CONTENTdm
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.
application/pdf
13324 Submissions 1 VANCOUVER, B.C. 2 March 20, 1989 3 4 THE REGISTRAR: Order in court. 5 THE COURT: I apologize, I was at the door when the phone rang. 6 THE REGISTRAR: In the Supreme Court of British Columbia, in 7 Vancouver, Monday, March 20, 1989. Calling Delgamuukw 8 versus Her Majesty the Queen, my lord. 9 THE COURT: I wonder if I might mention a matter to counsel for 10 their assistance. I have an understanding that we 11 have scheduled sittings on the 10th, 17th and 24th of 12 April, and we're scheduled to be down on the 1st of 13 May, and I invite counsel to indicate whether there 14 would be -- it would be convenient or otherwise to 15 switch the 24th of April with the 1st of May and that 16 we not sit on the 24th of April and we do sit on the 17 1st of May. Now, this isn't a matter of great urgency 18 or necessity, but it would mean that I could staff 19 another division in the Court of Appeal, which is 20 starting to run very much behind, and I don't know 21 what counsel have in mind, what their schedules are 22 for those weeks, and I will of course give priority to 23 this case and if that switch can't be conveniently 24 made then we won't make it. And I don't expect 25 counsel to respond right now, but could they do so in 26 the course of the next couple of days. It's a simple 27 switch of April 24th and May 1st, those two weeks. 28 MR. RUSH: My lord, those weeks are back to back, aren't they? 29 THE COURT: Yes, they are, yes. We would be sitting -- under 30 the present schedule we would be sitting on the 10th, 31 17th and 24th of April. What I would suggest is if it 32 can be conveniently arranged that we sit on April 10th 33 and 17th, we not sit on this case on the 24th but we 34 could sit on this case on the 1st of May, and we would 35 then have four weeks in a row, May 1st, May 8th, 15th 36 and 22nd. 37 MR. RUSH: Yes. 38 THE COURT: And I think we're to speak to the schedule for June 39 later this week, I think, or is it next week? 40 MR. RUSH: It was the beginning of next. 41 THE COURT: Yes, all right, thank you. All right, whenever 42 you're ready gentlemen. 43 MR. WILLMS: My lord, I have one matter I've discussed with my 44 friends and it relates to one of the witnesses in the 45 week in those three weeks. April 17th the plaintiffs 46 propose to call Marvin George, their cartographer. 47 THE COURT: I'm sorry, which week? 13325 Submissions 1 MR. WILLMS: April 17th. 2 THE COURT: Yes. 3 MR. WILLMS: We've been advised that there is another map coming 4 from Marvin George which will ultimately be his 5 opinion map. We still don't have it. We're within 6 the 60-day period prior to Mr. George's evidence now, 7 and we have no idea when that map is proposed to be 8 delivered to us. My lord, in my submission, based on 9 the 60-day rule alone and the fact that this is the 10 map that will set out the claimed territory, the 11 newest one anyway, and it being within the 60 days, 12 that under the present ruling it's inadmissible. But 13 be that as it may, and I do reserve the right to argue 14 that the map is inadmissible if it is delayed further, 15 but I would like to know when they're going to get 16 that map, since that map is supposedly the claimed 17 territory in this action. 18 MR. RUSH: Well, I think, my lord, that this is a matter that 19 should have been raised between counsel, and I would 20 have answered my friend directly if he had approached 21 me about this. He's absolutely right, he should have 22 had the map, and we're trying to get it. It's 23 presently at the Canadian Cartographers, who are 24 making the map. I expected it to have been produced 25 last week, and I will hopefully get it for my learned 26 friends as soon as possible this week. I would point 27 out, however, that the map is based on the affidavits. 28 All the Wet'suwet'en affidavits have been examined on, 29 that was completed on Friday night, and all of them 30 have been disclosed and have been disclosed for a 31 period of time, so it's not as though the underlying 32 facts have not been made available to my friend, 33 albeit the representation that they depicted has not 34 itself been produced. And I can tell my friends that 35 I will do my best to try and get it for them today or 36 tomorrow. I'm hoping that whatever it was the problem 37 can be rectified. I can point out one other feature 38 to this, given what your lordship has said just a few 39 moments ago, is that I think the only feasible change 40 that would be open to the plaintiffs, and I do think 41 it is feasible, is that if Marvin George's evidence is 42 switched with James Morrison, and he -- Marvin 43 George's evidence would be moved to the week of May 44 the 1st. 4 5 THE COURT: Yes. 4 6 MR. RUSH: And I — 47 THE COURT: Which would give your friends an extra week. 13326 Submissions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. THE MR. MR. THE MR. THE MR. THE THE THE MR. THE MR. THE RUSH: COURT RUSH: THE COURT MR. THE MR. THE MR. WILLMS COURT: RUSH: COURT RUSH: THE COURT This would give my friends two extra weeks. Yes. But I really think that's the only feasible alteration that we can make, because Mr. Morrison has difficulties in the month of May but not in the month of April, so I think that that may well be feasible for us, and I will advise your lordship in a couple of days on that. So the short of it is I will do my best to try to get the map for my learned friends as soon as possible this week. All right. Does that complete that matter, Mr. Willms? It does, my lord. All right, thank you. I have two brief matters relating to documents, my lord. These are really of a housekeeping nature. At the completion of Dr. Mills' evidence a week ago there were two pages from her draft report which I referred to Dr. Mills in her redirect but did not file, and I have now obtained those pages, and I would -- they were indicated, both pages, under Exhibit 958, and I would propose simply filing them as one exhibit under those pages, and those are pages 21 and 47. I'm just handing up two copies to Madam Registrar now. Pages 21 and 47? Yes, that's right, of Dr. Mills' draft report of June of 1986. - when we last sat, rather, is pages 22 and 47 of the RUSH: COURT RUSH: COURT RUSH: COURT RUSH: COURT RUSH: COURT my lord. Well, on Saturday last I have a note Exhibit 95 draft report. It should have been 21, 21? Yes. All right. So those -- that number was already given to these two pages, so -- We reserved 958 number for those pages. All right. REGISTRAR: I have pages 21 and 47 in my notes. COURT: All right, you had 21. All right, so I add these two -- this is a new number, 95 It was reserved by us on the last date. So just those two pages. Yes, that's right. All right, thank you. will just 9 (EXHIBIT 958) report Pages 21 and 47 from Dr. Mills' 13327 Submissions 1 MR. RUSH: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 THE COURT: 19 MR. RUSH: 20 21 22 THE COURT: 23 MR. RUSH: 24 25 THE COURT: 26 27 28 29 30 31 MR. RUSH: 32 THE COURT: 33 34 MR. RUSH: 35 36 37 38 39 THE COURT: 40 MR. RUSH: 41 THE COURT: 42 MR. WILLMS 43 44 45 THE COURT: 46 MR. WILLMS 47 THE COURT: Now, one further matter, my lord, and this deals with the evidence of Dr. Daly. And Mr. Grant has asked me to file two papers, one entitled the "Antiquity Of The Northwest Coast Totem Pole", and the second "Contributions of Marius Barbeau To West Coast Ethnology". I'm told that both of these documents were referred to Dr. Daly in his redirect by Mr. Grant but copies were not available. Since his redirect completed Mr. Grant obtained copies of these two documents, delivered them to my learned friends, and we now wish to have these filed as exhibits in the proceedings. And I don't know if numbers were reserved for them, but there's no indication on the cover letter I have from Mr. Grant that that's so, but I'm assuming that not to be. So I would like these to be the next two exhibits in sequence. I don't think my learned friends have any disagreement with this. How should they be numbered? I think they should be numbered in the next two documents in sequence, unless they can conveniently fit into the last numbers of Dr. Daly's evidence. All right. And I wouldn't object to that because they would be more conveniently tied to Dr. Daly's evidence. All right, let's do that. The last exhibit I have for Dr. Daly is 901-13A — oh, that's for identification. That's an interview -- connection, I think I had written here, to be argued later. So we could call these what you have in there now is to be 901-14 and 901-15. Yes. That's convenient with me. All right. Could you just briefly describe what they are. Yes. The first is a paper by P. Drucker, D-R-U-C-K-E-R, entitled "The Antiquity of the Northwest Coast Totem Pole", and it is found in the Journal Of The Washington Academy of Sciences, number 12. All right, thank you. And that's 901-14. 14, yes. : My lord, our notes -- first of all, 901 is Canada's exhibit re Dr. Daly, and we've got 901 going all the way up to 27. Do you really? : Yes. Oh, yes, I have too, yes. 1332? Submissions 1 MR. RUSH: 2 THE COURT: 3 4 MR. RUSH: 5 THE COURT: 6 THE REGIST 7 8 THE COURT: 9 10 MR. RUSH: 11 12 13 14 15 THE COURT: 16 17 18 19 20 21 22 23 MR. RUSH: 24 THE COURT: 25 MR. RUSH: 26 27 28 29 30 31 32 33 34 35 THE COURT: 36 MR. ADAMS: 37 THE COURT: 38 MR. ADAMS: 39 THE COURT: 40 MR. WILLMS 41 42 43 44 45 46 47 one, 28, is an extract from John Adams, This will be 29 then. Exhibit 901-29 i; 1 guess -- Yes. I guess we put 13A in a little different sequence. All right, so this should be 28 then. 2 8 and 29. 2 8 and 29. RAR: And the page 12. All right. Drucker? Yes. And the second of these two is an article by Wilson Duff entitled, and I quote "Contributions of Marius Barbeau to West Coast Ethnology", and it's found in Anthropologia, volume Roman numeral VI, number 1, 1964, and that can be 30. Yes, all right. Thank you. (EXHIBIT 901-29) - The Antiquity of the Northwest Coast Totem Pole, Drucker (EXHIBIT 901-30) - Contributions of Marius Barbeau to West Coast Ethnology Thank you, my lord, those are my matters. Thank you. Mr. Adams. My lord, the plaintiffs propose to call Dr. Arthur Ray as an expert witness, and I understand from my friend this morning that straight out of the expert opinion report, which has been delivered more than two years ago, that they object in total to the calling of his evidence. And I have been back and forth with my friend about whether you need to hear what he's going to say before you can decide whether he can or can't say it, but I understand my friend wants to make his objection first, and I have no problem with that. Ray is R-A-Y? R-A-Y. All right. What's Dr. Ray's discipline? He is a historical geographer. All right, thank you. Mr. Willms. : My lord, the objection is based on a -- as my friend indicated, it comes out of his report. His report is a review of Hudson's Bay Company documents in British Columbia and the doctor's interpretation of what the documents mean, and it is my submission, in other words he draws inferences from the documents, he says that this person got something wrong, this person made a mistake here, this person meant this here, and 13329 Submissions 1 what it is is a series of Dr. Ray first of all quoting 2 from a document which is not offensive, in my 3 submission, because some of them are difficult to 4 read, but then purporting to draw conclusions based on 5 the document. And it is my submission that for two 6 reasons the opinion evidence of Dr. Ray is wholly 7 inadmissible. The first reason is the same reason 8 that was used by Mr. Justice Meredith in the 9 Saanichton Marina case, which is at tab 14 of the 10 authorities that I handed up some time ago, and in 11 that case the plaintiffs proposed to call an 12 anthropologist to explain what a document -- what the 13 meaning of particular documents were in the 14 anthropological context. And my friends propose to 15 call Dr. Ray to explain the meaning of these 16 documents, I suppose in the historical context, 17 because he's a historian, and it's my submission that 18 for the very same reasons that Mr. Justice Meredith 19 rejected the opinion evidence of Dr. Lane in respect 20 of the meaning of documents, that is that the -- his 21 lordship was in as good a position to read what the 22 documents said and then draw the inferences from the 23 documents without having the assistance of an 24 anthropologist, and in this case a historian, to say 25 what the documents mean. The second objection, my 26 lord, is that in my submission historical geography, 27 or history is not a science at all, it's not a subject 28 of expert opinion, it is not verifiable. The opinions 29 of historians depend completely on their own views of 30 what the documents mean. They are arguments about 31 what history is, they don't relate to archaeology or 32 anthropological interpretation, but solely to this is 33 what so and so said on a particular day and in my 34 opinion what he meant was this, and it's my submission 35 that that isn't a science, that's not anything that 36 expert opinion can be admissible in respect of. So 37 those are the two objections that I have to the 38 admissibility in this evidence in toto. 39 THE COURT: Well, Mr. Willms, can you tell me a little more, 40 please. Does the doctor in his report identify and 41 authenticate, if I can use that word, various 42 historical documents out of the archives of the 43 Hudson's Bay Company? 44 MR. WILLMS: He does do that, yes. 45 THE COURT: And that involves a selection process, does it? 46 MR. WILLMS: Yes, it does. 47 THE COURT: He's culled them, as a word, pick out the ones he 13330 Submissions 1 thinks I should -- I should know about, and then does 2 he -- I don't want to misunderstand your submission, 3 does he then seek to avoid their meaning or their 4 plain meaning? 5 MR. WILLMS: In some cases, yes. 6 THE COURT: But not in all cases. 7 MR. WILLMS: Well, in most cases the documents -- the documents 8 are plain on their face, and so when he doesn't 9 disagree he just let's the document rest. When he 10 does disagree and says that the plain meaning on the 11 face isn't what really happened, this guy got it all 12 wrong, then you have that, and it's my submission that 13 what the people wrote is what they wrote back at the 14 time, and that certainly is admissible if my friends 15 want to file the Hudson's Bay documents and say who 16 the people were. It's plain on the face who they 17 were, we don't need a historian to tell us that Brown 18 was the factor up there, it says so right in the 19 document that he was the factor at Fort Babine. So 20 you don't need any expert to tell you who these people 21 are or what these records are, they're all plain on 22 the face. 23 THE COURT: Does the witness express an opinion of his own on 24 any issue relevant to this case? 25 MR. WILLMS: The opinion that the witness expresses, my lord, in 26 respect of the documents is usually either that the 27 documents don't mean what they say in terms of the 28 documents themselves, and the second opinion that he 29 expresses is that somehow he can gleen the social 30 organization of the plaintiffs at the time of contact 31 from these documents as a cultural historian -- or 32 sorry, not a cultural historian, a historical 33 geographer, but that -- those are issues for your 34 lordship, those aren't issues for a historical 35 geographer. The documents say what they mean, they 36 mean what they say, and your lordship can come to your 37 own conclusions. 38 THE COURT: Well, can I though? If, for example, he was to say 39 the factor wrote that these were the only Indians in 40 the area, could he say "My research indicates that 41 there were other Indians in the area". Now, you argue 42 that I'm in as good a position to reach my conclusion 43 as to what the documents say as he is, but that isn't 44 so if he's done research that gives him facts that I 4 5 don't have. 46 MR. WILLMS: No. But -- the foundation of the opinion, my lord, 47 and the reason why I'm making this objection now, 13331 Submissions 1 because there's no dispute about it, the foundation of 2 the opinion are the Hudson's Bay records that the 3 witness cites in his report, that's the foundation of 4 his historical geographic opinion. Those documents 5 are in English, those documents where they're 6 difficult to read can have a type script made of them, 7 and then your lordship is in as good a position as 8 this witness in determining whether that has any 9 relevant meaning to the issues in this lawsuit, and 10 it's not, in my submission, as it wasn't with Dr. Lane 11 in the Saanichton Marina case, it's not a matter that 12 requires any expertise in saying that Brown said there 13 are four or five Indian villages, and your lordship 14 can read that, that Brown said there are four or five 15 Indian villages, and the witness is of no assistance 16 there. And it's really a matter for your lordship and 17 not for the witness, in any event. 