 of the Skeena and the Bulkley. And at the top of the 4 page, and this is after he gets to Hagwilget, my lord, 5 about eight lines down, he said: 6 7 "These Indians are destitute of woolens." 8 9 And then further down he described the dress of one 10 of the individuals: 11 12 "He had on a new inferior red bar 3 pt. blanket, 13 bordered with a little red cloth." 14 15 16 Page 16 is from Exhibit 1033-13, this is Morison in 17 1866. 18 THE COURT: 1033-13? 19 MR. WILLMS: 1033-13. It's actually in it in a number of 20 places, my lord, but this is where I have taken this 21 one from. 22 THE COURT: From Morison? 23 MR. WILLMS: From Morison. And he is describing himself at 24 Mission Point. And if you go down about eight lines 25 you will see the word appetite in the column on the 26 left-hand side, if you come down eight lines from 27 "alone at Mission Point", there is the word appetite 28 on the far left-hand side. 29 THE COURT: If there is I can't read it. Anyway, eight lines 3 0 down? 31 MR. WILLMS: Yes, eight lines from -- into the first paragraph, 32 where it should say, your first paragraph should say 33 "alone at Mission point, Skeena Bulkley River." And 34 in the column the first word would be appetite, "... 35 then down came about 100 Hagwilgaits to look at the 36 white boy; they were a fierce looking crowd, not a 37 pair of trousers amongst them." 38 And then over to page 21, and page 21 is an extract 39 from Harmon, and the exhibit is 913, but -- and this 40 is, of course, Harmon is returning into the eastern 41 Carriers. He is outside the Claim Area here. And he 42 says: 43 44 "Their clothing consists of a covering made of 45 the skins of the beaver, badger, muskrat, cat 46 or hare. The last they cut into strips about 47 one inch broad, and then weave or lace them 2694? Submissions by Mr. Willms 1 together, until they become of a sufficient 2 size to cover their bodies, and to reach to 3 their knees. This garment they put over their 4 shoulders and tie about their waists. Instead 5 of the above named skins, when they can obtain 6 them from us, they greatly prefer and make use 7 of blankets, capots, or Canadian coats, cloth 8 or moose and red deer skin. They seldom use 9 either leggins or shoes in the summer. At this 10 season the men often go naked." 11 12 Then if you drop down, my lord, after the word 13 creation to "the women..." 14 THE COURT: Yes. 15 MR. WILLMS: 16 17 "The women, however, in addition to the robe of 18 beaver or dressed moose skins, wear an apron 12 19 to 18 inches broad, which reaches nearly down 20 to their knees. These aprons are made of a 21 piece of deer skin or salmon skin sewed 22 together. Of the skin of this fish, they 23 sometimes make leggins, shoes, bags, et cetera, 24 but they are not durable and therefore they 25 prefer deer skins and cloth which are more 26 pliable and soft. The roughness of salmon 27 skins renders them particularly unpleasant for 28 aprons." 29 30 And if -- I would ask your lordship to turn to page 31 25, and this is from Ogden, A Tale of Western 32 Caledonia. 33 THE COURT: What's the exhibit number? 34 MR. WILLMS: The exhibit number, my lord, is Exhibit 914. And 35 about the middle of the page on the far right-hand 36 side you will see "one grim-looking fellow...", the 37 one starts on the far right-hand side. 3 8 THE COURT: Yes. 39 MR. WILLMS: 40 41 "One grim-looking fellow stood eminently 42 conspicuous in a scarlet coat, unaccompanied by 43 that nether appendage which a delicate 44 spectator might have deemed necessary to 45 decorum; while another, his nearest neighbour, 46 rejoiced in a regimental coat of the Sappers 47 and Miners, and the very decorous adjunct of a 26949 Submissions by Mr. Willms 1 half-worn pair of corduroy trousers." 2 3 Now, in terms of the ability of these people to 4 make observations, my lord, and your lordship has 5 heard some suggestion throughout this argument that 6 certain people you have to read, you have to find out 7 what their bias is before you can determine whether or 8 not you can believe that they actually saw what they 9 say she saw. Dr. Mills dealt with that at the next 10 page, at page 26. And, she is asked at line three, in 11 chief by Mr. Rush: 12 13 14 "Q Now, Dr. Mills, in terms of the passage 15 that I have directed your attention to, which 16 is found at tab 27, that is to say the Harmon 17 journals and as well the journals of -- or the 18 accounts rather of the passages referred to 19 Peter Ogden, do you accept these accounts and 20 the passages that I have directed you to in the 21 accounts as reliable accounts of what was going 22 on at the time and what was observed? 2 3 A I do. 24 Q Can you tell his lordship why? 25 A These are eyewitness reports of the 26 observations of these people. There seems to 27 be no reason to presume they would be in any 28 way inaccurate." 29 30 My lord, I suggest that that applies to any of the 31 historic records, where what is happening is a person 32 is saying what he saw. 33 Now the last -- 34 MR. GRANT: Just on that point, my friend probably is better at 35 this than myself, but my understanding of the first 36 reference of Brown of 1823 was that the Atnahs' 37 description is not what he saw, the Atnahs being, as I 38 understand and my friend understands as well, the 39 Gitksan, that he wasn't -- he was describing what he 40 was told about them. Because I think that's 41 significant because of -- I am not sure if my friend 42 is going to come to his later report where he actually 43 observed what the Atnahs were wearing. 44 MR. WILLMS: Yes, I am going to come to the part were he 45 observes what someone was wearing on his second trip 46 right now. 47 THE COURT: Is there something being led now — 26950 Submissions by Mr. Willms 1 MR. WILLMS: My friend is quite correct, that some of the 2 reports, some of what Brown says about the Atnahs is 3 based on what the Babine people told him. 4 MR. GRANT: That's the reference that my friend has referred to 5 thusfar, the 1823 report. 6 MR. WILLMS: Right. 7 MR. GRANT: And I think that he describes in his later report 8 what the Atnahs actually were wearing, which is quite 9 different, and he repudiates what he heard earlier. 10 MR. WILLMS: Not on this point, my lord. But I am sure my 11 friend will be able to clear that up completely in 12 reply. But he doesn't repudiate this point, my lord. 13 THE COURT: All right. 14 MR. WILLMS: Now, the next is page 30, which is an extract from 15 Brown's journal of his trip down the Babine River. 16 And the exhibit reference, my lord, is 964-14, and if 17 you look on page 30, over to the right hand column, he 18 is describing events on Thursday the 9th of March, 19 1826. And down to the line, it's about 12 lines down, 20 it said "phone guaem..." "found guaem..." 21 THE COURT: Is it in where the ink changes? 22 MR. WILLMS: Yes, it's right beside. It looks like the words 23 "descending in concert" or something like that, but 24 you can see -- 25 THE COURT: I have that, yes. 26 MR. WILLMS: Now he says, "Found Guaem nearly in his birthday 27 suit. He made a long harrangue to us about his 28 poverty, et cetera." 29 Now he does -- this is the part that my friends 30 quoted in their argument, Brown then goes on to note 31 that: 32 33 "...Guaem then bedecked himself out in regalia 34 and did a dance for Trader Brown." 35 36 But when they came upon him, that was the condition 37 that he was in. And so I say, my lord, back at page 38 five, paragraph 6, that it was the Eastern Carrier, 39 who from historical description were warmly clothed in 40 the winter while the Atnahs did not appear to be as 41 warmly clothed, at least in non-European garments. I 42 would suggest, my lord, this may be another piece of 43 evidence of the recency of the arrival of the coastal 44 Gitksan into an unfamiliar interior territory. 45 At the bottom of page five, the beaver appears to 46 have been important for food for the Carrier but not 47 for the Atnahs who considered the meat unclean. A 26951 Submissions by Mr. Willms 1 variety of furs were traded at Fort Kilmaurs and Brown 2 received reports -- and, my lord, if you could put in, 3 in 1823, above reports, in 1823, that Atnah country 4 abounded with beaver and other animals of the fur 5 kind, although this may have been an exaggeration as 6 Brown suspected by 1826. And if your lordship could 7 add after the words "suspected by 1826", and I say 8 that because if you turn in tab 7 to the second to the 9 last page at the tab, which is page 12, and this is 10 from Brown's 1826 report, Brown says, the first full 11 paragraph on the page, starting at the first full 12 paragraph on the page. 13 THE COURT: Do you know the exhibit number? 14 MR. WILLMS: The exhibit is 964-12. He says: 15 16 "From my own observations and the different 17 questions I put to them, I do not think there 18 are many beaver in their country, it being, in 19 my opinion, too mountainous." 20 21 And then he goes on to note two of the three 22 chiefs said that they didn't have much beaver in their 23 territory and the third chief said that he did but he 24 didn't know how to work it. 25 MR. GRANT: Well, my lord, if I can just say, because I think my 26 friend misunderstood me, this report he is now 27 referring to exhibit 964-12, I just ask if you note 28 with respect to the clothing at page 9 of that report, 29 he refers to observing the Atnah with groundhog robes 30 and caribou leggings and that's what my friend did not 31 refer you to. In 1825 he observed them personally. 32 MR. WILLMS: Yes. 33 THE COURT 34 MR. GRANT 35 THE COURT Where will I find that, Mr. Grant? Exhibit 964-12, page 9. For evidence of clothing. 