18 THE COURT: All right, thank you. Mr. Macaulay. 19 MR. MACAULAY: My lord, I have to disagree with my learned 20 friend on both points in the sense that I have to 21 submit that your lordship is not bound by the decision 22 made in another case considering another witness, Dr. 23 Lane in the Saanitch case. The -- I'm surprised to 24 hear that a historian is not entitled to give evidence 25 in courts. The cases are full of the expert evidence 26 of historians. Historians, if they're properly 27 qualified historians, don't come into court with 2 8 nothing more than by way of background and equipment 29 than the reading of the documents that they happen to 30 be expressing an opinion on. They have two things 31 that will assist the court, they have the professional 32 training and discipline that allows them to select 33 relevant documents and to ignore documents that are 34 not really helpful and in some cases are misleading. 35 I'm talking about documents made 150 and 200 years 36 ago, some of them are very illuminating, others, as I 37 know from my researchings, if you took them out of 38 context would be extremely misleading. So they have 39 the professional qualifications, the discipline and 40 presumably a very considerable background in the 41 general history of the topic they're addressing, and 42 in examination in chief and in cross-examination they 43 will presumably be able to say "Well, yes, you're 44 putting a document to me that appears to contradict my 45 interpretation of what happened, but I can tell you 4 6 that that document that you're putting to me now is 47 not reliable for this reason and that reason and 13332 Submissions 1 another reason", and the witness can then reach into 2 his large fund -- I assume a large fund of general 3 knowledge of history. Documents made -- historical 4 documents are of course the best evidence of what 5 happened, but each particular historical document is 6 only one -- it's the -- it's confined by the 7 circumstances under which it was written. If a Hudson 8 Bay factor has never travelled west of the Rockies, to 9 use an example, and we're not dealing with that here, 10 his account of what's going on in New Caledonia, as 11 they called it, is to be treated gingerly, but there 12 may be - a historian may explain, notwithstanding that 13 difficulty here this is a man who, because of his 14 earlier travels or something like that, ought to be 15 paid attention to, or conversely, this is a man who is 16 just listening to trading post gossip. It's for your 17 lordship to make a finding after all this is over, 18 findings of fact on the basis of the documents 19 themselves, and I submit, on the consideration of the 20 expert opinions that have been expressed, but it would 21 be unfortunate in a case like this if the assistance 22 of historians, properly qualified historians, were 23 excluded. It would be very difficult indeed, and we 24 would -- the lawyers would have to turn themselves 25 into historians, which we are busy doing, but we 26 haven't achieved that at this date. Thank you, my 27 lord. 28 THE COURT: All right. I don't think I need to hear you, Mr. 2 9 Adams, at this time. I think I should hear the 30 evidence. It does seem to me that -- that if the 31 historical material gleened from the records of the 32 Hudson's Bay Company are admissible at all, I suspect 33 they are, that there may be other factors known to the 34 historian but not known to me which will affect the 35 construction to be placed upon the documents. For 36 that reason it seems to me that I must hear the 37 evidence and then decide whether I am in as good a 38 position as the historian to reach a conclusion on 39 what the documents mean, and if I decide that I am, 40 then some parts of the evidence of the witness may 41 become inadmissible. If I find otherwise, as I 42 suspect will be the case on some occasions, then it 43 seems to me that the evidence will be admissible. I'm 44 not sure if Chief Justice Dickson mentioned history in 45 his dictum in Kruger and Manuel, and I don't think it 46 matters. 4 7 MR. MACAULAY: He did, my lord. 13333 Submissions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT: He did? MR. MACAULAY: Sure. THE COURT: I know he mentioned legend and he mentioned things of that ilk, and he just used some general gender, I would have included history. I think for that reason I should hear the evidence. Are you ready, Mr. Adams? MR. ADAMS: Thank you, my lord. The plaintiffs call Professor Arthur Ray. THE COURT: I might say that the Chief Justice Dickson was surprised to find the extent to which his dictum is being carried in this case. I think he was concerned with the case about the shooting moose out of season or something. ARTHUR JOSEPH RAY, a witness herein called on behalf of the Plaintiffs, having been duly sworn, testifies as follows: THE THE THE MR. ADAMS THE MR. COURT ADAMS REGISTRAR: Please state your name for the record, please, and spell your last name? A Arthur Joseph Ray, R-A-Y. REGISTRAR: Thank you, you may be seated. COURT: Can I interrupt just for one more matter. How long is it expected to take for the evidence of this witness? Professor Ray is scheduled to give evidence the four available days of this week, Friday being a holiday. Yes, all right. I expect to finish him sometime tomorrow afternoon in chief. All right. Counsel will make arrangements to reserve on a tentative basis for next Saturday, I'm sure. Thank you. My lord, the plaintiffs are calling Professor Ray, as I've indicated, as a historical geographer, and I wish to set out the particular area in which we intend that he should give evidence. The plaintiffs are calling him to give expert evidence on the economic history of Canadian native people and the history of the fur trade. And within that broad category there are -- there is a greater degree of particularity, which I will approach in stages. He is going to give and does give in his report particular evidence regarding Gitksan and Wet'suwet'en economic organization from the early 19th Century on, and his evidence is directed towards explaining how THE COURT MR. ADAMS 13334 Submissions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. COURT ADAMS THE MR. COURT ADAMS THE MR. THE MR. COURT ADAMS COURT ADAMS Gitksan-Wet'suwet'en economic organization is revealed in the documentary record. That is largely but not exclusively the Hudson Bay Company archival records. He will speak in particular to Gitksan and Wet'suwet'en resources, trading relationships, territoriality, and other features of Gitksan and Wet'suwet'en economic life which bear on the economic impact of European goods, European contact and the fur trade. He is also qualified, in my submission, and this will come out in the process of qualifying him, qualified to give expert evidence comparing the economic experience of the Gitksan and Wet'suwet'en with that of other Canadian native peoples. And finally, in what will amount to the plaintiff's answer to my friend's objection, he will give evidence regarding the methods of interpreting historical documents, and in particular the records of the Hudson's Bay Company. : May I ask you, Mr. Adams, have the documents of the Hudson's Bay Company achieved archival status? : Yes. They are by and large in either of the Public Archives in Manitoba or the Public Archives of Canada, and the documents the Plaintiffs will be tendering, the Hudson's Bay documents, with one exception, are in the Hudson's Bay archives within the Public Archives of Manitoba, and the one exception is the Public Archives of Canada. : Thank you. : Now, it's my understanding from reading transcripts that some of these documents were tendered in the course of Dr. Daly's evidence, and there was an inconclusive discussion about what the status of those portions of the documents that weren't referred to by the witness was, and the plaintiffs are content through this witness' evidence to leave that discussion inconclusive. Some of his evidence will bear on what you may at the end of the day wish to make of these records. : Thank you. : We have prepared a three-volume set of documents. Two of them are Hudson Bay documents and one is a grab-bag, and what I would like to refer your lordship to is volume 3 of that set. : Is this the grab-bag or is this the -- : It will be the one that has a map in the pocket in the back, and it will be labelled volume 3 in the back. 13335 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A.J. Ray (for Plaintiffs) In chief by Mr. Adams THE COURT: Yes, all right. I'm saying is this one of the two Hudson's Bay documents, or is this the grab-bag? EXAMINATION IN CHIEF BY MR. ADAMS: Q This is what I've described as the grab-bag. And Professor Ray, I wonder if you could look at tab 1 of that volume 3, please. A Okay. Q You have that Curriculum Vitae, Arthur J. Ray, revised to 1 March 1989? A I do. Q And is that your C.V.? A It is. Q And it consists of some five pages? A That's correct. Q And do those accurately set out the information that you would expect to find contained under the headings? A Yes. MR. ADAMS: My lord, I would ask that be marked as the next exhibit. THE COURT: Yes. THE REGISTRAR: 959, my lord. THE COURT: 95 9. THE REGISTRAR: It's tab 1? THE COURT: Yes. MR. (EXHIBIT 959) J. Ray Tab 1 Curriculum Vitae of Arthur ADAMS Q A Q A Q A Q A Professor Ray, you're presently employed as a professor in the history department of the University of British Columbia? That's correct. And you have, among other degrees, a doctorate in geography? That's correct. Which you obtained in 1971? Yes, from the University of Wisconsin, Madison. Now, you have heard yourself this morning described as a historical geographer, and I wonder if you could explain for his lordship what a historical geographer is? Geography is a discipline that's similar to history in that it covers a wide range of specialties. In the case of geography they include cultural geography, economic geography, historical geography, and so on. 13336 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 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 Now, the historical geographer is the one who applies most of the tools and methods of geography in a historical context in which the things that the historical geographer is interested in determining is primarily -- or are primarily what the geographer would call in very general terms changing man-land relationships over time, is the primary focus. THE COURT: That was man hyphen land? A Yeah, man hyphen land. And there's two aspects of that that are of interest to geographers. One is environmental interaction, and the discipline has a long history of activity in that area, and the other component is what we call the spacial dimension, changing spacial patterns in the way they both influence man and environment relations and are an outcome of those relations. So that in a nutshell would be it. The historical geographer traditionally has a strong grounding, as you might suspect, in history. At the University of Wisconsin we were certainly expected to have that background, and historical geographers have become well known, especially in Canada where the field is particularly strong for their archivally oriented research. The most recent fruit of that is the Historical Atlas of Canada, which you may be familiar with, which was published two years ago now, it's won awards around the world, to which I contributed. My lord, there is one plate on that in evidence, I don't know that I can lay my hands on the exhibit number. No. But it has been introduced in evidence through a previous witness. Your appointment at the University of British Columbia is a teaching appointment, is it? It is. I am senior professor in the history department. I came from York University, where I had spent ten years as an assistant and associate professor in the geography department. And the history department particularly here was interested in me because of my historical geographic orientation. Q And what courses do you teach that are in any way relevant to the subject of your opinion report? A Here at the University of British Columbia I teach a third-year level course called "Native History of Canada". I teach from time to time a graduate course on ethnohistory. Previously at the University -- at MR. ADAMS THE COURT: MR. ADAMS: Q A 13337 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 York University I taught a historical geography course 2 of the native peoples of Canada. I also have taught 3 significant components of my Canadian history survey 4 course, which is another course I teach. The 5 pre-confederation section we deal fairly extensively 6 with native history, particularly Hudson's Bay Company 7 history and fur trade history. 8 Q What would you describe as your primary research 9 interest or interests? 10 A Well, since it goes right back to my graduate student 11 days, I got interested at the University of Wisconsin 12 in native people partly through the influence of the 13 professor I had at the University of Wisconsin, a 14 professor Andrew H. Clark, who was considered the 15 world figure in historical geography at the time. He 16 was a former Manitoban who had immigrated to the U.S., 17 and he got me interested in native people in Western 18 Canada in particular, and originally I was going to do 19 in fact a doctoral dissertation on the Metis, and 20 instead doing one, which was subsequently published, 21 on history of the native people involvement in fur 22 trade with the Hudson's Bay Company in the area of the 23 Prairies and the Park lands, which is the "Indians In 24 The Fur Trade" book which appears on here in revised 25 form. I had been working in the Hudson's Bay archives 26 as a consequence since the summer of 1968, which I 27 suspect now means I have the dubious pleasure at 28 times, dubious probably, having spent more time in the 29 Hudson's Bay archives than anyone else, I suspect. 30 After you've finished these you will maybe have some 31 appreciation, but that can be a little bit tedious at 32 times, but at least we have copies to work with now. 33 When I first began all we had was microfilm, because 34 when I started the Hudson's Bay records were in fact 35 in London. They were transferred to Canada in 1970 36 and they're now available on microfilm in a library. 37 They're very accessible now when they were 38 inaccessible when I first started work. So my 39 interest in this area, and particularly the Hudson's 40 Bay Company, is a strong one, and it's been -- well, 41 it goes back to 1968, if you want to be precise. 42 Q Okay. Now, on the page 1 and the following pages 43 through to page 4 of your C.V. there is a list of 44 publications, and those I understand are materials 45 that you have either written yourself, written in 46 collaboration with others or edited; is that correct? 47 A That's correct. 1333? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q And you referred yourself a moment ago to under "A", 2 "Books", to number 1, "Indians in the Fur Trade"? 3 A Um-hum. 4 Q I wonder if you could explain briefly what that book 5 is? 6 A Well, that book is exactly the focus of what I 7 described as historical geography being about. I was 8 interested in native involvement in the fur trade, as 9 in this case primarily the Hudson's Bay Company trade, 10 although not exclusively, because the Northwest 11 Company was involved as well. But it's based on the 12 Bay archives, and I was interested in trying to 13 determine how the fur trade influenced the native 14 economic life, and looking at the effect, one of the 15 things that of course the fur trade in this area did 16 is it led to a great amount of tribal dislocation. 17 And I was interested in assessing what those 18 movements -- what effects those movements did on 19 native economies in that area. So if you were to 20 described it, I think you could describe it as a study 21 in historical cultural ecology. 22 Q Is there some significance in academic circles to the 23 fact it's in its third printing? 24 A Yes, it's most unusual. Traditionally Ph.D.'s 25 published by university presses, they print about 600, 26 700 of them, and if they can sell 5 they're lucky, to 27 be quite frank. Academic dissertations generally 28 don't have great circulation. So I'm actually quite 29 pleased and actually been surprised it's in its third 30 printing and is still in print. 31 Q And then moving down to number 5 under A, "The Fur 32 Trade in the Industrial Age", that's indicated as 33 being in press. What's that going to be about? 34 A It focuses on the what I call the modern -- the 35 emergence of the modern industrial fur trade. It 36 deals with the Hudson's Bay Company's activities in 37 the north from Confederation to the Second World War. 38 The emphasis in that book is less on the native 39 people, partly because, as I -- it started as a 40 project in which I wanted to look at changing native 41 economies after Confederation. Doing the work it 42 became painfully obvious that the fur trade remained 43 in the north of Canada, this is primarily east of the 44 Rockies, one of the primary economic activities, but 45 there was really no good secondary literature dealing 46 with it and virtually nothing on the Hudson's Bay 47 Company, which isn't surprising because the 13339 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 post-confederation documents of the Hudson's Bay 2 Company only became available -- theoretically 3 available in 1970. In fact, they've only -- some of 4 those have only become recently available because they 5 have to be catalogued first, and this is probably one 6 of the largest private business collections in the 7 world. I think it's something like two miles of shelf 8 records that they're dealing with, and they're still, 9 needless to say, cataloguing them, so they're still 10 not totally available, although they're theoretically 11 available. So that book deals with the 12 post-confederation period. My work, as you can see 13 from the C.V., is best known for the pre-confederation 14 period. 15 Q The item that's listed under "Articles", number 1, 16 "Early French Mapping of the Western Interior of 17 Canada", can you explain why mapping becomes the 18 subject of -- a subject of academic interest? 19 A Well, it's -- that's a matter of interest to 20 historians and archaeologists and anthropologists, 21 because in the central part of Canada one of the big 22 questions is where native people were at various 23 times, a particular problem, because in that area 24 migration was one of the major impacts of the early 25 trade, extensive migrations. And there are all kinds 26 of controversies among academics as to what happened 27 when. And I found some very early -- well, which was 28 in fact the earliest French map of Western Canada, and 29 that would be essentially the present boundary of the 30 Province of Manitoba. It was a very curious map, and 31 what twigged my interest at the time, I had run across 32 it while doing Indians in the fur trade, it showed 33 certain native groups in what would be essentially 34 Southern Manitoba, which didn't quite make sense in 35 terms of what other records were telling me, so I 36 decided to see as much as I could find out about this 37 map. I then discovered there was a series of maps 38 emanating from one. I managed in this case to find 39 the original sketch map, complete with footnotes, and 40 then spending a fair amount of time in the archives 41 doing some work in French records. I was able to 42 track down the footnotes on this first sketch map 43 to -- which proved that the map, the first map, was in 44 fact a map that had been drawn at For Bourbon(?), 45 which was a Hudson's Bay Company fort had been seized 46 and held by the French for 15 years ending in 1713. 47 And it was clear that the map had been drawn by 13340 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 someone in Europe who had never set foot in North 2 America who had read the journal of the man at that 3 post and had attempted on the basis of the jumbled 4 information in the journal to produce a map. Now, the 5 map faithfully reproduced the confusion in the journal 6 cartographically. Then there were subsequent versions 7 where sequences of changes were made to trace all 8 those changes and then finally that map was -- later I 9 found the whole section in that map superimposed on a 10 much larger map of the -- of Western Canada, and that 11 map in itself then proved to be quite interesting, 12 because although in the bottom of the map -- I forget 13 the date of this particular map, it had a date, but 14 the fact of the matter is the map was in fact a 15 composite of about four different maps of different 16 dates, so that anybody using the map, which some 17 people were doing, and saying "Well, this map says so 18 and so", if you did not know where that map came from 19 you could make a whole series of mistaken conclusions 20 on the basis of what it was you were looking at. So 21 it turned out to be -- started off trying to figure 22 out why this particular document seemed to be at 23 variance with the records in general. The ultimate 24 explanation of why certain Indians happened to be 25 shown on a map where they shouldn't have been in this 26 case was simply because his native informants mostly 27 came from the west, they didn't know much about the 28 south-west part of the map, and that was really the 29 explanation, but it led to a fun bit of detective 30 work, and when I finished it a colleague of mine 31 looked it over and said "Hey, you should publish that 32 in the cartographic journal, cartography of course 33 being interesting in the history of itself as well as 34 making maps. So that's where that comes from. 35 Q I take it, attempting to summarize what you just said, 36 that you didn't learn what you now know about the map 37 by looking at it? 38 A Oh, no. All I knew is that well, this is where the 39 business that was raised earlier, the context came in, 40 because had I not already gone through a fair pile of 41 records, had I just seen that map in isolation, I 42 might have said "That looks interesting, it has this 43 date", and start drawing conclusions from it. But the 44 fact of the matter is, already having a context in 45 which to assess the map, it was clear there was a 4 6 problem with the map. What remained to be determined 47 was the nature of the problem. Now, having said that 13341 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 about that particular map, there were sections of the 2 map that were reasonably accurate. Now, this raises 3 another point: What does a geographer and what does a 4 historian have to say about these things. There were 5 some -- throughout the map there were distortions. 6 Now, the distortions are also understandable if you 7 understand the system operating at the time, which is 8 where I was applying my historical-geographic 9 expertise. Certain lakes, for example, appeared very 10 large, like little Split Lake in Northern Manitoba, 11 which on a modern map is hardly recognizeable, 12 appeared much larger than Lake Winnipeg, which of 13 course is the big lake, and you sit and wonder how 14 could they make that mistake. Well, the fact of the 15 matter is that all the native travelling routes 16 converged on that lake, and then all the natives that 17 arrived at York Factory came from Split Lake hopefully 18 from other areas. So in the mental map of the trader 19 who is trying to understand and he has never seen, 20 this place seemed very important, and if you start 21 applying relative importance to mental maps, which is 22 some one thing geographers do, then when you looked at 23 what was big and small made sense, and the spacial 24 distortions on the map, if you went through all the 25 journals and analysed travel times up river or down 26 river, and if you translate lead distances in these 27 old maps into relative travel time, which is the only 28 way they can really be read, the spacial distortions 29 that you see really show you a fairly accurate travel 30 map of the area, not an accurate map in terms of what, 31 you know, a Teleset satellite would tell us now, but 32 as a fur trader the only thing he cared about is how 33 far away did these Indians come from, how long did it 34 take to get there, how many furs did they bring, and 35 so on. So the routes that were important, the rivers 36 that were important were big, those that were marginal 37 come out small, and the relative distances were 38 distorted by travel time. So in the end -- in fact I 39 had a student who was interested, and he created a map 40 for -- he created two maps showing upstream and 41 downstream travel times from York Factory scaling and 42 equating in terms of the day's travel time, and the 43 map he produced looked almost like the map the trader 44 had produced, which I found quite fascinating, indeed. 45 Q Let me take you to page 2 of Exhibit 959 and draw your 46 attention to items 8 and 10, which both refer to 47 Hudson's Bay Company account books. 13342 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A Um-hum. 2 Q What's the nature of the work that is involved in 3 those two publications? 4 A Well, one of my major interests has been economic 5 interaction between natives and Europeans, and the 6 potential excitement of the Hudson's Bay Company was 7 that a large proportion of its post account books 8 survive. Now, one of the problems with the early 9 French trade, which is the first fur trade I was 10 exposed to as a student, is that the French, compared 11 to the English, were terrible record keepers. The 12 beauty of the Hudson's Bay Company is they set up one 13 of those things that we all detest today, and that is 14 a bureaucracy, which produced mountains of material, 15 now which we all get to read. And in that mound of 16 material were these account books. The problem was 17 how do you read them, what can we make of the economic 18 data that was contained within them. And it -- I was 19 particularly interested in them because I was involved 20 in an economic history debate with A. Broadstein, who 21 is an economic historian economist at the University 22 of Toronto, about interpreting the nature of exchange 23 and whether or not there was price variation operating 24 within the system or whether these apparently 25 standardized uniform year-after-year lists of prices 26 for goods were in fact the real prices, so I decided 27 the only way I can resolve that is to figure out what 28 these account books were all about. So I did an 29 analysis of those account books. I took longer than 30 it should have simply because at the time that I was 31 working the originals were not available to me, so I 32 had to work off of microfilm. This again illustrates 33 the importance of having the original document to see. 34 Once I finally did manage to see, after I had actually 35 finished this article, it's all in the original 36 account books, I realized God, if I had seen this 37 thing straight away I could probably unravel this in 38 about two or three days, but it took longer than that. 39 In the end -- in the end this particular article, 40 which is more widely cited by those working in the 41 Hudson's Bay records, I think did make it clear to 42 people that used them what they said and what they 43 didn't say, and I've been pleased to note of late that 44 more and more historians interested in the subjects 45 that I am are now using those records, so that article 46 is cited as a source, and I might say that that work 47 ultimately was expressed in the third book, "Give Us 13343 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Good Measure", which I collaborated with an economic 2 geographer in which we wrote an extended essay on the 3 nature of economic interchange between native people 4 in the Subarctic and the Hudson's Bay Company, in 5 which we drew heavily on those account sources, and 6 that was in fact the first book to do so. Until then 7 those -- that particular group of records had been, 8 for all practical purposes, ignored by historians, 9 which is unfortunate, because in fact the accounts are 10 more voluminous than other journals and letters and 11 diaries, the usual food that historians like to 12 digest. 13 Q Are the account books documents which yield the 14 information you're interested in on a reading of them, 15 or is it more than that involved? 16 A Well, you wouldn't know what you were looking at. 17 You -- well, you could get some things out of it. I 18 mean having what I said, one of the things that 19 historians had used account books for previously was 20 if you go through the debt books in the accounts you 21 can often find out the name of the men who were at the 22 posts. I mean some things are straight evidence, you 23 can see who was there, but in trying to say what the 24 account meant, if you were looking at something and it 25 said, as it would, let's say we were looking at a 26 trading list, and they sum up the value of trade, and 27 it said 13,000 May beaver, I suspected the person who 28 doesn't know anything about the history of the 2 9 Hudson's Bay Company wouldn't know what that meant. 30 It does not mean that they traded 13,000 May beaver, 31 it means that they traded furs valued to the 32 comparative standard to the equivalent of 13,000 May 33 beaver, which then had to be translated into sterling 34 and so on, so you could not in that case, unless you 35 knew how the system operated, the numbers would not be 36 meaningful. 37 Q Have you previously given expert geographical and more 38 historical evidence in a court? 39 A Yes, I have. 40 Q And on how many occasions? 41 A Twice. 42 Q And what were those, please? 43 A One was in Alberta in the Horseman case, which was a 44 Treaty 8 hunting rights case, and one -- 45 Q I'm sorry, can I refer you to page 5 on -- under item 46 3 under "Consulting", is that the case you're 47 referring to there? 13344 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A That's right. The issue there was that I was 2 specifically asked to discuss -- they wanted to know 3 what was the nature of the native economy in Treaty 8 4 at the time Treaty 8 was signed. I was then asked to 5 give evidence in the Regina versus Walker case, Dawson 6 Creek, which was virtually the same case, different 7 episode, but a similar case. Again, the issue was 8 what was the native economy in that area at that time 9 of signing the Treaty 8. 10 MR. ADAMS: Thank you. My lord, it is my submission that 11 Professor Ray is qualified to give expert opinion 12 evidence in the areas that I outlined before he began 13 to testify. 14 MR. WILLMS: My lord, I made my objection at the outset. 15 THE COURT: Yes. 16 MR. WILLMS: And it's been dealt with. 17 MR. MACAULAY: I have no questions. 18 THE COURT: Yes, all right. I think you may proceed, Mr. Adams. 19 MR. ADAMS: 20 Q Thank you, my lord. Professor Ray, you've just in the 21 course of your qualifications given an example of a 22 map and then of the Hudson's Bay account books that 23 illustrated, as I understood it, the methods that 24 historians and geographers apply to the interpretation 25 of historical documents. And I just want to refer you 26 to a couple of examples in the Hudson's Bay documents 27 that are now before the court to ask if you can 28 comment on the method involved in interpreting those 29 documents, and my lord, I'm in volume 1 of the 30 three-volume set, tab 5 of that first volume. Now, I 31 can just alert your lordship to the fact that the page 32 numbering in these documents is an adventure. There 33 is sometimes none, sometimes one, sometimes two, 34 sometimes three different sets of page numbers. The 35 page I want to take you to, Professor Ray, is page 95, 36 as it is handwritten in the upper right-hand corner, 37 and it has a printed 6 on the same page. It's 6 or 7 38 pages in. 3 9 A Um-hum. 40 Q And I want to read a passage there. And first of all, 41 do you agree or disagree with me about that being what 42 it says there, and then comment on that from the point 43 of view of the historical geographer's capacity to 44 interpret the historical document, and I'm beginning 45 in the first full paragraph on that page 95, where I 46 believe it says: 47 13345 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 "The general character of the Babine is similar to 2 the other Carriers in New Caledonia. They are 3 kind and hospitable to strangers, which may be 4 considered as the only good feature in their 5 character, for they are dishonest, passionately 6 addicted to gaming, licientious, lazy, indolent, 7 and in their private habits dirty and immoral in 8 the extreme." 9 10 Now, just stopping there, when you approach a document 11 that contains a statement of that kind, what if any 12 method do you bring to bear on that material to decide 13 if you can rely on what you are reading? 14 A Well, first off, we're looking at an outsider 15 assessing a native culture, this is a European 16 talking. The next question is okay, so we have a 17 European trader, in this case Brown, talking about a 18 certain native group. The question then is what 19 system is Brown operating within, and you have to 20 understand Brown -- to understand Brown you have to 21 understand the Hudson's Bay Company's trade as it was 22 operating at that point in time and what Brown was 23 expected to do within that system and how he had to 24 operate. Now, I guess I could give you, I'm sure, a 25 far longer discourse on the Hudson's Bay Company than 26 you probably want to hear, but to make it short, the 27 key point to understand here is the Hudson's Bay 28 Company operated a hierarchical authoritarian system. 