36 MR. WILLMS: Now I carry on, my lord, on page 6, paragraph 8, 37 and say that Loring's reports in 1899 show that the 38 only location in the Claim Area where you could 39 describe almost exclusively or entirely native 40 traditional activities taking place, was Kuldo, which 41 was later abandoned. And my reference there is to Dr. 42 Galois, Dr. Galois acknowledged that, so that the 43 people from Kuldo could obtain non-traditional food 44 like flour, potatoes, sugar, et cetera. And at tab 8, 45 my lord, if you would turn to page 3, tab 8, this is 46 Exhibit 901-11, Jeffery Harris, interviewed by Violet 47 Smith, and you will see down near the bottom in the 26952 Submissions by Mr. Willms 1 margin, "J. H." near the bottom: 2 3 "Our ancestors didn't live in Kispiox, they 4 lived in the Village of Kuldo about 50 miles 5 from the Kispiox village. There weren't many 6 people in Kuldo when the white people settled 7 in the Hazelton area. Our people desired some 8 of their food like flour, potatoes, sugar, et 9 cetera, but it was a long hard trip to pack the 10 food to Kuldo so they moved to Kispiox." 11 12 And then over to the next page is an Ellen Johnson 13 interview by Violet Smith. But the part I want to 14 read from the Ellen Johnson interview is on page five, 15 the next page over. 16 And, here Violet Smith, in the middle of the page 17 by the three-hole punch: 18 19 "Q Now will you tell me of the history of your 2 0 family?" 21 22 And Ellen Johnson said: 23 24 "A Our family came from Kuldo. My grandmother and 25 my mother were there but I have never been 26 there. It was too far away to come and get the 27 food of the white man that they desired so they 28 moved down to Kispiox." 29 30 31 Now, carrying on in the argument, my lord, at 32 page -- paragraph 9, residents of the Claim Area moved 33 mid-June to mid-August en masse to the coast to work 34 in the canneries from about 1884 to 1885. And I cite 35 Dr. Ray and Dr. Galois there for that proposition, as 36 well as Mr. Hobenshield's affidavit at that location. 37 And then over to the top of page seven, paragraph 38 10, residents of the Claim Area were also involved in 39 packing, both before and after the introduction of 40 the horse. The horse was introduced by the Collins 41 Overland Telegraph in 1866 and was adopted by the 42 inhabitants of the Claim Area as a transportation 43 resource. By 1887 they had virtually monopolized 44 packing and claimed it as a privilege. 45 At this point, my lord, I would ask that you turn 46 to tab 10, and pages three and four of tab 10, there 47 is a letter from Allan Graham dated July 27th, 1887, 26953 Submissions by Mr. Willms 1 to the provincial secretary. And the exhibit number 2 is in the upper right hand corner, 1180-111A. At the 3 very bottom of the first page of the letter -- are you 4 at page 3, my lord? It folds down. 5 THE COURT: I am sorry, I am not. I am at tab 10. I am sorry. 6 Where do you want me to be? 7 MR. WILLMS: Page 3 of tab 10 there should be a letter that 8 folds down. Has yours been reduced? 9 THE COURT: Mine is letter size. 10 MR. WILLMS: Mine is big so I can read it. 11 "The Hudson's Bay Company..." do you have that at 12 the very bottom of the letter? 13 THE COURT: Yes. 14 MR. WILLMS: 15 16 "The Hudson's Bay Company are sending a pack 17 train to pack their freight across this 18 portage, a distance of 60 miles, Hazelton to 19 Babine Lake. This freighting, 100,000 pounds 20 during a season has been previously done by 21 Indians. They claim this packing as their 22 privilege and are opposed to pack trains. I 23 will remain here till further order." 24 25 26 So it's my suggestion, my lord, that by 1887 the 27 inhabitants of the Claim Area had claimed packing as 28 their privilege. 29 THE COURT: This is exhibit — 30 MR. WILLMS: It's 1180-111A. 31 Now turning to my argument at paragraph 11, by 1910 32 the residents of the Claim Area were so involved in 33 the white economy that the "majority of the able 34 bodied Indians were having steady employment on the 35 Grand Trunk Pacific right-of-way." 36 And the two references there, my lord, are letters 37 written by Mr. Loring to the Department of Indian 38 Affairs. That's 1035-322, and 1035-323. This was an 39 observation that Dr. Galois terms dubious. 4 0 THE COURT: An observation by whom? 41 MR. WILLMS: The observation that the — the observation that 42 they were having steady employment. He had the letter 43 put to him in cross-examination. Well, I will go to 44 the cross-examination, my lord. The cross-examination 45 of Dr. Galois is at page 3. 46 THE COURT: Of tab 10? 47 MR. WILLMS: Of tab 10. 26954 Submissions by Mr. Willms 1 MR. GRANT: 2 3 4 5 6 7 8 9 10 11 12 MR. WILLMS 13 MR. GRANT: 14 MR. WILLMS 15 16 17 18 19 THE COURT: 20 MR. WILLMS 21 THE COURT: 22 MR. WILLMS 23 24 25 THE COURT: 26 27 MR. WILLMS 28 29 THE COURT: 30 MR. WILLMS 31 THE COURT: 32 MR. WILLMS 33 THE COURT: 34 MR. WILLMS 35 36 37 38 39 40 41 42 43 44 45 46 47 Well, before that, my friend says that residents of the Claim Area in his argument "were so involved in the white economy the majority of able bodied Indians were..." is my friend referring to his extract at page one, which refers to the able bodied Indians of the villages below here and at Hagwilget and Moricetown, thereby presumably excluding the Kispiox, Kuldo and Kisgegas, or is he referring to the second one? It doesn't appear that Mr. Loring is saying what my friend is saying and if my friend could clear that up -- : Well, I will see if I can help my friend here. Just tell -- : We will go to tab 1, my lord, and read it and maybe we can clear up my friend's confusion. I thought it was clear but -- at tab 1 Loring says: "Nearly all the able bodied Indians of the villages below of here..." I am sorry? : I am at tab 11, page 1. I am still on ten. : Page 1. Now, first of all, to help my friend, Loring is writing from Hazelton, so that he can -- we can get above and below straight. That's what I was trying to figure out. Who is writing? Is this Loring? : This is Loring on page one and two. I am reading from page one right now. Well, I am sorry, Mr. Willms, are we on tab ten? : 11. All right. Now this is -- : March 31st, 1910. This is a letter from Loring. Yes. A letter from Loring. Okay. : He says: "Nearly all the able bodied Indians of the villages below of here..." now, just stopping there, below I would take as meaning below Hazelton, which is the way that the railroad went, below Hazelton along the river. So I take that being Kitwanga, Gitsegukla, below Hazelton, "...and the Hagwilgets between here and Moricetown are busy on the right-of-way of the Grand Trunk Pacific line." Now, I take it that perhaps that some of the Kispiox people weren't involved and some of the Kuldo and the Kisgagas people were not involved, but I think that's pretty clear. Now, I was asking your lordship to turn to tab -- to page 3 of this tab. And this is Mr. Adams leading 26955 Submissions by Mr. Willms 1 the evidence in chief of Dr. Galois, line 32. And he 2 is referring to the second letter at this tab and he 3 says -- he reads the letter: 4 5 "'As formally made note of, the majority of the 6 able bodied Indians are having steady 7 employment on the Grand Trunk Pacific right-of- 8 way and this fact keeps them out of contact 9 with contaminating influences and with 10 opportunities for nonsensical vapourings, that 11 they should be the masters of the land, which 12 in their minds does not rest with certain 13 concessions, but comprises all or none. It is 14 quite plain that parties in position to advise 15 them on the lines that tend to develop 16 affection, loyalty and truth are sub rosa 17 fostering the torment and keep it aglow.'" 18 19 Then he says "'and so on.'" 20 21 "And I want to ask you whether those passages 22 are examples of the materials you rely on to 23 describe Loring as offering his superiors 24 optimistic comments on the current mood and 25 dubious explanations for the former behaviour?" 26 27 And he says, answer, "yes." 28 But, Dr. Ray, if you go to page six at this tab, 29 Dr. Ray in his draft, Exhibit 962, says this: 30 31 "One very important but brief source of 32 employment was in connection with the 33 construction of the Pacific Grand Trunk Railway 34 through the Bulkley Valley and down the lower 35 Skeena River to come to the Prince Rupert 36 terminal. Beginning in 1907, local Indian 37 people, particularly the Kitwancool, 38 Get-an-max, Kitwanga, and Rocher Deboule bands 39 worked on the survey crews and later 40 right-of-way construction." 41 42 43 And what I suggest there, my lord, is that as Mr. 44 Williams concluded -- I am in -- back in the argument, 45 as Mr. Williams concluded: 46 47 "...by the time of the arrival of the Grand 26956 Submissions by Mr. Willms 1 Trunk Pacific and the negotiations with the 2 Indians over acquisition of land, that as I 3 said in my report, that the pattern of the 4 relationship between the whites and Indians had 5 already been settled by then." 6 7 8 And the point I make there, my lord, which is 9 important, about the Grand Trunk Pacific Railroad, is 10 that the antithesis of ownership and jurisdiction has 11 to be surveying and helping to build a railroad. 12 THE COURT: Yet Loring reported, just a moment ago, that they 13 were making that assertion. 14 MR. WILLMS: My lord, there is no question, and we will be 15 making a submission, and it's a continuing submission, 16 that really, and I will deal with this a little bit 17 more when I deal with reserves and O'Reilly, but that 18 you really have to look at what the people did and 19 then consider what they said in light of what they 20 did. And there is no question that at this time there 21 were some people saying that the land is all ours and 22 there were other people who were building a railroad 23 and surveying the railroad right through the land that 24 they say is ours. 25 Now, I say, my lord, that in law those two don't 26 stand together; that when you look at the people's 27 conduct in this case, action speaks far louder than 2 8 words. 29 Now, I then turn in my argument, my lord, at the 30 top of page eight, paragraph 12, and say this: The 31 opinion evidence respecting prehistoric resource use 32 and society in the Claim Area depends primarily on 33 inferences and assumptions. The assumptions that have 34 been made form the core of the disagreement between 35 the inferences drawn by the plaintiffs' experts and 36 those drawn by Dr. Robinson. Each of the plaintiffs' 37 experts, at one point or another, appears to assume 38 that aboriginal society and resource use was static 39 for long periods of time in the past or if not static, 40 relatively unchanging. Dr. Robinson assumes that 41 cultures always change depending on outside influences 42 and internal change. Dr. Robinson documents the 43 likelihood that protohistoric influence has changed 44 aboriginal society while the plaintiffs' experts, 45 adopting, as I say, the "Indian World View", deny 46 this, primarily because they say it does not accord 47 with the plaintiffs' view of themselves. The only 26957 Submissions by Mr. Willms 1 real difference, though, between the opinions of Dr. 2 Robinson and Dr. Ray revolves around furs and 3 trapping. In other respects, Dr. Robinson and Dr. Ray 4 agree that the primary resource and the basis for the 5 subsistence economy in the early 19th Century, and 6 likely the prehistoric and protohistoric period, was 7 salmon. It is the importance of furs that leads to 8 differing opinions. 9 And I say, in paragraph 14, there is no direct 10 evidence that resource use in society in the Claim 11 Area and in the historic period was either the same or 12 different from the resource use and society in the 13 prehistoric period. Dr. Ray. However, Dr. Ray 14 concludes the picture of resource use and society in 15 the 1820s more accurately reflects prehistoric 16 resource use because he doubted "very much that the 17 system in place, given how well articulated that 18 system was, was created in that short a period of 19 time." 20 And just on that point, my lord, if you could turn 21 to tab 14. At tab 14, at page five, and this is an 22 extract, my lord, from Wilson Duff, The Impact Of The 23 White Man. And I should point out, my lord, that 24 although parts of Wilson Duff are marked as Exhibit 25 855, the pages which I am about to refer to were not 26 marked at the exhibit. 27 MR. GRANT: So this isn't an exhibit, what you are referring to 28 here? 29 MR. WILLMS: No, this is like the additions to Dr. Coupland that 30 my friend added, in that vein. 31 Now, at the top of page five, my lord, under the 32 Nature Of The Trade, and Dr. Duff is referring to the 33 fur trade, he said: 34 35 "It is important to understand how intense the 36 trade quickly became. Within a very few years 37 after 1785 the entire coast was glutted with 38 trade goods." 39 40 Then he describes a cultural difference over to 41 page six of the extract, my lord. Bottom of page six and 42 top of page seven where he talks about potlatching, and 43 he says this: 44 45 "A potlatch was a large gathering to which 46 important people were invited in order to 47 witness some event such as a young person 2695? Submissions by Mr. Willms 1 assuming a new name or the completion of a new 2 house or the erection of totem pole. On such 3 an occasion the host would display his wealth 4 and present gifts to his guests. The more he 5 gave away the more prestige he acquired. Every 6 person wanting to raise himself in rank, and 7 most had some claim through inheritance to more 8 important positions, but it was only by means 9 of potlatching that one could assume and hold 10 the positions of high rank. After the time of 11 contact, potlatches became more numerous and 12 larger. More wealth was available and the 13 higher death rate resulted in more positions of 14 importance being opened. The competition to 15 fill them was keen. Potlatching also changed 16 in character. Among the Kwakiutl at least, it 17 became a substitute for war. Before the 18 imposition of British law, war had been a major 19 method of humbling enemy tribes and gaining 20 prestige. During the 1850s and 1860s, warfare 21 decreased and potlatching increased. Energies 22 formerly expended in war were now put into 23 potlatches which were organized like war 24 campaigns and referred to in the speeches as 25 wars. One old Kwakiutl said in a speech in 26 1885: 'When I was young I saw streams of blood 27 shed in war but since that time the white man 28 came and stopped up that stream of blood with 29 wealth. Now we fight with our wealth.'" 30 31 32 Now, my lord, in terms of the impact there on the 33 Claim Area, I want to remind your lordship of the 34 comment from Kitwanga when O'Reilly came: "We used to 35 fight about our land" and after O'Reilly came, 36 O'Reilly settled it all. And also the fact that the 37 warfare in the oral histories dies out in about the 38 1860s. 39 Now, carrying on on page nine, my lord, paragraph 40 14. And, I just finished quoting from Dr. Ray in my 41 argument there, and then "he" is Dr. Ray, explains the 42 difference between his opinion and Dr. Robinson on the 43 ground that Dr. Robinson's conclusions, as with other 44 anthropologists, such as Dr. Goldman, Dr. Steward, Dr. 45 Kobrinsky, Dr. Jenness and Father Morice, was reached 46 in the absence of any good historical records. But 47 it's here that I say that Dr. Robinson considered 26959 Submissions by Mr. Willms 1 historical records from the Hudson's Bay Company on 2 the coast, and in the interior, as well as other 3 coastal historical records, in reaching conclusions. 4 And we will come back to that, my lord, in respect of 5 Dr. Robinson's report or dissertation. But at this 6 particular point I want to emphasize, my lord, that 7 Dr. Robinson did not have a focus on only Hudson's Bay 8 records, which was Dr. Ray's focus. Dr. Robinson was 9 free to, and did in her dissertation, look at coastal 10 records, including the Fort Simpson records from The 11 Bay, and brought that knowledge to the report that she 12 gave in this court and added to it some references to 13 the Fort St. James journal and also Brown, she 14 referred to both Brown and Fort St. James in her 15 bibliography and, most importantly, my lord, when she 16 was confronted with the proposition that her 17 conclusions were contrary to Brown, that she didn't 18 consider Brown, she said she did. And that she knew 19 of Harmon as well. And it is my suggestion, my lord, 20 that in terms of an historical analysis, while Dr. 21 Robinson may not have looked at as much of The Bay 22 record as Dr. Ray did, she brought a much broader base 23 of historical analysis to bear than Dr. Ray did. 24 Now, with that in mind, my lord, I say at the 25 bottom of page nine that historical analysis alone 26 cannot be used to predict prehistoric resource use of 27 society. There must be an ethnological analysis which 28 takes the historic record into consideration. And 29 there, my lord, you might recall that drawing from Dr. 30 Bishop and Dr. Ray, where it had backstreaming by 31 ethnologists, where there is an ethnological 32 perspective brought to bear, and what I say here, my 33 lord, is that Dr. Robinson has overwhelming knowledge 34 of historical information for the whole northwest 35 coast. 36 I say also -- 37 THE COURT: Well, was -- what do you understand is the 38 difference between them? 39 MR. WILLMS: In their opinions? 4 0 THE COURT: Yes. 41 MR. WILLMS: Well, the principal difference in the opinions, 42 which I deal with later, is that Dr. Ray says when he 43 looks at Trader Brown he is getting a snapshot of what 44 the plaintiffs looked like in the prehistoric past. 45 And what Dr. Robinson says is that can't be, there is 46 a continuum of change going on and Brown gives you, if 47 I can put it this way, a snapshot of what it looked 26960 Submissions by Mr. Willms 1 like at the time Brown was there. And if I can -- if 2 you drew a graph and you had change in society on one 3 arm and time on the bottom, Dr. Robinson's graph 4 would -- there would be some change and there would be 5 periods of rapid change, but Dr. Ray's graph would 6 plug along at a horizontal line until 1831, when even 7 he acknowledged a radical change in his evidence given 8 in this case. So he is going along like this and then 9 at 1831 it heads up. Well, what I submit is that's 10 the difference. 11 Now I am at page -- 12 THE COURT: I would have thought what he was saying was that I 13 found an organized society carrying on a -- enough 14 resource gathering to engage in some trade in the 15 early 1830s, and Dr. Robinson -- and it was such a 16 state that it must have been there for some time, 17 where Dr. Robinson said it's all a reaction to the fur 18 trade. Is that too simplistic? 19 MR. WILLMS: No, that's not too simplistic, my lord. And that's 20 what I deal with now in paragraph 15. 21 THE COURT: All right. 22 MR. WILLMS: With the difference between the change approach and 23 the static approach. And I say -- 24 MR. GRANT: I think my friend has cast Dr. Ray, I think, in a 25 completely incorrect frame, and I just ask your 26 lordship -- 27 MR. WILLMS: Well, my lord, this is argument and I am going to 2 8 deal with the evidence now and my friend can make his 29 argument in reply. Now, I just -- for the last three 30 minutes I didn't cite any evidence, so my friend can't 31 be straightening me out on any evidence. I made 32 argument for the last three minutes. 33 THE COURT: I think Mr. Willms is right, Mr. Grant, I don't 34 think this is a place for an interjection. 