29 A historian at the University of Alberta has pointed 30 out that in a sense the system the Hudson's Bay 31 Company originally adopted was virtually along the 32 British sort of naval traditions in which one of the 33 best ways to see a trading post as set up by the 34 company was sort of like a ship on land. It had 35 officers -- each post had an officer in charge, their 36 word was law among their men, and so you have -- you 37 have an authoritarian system. Secondly, these traders 38 had become accustomed, particularly dealing with 39 groups east of the Rocky Mountains where you had a 40 native society that was very different from the 41 societies that they were running into in this area, in 42 that in the Subarctic, which is -- which is where the 43 Hudson's Bay trade began, and is still a key factor, 44 you had band societies with fairly weak authority 45 structures in which by this time the Hudson's Bay 46 Company, through its monopoly, was getting into an 47 increasingly dominant position and in a position to 13346 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 dictate terms to native people. In fact, at this 2 particular point in time that we're talking about 3 right now the Hudson's Bay Company had developed a 4 very large spacial strategy, as it were, under the 5 direction of its Canadian Governor of the northern 6 department at that time, George Simpson. What they 7 were doing was, number 1, they were trying to 8 husband -- they were trying to nurse back the fur 9 trade east of the Rockies, so east of the mountains 10 they're putting in a conservation programme, they were 11 also going through one of those periods of what we 12 today euphemistically refer to as rationalization. 13 They're economizing operations, firing people, 14 trimming expenses, and trying to tighten the terms of 15 trade with the native people; in other words, pay them 16 less for their furs. South of the border, or along 17 the border with the Americans they were trying to 18 create a fur desert; in other words, deliberately 19 overtrap that area to make British North America 20 difficult and expensive for Americans to reach in and 21 conduct a trade. So that takes us to New Caledonia, 22 what are they doing here. The purpose here was to try 23 and expand trade, partly to compensate for the decline 24 of the trade east of the Rockies. So Brown is 25 expected by the company to try and expand trade in 26 what would I think we could call western or 27 northwestern, depending how you look at the map, of 28 New Caledonia. What does Stuart Brown and other 29 Hudson's Bay Company men discover when they get here? 30 It's that the Indians: Carrier, various Carrier 31 groups, which to use that large term, includes the 32 Babine and the groups living on the Bulkley Valley, 33 and the Gitksan, were at best marginally interested in 34 the Hudson's Bay Company. They were not eager to 35 spend their time -- as much time trapping as Brown and 36 his colleagues would like. So when you see Brown 37 complaining here about being lazy and indulent in 38 terms of a Scotsman, which is what he was, who was 39 preoccupied with getting fur and/or fish to feed his 40 post, Indians doing anything else were not being 41 co-operative, they were bad guys, they're lazy, and he 42 took particular offence that in the wintertime, as the 43 records make quite clear, they spent a fair amount of 44 time gambling, feasting as they call it in the 45 records, while they were playing these games, and 46 generally speaking, the impression you get is that the 47 native people enjoyed themselves in the wintertime to 13347 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q 16 17 18 A 19 MR. ADAMS 20 21 22 THE COURT 23 MR. ADAMS 24 THE COURT 25 A 26 MR. ADAMS 27 Q 28 A 29 Q 30 A 31 32 Q 33 34 A 35 Q 36 A 37 38 39 THE COURT 40 A 41 42 43 MR. ADAMS 44 Q 45 A 46 Q 47 a good extent and they weren't interested in spending all their time hunting out furs for William Brown. So William Brown, Stewart, Connally, most of the traders at this time used these kind of terms for describing a native society which is very heavily based on a fishing economy that simply didn't need the Hudson's Bay Company in their territory. So the image that you get of them are of a lazy people. Now, going back to the question, well, in the face of it you can say oh, yes, they're a lazy people, he says so, but lazy is a relevant -- is a relative term, and this case has to be understood in the context of what the objective of the Hudson's Bay Company in this area was at this time. Now, that is my interpretation in that context. Let me take you back a tab to tab 4 in that same volume 1 and to the first page of the tab, which is a handwritten 140. The very first page? Yes. I'm going to pick on you to ask you if you can read the first sentence or two of the second full paragraph beginning -- I'm sorry, Mr. Adams, you say that's 140? In the upper left-hand corner, I believe so, yes. Thank you. So where did you want me to -- The second full paragraph? This is one of these gems as far as Xeroxes go. That's why I'm trying to get you to read it. "The inhabitants of distant" -- okay, I'm going to read on and then read back. I think I know what it says -- can suggest what it may say, "consists of three distinct nations"? Something "distinct nations", yeah. Perhaps -- Could be "comprise", that's another common term used in those times. The Babine, Sekani and Atnah, which I am -- : "The Carrier"? "The Carriers", right, "are the most numerous and comprise at least 4/10ths of the population or 9/10ths". 4 or 9? "9/10ths of the population." All right. Let me stop you there, because there's two things I want to ask about that passage. One is can 1334? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A Q A THE COURT A THE COURT A MR. ADAMS Q A THE COURT you tell looking at that who the Atnah are? In this context? Yes. And who are they? These Atnahs are -- this is the -- these Atnahs are the Atnahs of the Babine-Skeena River. : How do you think that is spelled there? A-T-N-A-H. The term Atnah was also an -- applies to northern Shuswap groups, but in that case you always have to be clear of the context, so -- : What do you say it means here? Are the Atnah of the Skeena-Babine or -- The Atnah's here are the native people who at that time are living on the Babine and Skeena Rivers, and I think it's a fair assumption is that they're Gitksan. It's a Tsimshian group in any event, he makes it clear in other accounts that they speak a totally different language than the Carrier. Let me ask you then about the remainder of the sentence where it says that "The Carrier are the most numerous and comprised at least 9/10ths of the population". My question is simply is that to your knowledge historically so? That would be a difficult one to answer, simply because he's referring in this instance to the whole of the New Caledonia district, so he's referring to all of the Carrier groups, which would include the Babine and the groups of the Wet'suwet'en Valley -- or the Wet'suwet'en or the group living in the Bulkley Valley at that time, and comparing them to the -- to the Gitksan. Based on his -- on other records we would assume that the Gitksan numbered probably at least something in the order of 7,000 plus. The problem we have is that the counts on the Carrier groups are -- they're uneven and incomplete as well, so it's hard to say, but I would say that on the face of it it's probably an exaggeration if we read it in this context and that is he's talking about all of the Carriers of the whole of New Caledonia. : Should we take the morning adjournment, Mr. Adams? THE REGISTRAR: Order in court. This court will recess. 13349 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 (PROCEEDINGS ADJOURNED AT 11:15) 2 3 I hereby certify the foregoing to be 4 a true and accurate transcript of the 5 proceedings herein transcribed to the 6 best of my skill and ability 7 8 9 10 11 Graham D. Parker 12 Official Reporter 13 United Reporting Service Ltd. 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 13350 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A (PROCEEDINGS RECONVENED PURSUANT TO MORNING RECESS) THE COURT: Mr. Adams. MR. ADAMS: Q Professor Ray, just before we broke you made a number of references to New Caledonia. I wonder if you could briefly explain what territory New Caledonia covered? Briefly what the Hudson's Bay Company did was divided the whole of Canada into fur trading districts. New Caledonia was one of the districts of what was then called the northern department which basically included most of what is now Western Canada. New Caledonia was the area roughly running from the Rocky Mountains -- the western slopes of the Rockies on the east; westward to the coast ranges -- westward to the coast ranges; north approximately to what is now Bear Lake, although the northern boundary was never rigidly defined; and the southern boundary would approximate the area of Fort Alexandria just to the southward of what is now Prince George on the Fraser River. Are you able to say how that district would have been identified? How did the Bay determine its boundaries? Well, what the Bay did in 1821 was when the Hudson's Bay Company joined forces with the Northwest Company what was also -- this area was also referred to as Western Caledonia. And it was Western Caledonia was the area really that the Northwest Company developed. So with the amalgamation the Hudson's Bay Company essentially acquired a territory they had not previously effectively occupied. So it had been, in fact, the trading district going back to the beginnings of Simon Fraser's activities. And previously, I guess you could say, the western most district -- well, the western most post was Fort St. James on Stewart Lake going back to 1806. Prior to that the Hudson's Bay Company didn't come west of Stewart Lake? THE WITNESS: No, before 1821 the Hudson's Bay Company didn't come west of the Rockies. So it was pretty exclusively Northwest Company territory until the merger in 1821. Q A THE COURT: MR. ADAMS Q A And you made some reference earlier to the structure of the Hudson's Bay Company. I wonder if you could explain how that structure is related to its record keeping? Well, it's structure is essential to understand the 13351 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 records and record keeping. The key thing to remember 2 about the Hudson's Bay Company is that before 3 confederation the operation was run entirely by 4 correspondence. The managing directors of the company 5 were known as the Governor & Committee in London. 6 They never came to Canada, never took tours of 7 inspection and so their -- the information that they 8 needed to run the company was all the information that 9 was sent to them from the various posts around what is 10 now Canada. So that the top of the hierarchy is what 11 was called the Governor & Committee. The Governor & 12 Committee were a handful of men who were elected from 13 the shareholders of the company in London. They were 14 charged with conducting the company's fare. Every 15 summer they held what they called the general court at 16 which members of the committee were elected. There 17 was a tendency for the committee to nominate itself or 18 nominate individuals and the shareholders simply 19 rubber stamp it basically, although there were a few 20 dust-ups from time to time and minor shareholder 21 revolts. 22 Now, the Governor & Committee from the beginning 23 days of the company basically had their men keep three 24 kinds of records at the post level. One was a daily 25 journal in which they were asked to keep certain kinds 26 of information on a daily basis. This included 27 observations about the weather, the work that the men 28 were doing at the post on that day, comings and goings 29 of people, Indians and others, any trading that was 30 done and any what they called "remarkable" 31 occurrences. In addition to keeping a post journal, 32 they were expected to keep a post account book. The 33 post account book -- to simplify what the accounting 34 operation was all about, the post account book 35 essentially was a device for inventory control. The 36 trader at a post was given responsibility for what in 37 the early years was called the general charge which 38 was all the goods that was sent to that post and 39 making up the opening balance. The general charge 40 would consist of any goods left over from the previous 41 trade year plus any goods invoiced in that year. Now, 42 the trader was accountable for all of those materials. 43 And that's essentially what all the accounting did so 44 that furs that were bought with goods were entered in 45 there. Goods that men bought were entered in and so 46 on. And at the end of the year he had to account for 47 expenditures of company property, basically, in the 13352 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 conduct of his trade. 2 Now, in addition to that they had correspondence 3 books. What the Governor & Committee in the early 4 years did was they would send out an annual letter of 5 instructions telling the men what the company expected 6 them to do, commented on their bookkeeping of the 7 previous year sometimes unflatteringly because some of 8 these guys were not good at their addition. So they 9 would comment on that. They would actually read these 10 journals and sometimes make remarks about what was in 11 the journals. So they would comment on the previous 12 year's records. If it was appropriate they would send 13 out instructions and ask the men if there were any 14 things that could be done to improve trade and so on. 15 Now, the correspondence -- some posts kept separate 16 correspondence books and they survive in the archives 17 as such. And the way the archives is divided they are 18 often inward correspondence that's inward to London, 19 and outward correspondence that's outward from London. 20 Often in these early years since paper and space 21 on canoes was at a premium, the letters were simply 22 inserted into the journals or at the back of the 23 journal in the empty pages at the back, so you may or 24 may not have a separate set of correspondence for any 25 given post in any given year. So the correspondence 26 books, the post journals and the account books then 27 were the -- are the records that the company starts in 28 the very beginning to keep and, in fact, keeps down 29 until the 1930's. The later period they start 30 fizzling out because an increasing amount of business 31 is done by telephone, shortwave radio, telex and 32 whatnot. So the correspondence drops off drasticcally 33 and the accounting forms change, but those changes 34 aren't relevant here. 35 One important innovation that is critical to this 36 excercise here is that beginning about 1815 the 37 Hudson's Bay Company asked their men to file district 38 reports. Now, these were intended for management 39 purposes. And the way the system worked was by this 40 period, by 1821, the structure of the company had 41 gotten somewhat more complicated in that traditionally 42 you have the Governor & Committee running things in 43 London. At each post you had a senior officer in 44 charge who was usually a chief factor, sometimes a 45 chief trader with a handful of officers. They were 46 the officer class. Under them were the contract 47 servants. 13353 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Now, by 1821 the company had created what was 2 called the governing councils of the northern and 3 southern departments. The northern department, as I 4 said, at this point in time included all of Western 5 Canada including what is now British Columbia, and the 6 southern department which included all of what is now 7 Northern Ontario basically. In addition there was a 8 Montreal department which included large chunks of 9 present-day Quebec. Each of these governing councils 10 consisted of the officers in charge of the various 11 districts. In the case of this district at this point 12 in time, at least to 1824, the chief of the district 13 was Stewart. The officers in charge of the districts 14 sat on the governing councils of the northern and 15 southern departments. They, as a body, made rules and 16 regulations to govern trade. One of the critical 17 things in making decisions about what to do about 18 trade and problems and so on were these district 19 reports. And in these district reports they really 20 are an elaboration of essentially what the post 21 journals were in that there were standardized 22 headings. It might be useful if we wanted to do by 23 example we could probably look at the headings say in 24 one of the Babine district reports if you want. 25 Q There is one at tab 5 of volume 1. 