35 MR. WILLMS: Now, paragraph 15, my lord, I say this, that there 36 are two points that are important in assessing Dr. 37 Ray's static interpretation. First, it differs from 38 an earlier opinion he held for at least part of the 39 Claim Area. At one time, Dr. Ray thought that the fur 40 trade radically altered the local economy. And if 41 your lordship could turn to tab 15, and at tab 15, 42 this -- these are comments on Skip Ray's Kemano paper, 43 so this is Dr. Cove, and I think Dr. Clark, giving 44 some comments on a paper that Dr. Ray wrote. And 45 starting on page 3 -- and what they do, they give the 46 page reference to Dr. Ray's paper, and then they give 47 a comment. So at the middle of page 3 you will see 26961 Submissions by Mr. Willms 1 they refer to page 6 of Dr. Ray's paper, and they say: 2 3 "A problem with tone -- that the fur trade 4 'radically altered' the local economic 5 situation. It may have had an impact but 6 'radically altered' is too strong." 7 8 Now, over to the next page, where -- and it's just 9 above the three-hole punch, the reference pages six 10 and seven there? 11 THE COURT: Yes. 12 MR. WILLMS: 13 14 "Ray implies a radical change in their native 15 economy in 1821 -- not so." 16 17 18 Further down, at page seven: 19 20 "Ray suggests that the fur trade enabled the 21 Gitksan to extend their influence into Carrier 22 land and society and to 'bring about major 23 changes in the socio-economic organization of 24 northern Carrier sub-tribes, particularly the 25 Wet'suwet'en and the Babine." 26 27 Of course, Dr. Cove's comment, "this is speculative 28 and unsubstantiated." 29 Over to the next page, page -- 30 THE COURT: Do we know the date of this? 31 MR. WILLMS: The date of this is October of '84, that's Dr. 32 Ray's handwriting, October of '84 on the front, which 33 I take it is when he got these comments back from 34 Clark and Cove. 35 On page five, and this is a continuing comment on 36 page seven, about page seven of the Kemano paper, 37 fourth line down: 38 39 "Ray's implication here is that prior to the fur 40 trade the Wet'suwet'en were nomadic hunters who 41 did not have the sophisticated socio-economic 42 organization." 43 44 45 Over to page six, down towards the bottom, where 46 it says "pages 8-9". 47 26962 Submissions by Mr. Willms 1 "There are problems here with evidence on the 2 logic of the argument. First, the terms 3 'prehistoric' and 'protohistoric' should not be 4 used. Second, Ray seems to be lumping all 5 pre-contact Carrier into the same mould: that 6 is, nomadic band-oriented social organization 7 unlike the post-contact and present 8 Wet'suwet'en. In so doing, he is setting up to 9 argue that the fur trade radically changed this 10 form of social organization." 11 12 13 Finally, my lord, over on to page eight -- I 14 shouldn't say finally, but over on to page eight of 15 these comments, beside page 19: 16 17 "It is not clear from the data that pre-contact 18 Carrier society had been radically transformed 19 by the 1820s. " 20 21 Are you with me, my lord? 22 THE COURT: Yes. 23 MR. WILLMS: And then beside pages 20 to 21: 24 25 26 "If a transformation did take place, it would 27 likely take longer than 20 years to develop to 28 the stage Ray claims it had reached by 1820." 29 30 31 And then the final reference here, my lord, is at 32 page nine beside page 70, it says: 33 34 "Ray states that hunting territories were held 35 by nobles on behalf of their lineages. The 36 term lineage should be defined. We use it to 37 indicate a family line through time within a 38 house. See land claim report. It would be 39 better to say that hunting territories were 40 controlled by chiefs on behalf of their 41 houses." 42 43 44 Now, what I say from that, my lord, is that it is 45 quite clear that at one point Dr. Ray agreed with 46 everyone else that Dr. Robinson referred to in her 47 evidence, and that is that the fur trade radically 26963 Submissions by Mr. Willms 1 altered the social organization in the Claim Area. 2 Now, carrying back on in the argument, my lord, I 3 say after that, second, Dr. Ray admits that in 4 assessing the historical record you cannot assume that 5 what's happening in 1858-1860 to 1870 is what was 6 happening in 1820, and his point was that the way you 7 normally would work is to go from the earliest known 8 record and work forward. So that's how he approaches 9 the historical record. But he assumed that what was 10 happening in 1820 from the historical record was 11 happening prior to 1820, even though -- and he 12 admitted again, my lord, there is no concrete evidence 13 to tell us what existed before. 14 Now what he did do is he did agree that from 1831 15 on the fur trade changed not only one aspect of the 16 Gitksan or the Wet'suwet'en system, but it had an 17 impact on every, almost every aspect. So I say that 18 Dr. Ray's evidence appears to be that resource use and 19 social organization were static until the 1830s, at 20 which time radical changes in resource use in society 21 are evident and obvious from the historical record. 22 Now, I say this in paragraph 16, my lord, that it 23 is submitted here that to the extent of working 24 backward from the known into the unknown is 25 appropriate. Dr. Ray's initial opinion of radical 26 change, consistent as it is with Dr. Robinson's 27 opinion, is the appropriate method of assessing what 28 the local resource use in society was prior to the 29 beginning of the 19th century. And Dr. Robinson 30 concluded that the reference in the 1822 and 1826 31 reports by Brown, of tracts of land associated with 32 beaver hunting territories was in keeping with the 33 post-European influence situation. And she also 34 described it, this is from her cultural ecological 35 background, my lord, and I say it also accords with 36 common sense, and watching the world change around us 37 even today, that it's a truism that any human is 38 living societies that are not static, human societies 39 are dynamic, ongoing processes. 40 I say, at the bottom of page 11, that there has 41 been a great debate in Canada, sometimes called the 42 Algonkian hunting debate, about the importance of 43 trapping and territoriality and the effect of the fur 44 trade on the aboriginal populations of Canada. On the 45 one hand, some scholars assert that the fur trade 46 merely intensified pre-existing subsistence economies 47 and resource use and other others argue that the fur 26964 Submissions by Mr. Willms 1 trade radically changed resource use in aboriginal 2 societies. 3 And I say in paragraph 18, my lord, that there are 4 at least two reasons why Dr. Robinson's view of 5 resource use in society in the prehistoric period is a 6 more likely reflection of what was actually taking 7 place than Dr. Ray's newly-held static view. First, 8 there is no question that Claim Area resource use in 9 society radically changed after 1831. Dr. Ray 10 acknowledged this. The change in subsistence economy 11 and resource use continued and is documented in the 12 historic record to the present. If this change can be 13 documented in the historic period, then there is no 14 reason to discount changes in the protohistoric period 15 and assume little change, as Dr. Ray did. I say this, 16 that there is no basis for a presumption of stasis. 17 Protohistoric influences I submit, my lord, clearly 18 existed prior to contact. 19 And the -- my lord, if you could turn to tab 18, 20 and what we have here, and I have to read both for 21 your lordship to see which part Dr. Daly felt 22 confident in and which part he wasn't confident in, 23 but at page five, this is a extract from Dr. Daly's 24 report at tab 18, and he says: 25 26 "As George MacDonald has argued, it appears 27 that the trade in European metal goods along 28 the grease trails preceded the European 29 explorers on the Northwest Coast by at least a 30 century. It is my opinion that as historical 31 studies of the Pacific Coast develop we will 32 also find that the proto-contact tempo of trade 33 picked up momentum from eastern and southern 34 influences as well - from aggressive 35 transcontinental push that the Great Lakes and 36 Plains fur trade exerted in the course of its 37 westward expansion, throwing one nation or 38 people against another and thereby creating 39 confederacies of tribes joined together for 40 defensive and retaliatory purposes in the 41 course of the scramble to control trade routes 42 and access to furs; and also from the Spanish 43 to the south, whose horses, guns and knives, 44 together with the market activity of the 45 west-moving fur trade, facilitated the Chinook 46 slave-taking and the increased volume and tempo 47 of trading and raiding all along the Pacific 26965 Submissions by Mr. Willms 1 Coast." 2 3 4 Now, he backed away slightly from part of that, my 5 lord, and it's the part from the south that he backed 6 away a bit from, but not the part from the east. And 7 that's on the next page is an extract from Mr. Grant 8 leading the evidence of Dr. Daly. 9 THE COURT: Before you leave that, Dr. Daly's — I am sorry. I 10 am sorry. This is Dr. Daly's report? 11 MR. WILLMS: Yes. 12 THE COURT: I am sorry, I thought it was Dr. Mills. 13 MR. WILLMS: No, this is Dr. Daly. 14 THE COURT: Exhibit number is 824? 15 MR. WILLMS: 884, I think this page is from dash 2. The report 16 was broken into two parts. I think that 507 is from 17 the dash 2. Yes, it's from dash 2. 18 THE COURT: The exhibit number then is — 19 MR. WILLMS: 884-2. 20 Then I was going to ask your lordship to turn to 21 page six. 22 THE COURT: Would it be right to say that Dr. Daly here tends to 23 support Dr. Robinson, that trade preceded the European 24 explorers by a century? 25 MR. WILLMS: Oh, yes. And he didn't change that part. He 26 didn't resile from that part. 27 THE COURT: And that's what she said? 28 MR. WILLMS: That's what she said, yes. 2 9 THE COURT: All right. Where are you going now? 30 MR. WILLMS: I am going to page six and this is at line 16, my 31 friend says this: 32 33 "My lord, I just ask if you could note that I 34 asked Dr. Daly that question, that that second 35 part of that first paragraph..." 36 37 And he means the first full paragraph, 38 39 "...really shouldn't be regarded in terms of 40 the report, as it's something that is not 41 established in the field. He is just 42 commenting on research that's been done in an 43 ongoing way." 44 THE COURT: Do you agree with that? 45 THE WITNESS: I agree, yes. I was a bit too 46 enthusiastic for the available facts." 47 26966 Submissions by Mr. Willms 1 And then Mr. Grant carries on: 2 3 "Q You don't have to say anything more about it. 4 It's your opinion that there is a possibility 5 of finding further evidence. This would be 6 consistent with what you found on the east 7 coast? 8 A Yes. Oh, it certainly pertains to the northern 9 snowball effect of the fur trade from east to 10 west. 11 Q Yes? 12 A And that had an effect from east to west. 13 Q Right. 14 A Just as the coastal trade had an effect from 15 the west towards the east. 16 Q Right. 17 A But there is not enough data available for the 18 effects coming up from the south and the 19 southwest." 20 21 22 And that was the part that Dr. Daly wanted to say 23 that he was a bit enthusiastic about in the paragraph 24 that I read to your lordship. But he was -- he didn't 25 resile from the effect on the coast and from the 26 effect east to west coming across. 27 Now, if I can turn back to the argument, my lord, 28 and then perhaps I can read this part and then take 29 the break. But I am on the top of page 13, and I say 30 this, Dr. Ray acknowledges the problem of inadequate 31 attention to changes in the protohistoric period in an 32 earlier treatise where he says, and this is Dr. Ray 33 and Dr. Bishop who co-authored this statement: 34 35 "The assumption is often made that the proto- 36 historic period was generally short and the 37 amount of change that could have taken place 38 would have been necessarily slight. Since 39 documents are almost always scanty for this 40 period, prehistorians frequently connect their 41 archeological records directly to what is 42 designated as the historic period; while 43 ethnologists working backward through the 44 historic period assume that data pertaining to 45 the latter period provide us with a reasonably 46 accurate picture of aboriginal cultural 47 conditions. Such mental jumps have caused a 26967 Submissions by Mr. Willms 1 2 3 4 5 6 7 8 9 10 11 12 13 14 THE COURT: 15 16 17 18 MR. GRANT: 19 20 MR. WILLMS 21 22 23 24 25 26 27 28 29 THE COURT: 30 MR. WILLMS 31 32 33 34 THE COURT: 35 MR. WILLMS 36 THE COURT: 37 38 39 MR. WILLMS 40 THE COURT: 41 MR. WILLMS 42 THE COURT: 43 44 45 46 47 MR. WILLMS great deal of confusion since changes that took place during the protohistoric period are rarely considered adequate." And the point I make there, my lord, is that when he wrote his paper, along with Dr. Bishop, on how to do this kind of research he, in effect, says, don't discount the protohistoric influences and don't think that when you get there and see the first historic records that that's an accurate reflection of prehistoric society. He is saying that if you do that, you fall into error. And that, my lord, is exactly what Dr. Robinson said. Is that an accurate quote? Is that what he said? Because it doesn't seem to me to be a complete thought. Did he mean not considered adequately or if not, adequate for what? Just for -- this is from his paper on the central sub-arctic with Bishop; is that right? : Well, my lord, it's a quote, that's an exact quote from the paper but I can say this, that when you read the paper, that it is clear -- this is called, for my friends, this is called Ethnohistorical Research In The Central Sub Arctic - some conceptual and methodological problems", Exhibit 902-6. I don't think that Dr. Ray and Dr. Bishop wrote a paper called Ethnohistoric Research in the claim area, so we just have to go with these. The quotation is accurate though, is it? : The quotation is accurate. The sense, when you read the article, my lord, and when you read what they are concerned with in the article, it is that the protohistoric period has been ignored. Or not considered adequately. : Or not considered adequately. The passage that you read me on the previous -- from tab 18, page 6, that's Daly's report, that's not a paper he wrote on the subarctic? : That's Dr. Daly's report. On this case. : On this case, yes. All right. Then if there is trade in European metal goods along the grease trail preceding European explorers on the northwest coast, European explorers I suppose start with Cook or the Spaniards arounds 1778 or just before? : In that area, yes. 2696? Submissions by Mr. Willms 1 THE COURT: So he is talking about in the 1600s, late 1600s? 2 MR. WILLMS: That's Dr. Robinson and the Russian metal trade. 3 THE COURT: Must be Russian or Asiatic or European goods. 4 MR. GRANT: Or from east of the Rockies, that's what Dr. Daly is 5 talking about, coming from the east, my lord. 6 THE COURT: Funny way to put it if he is exploring the northwest 7 coast, if he is talking about trade goods on the 8 grease trail coming, if he is coming from the south or 9 east. 10 MR. GRANT: He corrected it, that there was research on the 11 south but they were coming from the east. And that 12 was the point that he was making, they were from 13 eastern and southern influences from the 14 transcontinental push. That's what the statement says 15 that my friend quoted. And I think that that's what 16 he is making reference to there, and he corrected the 17 south but he said the east. 18 MR. WILLMS: I think, my lord, when you refer to what Dr. 19 MacDonald said about the Russian trade, I would really 20 prefer that if my friend was going to take up time 21 making submissions like that, he took up his reply 22 with submissions like that. Because Dr. MacDonald is 23 totally contrary to that. He doesn't suggest that the 24 iron trade came across the continent at all. 25 THE COURT: Somebody said that. 26 MR. WILLMS: Dr. Daly suggests here, and so did Dr. Robinson. 27 Dr. Robinson suggests that there is a convergence of 28 trade, Russian, Asiatic coming from the coast and east 29 to the west. 30 THE COURT: All right. We will take the afternoon adjournment. 31 Thank you. 32 33 (PROCEEDINGS ADJOURNED FOR SHORT RECESS) 34 35 36 37 38 39 I hereby certify the foregoing to be 40 a true and accurate transcript of the 41 proceedings herein to the best of my 42 skill and ability. 43 44 45 46 Wilf Roy 47 Official Reporter 26969 Submissions by Mr. Willms 1 (PROCEEDINGS RECOMMENCED AFTER BRIEF RECESS) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Willms. 5 MR. WILLMS: My lord, I was at page 13, paragraph 19, and I gave 6 your lordship the first reason why Dr. Robinson's view 7 should be accepted over Dr. Ray's. The second reason 8 is that Dr. Robinson gave evidence of cultural 9 ecological theory based on world-wide investigations 10 which not surprisingly I say accord with common sense, 11 that is societies are always changing and always 12 evolving. Dr. Robinson's conclusions are not only 13 based on historical information, but also on a broad 14 basis of comparison from both cultural ecological 15 theory, and also from the other comparative examples 16 in the adjacent region, which she had been citing 17 throughout her evidence. 18 I say in paragraph 20, when the evidence is 19 considered, there appears to be no doubt that the fur 20 trade from the coast, including the Russian trade 21 influenced the society and resource use in the claim 22 area prior to the observations of Brown in the 1820's. 23 And just on that point, at Tab 20, my lord, at Tab 24 20, page 3, just an extract at page 3 from the 25 cross-examination of Dr. Ray, and at line 6: 26 27 "Q One thing is clear that by the time Brown got 28 to Babine Lake there had been fur-related trade 29 European fur-related trade with the people of 30 the lake from two sides, from the coast and 31 from Fort St. James prior to Brown getting 32 there? 33 A Yes. I say so in my report." 34 35 Now, I carry on, my lord. The land-based fur 36 trade influenced the claim area by the latest 1806 37 when Fort St. James was founded. The plaintiffs argue 38 that the fur trade influence in a claim area may 39 extend back to the French fur trade in the 18th 40 century. And I have a reference to the plaintiffs' 41 outline there, my lord. 42 The historic records of Brown follow 43 proto-historic influence by at least 16 years from the 44 east and probably 40 years, and possibly, I say, when 45 you consider the Russian influence, 150 years from the 4 6 west. 47 THE COURT: What are those references? 16 years from east is 26970 Submissions by Mr. Willms 1 what? 2 MR. WILLMS: 16 would be 1806 to 1822. I say that's the latest. 3 By the time Fort St. James gets found, that's the 4 latest, probably earlier, and the 40 years from the 5 west is what I am going to refer right now, it's from 6 Dr. Ray from his cross-examination, and it's at page 7 10, my lord. 8 You will see at the bottom, line 46: 9 10 "Q That the point I am suggesting here is that 11 this trade, which influences inland started 12 from 1780, had been going on for 40 years 13 before Brown got there. 14 A That's right." 15 16 Now, I do suggest, as Dr. Robinson's suggested, my 17 lord, and as Dr. MacDonald suggested when he found 18 some Russian artifacts, that there was a Russian trade 19 and an Asian trade that may have come even earlier, 20 but that in my submission there is no question that 21 from the point that the coast was glutted, in the 22 words of Dr. Duff, with trade goods, I think the date 23 that he used was 1785, but from that date on from the 24 coast. And the trading ships followed hard on his 25 heels year after year after year. That's clear, my 26 lord, that's another problem, because Dr. Robinson's 27 dissertation, Dr. Robinson gave evidence about this, 28 but there were hundreds of ships that came to that 29 coast over that 40 year period. Hundreds of ships. 30 THE COURT: I can understand that, but I have trouble seeing how 31 they could have been -- how they could have glutted 32 the coast for seven years. 