26 A Let me just see if we can quickly show you. This is a 27 shortened -- this is a condensed version of one. But 28 typically what they would begin with was the 29 description of the country; it's boundaries; a 30 description of the native people; a description of the 31 state of trade, i.e. the fur resources are up, down, 32 indifferent; a discussion of any particular problems 33 or what they call: What are the disadvantages of the 34 district. They are expected to discuss the advantages 35 of the district and make any recommendations. Yes, I 36 think tab 7 is an even better example probably. It 37 has those types of headings. So as historical 38 geographer, of course, these are delightful. What 39 they amount to are mini-geographies filed year after 40 year. And there was -- for a time the governor of the 41 company George Simpson in turn filed an annual report 42 to London in which he would synthesize all the 43 district reports and file one general report. 44 So the way the hierarchy worked is reflected in 45 the way these records relate to one another. So you 46 often find duplicated in district reports sometimes 47 virtually lines out of post journals as these things 13354 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 are shunted up the system. The important pieces or 2 the information that is important to carry on and 3 other bits of information is either dropped or just 4 not bothered with. So the district report then was a 5 new document that came into use about 1815. And the 6 district reports for the period 1815 to about 1825 and 7 '26 are pretty good, although it varies by district. 8 And thereafter they tend to fizzle out simply because 9 these guys got tired of keeping the records and saying 10 basically the same thing year after year. So 11 sometimes they virtually say "as before". Well, if 12 you know -- if you can trace "as before" back to the 13 first "as" then you are in great shape. Sometimes you 14 trace it back and there is no "as" so you don't know 15 what the "as before" was. You find that sometimes 16 terribly frustrating with post journals as well. You 17 just go page after page "as before", "as before", "as 18 before". 19 So some guys liked to write in their journals and 2 0 other guys didn't. But the company had a proviso 21 which is interesting, and it was carried into its post 22 journals all the way back to the 1930's that said that 23 the quality of the journal would be considered to be a 24 reflection of the quality of the man that kept it. In 25 other words, if you guys don't keep good journals you 26 may get in trouble with us. And there are times, as I 27 said, some of these letters would come back if they 28 didn't like the way someone was keeping a journal or 29 if it was getting illegible or so on then the men in 30 London would write back and say so. 31 Q I understand you to be saying that there is a 32 connection between the categories that are assigned 33 for a district report and the kinds of information 34 that you would expect to see collected under those 35 headings? 36 A That's right. 37 Q What, at a level of persons, can you say about what 38 information the Hudson's Bay traders would be 39 sensitive to? 40 A Well, of course they were particularily sensitive to 41 anything that influenced their trade positively or 42 negatively because they were assessed on performance. 43 And the senior officers of the company after 1810 also 44 shared in the fur trading profits of the company 45 collectively so they tended to occupy themselves with 46 business matters. It's been pointed out that, for 47 example, when Lamb edited Harmon's journals he pointed 13355 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 out that one of the problems of post records or of 2 records of trading companies is that they tended to be 3 fairly straightforward, routine, and he regarded as 4 tiresome sometimes business matters. Whereas some of 5 the trader's personal accounts they would get more of 6 themselves into the records and they become more 7 personalized records, as it were. And one of the 8 things about a lot of these records is that they seem 9 de-personalized in a sense. And the very thing that 10 natives sometimes complain about academics is that 11 they are too detached. There is a certain element of 12 detachment in these records, particularily at the 13 district report level. Although it's clear when you 14 read some of these post journals these people do 15 interject their reaction to people and it is there: 16 Things aren't going well or so on. But the district 17 report was specifically a management oriented report. 18 It was part of the reforms the company was making 19 which put itself initially on a competetive edge 20 vis-a-vis the Northwestern and after 1821 to simply 21 better manage its affairs. 22 Q What, if anything, can you say about -- given that 23 business management orientation of the necessary 24 records that the traders in general would have been 25 paying attention to in the native society they 26 encountered? 27 A Well, they would -- they paid particular attention to 28 those aspects of native activities, of course, that 29 were affecting the amount of furs or in this case fish 30 that were or were not coming to the trading post. 31 Because New Caledonia -- one of the problems with New 32 Caledonia as a trading district which I found quite 33 interesting when I first got into it -- I first came 34 out to B.C. thinking it was a wild place with wild 35 animals all over the place -- I discovered that in 36 fact game was never really plentiful in the New 37 Caledonia district. One of these things that jumps 38 out at you out of this district of course is the 39 obsession of getting fish and also the problem of 40 having to live on a fish diet which they didn't seem 41 to like. The other thing is the obsession of getting 42 fur which was not in the amount that they wanted. So 43 from the business -- from the point of view of the 44 business problems, those were the two main problems. 45 Given the number of natives here -- we don't have 46 hard, hard population data. We can't give you a nice 47 precise per capita statement about what this is, but 13356 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 it is clear that on a per capita basis the yield of 2 fur was fairly low. That was one of the things that 3 they were concerned about. 4 Q Many of the records that appear in the binders that 5 are before the court are authored by one William 6 Brown. Are you generally familiar with who William 7 Brown is -- was? 8 A Yes, he's a Scotsman who joined the company and had 9 previously served east of the Rockies before he came 10 west. And at the time he arrived in New Caledonia, 11 where he had been sent to expand the company's trade 12 in a northwesterly direction, he was a chief trader in 13 the company which means he was one of the more senior 14 officers. As far as company officer ranks went, just 15 for reference purposes, the senior most officer in 16 Canada was the governor. Now in the early 1820's 17 there were two governors, one of the east and one of 18 the west. But by the late twenties they merged them 19 into a single governor and that became governor George 20 Simpson. The next rank -- and there was initially two 21 and eventually only one. So the next important rank 22 were the chief factor. They were the senior most 23 operational officers. The chief factor generally were 24 in charge of the districts. Chief traders, on the 25 other hand, were the next rank that occasionally had 26 charge of a district which was a minor district or a 27 sub-district which is essentially what the Babine area 28 was. You would have district reports for a 29 sub-district really of a district of New Caledonia and 30 Brown would be an example of that. Under chief 31 traders you had clerks and then they create other 32 positions at a later date below those ranks. But 33 basically they were the so-called commissioned 34 officers. So at the time he was a relatively senior 35 commissioned officer. Relatively few men obtained the 36 rank of chief factor, so I think it's fair to say 37 Brown was a fairly respected trader at this time by 38 virtue of the rank he held. 39 Q And where you are dealing with documents that he has 40 authored what, if anything, are you required to assess 41 as to his capacity as an observer? 42 A Well, one of the things that's interesting about Brown 43 is that his first district report -- I don't know what 44 our tab number on that is at this point. But his 45 first district report is based -- he writes after he 46 established Fort Kilmaurs on Babine Lake. And as he 47 himself observes sections of it are based on what 13357 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 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 Indians told him on which he reserved some judgment. His second one is based on two trips that he had made to Gitksan country and trips he had made to Wet'suwet'en territory, and on the basis of that he makes revisions in his reports. And there are other episodes, for example, when Brown is at one of the villages on Babine lake he hears reports of the whites having a trading establishment at the mouth or at the junction of what would be the Bulkley and the Skeena River which he didn't believe, and of course there wasn't one there. But the Indians had told them that, and this is part of the -- natives always played these games. They were trying to do some leveraging on their bargaining tactics. Basically the gist of the story was: If you don't give us a good deal we will go over here and get us a better one so you had better smarten up. Well Brown was suspicious of it so he says he took several Indians aside and asked them each a series of questions unbeknownst to the others that he was doing so, and on the basis of that concluded that there was in fact no such post at that point in time. So he was an experienced trader by the time he arrives here of a fairly senior rank. He was used to dealing with native people and asking questions and so on. And I would say he is as good as an observer as we will get. He was not an infallible observer, none of them were. But he is a good one. MR. ADAMS: Okay. I want to move to another topic now. I want to ask you some questions about the genesis of your expert opinion report. THE COURT: I'm sorry, when did Brown arrive? THE WITNESS: 1822 or '23 he sets up the Fort Kilmaurs. What is the first post journal tab? MR. ADAMS: There is an index in the front of the volume. THE COURT: That's fine. THE WITNESS: He is in the area in 1822 to start setting up operations. THE COURT: Where is Fort Kilmaurs on the Babine Lake; the north end, south end, middle end, where? THE WITNESS: It is south of what became Fort Babine. It was called Old Fort. There is that arm on the northern end of the lake. THE COURT: Yes. THE WITNESS: It is down at the bottom of the arm on the right if you look at the map. There is a peninsula there. MR. ADAMS: My lord, there is a map appended to the opinion report. It might be of assistance to put that before 1335? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE MR. MR. THE MR. THE MR. THE THE THE MR. THE THE MR. COURT ADAMS COURT ADAMS COURT ADAMS Q the witness. I'm not sure I have that yet. No, you don't yet, but I am proposing to hand it up and reserve a number for it. Well, that can be -- 960 we can reserve for it. And the map I'm referring to, my lord, is six or eight pages from the back. Yes. Perhaps I can just ask you, Professor Ray, does the fort that his lordship is referring to appear on that map? A This map here? Q Yes. A Yes, it is the lower right-hand corner. It says Old Fort. Q Yes. A That was the site of Fort Kilmaurs. Q And did Fort Kilmaurs also go by another name? A Well, it became known later as Fort Babine. But it was actually titled in the record at that time as Old Fort Kilmaurs or Fort Kilmaurs. Brown was from Kilmaurs. He named it after his home country which was not an uncommon practice for traders to do. Q When we see in these binders documents that say Babine Post Fort Journal, is that a reference to Fort Kilmaurs? A Yes. ADAMS: My lord, if it is of some assistance on map -- whatever the map is called, but 9A is the last overlay. COURT: Yes. ADAMS: You will see Babine Lake to the lower right of the territorial boundary there. COURT: Yes. ADAMS: And you will see at the top of the lake Old Fort. COURT: Yes. That's it, is it? That's Fort Kilmaurs? WITNESS: Yes, Old Fort. COURT: Old Fort is Fort Kilmaurs. Thank you. K-I-L-M-A-U-R, Madam Reporter. ADAMS: Q A COURT: WITNESS ADAMS: Yes, I'm sorry. I hadn't the Scottish words, too. It had an S on the end. An S on the end? Yes, Kilmaurs. realized we have to spell 13359 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q Now, the report for which Exhibit Number 960 has been 2 reserved, that's in front of the witness? 3 A Yes. 4 Q And that, I understand, is an opinion report that you 5 did, as it indicates on the cover, for the 6 Gitksan-Wet'suwet'en Tribal Council in 1987? 7 A That's right. 8 Q What I want to do is to work -- to go back to the 9 beginning of that report from the point of view of 10 your contact with the Tribal Council and explain -- 11 maybe what I can do first is just take you to the 12 first page of that report. 13 A Right. 14 Q Under the heading "Introduction" where you say: 15 16 "The primary purpose of this report is to 17 examine the economic history of the middle 18 Skeena River-Lake Babine region with the 19 primary objectives of (a) searching for 20 evidence of the native exercise of title in 21 the area and (b) determining the ways in 22 which the Gitksan, Wet'suwet'en and Babine 23 responded to economic changes brought about 24 by the development of the fur trade. The 25 evidence is largely drawn from the records 2 6 of the Hudson's Bay Company." 27 28 A That's right. 29 Q My question is where did that project originate for 30 you? 31 A Well, I arrived at U B.C. in 1981. And shortly 32 thereafter, I don't remember the exact dates. It is 33 bad for historians but if they are not written down I 34 have trouble remembering. I don't write a lot of 35 things down. A colleague of mine Keith Ralston of the 36 department suggested that I might consider doing a 37 short report for the Tribal Council who were then 38 involved in the Kemano hearings as well on the early 39 penetration of the Hudson's Bay Company into that 40 territory. Since Keith pointed out that I was "the 41 expert on the Company" it might be of some use to the 42 band. So I agreed eventually to do that shortly 43 thereafter. I think it was about 1982 or thereabouts. 44 I made an understanding that I would do such a thing 45 partly because I was just simply interested in the 46 topic. I agreed to do an initial report for him on 47 the basis of my expenses for doing it. We never 13360 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 signed a contract. It was all verbal understanding. 2 And I went off to the archives in the winter of -- 3 December of '83, I believe it was, when I did the bulk 4 of the research that went into this particular version 5 of this report, drew up a preliminary draft of the 6 report. And the original understanding was that I 7 would concentrate on this initial expansion so that's 8 why the focus is very heavily on -- basically on the 9 establishment of Fort Kilmaurs and basically focused 10 on the period of 1820's which I believe is a crucial 11 period anyway. These records, by the way, were 12 records that had not been used previously by 13 anthropologists, ethnologists or anybody else in any 14 kind of detail. And, in fact, the district reports 15 and journals, other than that one scrappy one from the 16 public archives in Ottawa, had not been used 17 previously. So it seemed if one was to establish a 18 good contact base line these were the records to do it 19 with. And I was actually surprised when I got into it 20 that no one else had tried it even earlier given the 21 debates among anthropologist about how to interpret 22 things. 23 Q And as a result of that research, did you write a 24 paper for what was then the Gitksan-Carrier Tribal 25 Council? 2 6 A I did. 27 Q I wonder if the witness could be shown volume 3 which 28 is the one with the map in the back, and tab 3 of that 29 binder. That has a printed date on it February 17, 30 1984? 31 A Right. 32 Q Is that what you are referring to when you say you 33 produced a written report? 