33 MR. WILLMS: Well, my lord, all you need at that time for 34 European goods, considering the population on the 35 coast, is -- and there was certainly more than a dozen 36 ships, but that's all clear from Dr. Robinson's 37 research. There were traders, my lord, called -- the 38 American traders were called the Bostons, there were 39 American traders, Russian traders, there were English 40 traders. There was even some suggestion of an 41 isolated Spanish trade in the area. People came from 42 all over. 43 MR. GRANT: I take it my friend is referring to the entire coast 44 or the north coast just in this discussion. 45 MR. WILLMS: I am referring to the northwest coast. That's what 46 I am referring to. 47 THE COURT: All right. 26971 Submissions by Mr. Willms 1 MR. WILLMS 2 THE COURT: 3 4 MR. WILLMS 5 6 THE COURT: 7 MR. WILLMS 8 9 10 11 12 13 14 THE COURT: 15 MR. WILLMS 16 17 18 19 20 THE COURT: 21 MR. GRANT: 22 23 MR. WILLMS 24 THE COURT: 25 MR. WILLMS 26 27 28 THE COURT: 29 MR. WILLMS 30 31 THE COURT: 32 MR. WILLMS 33 34 35 36 37 38 39 40 THE COURT: 41 MR. WILLMS 42 43 44 45 46 47 : Now, I say, my lord, at the top of page 15 -- If you can give me a citation for glutting the coast in 1785, I would be grateful. : And I may have -- my lord, the reference is at tab 14 in the yellow book, page 5, and it's Dr. Duff. Page 5. : He says within a very few years after 1785 the entire coast was glutted with trade goods. It's at tab 14, page 5. At the top: "It's important to understand how intense trade quickly became." Yes. "Within a very few years after 1785 the entire coast was glutted with trade goods." And that is -- That's the piece that isn't an exhibit, my lord. I take it my friends -- : I think it -- This says Exhibit 855. : There is an extract from this book marked at 855. This is just -- I am supplementing the exhibits as my friends did with Dr. Coupland. Yes. All right. : Now, I am back over, my lord, to page 15, paragraph 21. Yes. : And I say that it is more likely than not that prehistoric society and resource use in the claim area was different than historic society and resource use, because as poorly understood as were the processes of change occurring in the proto-historic and early historic eras, the fact that changes were occurring is irrefutable. And, my lord, the page reference there should be 607, not 21606. 607. : 21607, yes. That's a reference from Dr. Robinson's evidence. And then the next extract, my lord, is an extract from Dr. -- I'll just confirm this. The next extract, my lord, is from Dr. Robinson's report. "Most modern scholars engaged in North American ethnohistoric research agree that indigenous 26972 Submissions by Mr. Willms 1 populations were profoundly affected by 2 indirect contact with Europeans before they 3 experienced direct contact with them. Although 4 the nature, timing, intensity and repercussions 5 of protohistoric European influence varied 6 considerably from region to region, research 7 indicates that no native groups in what is now 8 known as British Columbia were isolated from 9 stimulus stemming from the European presence in 10 the New World." 11 12 And then I say in paragraph 22. 13 14 Ethnologists working in or near the claim area 15 since the turn of the century, Father Morice, Dr. 16 Jenness, Dr. Cranny, Dr. McClellan, Dr. de Laguna, Dr. 17 Oberg, Dr. Garfield, Dr. Tobey, Dr. Steward, Dr. 18 Krause, Dr. Goldman, Dr. Hudson, Dr. Kobrinsky, Dr. 19 Ames, Dr. Adams, Dr. Yerbury and Dr. Bishop, all 20 conclude that the potlatch rank complex was borrowed 21 by Athabaskan people, including the Carrier from the 22 Coast Tsimshian and late prehistoric protohistoric and 23 historic times. 24 Now, I say in paragraph 23, again in an earlier 25 work, Dr. Ray appears to have accepted this theory, 26 however, he later changed his view and concluded that 27 there was no concrete evidence to tell us what existed 28 before contact. And here in paragraph 24 in an 29 earlier draft of her report, Dr. Mills said, "There is 30 no doubt that the Wet'suwet'en adopted a system of 31 clans, houses and titles from the more coastal 32 neighbours". And I say this. It is on this important 33 point that the plaintiffs' evidence is more suspect. 34 While each of the plaintiffs' anthropologists used a 35 comparative analysis of other anthropological research 36 to come to his or her conclusion, and I just list the 37 references, and they are all in the yellow book, my 38 lord. They are not meant to be exhaustive. Each 39 rejects the conclusions of admittedly eminent 40 reputable anthropologists who worked in or near the 41 claim area before this litigation was commenced. 42 And I say this in paragraph 26. The fieldwork of 43 others was done in the absence of land claim 44 litigation, and none of it was coordinated and edited 45 by one person, in this case Richard Overstall, an 46 employee of the Tribal Council. I say he wrote the 47 introduction to the Kari/Rigsby report, and Dr. Kari 26973 Submissions by Mr. Willms 1 acknowledged that, and a reference is there, and 2 engaged in wholesale butchering of Miss Albright's 3 report. And I say his hand is evident in all of the 4 plaintiffs' experts opinions. Prior scholars were 5 free to come to their own conclusion, and owed no 6 allegiance except to their own independently 7 formulated theories. 8 In the face of the overwhelming evidence of the 9 recent borrowing of culture by the Carrier, the 10 plaintiffs primarily rely on the evidence of Dr. Daly 11 and Dr. Mills, and also cite the work of Drs. Dyen and 12 Aberle, and each of these will be considered in turn. 13 The first point is Dr. Daly, my lord, and I say 14 that his evidence has virtually no value in determing 15 resource use and society in the prehistoric period. 16 First, the bulk of the data pertaining to his report 17 has been gathered by means of participant observation, 18 largely undocumented, conducted since the commencement 19 of this lawsuit. And Dr. Daly's -- and perhaps on 20 that point, my lord, and there is another book that 21 I've handed up. 22 THE COURT: Are we out of this one? 23 MR. WILLMS: I am out of this one, and there is -- go onto the 24 next one. And I ask your lordship to turn to Tab 28 25 at page 5. And this is the cross-examination of Dr. 26 Daly by Ms. Koenigsberg, and I am starting at line 37, 2 7 my lord. 28 29 "Q And of your participants observation, you 30 recorded some of what you observed and heard, 31 specifically, we have 27 interviews of, I 32 believe, 34 or 35 persons, and two documents 33 which are notations of -- concerning feasts; is 34 that correct? 35 A There is -- well, there is one document 36 concerning the events in Burns Lake. 37 Q Yes. That was the All Clans Feast? 38 A Yes. 39 Q Yes. Now, there is -- there is that body of 40 notes with Mary McKenzie and Pearl Trombley 41 which was, in effect, a series of interviews? 42 A Yes. 43 Q Yes. And those are part of the 27 interviews? 44 A Yes, yes. 45 Q I'm sorry, 27 persons and I believe there are 46 35 interviews. You had more than one interview 47 with several people? 26974 Submissions by Mr. Willms 1 A Yes. 2 Q You did not record numerous other interviews or 3 discussions that you had which you have 4 classified as informal? 5 A I did -- well, I record them directly into the 6 computer, that's the -- that's problem with 7 this evidence on that front. Many things in 8 the course of formulating my thinking came 9 directly in as I was inputting the arguments." 10 11 Note the words "and I tried to indicate that here 12 and there." 13 14 "Q All right. But the kind of notation that we 15 would think of as a specific recalling of what 16 you were observing, we find evidence only in 17 the 27 — or the — I'll call them the 35 18 interviews in the notes of the feast. 19 A Well, part of the problem is it's the same 20 situation I had when I was doing my doctoral 21 dissertation, that I wasn't -- I agreed with 22 the people not to take notes, so I had to 23 remember all the events I had been engaged in 24 and put it directly into the work that was 25 under -- on the go at the time. 26 Q Did you keep a journal? 2 7 A No, I didn't." 28 29 And I'm going to come back to that one point, my 30 lord, in a minute about what people told him about 31 what to do and what not to do. But that's the essence 32 of his, Dr. Daly's recorded information, 35 interview 33 notes with two people. 34 Now, I carry on to say that Dr. Daly's observation 35 in this case was conducted in a different manner than 36 he had conducted it before. And for support for that, 37 my lord, if you turn to page 16 at this tab, you will 38 see the way that he conducted his PhD dissertation. 39 Page 16. This is from Dr. Daly's PhD dissertation. 40 And you will see there he says in the second 41 paragraph: 42 43 "Sensitive to the general antipathy toward 44 anthropologists and their work, the writer did 45 not try to use a tape-recorder, or to take on 46 the spot notes. Indeed, he was asked by some 47 of the traditional people, not to do so if he 26975 Submissions by Mr. Willms 1 had any such intentions. As a result he would 2 discuss and observe for relatively short 3 periods of time, and then immediately record 4 the contents of the interview following the 5 chronology of the discussions." 6 7 Now, just to follow-up on this, my lord. On page 8 22 of the yellow tab I asked Dr. Daly about notes in 9 this case. At line 17 I say: 10 11 "Q Dr. Daly, who told you not to make any notes of 12 what you observed while you were with the 13 Gitksan and the Wet'suwet'en people? 14 A Nobody told me not to make any notes. But a 15 number of the people I interviewed were very 16 hesitant about me writing things down and they 17 wouldn't -- they wouldn't give me any instances 18 of the institutions that we were describing 19 about how it worked and what the rules were and 20 how people would break the rules and how it 21 would be -- how the rules would be then used to 22 deal with the braking of rules. These sorts of 23 things. Because people -- it's a small 24 community and people are afraid of being 25 treated as gossips. 26 Q Well, putting you -- 27 A So the same people knew that I was going to be 28 rendering an opinion in relation to the case, 29 so they were very careful about what they were 30 saying or else they would say, 'I'll give you 31 examples as long as you don't write.' So that 32 was my guiding principles. 33 Q I want you to put your interviews to one side 34 and who told you -- 35 A I wasn't talking about any interviews. I was 36 talking about my general approach. 37 Q Who told you not to make any notes of what you 38 saw? 39 A Nobody did." 40 41 And then if we go over, my lord, to page 36, which 42 is still the cross-examination of Dr. Daly, and this 43 is where I put some extracts from Pelto on 44 anthropological research, in particular participant 45 observation. And I also put extracts from McClellan, 46 Dr. McClellan who did work in the Yukon. And at this 47 point I am putting the Dr. McClellan's extracts to Dr. 26976 Submissions 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 Daly on page 36. And starting at line 9: "As my fieldwork progressed I took more and more notes verbatim". And just skipping the rest of that paragraph and carrying on at the next paragraph: "'My method is to take all my notes in pencil adding in ink as soon as possible after an interview the general circumstances and anything else of importance that I was not able to record at the time.' And just pausing there. That's a pretty good practice, isn't it, for taking field notes . A It depends on the context. When you are working with informants or with a community that notes that your findings are going directly into the public domain, you have to be as sensitive as to the whole question of how to -- how can you maintain some anonymity and some respect of their inner secrets which is part of the whole ethics of being an anthropologist. So this exercise I was engaged in this time was quite unique. And I had had some training in this approach because of the strictures put on me by the Iroquois when I was working with them." I just pause there, my lord, to note that when he was working with the Iroquois on the same strictures, he would go back and make notes, which is not what he did here. can carry on over on it to page 37, my put some more of McClellan to Dr. Daly Now, if lord, where of -- THE COURT: 37? MR. WILLMS: Page 37, line 37, and I say: "Q Now, just skipping down to that last paragraph on page eleven, on the left-hand column, you'll see that Dr. McClellan said: 'In 1948 and 1949 Dr. Libby and I shared in the writing of ethnographic events from memory and in keeping a daily journal which supplemented 26977 Submissions by Mr. Willms 1 our formal notes.' 2 Now you did not keep a daily journal, did 3 you? 4 A No, I didn't. 5 Q There was absolutely nothing preventing you 6 from keeping a daily journal to describe each 7 day's events, was there? 8 A Just the stricture that I have already outlined 9 with you. 10 Q And I am going to suggest to you, Dr. Daly, 11 that there was nothing to prevent you after 12 observing an event from immediately recording 13 it at the time of the event or as soon as 14 practicable after the event had occurred. 15 A Well, I think that falls under the same -- same 16 rubric. People would not have been as free 17 with me had they known that everything I was 18 hearing was going to be committed to paper in 19 that direct form. That they said, 'We want you 20 to understand our system, but the best way is 21 just don't write. You listen to what we have 22 to say and when you get to the lay of the land 23 then we -- then we'll see where we go from 24 there.' And that's more or less the approach 25 that I took. 26 Q And just finally dealing with the interviews. 27 There was nothing to prevent you from recording 28 all of the conversations that you heard formal 29 or informal immediately after the interview and 30 away from the person that you interviewed? 31 A You mean behind their backs?" 32 33 Now, that's a startling answer, in light of what 34 he did when he did his in Iroquois Long House, his 35 PhD, because that's exactly what he did, and here he 36 appears to be surprised that I would suggest he record 37 notes behind peoples back, while it's exactly what he 38 did during his PhD dissertation, and I said: 39 40 "Q Yes, that's what I mean. Nothing is stopping 41 you from doing that? 42 A That is unethical." 43 44 And then your lordship. 45 46 "THE COURT: Doctor, you are not suggesting that this 47 lady, perhaps Dr. McClellan and Dr. Libby, were 2697? Submissions by Mr. Willms 1 doing something unethical? 2 A No, certainly. 3 THE COURT: It was your particular circumstances? 4 A They weren't involved in these type of 5 circumstances that I had to work under." 6 7 Now, my lord, I say at the bottom of page -- back 8 to my argument, my lord, at the bottom of page 18. I 9 say three lines from the bottom that Dr. Daly accepted 10 what he was told uncritically, apparently without 11 testing, and at the top of the next page "received 12 some information during his research which he 13 consciously decided not to incorporate into his 14 report". 15 I say in paragraph 29 that his conclusions ignored 16 information such as climate changes, and he was 17 unaware of statistics which would have assisted him in 18 assessing what he was seeing. And I say there, my 19 lord, he acknowledged as much because Ms. Koenigsberg 20 put to him that Census, and the Census is at Tab 29. 21 MR. GRANT: He was unaware. 22 MR. WILLMS: Yes, he was unaware of it, but he said it certainly 23 would have been helpful if he had it. He didn't even 24 know about it. 1979 Census which dealt with many, 25 many of the issues that Dr. Daly dealt with in his 26 report. And the plaintiffs didn't even show it to 27 him. 28 Now, I then say at the bottom of 29 that he failed 29 to acknowledge the obvious when asked by your lordship 30 as to whether or not the market economy has completely 31 subsumed the subsistence economy. And that, my lord, 32 is the very last page of Tab 29, which is the very 33 thick tab. Tab 29 is a very thick tab and the very 34 last page, my lord. 35 THE COURT: All right. 36 MR. WILLMS: The reason why it is a thick tab is I have put the 37 Census in. 38 THE COURT: All right. 39 MR. WILLMS: At the very last page your lordship makes the 40 observation at line 23: 41 42 "Well I would have thought reading this that the 43 ..." 44 45 And the proposition at the top of the page that 46 the market factors have not eclipsed the subsistence 47 factors. And that's a quote at the very top of the 26979 Submissions by Mr. Willms 1 page from Dr. Daly's report. 2 3 And then your lordship observes: 4 5 "THE COURT: Well, I would have thought reading this that 6 the automobile hadn't been invented. Just 7 seems to me there is something missing in this 8 passage. This is -- this is your evidence and 9 I don't question it in any sense at all if you 10 are looking at it from a cultural point of 11 view, that's an open question. But from a 12 economic question I must say that that 13 statement surprises me. Mr. Art Mathews, for 14 example, worked for 15 years in the Westar Mill 15 at Gitwangax. 16 THE WITNESS: But he does that because he is a chief a 17 house and has a lot of responsibilities. 18 THE COURT: But he does those other things as well, that 19 would you say that in his personal situation, 20 the market factors have not eclipsed the 21 subsistence factors? 22 THE WITNESS: In terms of the overall social relations of 23 the economy he is engaged in, my assessments of 24 his work at the sawmill is very much -- is very 25 closely related to the fortunes of his house 26 group, and that's the consciousness of all his 27 members and members of the house. And they, 28 from time to time, they have -- that house has 29 discussions about whether perhaps he should be 30 doing something else which will advance their 31 overall kinship interests in a better way." 32 33 And, my lord, even before I get to my comments 34 about Dr. Daly, I say that there are many statements 35 in Dr. Daly's report which are as inherently 36 improbable as the one about the market economy. 37 But in paragraph 30 I say that Dr. Daly completely 38 discounted Dr. Adams' work, the Gitksan potlatch, work 39 that was done over a period of thirteen months in the 40 mid-1960's, prior to community litigation. Dr. Daly 41 acknowledged that the Gitksan that were observed by 42 Dr. Adams did not reflect the world that Dr. Daly saw. 43 And I say at the very bottom of page 19, my lord, 44 that Dr. Adams' informants were hereditary chiefs who 45 were succeeded by Dr. Daly's informants. Dr. Daly 46 recorded interviews with chiefs, Simgiget, and not 47 with commoners, Lixgiget, and I say that while it may 26980 Submissions by Mr. Willms 1 be that Dr. Daly truly believed what he was saying, 2 the beliefs of an anthropologist as to the prehistoric 3 resource use and economy in the claim area are no more 4 useful in separating fact from fiction than the 5 beliefs of the informants themselves. 6 THE COURT: Well, I have been wondering about this, as to whether 7 or not there may be a semantical difficulty arising 8 out of this word eclipsed. The market factors have 9 not eclipsed the subsistence factors. None of us 10 identified that word. I haven't read the whole 11 context, but -- I am not sure what eclipse means. I 12 think I know what an astronomical eclipse is. Partly 13 or completely blocks or obstructs something, but it 14 seems to me that there are -- there is a halfway 15 ground, an invention that you could have some 16 subsistence factors still operating and still live in 17 a market economy. 