34 A That was the first preliminary reaction to the 35 research that I had done that winter, i.e. in 36 December. So it was a fairly quick reflection of the 37 record. It represents the first stage of working on 38 the report. 39 Q And what, if anything, did you do with that report 40 once it was completed? 41 A Well, I circulated it for comment, as I recall. And 42 as I vaguely recall, as well, I don't remember getting 43 much comment except a fair amount of excitement from 44 the people there over this list of chief names which I 45 must say -- 46 Q Sorry, the people where? 47 A The Tribal Council. And I only heard that indirectly. 13361 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 I think it was through Richard Overstall or I don't 2 remember who the person was. But they found the list 3 of names quite exciting. 4 Q Is that the document that appears as table 2 at the 5 back of the report? 6 A That is correct. 7 Q Headed "Western Carrier Chiefs And Men Of Property Or 8 Note"? 9 A That's right. And I must say I was -- as I mentioned 10 at the time, I was quite amazed because usually when 11 you go looking for things like this I had worked on 12 changing tenure patterns in the areas further east 13 trying to sort them out and it is like looking for a 14 needle in haystack. And it so happened that the very 15 first document I picked up had this list of people on 16 it and I thought that was most extraordinary. And it 17 is extraordinary given the record starts straight away 18 with this kind of list. This is primarily -- these 19 are out of the district reports. 20 MR. ADAMS: My lord, I wonder if that might be marked as the 21 next exhibit. And I should say that I am not 22 tendering that as an alternative opinion, I am simply 23 trying to illustrate the process the witness went 24 through in rendering the opinion that the plaintiffs 25 do rely on. 26 THE COURT: 961. 27 THE REGISTRAR: 961 and that's tab — 2 8 MR. ADAMS: 3. 29 THE REGISTRAR: Of volume 3, thank you. 30 31 (EXHIBIT 961: Tab 3, Plaintiff's Book 3, 32 Preliminary Report of A. Ray) 33 34 MR. ADAMS: 35 Q Now, you mentioned that that was, to your 36 recollection, circulated for comment. Do you recall 37 to whom? 38 A I don't actually remember who all I sent it to. I 39 know I sent at least one to the people in Hazelton. I 40 customarily circulate things to colleagues for 41 reactions as well. And I don't recall, as I said, in 42 this case that I got a whole lot of reaction to this. 43 But it was a preliminary report anyway. I didn't 44 expect much. So I don't have any -- I was looking the 45 other day to see if I have any records to any 46 reactions. I couldn't find any, nor do I have any one 47 copy that so and so said such and such and so forth. 13362 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 So I can't say any more than what you see is what you 2 get because I have very little other recollection 3 about it at this point. 4 Q Could you turn to tab 4 in that binder. 5 A Okay. 6 Q And there I hope you will find the document that says 7 "The Early Economic History of the Gitksan 8 Wet'suwet'en". And then in handwriting "Babine" -- 9 A Right. 10 Q "Tribal Territories 1822 to 1915"? 11 A Right. 12 Q That's a report that you wrote? 13 A It is. 14 Q And was there additional research that you performed 15 between the 1984 report, Exhibit 961, and this one? 16 A Yes, I've been doing ongoing research in the Hudson's 17 Bay archives, as I said, since 1968 or thereabouts and 18 continue to go to the archives. And while I was there 19 I did some additional work picking up things on this 20 area. And on the basis of that and the earlier 21 report, I did an expanded report. Now, I must say 22 that in doing the expanded report I also expanded the 23 time frame. The emphasis is still on the company's 24 participation as is evident from the report. I did it 25 partly because I was interested in doing it. I was 26 not asked to expand it. It was not in the original 27 mandate of what the council asked me to do. 28 Q And did you circulate that -- 29 A Yes, I did. 30 Q -- report for comment? 31 A I did. 32 Q And do you recall to whom that was circulated? 33 A I can't give you the list of names. I gave you the 34 list -- I gave you all the written comments I received 35 back from it that you probably could tell me the names 36 of the people. But I sent it certainly to the 37 Council. And I got feedback from a number of people 38 there. I sent a copy to George MacDonald at the 39 National Museum for his thoughts on the matter. And 40 Charles Bishop for his thoughts on the matter. And 41 Michael Kew at the anthropology department which is 42 something, as I said, I generally like to circulate 43 things to get feedback to make sure that I am not 44 going off half-cocked. 45 Q And as a result of those comments, did you make 46 substantial modifications to the document that appears 47 at tab 4? 13363 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A I made some. I don't regard them as radical. Yes, I 2 did make some on the basis of some of the comments. 3 MR. ADAMS: My lord, I wonder if that might be the next exhibit. 4 THE COURT: 9 62. 5 THE REGISTRAR: 962. 6 7 (EXHIBIT 962: Tab 4, Plaintiff's Book 3, 8 Expanded Report of A. Ray) 9 10 MR. ADAMS: 11 Q Now, one of the things that leaps out on a superficial 12 comparison of your opinion report which is in the 13 separate xerlox binder there -- 14 A Right. 15 Q -- and Exhibit 962 at tab 4 is that one appears to be 16 twice as long as the other. 17 A That's correct. 18 Q Can you explain how that came about? 19 A Well, when we decided on making the final submission 20 it was agreed to go back -- to carry on with what was 21 originally asked, and that was that I concentrate on 22 the Hudson's Bay Company's initial concentration into 23 the region because other people were doing or had been 24 doing research on various aspects of a later period in 25 greater detail. And for that reason we basically 26 chopped the latter half of the report that deals 27 essentially with the period after I believe 1850 or 28 '40 or thereabouts. So the report basically heavily 29 focuses on the 1820's which is the area that I think 30 is critical, at least for my purposes. 31 Q And then if you will turn to tab 5 of that volume 3. 32 A Right. 33 Q You will find a document entitled "Fur Trade History 34 and the Gitksan Wet'suwet'en Comprehensive Claim: Men 35 of Property and the Exercise of Title". And that 36 has -- at least as far as the conference, it refers to 37 a January 1988 date. 38 A Right. 39 Q And did you write that paper? 4 0 A I did. 41 Q And did you present it? 42 A I presented it at conference by invitation of the 43 conference chairman who is Professor Jean Friesen in 44 the history department of the University of Manitobs. 45 As the title of the conference suggests, it was a 46 conference that dealt with all aspects of aboriginal 47 land use including legal disputes over title and so on 13364 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 and so forth. They knew I was involved in this and 2 asked if I would say something about it, so I did. 3 Q And can you characterize in a sentence the degree of 4 similarity or difference between your 1987 report and 5 the one that appears at tab 5? 6 A It's much shorter. 7 Q As far as the substance of the opinions? 8 A Same. 9 MR. ADAMS: My lord, I would ask that to be marked as the next 10 exhibit. 11 THE REGISTRAR: 963. 12 THE COURT: 963. 13 14 (EXHIBIT 963: Tab 5, Plaintiff's Book 3, Fur 15 Trade History by A. Ray) 16 17 MR. ADAMS: Now, my lord, that finishes me for the moment with 18 volume 3. We will be turning now to the 1987 opinion 19 report itself which is the buff coloured xerlox 2 0 document. Yes. For which Exhibit 960 has been reserved. Yes. The way I propose to approach this, my lord, is to 25 go through it more or less in chronological page 26 number order with a number of purposes in mind. One 27 is to highlight some aspects of the contents of the 28 records to which it refers. One is to highlight 29 certain aspects of witness' opinion with respect to 30 those records. And the final purpose is simply to 31 sharpen, and in some cases correct, the references 32 within it. The time is a little awkward because I 33 want, in or out of court, to propose to my friends 34 that the simple specification of the references as far 35 as page numbers and so on could be lead and that would 36 save an enormous amount of time to go through. If 37 that is not acceptable then I am content to go and do 38 it one reference at a time. I'm not sure that I understand what you're saying. Well, let me give you an example. Yes. On page 8 of the report about the middle of the page 43 just above where the hole is punched you will see a 44 reference to "The Indian Debt Record for Fort Kilmaurs 45 for 1826" and there is an indication of what's there. 46 What I will seek to do for the convenience of the 47 court and counsel is to pin down where that reference 21 THE COURT 22 MR. ADAMS 2 3 THE COURT 2 4 MR. ADAMS 3 9 THE COURT 4 0 MR. ADAMS 41 THE COURT 42 MR. ADAMS 13365 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 occurs by tab number and page number. And there are a 2 number of similar references throughout the text. In 3 some cases a document is referred to but there is no 4 page number. I have tried to isolate all of those so 5 that I can give them to the court and to my friends. 6 In some cases there are typographical errors in the 7 references and someone who tries to go from the 8 document citation to the reference won't find 9 anything. It is that that I want to clean up, whether 10 by agreement or otherwise. 11 THE COURT: How do you want your friend to respond to that? Are 12 you going to give him some particulars of pages or 13 corrections or what? 14 MR. ADAMS: What I propose to do is where that is the nature of 15 the clarification or correction simply to state it. 16 THE COURT: Yes. 17 MR. ADAMS: If that's not acceptable I can have the witness 18 verify each of them. I just haven't had a chance yet 19 to talk to my friends about how they wish to proceed. 2 0 THE COURT: Well, maybe you can do that at lunch time. In the 21 meantime you can proceed in whichever way you think is 22 most convenient. 2 3 MR. ADAMS: 24 Q Professor Ray, beginning on page 4 of your opinion 25 report the first archival reference there in the third 26 line from the top is to B 11/e/l and B ll/e/2. 27 A Mh'm. 28 MR. ADAMS: And I wonder if you could just look at tabs 5 and 12 29 in volumes 1 respectively of your document books and 30 verify that those are indeed the tabs which those 31 documents appear. 32 MR. WILLMS: My lord, for my part I don't need to wait until the 33 break. I don't have any trouble with my friend saying 34 that's where they are. The witness doesn't need to -- 35 THE COURT: That they are at tabs — 36 MR. WILLMS: That they are at those tabs. 37 THE COURT: Yes, all right. 38 MR. WILLMS: I don't have any trouble with that. 39 THE COURT: Does B by any chance stand for Babine? 40 THE WITNESS: No, the Hudson's Bay Company archival system is 41 one that there is a series of records. The A series 42 are all the London records. The B series are all the 43 post records. 44 THE COURT: I see. 45 THE WITNESS: So B in this case is simply a series of records 4 6 within the company archives. 4 7 THE COURT: Yes. 13366 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 THE WITNESS: You will notice that all of these have a slash. 2 All of the sub-group A are post journals. 3 THE COURT: Yes. 4 THE WITNESS: Sub-group B are all account books, sub-group C and 5 D are correspondence books, and sub-group E are all 6 the district reports. That's basically how the system 7 works. 8 MR. ADAMS: 9 Q The reference B ll/e/2 takes me to your source which 10 is at the back of the opinion report. You see on the 11 first page under "Sources Consulted"? 12 A Right. 13 Q If you go down to "Babine Fort District Report" and 14 there is the reference B ll/e/2? 15 A Right. 16 Q I just want to verify that that should read 1826 17 rather than 1823? 18 A That's correct. 19 Q Now, beginning on page 4 of the report under the 20 heading "The Local Resource Base", why does that come 21 first and what is it that you are attempting to 22 establish in that section of your report? 23 A Well, I guess it reflects my training as a geographer, 24 the first thing we start with is the resource. The 25 geography of the area, as it were. And in a sense it 26 also parallels the Hudson's Bay Company's approach to 27 its records. But the purpose here is to get some idea 28 of what the resources of the district were like as 29 described in the records themselves at the time of 30 initial expansion into the area by the company. And 31 it is important because, as I've said already, the 32 district is quite different from districts further 33 east. 34 Q All right. Could you turn to page 6, please. And 35 there in the first full paragraph you say: 36 37 "For all native groups in the region, salmon 38 fishing is the most important subsistence 39 activity"? 40 41 A That's right. 42 Q And what are you able to say about the relationship 43 between salmon and the basis of the economies of the 44 Gitksan and the Wet'suwet'en at that time? 45 A Well, it is very clear from the Hudson's Bay records 46 that fishing was the main stay of the economy. And, 47 in fact, I think it is John Stewart, among others, who 13367 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A MR. ADAMS THE COURT MR. ADAMS THE COURT described the Carrier, for instance, as a bunch of what he called inveterate fish mongers. They not only lived on fish but they spent all their time trading fish. And I said right on this page that is in fact quoting from Stewart 188/a/5. But anyway with very little effort in a couple of months a year they could obtain enough fish on an average year to satisfy most of their requirements for food. And the thing that interested me, again I tend to have approached all of this work in a comparative framework which is a perfectly acceptable academic exercise. These are -- by contrast to most other trading districts that the Hudson's Bay Company operated in, we are not dealing here with an economy that was primarily big game oriented. Very clearly it is a fish based economy which something the company men had to adjust so when they got here which some of them didn't like because a number of them had spent previous years basically in what would be the prairies where they lived off buffalo and they were red meat eaters. So they didn't get off on the fish too much, especially the dried fish. You referred to the traders referring to the Carrier as fish mongers, and you said that referred to a trade in fish. With whom would the fish be traded? Amongst themselves and to the company itself. The company absolutely depended on those fish to sustain its post. But the reference is as the company moves in there it is clear that fish circulated within the economy because although a salmon fishery has provided one of the more stable food bases for native people with a large population density in British Columbia which extends up the coast and down river. The point is that even with that you could get periodic shortages and, therefore, setting up good reasons for exchange. And they did exchange fish as they exchanged oil, fish oil. It is a well known fact. So these were exchange based economies. : My lord, at the top of page 8 of the opinion report there is an archival reference. I wish to supply both a correction and a page number. And the reference reads B 119/a/l and should be B 111/e/l. That appears at tab 7 of volume one and the page reference is 160. : Thank you. Is it a convenient to adjourn, Mr. Adams ? : Yes, my lord. : All right thank you. 1336? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 THE REGISTRAR: Order in court. This court will adjourn until 2 2:00. 3 (PROCEEDINGS ADJOURNED UNTIL 2:00) 4 5 6 7 I hereby certify the foregoing to 8 be a true and accurate transcript 9 of the proceedings herein to the 10 best of my skill and ability. 11 12 13 14 LISA FRANKO, OFFICIAL REPORTER 15 UNITED REPORTING SERVICE LTD. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 13369 Submissions In chief by Mr. Adams 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 RESUME AT 2:00) THE REGISTRAR: THE COURT: Mr MR. ADAMS Order in court. Adams. For the record, I have just had a brief discussion with half of my friendsabout putting in the Bay documents and the one that comes from the public archives so that they get exhibit numbers and so that we can track them other than by their tab numbers in these binders. And I gather my friend, Mr. Willms, wants some kind of comment about the purpose or the extent to which they're being put in, and all I can say is to repeat what I said this morning about the way some of these very same documents were dealt with with Dr. Daly, and that was they went in, they were given exhibit numbers, and the argument about just what they were doing there was deferred, and that's what I propose to do with these. I'm just looking for some convenient reference to them. MR. WILLMS: My lord, with Dr. Daly, Dr. Daly had other documents, it was just one Hudson's Bay record, and I sought to have it marked for the truth of the contents and Mr. Grant declined my offer and marked it, I think for whatever it was worth. This whole -- all of these documents form the basis for this witness' opinion, unlike Dr. Daly, unless my friend is tendering these documents for the truth of their contents, and we can reserve argument on that, but unless he's tendering them for that, the report's inadmissible, the opinion is inadmissible because there is no foundation for it. So all that I want my friend to do is tell me what he says he's going to be relying on the documents for at the end of the day. If he's not going to rely on them for the truth of them, then there's no underlying factual basis for this witness' opinion. We can argue about what they're worth at the end of the day, my lord, but I think my friend's got to at least say that he's relying on them for the truth of the contents. THE COURT: Mr. Macaulay. MR. MACAULAY: My lord, Dr. Daly was not a historian, and one might expect him to use -- I wasn't present when he was giving evidence, but one may expect him to use documents in a different way than this witness. If this witness is relying on a historical document, then it's to be assumed, unless he makes a comment on it and points out why it shouldn't be relied on in that way, it ought to be assumed these documents are being 13370 Submissions In chief by Mr. Adams 1 introduced in evidence for the truth of the contents, 2 the accuracy of the contents, given that they're made 3 by Hudson's Bay officials; in other words, given the 4 circumstances, but essentially that they're truthful 5 and not untruthful or inaccurate. 6 THE COURT: Are they business records? 7 MR. MACAULAY: They're business records too, of course. The 8 witness has described quite fully how -- the reasons 9 for which they were made. 10 THE COURT: Yes. Well, I'm sorry, I'm about to make an 11 observation on Mr. Willms' comments, but I'll wait 12 until you're finished, Mr. Macaulay. 13 MR. MACAULAY: My submission is, my lord, that in the case of 14 this witness, these documents, if they're going to be 15 entered as exhibits in these circumstances, can be put 16 in for the truth of the contents except to the extent 17 that the witness has no -- here's the subject, this is 18 not accurate and this is the reason. 19 THE COURT: All right. Well, I haven't addressed my mind to the 20 question of business records, but I'm not sure that I 21 have to go that far. If I'm relying -- if they're 22 being put in on the basis of business records and then 23 it seems to me that Mr. Adams has to, as it were, 24 adopt it, and I'm not sure he wants to go quite that 25 far, because although he may rely upon them to a great 26 extent to support the opinion of his expert, there may 27 be parts that he doesn't want to be committed to. I'm 28 not sure there's anything magic in saying that you're 29 bound by something, although I suppose that can arise 30 in some circumstances, but here I have heard a lot of 31 assertions by Mr. Willms and others to witnesses that 32 certain matters of social or cultural phenomena should 33 be attributed to the fur trade, and I now have before 34 me a witness who has studied the fur trade and its 35 consequences, and it seems to me that he ought to be 36 able to say that my opinion is such and such and that 37 I rely upon the Hudson's Bay records to a very great 38 extent, but not necessarily upon everything that's in 39 every document, and that it should not be incumbent 40 upon the plaintiffs to put in the -- all the documents 41 for the -- upon which he relies as proof of the truth 42 of everything stated in them. It seems to me that 43 he -- what is important here is the opinion of the 44 witness in the same way that in the St. John case the 45 distinction was made between the inadmissible hearsay 46 of what each individual transaction represented and 47 the admissible opinion of the witness based on a 13371 Submissions In chief by Mr. Adams 1 collective ideas of facts and information. So for 2 that reason I'm attracted to the idea of putting the 3 documents in as they're referred to or as may be 4 convenient for the purpose of identifying them and for 5 the purpose of putting before me the basis upon which 6 the opinion is reached, that without committing anyone 7 at this point to be adopting the whole of the 8 document -- as the whole of each document as proof of 9 the truth of the fact stated in each document. Now, I 10 don't know if that gets us anywhere, but that ruling 11 or those observations, Mr. Adams, can you suggest a 12 convenient way of marking the documents that are -- 13 that you're seeking to have identified? 14 MR. ADAMS: Well, my lord, the documents are in volumes 1 and 2 15 of the black binder. 16 THE WITNESS: They're tabbed. 17 MR. ADAMS: And they have tabs and they are indexed, and I would 18 propose simply to give them exhibit numbers in the 19 order they appear in the index. 20 THE COURT: All right. Well, I think that's a procedure that 21 commends itself to me. It's almost what we've been 22 doing before, but there's a slightly different 23 perspective, and I think I adopt what Mr. Macaulay has 24 said about the possible distinction between history 25 and anthropology, that's something -- a matter I 26 wouldn't want to pronounce conclusively upon, but it 27 seems to me that there may be a difference. And with 28 that distinction being reserved, I think we just will 2 9 proceed and have them marked as we have been with the 30 other witnesses, and at some point I have to -- I have 31 to come to grips with this problem and I will want the 32 assistance of counsel, and at the moment it seems to 33 me that the documents can go in as proof of the 34 underlying -- or as evidence of the underlying basis 35 for the opinion, but I'm not going to go so far as to 36 say that because Mr. Adams puts them in that he's 37 necessarily committed to or bound by every fact that's 38 stated in it. Now, it may be that we'll later get the 39 situation where somebody will want a definitive ruling 40 on whether these documents are in evidence, and if so, 41 for what purposes, and when counsel want to do that 42 then I think we've got to stop momentarily in this 43 onward rush of evidentary testimony and deal with this 44 question of the effect to be given to these documents, 45 either by way of business records or archival 46 documents, or just as sources under the St. John case 47 for the -- for the opinion that the witness has 13372 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A.J. Ray (for Plaintiffs) In chief by Mr. Adams expressed. And I'm at counsel's service in that regard when they decide they want to have that kind of an argument. Does that help you, Mr. Adams? MR. ADAMS: Yeah. Mr. Willms has suggested, and I agree, that we simply give the binder 1 and 2 an exhibit number and dash them with the tab numbers as the -- THE COURT: That would be satisfactory with me if it is with you, Mr. Adams. MR. ADAMS: 1 and 2 are a sequence, and 3 has its own, which are not the same kind of documents. THE COURT: All right. Shall we make book number 1 the next exhibit? THE REGISTRAR: 964. THE COURT: 964, yes, thank you. And book 2 will be 965. MR. ADAMS: My lord, the whole thing could conveniently be 964, because the sequence carries on, that is the tabs are continuous between volumes. THE COURT: All right. Books 1 and 2 will be 964. THE REGISTRAR: Very good. And I'll just dash the tabs. THE COURT: That's right. (EXHIBIT 964) - Volume 1 Tabs 1 to 11 inclusive, Hudson's Bay documents (EXHIBIT 964) - Volume 2 Hudson's Bay Documents Tabs 1 to 11 inclusive, MR. THE COURT MR. ADAMS MACAULAY: I observe, my lord, that this discussion is largely academic, because the vast majority of these pages are illegible. Then there's no harm done. All right, thank you. My lord, I have to point out then that part of the index is an identification of whichever these documents came from, Federal defendant, and there was numbers that correspond to them are listed in the index, and so those I can't take responsibility for the illegibility. Okay. THE COURT MR. ADAMS Q A Professor Ray, when we broke we were at the top of page 8 of your report and we were talking about fish. And in the paragraph that finishes at the top of page 8 you refer to the company ration of fish, and I just wanted to ask you what was the source of that fish? The fish came from the native people through trade mostly. Directly with the company? 13373 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A Yep. The men did some fishing, but it was marginal to 2 the total take of the fur -- or the fish, simply 3 decided it wasn't worth their effort to try and do it 4 themselves, so they simply depended on the native 5 people for it. 6 Q And to what extent, if at all, did that make the 7 company dependent upon the native people supplying the 8 fish? 9 A Well, in my opinion the company was very dependent on 10 the native people because the alternative was to 11 import food, and they did import some food from the 12 Peace River country at this time, but it was very 13 expensive, and it was basic company policy that 14 wherever possible, and especially at this time period, 15 the men were to live off the land as much as possible. 16 I mentioned to you before that in 1821 when the 17 companies merged they had just gone through a period 18 of absurd competition and drove each other to the 19 wall, and Simpson -- under the direction of Governor 20 Simpson they were trying to economize and rationalize 21 operations, and he was particularly interested in 22 reducing what they called store foods or outside foods 23 and relying more and more on country food, and country 24 food by and large was food obtained from native 25 people, and fish was one of the cheapest food sources 26 they had. It was cheaper, relatively speaking, than 27 pemmican was in the prairies, and so there was a 28 strong emphasis on getting that as their subsistance 29 base. So I would say it was very important, it was 30 absolutely critical, and in fact, again, if you read 31 through these as a number of, you described, illegible 32 documents, they're more legible, I might say, if you 33 see the originals, although some cases, I might add, 34 only marginally so, and still very tedious, but it's 35 clear the men are preoccupied with getting enough fish 36 because there wasn't enough game in New Caledonia to 37 keep the post going. 38 Q Now, a little further down in page 8, in the middle 39 you refer to the Indian debt record of Fort Kilmaurs 40 for 1826? 41 A Right. 42 Q And that is to be found at tab 12, pages 21 to 24 of 43 the printed numbers and 40 through 45 of the 44 handwritten numbers. And I wonder if you could just 45 go to that in volume 2? 4 6 A I don't have — 47 THE REGISTRAR: I'm sorry, 1 and 2? 13374 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 MR. ADAMS 2 Q 3 4 5 A 6 Q 7 8 9 10 A 11 MR. ADAMS 12 13 THE COURT 14 15 MR. ADAMS 16 THE COURT 17 MR. ADAMS 18 THE COURT 19 A 20 MR. ADAMS 21 Q 22 23 A 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Volume 2, it's tab 12. And 21 to 24 of the printed numbers and 40 to 45 of the handwritten numbers. That's towards the back and it will appear as a list. Right. That says "List of Indians who are indebted to the concern, their general place of residence and character". And that list appears to go on for some six pages? Right. : I wonder if you could first of all just explain what the debt record is? : I'm sorry, Mr. Adams, I didn't pick up that reference. Where is it? I'm in tab 12 of volume 2. That's why. Thank you. And it begins seven pages from the back of that. Yes. I have the document, thank you. Now, sorry, remind me of the question. I was just asking you first of all what the debt record is? Okay. The way the fur trade operated, basically down until the latter part of the 19th Century it was predominantly a truck trade, which simply means that most of the transactions were in kind, furs for goods, fish for goods, whatever it was, and usually the company would advance, make advances to native people of various amounts before they brought these things in; partly the idea was to try and tie them to posts. So virtually all the natives who would deal with the company would have some kind of credit out to the company at any point in time. The several interesting things to say about the debt shown here as compared to other areas, the amount of debt owed as indicated in this book is fairly small. This debt would be in terms of May Beaver, and so the amount was usually listed, they would give the name of the native, and often in the debt books when they survive, and most of them don't survive in the 19th Century, they would put characters or remarks. Now, this was again intended -- usually intended for internal use and it was for the traders. For example, if the company had to change personnel and someone left the post and another man came in, these were intended partly to guide people as to how much credit to extend to a given native. And the remarks should be regarded in 13375 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 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 that light and also in terms of the light I mentioned earlier, the authoritarian nature of the company and its relation to the native people. So I don't -- as I indicated in my written report when they say character and remarks, I would not myself say that those remarks are probably in most instances a totally realistic assessment of an individual native's personality. THE COURT: I'm sorry, realistic or — A I would say they're not totally realistic assessments probably of the personalities of the individuals, but they do give us clues as to the relationship that individual probably had with the company. Of course in this instance we can only deal in probabilities. MR. ADAMS Q I'm going to ask you in a second to comment on some of the individuals found on that list, but I wanted to ask you first, you said that -- you made a comment about the level of debt as compared to other places, and I was just wondering what other places you had in mind? A I'm thinking of the area that I've done the greatest amount of work, this would be east to the Rockies. It was commonplace for natives to take out about a hundred beaver a year in debt. That was characteristic through the 18th and into the early 19th Century. At any given point in time of course most natives didn't owe the entire amount, but it wasn't uncommon for them to owe at least half that amount or more. As I said, these are really small amounts, two or three beavers really is nothing. Q That's anticipating my next question, which is when it says "Amount of debt" in the third column from the left, is that expressed in beaver or beaver equivalents? A It would be beaver equivalents. The company -- I think I mentioned this morning, the company had two standards of -- what they called standards of trade. One was a comparative standard, which took all of the commodities that Indians brought in and expressed them in beaver values, since beaver was one of the staples of the trade, so that's what it means. It doesn't mean he actually owes five beaver skins per se. That could represent -- let's take case in point, most of the 19th Century and 18th Century marten was valued at a third of a Beaver. So you can do a quick exchange and figure out say if the guy was a marten trader, say how many marten he owed, it could be expressed as 13376 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 Q 3 4 5 6 7 A 8 9 THE COURT 10 A 11 THE COURT 12 A 13 MR. ADAMS 14 Q 15 16 A 17 18 19 20 21 22 Q 23 24 25 A 26 27 Q 28 A 29 Q 30 31 A 32 33 Q 34 35 A 36 Q 37 38 A 39 40 41 42 43 44 45 46 47 beaver, he really owes three marten. Now, could I draw your attention on the first page of that debt record to, and the people are numbered, number 3, which appears to be A-S-H, new word, S-H-A-W, and I wonder if you could read across that column and just tell us what appears there? "Ash Shaw, number 3, amount of debt, 4, village Hotset". : Would you spell that? H-O-T-S-E-T, sometimes with a double T on the end. : Okay. Sometimes a hyphenated H-O-T. And is that name associated with a contemporary location? Well, yes. As near as I can tell, the record all points to the Bulkley Valley area around Moricetown. It is said elsewhere in the records that Hotset was the principal village of the people of the Simpson's River, which was the Bulkley River, as it was called at that time. All right. And then in reading across under "Character and Remarks", what do you read there for Ash Shaw? "Seldom comes to the fort, what first he procures he generally trades with the Indians from the coast." And what fort would the reference be to? Pardon? What fort would be referred to when it says "Seldom comes to the fort"? He's referring to Fort Kilmaurs, which is his base of operation. Could you go over the page please to number 6, and again just read across that? Ash lah cah, it looks like. Can you say how you're spelling that, for the reporter's benefit, please? A-S-H space L-A-H space C-A-H, and you'll notice after his name, which was again common at the top of the list of the page, I guess it says "Skins". Now, you can read "Skins" in this case as beaver. That's the equivalency he's using. So the amount of debt would be 2 skins, Simpson's River, so again would be the Bulkley. And character: "An indifferent hunter who in general trades what he kills with the other people from the coast". 