18 MR. WILLMS: I don't think anybody disputes that, but Dr. Daly's 19 view, in my submission, and the whole context of his 20 evidence was that the subsistence economy that had 21 persisted among the Gitksan from millenia carried to 22 the present day, and all that happened was the market 23 economy was just slotted into the subsistence economy 24 at appropriate spots. 25 Now, that I took to be the tenor of Dr. Daly's 26 evidence, and the meaning of eclipse at that point was 27 that the subsistence economy was the only truly 28 important economy to the Gitksan, and that the market 29 economy really wasn't that important, that their life 30 revolved around the subsistence economy and the 31 seasonal round. Maybe I misconstrued Dr. Daly and 32 read too much into that. 33 MR. GRANT: I think that he may have. 34 MR. WILLMS: I'm sure my friend will clear that up in reply. 35 MR. GRANT: Yes, I will. 36 MR. WILLMS: I say in paragraph 31, my lord, that the statement, 37 and this is a statement of Dr. Daly's, that the 38 Gitksan and Wet'suwet'en say that the land belongs to 39 them, does not assume any greater legal relevance when 40 uncritically parrotted by any anthropologist. I say 41 that rights must spring from the nature of the use of 42 the land and not, as plaintiffs' counsel admitted 43 during the course of the case, from the subjective 44 beliefs of the claimants. That Dr. Daly was an 45 advocat and not a scientist is evident from his 46 complaint during cross-examination that putting the 47 evidence of the plaintiffs to him to see whether it 26981 Submissions by Mr. Willms 1 affected his opinion was unfair, notwithstanding that 2 he did not doubt the veracity of what was said. 3 And, my lord, if you could turn to Tab 31 of the 4 yellow book, starting at page 3. And this is where 5 Ms. Koenigsberg put some evidence of the plaintiffs to 6 Dr. Daly, starting at the bottom of the page, and she 7 says this, line 44. 8 9 "Q We talked about, I believe yesterday we were 10 looking at page 17 of John Adams monograph on 11 the potlatch and you showed some surprise at 12 his use of a quote relating to being able to 13 hunt without permission. It do you recall 14 that? 15 A Yes. 16 Q And I did ask you if I would be able to find -- 17 A Being able to hunt without permission is 18 surprising. Hunting without permission is 19 engaged in quite often. But as a customary 20 practice it is highly frowned upon. 21 Q If we look at the first transcript, it's 22 cross-examination on the affidavit of Solomon 23 Jack ..." 24 25 I'm not going to go through these, my lord, but 26 Solomon Jack is gone through first at page 4, and then 27 if you go to page 6, Ms. Koenigsberg at page 6 puts 28 Pete Muldoe at the top of the page, line 6, and then 29 at the bottom of the page she puts Sylvester William, 30 the evidence of Sylvester William. 31 Over to the next page, page 7, she puts the 32 evidence of Walter Joseph. The reference is in the 33 middle of the page. And then over onto page 8 she 34 puts the evidence of Roy Morris. And then she 35 summarizes, starts at line 9, and she says: 36 37 "And he goes on to say he is just a contracting 38 person. 39 Stopping there and dealing with the 40 evidence, can we fairly summarize that as -- 41 A I think it's unfair what you're doing. I am 42 not the lawyer for these people. I don't know 43 how representative this is of the overall 44 cross-examinations of all these witnesses. 45 Q Do you doubt that these people said these 46 things. 47 A No, I don't doubt that they said these things." 26982 Submissions 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. GRANT THE COURT MR. Now, here, my lord, what we have is Dr. Daly's initial reaction to this cross-examination of not how does he fit that in as a scientist to his opinions, how does he fit that evidence into his opinions. His first thing is to say that's unfair what you are doing. That's really unfair. And he's being an advocat, in my submission, at that point, my lord. He's not being a scientist. A scientist can answer that question by saying that is completely contrary to what I heard. If that were true that would change my opinion, but from what I know that's not the case. That's what a scientist would do. But an advocat would say you are being unfair to these people by putting their evidence to me. He didn't say, "You are being unfair to these people." He said, "It's unfair what you are doing", presumably to him. That's what I have been wondering, about whether he is saying you have put 10 pages of transcript and asked me to absorb it all like a sponge, and then spiel out an answer to a simple one line question. I often thought that counsel are unfair to witnesses when they -- WILLMS: Well, I'll carry on, my lord and read what he says. "Q Is it inconsistent with what you observed anded heard yourself? A I have heard a great deal about trespassing, and how people are considered to be trespassing on one's land, whoever you are speaking to. And you talk to people who are apparently trespassing on other people's land and they explain their behaviour in terms of the pressure on the land and if we don't do it and keep the values within our community, then it will go outside the community and the land will be used and quite often destroyed by non-natives. These sorts of explanations. But as to the -- it's just part of the whole situation of the indigenous traditional system carrying on and the pressures of the options of the non-native world. It's a classical anthropological situation and actors in these situations under some circumstances they go by the rules of one system and in other circumstances they go by the rules of their 26983 Submissions by Mr. Willms 1 commuity. And to the extent that they can get 2 away with going by the rules of the outside 3 community, some people will do this. But then 4 the community will try to redress the sitautuon 5 through various means at its disposal, such as 6 announcing, inadvertently perhaps, but very 7 pointedly, in a feast, that this trespass has 8 got to stop. Or if you are going to cut any 9 other kogs on our territory, we have got to 10 know in advance. That sort of thing. Or 11 ostracism or gossip and various other 12 mechanisms are brought into play." 13 14 And, my lord, what I say there is that Dr. Daly 15 doesn't bring any scientific knowledge to bear, he 16 just apologies there and tries to explain -- instead 17 of saying what I say a scientist would do, which is 18 that my understanding is that that is not the way that 19 it works, but if that's the way that it works, my 20 opinion would change, Dr. Daly doesn't do that. 21 THE COURT: I must say it doesn't seem like a terribly 22 complicated factual problem, but it is a five or six 23 page question with which maybe what he thought was 24 unfair. 25 MR. WILLMS: Yes. Well, the recurring theme was people hunting 26 without permission and people -- 27 THE COURT: It wasn't just hunting. 28 MR. WILLMS: Log cutting. 2 9 THE COURT: Pete Muldoe was running a sawmill. 30 MR. WILLMS: He was cutting logs. 31 THE COURT: Yes. 32 MR. WILLMS: But the whole gist of trapping without permission. 33 THE COURT: Yes. 34 MR. WILLMS: And that was the -- and besides, my lord, it is my 35 submission that if your lordship was right, Dr. Daly 36 would have said that. 37 THE COURT: All right. 38 MR. WILLMS: Carrying on, and I'll just try to — if I can just 39 do paragraph 32, my lord. 4 0 THE COURT: Yes. 41 MR. WILLMS: Dr. Daly's views directly contradict the views of 42 Dr. Adams. He also disputes conclusions of other 43 admittedly eminent ethnologists who have worked in the 44 area pre-litigation. That is, Dr. MacDonald, Dr. 45 Ames, and even Dr. Rigsby. 46 And at this point, my lord, at Tab 32, if your 47 lordship could turn to page 31 of the tab. At the 26984 Submissions by Mr. Willms 1 bottom of the page, line 45: 2 3 "I am not asking you that. I am just asking you 4 Dr. Rigsby, and I read it to you a moment ago, 5 posited a linguistic argument that the fur 6 trade spurred the Gitksan occupation of the 7 Middle Nass and the Upper Nass and the Upper 8 Skeena. 9 A That's not a linguistic argument. That's an 10 ethnohistorical argument. 11 Q It happens to be one that Dr. MacDonald appears 12 to share in the 'Epic of Nekt'. Would you 13 agree with that? 14 A Yes. 15 Q It is just one that you don't agree with? 16 A No. I just don't think it's found or not well 17 founded." 18 19 And I say to conclude paragraph 32, he rejects 20 comparative cultural analysis where it does not 21 support his opinion, yet he accepts it when it does. 22 His evidence, I say, is a perfect example of the 23 acknowledged, and when I say acknowledged, this was 24 acknowledged by Dr. Daly, the acknowledged 25 ethnographic problem of thinking that one has found 26 what in fact one has created. 27 And, my lord, that was an extract where the 28 difficulty is that some ethnographers go into a 29 particular area, attempt to go clear their mind 30 completely of any preconceived notions, and then end 31 up finding what they were really were looking for in 32 the first place. And that's what Dr. Daly found. 33 Those are my submissions today, my lord. 34 THE COURT: All right. Thank you. Do you want to start at 9:30 35 on Tuesday? 36 MR. WILLMS: Yes, I would, my lord. 37 THE COURT: We will adjourn then, and wish you all a pleasant 38 weekend. Thank you. 39 THE REGISTRAR: Order in court. Court stands adjourned. 40 41 (PROCEEDINGS ADJOURNED AT 4:00 P.M.) 42 43 44 45 46 47 26985 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 I HEREBY CERTIFY THE FOREGOING TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS HEREIN TO THE BEST OF MY SKILL AND ABILITY. LORI OXLEY OFFICIAL REPORTER UNITED REPORTING SERVICE LTD.
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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[Proceedings of the Supreme Court of British Columbia 1990-05-18]
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