13377 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q All right. And then down on the same page to 23, and 2 again can you spell the name you see there? 3 A Okay. I see it as Chip can nook, which is C-h-i-p 4 space C-A-N space N-O-C-K, but I think it's N-O-O-K, 2 5 skins, Simpson's River, "Seldom visits the fort, 6 trades with the coast Indians or the Atnahs", as I 7 read in this instance to be the Gitksan. 8 Q And then over the page to number 30. 9 A Cune Pots, it looks like C-U-N-E space P-0 or P-A-T-S, 10 owes 2 skins, that's a double ditto there, Simpson's 11 River, "Seldom comes to the fort generally trades what 12 he kills with the Indians of the coast". 13 Q And then down on the same page to 43, and actually 14 there's a whole series there that it appears that one 15 comment is intended to apply to them all? 16 A Right. I read that as there's several possibilities 17 here. The first is K-I-L-L-O, it looks to me like 18 n-h-g -- or no, O-U-G-H, check there reading the one 19 below it, which clearly is, so Killough, 3 skins, 20 Simpson's River, and then the whole of the people -- 21 the whole of these people he's referring to the next 22 towns group to 47, "kill beaver which they in general 23 trade with the Atnahs", as again Gitksan, "or Indians 24 of the coast and seldom ever come to the fort. It is 25 only when trading voyages are made into their country 26 that anything can be expected from them". Now, these 27 voyages into their country, these are voyages that 28 Brown or his men make in their country from Fort 2 9 Kilmaurs, and he made two over to the Hotset and two 30 down into Gitksan country by this time, so that 43 31 through 47, those would all be Bulkley Valley people, 32 and in fact, they carry on to number 50 on the next 33 page. 34 Q And what's the comment you read opposite 48, 4 9 and 35 50? 36 A "These three men are hunter but for three years have 37 traded what they killed with the Indians from the 38 coast." So in the last three years they hadn't been 39 showing up at Fort Kilmaurs, but they had gone to the 40 west instead. 41 Q And then 52? 42 A I see that as M-A-H space T-U-I-K, 4 skins in debt, 43 Simpson's River trader. "Procures a good many furs 44 but has never visited the establishment." So in other 45 words, this was an Indian who was not dealing with the 4 6 Hudson's Bay Company at all, even though Brown knew 47 him to be, probably from information from the Indians, 1337? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 Q 3 A 4 5 6 7 8 9 10 Q 11 A 12 13 14 15 16 Q 17 A 18 19 20 21 THE COURT 22 MR. ADAMS 23 THE COURT 24 A 25 THE COURT 26 A 27 28 29 30 31 Q 32 A 33 34 35 36 37 38 Q 39 A 40 41 42 43 44 45 Q 46 47 A that he was a good hunter nonetheless. And down to 60 on the same page? Noose Tell, N-O-O-S-E space T-E-L-L, 7 skins in debt, Simpson's River, "Procures a good many furs which he in general either trades at Francois Lake", that's Francis Lake to the south-west of Fort Kilmaur, "or with the Indians of the coast". So he does do some trading with the Hudson's Bay Company, but at Francis Lake post rather than Fort Kilmaurs. And 63? Oss, O-S-S, skins, 11, Simpson's River, said to be the principal chief of the Simpson River people, which is an interesting remark because he's differentiating now. He says "Principal chief" i.e. number 1 of many chiefs. And then at the bottom of that page, 68? That looks like either Quitt tay or Quilt tay, Q-U-I-T-T, or L-T space T-A-Y, 1 skin in debt. His general residence is Nah Tell Cuss, which would put him on the Babine. What number are you at? 68, at the bottom of the page. 68, I'm sorry. Page 23. Yes, thank you. "Can hunt but generally plays what he kills." Of course, that's one of the things that irked Brown. A lot of the Carrier and Babine preferred to gamble in the wintertime and gamble their furs amongst themselves rather than bring them to him. Is that what you understand by the word "Plays"? Yes. He does describe elsewhere in the record what that means, but "Plays" simply means -- I mean "Plays" as in gambling, those are the debts there, Summer fur collecting is going on, gambling games they play in wintertime. Well, not just the winter, but it seems to be especially in the winter. And then over the page to 81. It looks like Sue wee et, S-U-E space W-E-E, or U-U space E-T, 5 skins, Simpson's River, "Hunts a few furs but cannot be depended upon to come to the fort. Trades with the first he meets, can hunt but is very often" -- "but very often prevented by his passion for play". In other words -- That comment -- does that comment apply to 82 rather than 81? Sorry, yeah, you're right. I did -- I carried on, 13379 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 yeah, you're right. Sun nu ah trades with the first 2 he meets, again, which is interesting in that it shed 3 some light on the nature of natives. The long and 4 short of that is where he gets the best deal that's 5 where he sells his fur. You can make a lot of it, but 6 that's what it says. 7 Q And then 86 and 87 appears to be one comment applying 8 to two people? 9 A Right. Tas Coo, 86 is Tas Coo, T-A-S C-0-0, 3 skin 10 debts, Simpson's River, and Taugh, T-A-U-G-H, 1 skin 11 debt, Simpson's River. Of the two of them he says 12 "These two Indians generally have a few furs in the 13 spring, but they" -- 14 Q "That they killed"? 15 A Pardon? 16 Q "Generally killed"? 17 A Oh, yeah "Generally killed a few furs in the spring, 18 but they either play them or trade them with the 19 people of the coast.' In other words, he doesn't get 20 any of their business. 21 Q Now, considering that list as a whole, are you able to 22 draw any inference about the fur trading activities of 23 the people from either Hotset, which you've identified 24 with Moricetown, or Simpson's River, which you've 25 identified as the Bulkley River? 26 A Well, first of all, we're speaking about the same 27 group, Hotset being a village in Simpson's River. 28 What's striking to me is the number of -- if you 29 continued down this list and tallied up all the 30 mentions to people from that area, one thing that 31 comes through loud and clear is a very high proportion 32 of them are trading most, if not all, of their furs to 33 the coast Indians or the Atnahs, or they were gambling 34 them. In other words, a relatively small proportion 35 of them are trading heavily with H.B.C. at this point 36 in time. So they are marginally within the base's 37 network is the long and short of it. 38 Q Okay. 39 A As compared to the others, who are predominantly from 40 Babine Lake, who clearly have a stronger trading 41 connection but again not an exclusive one. 42 Q At the bottom of page 8 you have a heading "Spatial 43 Aspects Of The Regional Economy". And then in the 44 first sentence under that heading you say: 45 46 "Only the broadest outlines of the spatial 47 structure of the early nineteenth century regional 13380 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 economy can be reconstructed." 2 3 I wanted to ask simply what do you -- how do you 4 define spatial structure with reference to economy? 5 A I guess it's a bit of geography jargon in there. 6 Basically what we're talking about are recognized 7 patterns of trade that seem to be evident in the 8 territory in question at that point in time, so there 9 was in fact a regular order through which things were 10 flowing and along certain lines and directions. It's 11 just not sort of a random bit here, a little bit there 12 with no rhyme or reason to it. 13 Q On page 9 of your report you have a heading "Babine 14 Lake". And then two, four, six lines down it says: 15 16 According to the Fort Kilmaurs (Babine) District 17 report of 1823-4" -- 18 19 I want to advise my friend that should be 1826 to 20 match the archival reference. You say: 21 22 "Ack-koo-shaw was a chief of great influence who 23 kept piece among his people." 24 2 5 A Um-hum. 26 Q And the reference is at tab 12, it's page 3 of the 27 printed numbers and page 4 of the handwritten ones. 28 And I don't think it's necessary for to you to go the 29 reference, but I just wonder if you can comment on 30 what if any inference you can draw from that statement 31 characterizing Ack-koo-shaw? 32 A Well, it is -- the comment is interesting because it's 33 clear, and again we could talk in the context of this 34 larger list, he differentiates when he talks about 35 native leaders, which he refers to by as chiefs, he 36 makes it clear that some had more influence than 37 others, some had more respect than others, and the 38 striking thing in the record is that the natives with 39 the greatest respect were those who are clearly 40 identified as peace makers, which tells me it's 41 inference, and I think it's a reasonable inference, 42 that the society placed a value on maintaining peace 43 and order in this territory. There are a few 44 references, I believe it is, if my memory at this 45 point serves me right, I think it is in the first 46 district report, but at least it's in here somewhere 47 where he does identify certain individuals who had a 13381 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 Q 10 11 12 13 14 A 15 16 Q 17 A 18 Q 19 20 21 A 22 THE COURT 23 24 A 25 THE COURT 26 MR. ADAMS 27 Q 28 29 A 30 Q 31 A 32 MR. ADAMS 33 34 THE COURT 35 36 MR. ADAMS 37 38 THE COURT 39 MR. ADAMS 40 41 42 THE COURT 43 MR. ADAMS 44 45 THE COURT 46 A 47 MR. ADAMS reputation for violence, and they were not respected, even though they had power they were not respected, so and the respect was not simply in proportion to rank, it was in proportion to their ability to influence. And Ack-koo-shaw is clearly identified, as he is the chief peace keeper on Babine Lake. I believe he's also the first ranked chief in this particular instance, although it doesn't always work that way. Over the page on page 10 of your report, maybe you could go to this reference, it's at tab 12 in volume 2. It ought to be the printed number 4. Yes, it's a faint handwritten 5 on the same page. Do you have that page? I think I've found the printed 4, I don't see a handwritten 5 on it. Up and to the right? Oh, yeah, okay, got you. I see it now. All right. And the second full paragraph there, it begins with a name. I just wondered if you could read that paragraph, please? Okay. It says -- : I'm sorry, I haven't found it. Oh, I guess that's a printed 4, and the 5 is where? Over the word "nine" in the upper right corner. : Where are you reading from, which paragraph? I actually want you to start one paragraph further down. Right, the first full paragraph? Second. It starts with the name Cabbah, C-A-B-B-A-H? : Professor Ray, I want to bring you down one more paragraph. : I don't think I have the right page. I have a four in the top left corner; is that the one? : No. It's the top right, and there's a Hudson's Bay seal on the bottom right corner. : Are we on tab 12? : Right. If you start at the beginning there's a clear printed 2 in the upper right-hand corner on the title page. : At the beginning? Yes, I have that. : If you count that as one, you go one, two, three, four, five in? : Yes, I have it, thank you. Okay. Starting with the second -- 13382 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q Yes. 2 A Okay. The first name is H-O-U C-H-I-T-I, or E-T-E. I 3 guess it's E-T-E, T-A-H space K-I-C: 4 5 "Is an inferior chief connected with the tribe of 6 Ack Koo Shaw, having no independent band of his 7 own. His lands are very extensive and are the 8 best stocked with beaver of any in the vicinity of 9 the lake, of which he is particularly careful 10 neither killing too many himself, nor allowing any 11 others to do so - he generally gives into the 12 fort from 20 to 30 skins in the course of a 13 season." 14 15 Now, it's an interesting remark, because he indicates 16 that he's related to Ack Koo Shaw, who's the head 17 chief of the lake, but he's a lesser chief in that he 18 has no independent band of his own, which suggests to 19 me a social organization that goes beyond the family, 20 because elsewhere in these records it indicates that 21 all of these men we're talking about now were also men 22 of property and heads of family, so that clearly 23 indicates an organization that extends beyond these 24 extended families of which they are heads. 25 Q Now, "men of property" is a phrase that comes up 26 repeatedly in your report and in Brown's records. 27 What do you understand by that term? 28 A They were -- well, as he himself says, they're heads 29 of families who control territories of those families 30 and regulate the use of those lands, hence the term 31 "Men of property". Now, he is looking at that of 32 course from a European perspective, and one of the 33 things that strikes you about the Brown record when 34 you read it is that his very first district report, 35 for example, focuses very heavily on the system, and 36 going back to what I said this morning, the company is 37 trying to increase the fur returns in this area, and 38 they run into a system that precludes that because the 39 output of the territory are controlled by these 40 chiefs. And he says elsewhere in here, and you could 41 probably find the reference faster than me, that some 42 men cannot hunt because they have no property and they 43 are barred from trapping beaver particularly. So the 44 point is that there is -- there is clearly, if you go 45 through these records and you look at the fact that 46 the chiefs are ranked, all the men of property -- all 47 the heads of family are men of property, and the men 13383 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 of property regulate access to those properties, and 2 that, I would argue in the context of these reports, 3 explains why we get so much about this in the Brown 4 material. 5 Q Now, further down page 10, and I won't take you to 6 this reference because I think what I want to refer 7 you to is right in the text here -- 8 A My page 10 or this? 9 Q Page 10 of your report, yes? 10 A Right, okay. 11 Q And the second paragraph, beginning "Second in 12 importance"? 13 A Right. 14 Q And you say: 15 16 "Caspine was the leading chief of the village" -- 17 18 Referring to that Nah-tell-cuss, N-A-H T-E-L-L 19 C-U-S-S? 2 0 A Right. 21 Q 22 "but he was not the prominent chief of his house. 23 The latter portion was held by Cabbah of 24 Nas-chick." 25 26 What do you make of that? 27 A Well, again we're dealing with a situation here, the 28 Caspine is leading chief of the village but he's 29 not -- but reading this, okay, he's in charge of this 30 particular village but he's not the leader of his 31 house. In other words, his lineage group he's not the 32 predominent chief of that group. It suggests to me 33 that this particular lineage then extends between two 34 villages, which again suggests an order larger than 35 simply an extended family that's in operation here. 36 So you have in this house at least two different 37 chiefs, so it indicates kinship bonds that are going 38 beyond the village level. 39 Q Let me take you over to page 11 of your report under 40 the heading "The Bulkley Valley". 41 A Um-hum. 42 Q And there you refer to Hot-set H-O-T dash S-E-T, and 43 identify it, as you have in your evidence, with the 44 present settlement of Moricetown, and then you quote a 45 passage from Ogden, which is already in evidence as 46 Exhibit 914. And I have asked Madam Registrar to pull 47 that exhibit and put it in front of you, please. 13384 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE REGISTRAR THE COURT MR. ADAMS THE COURT MR. ADAMS Q 914 is tab 41 of Antonia Mills' book 3? Tab 41. This is about the naked savages, is That's the quotation, yes. Yes. it? Now, it appears that when you wrote your report you were referring to this passage in a different publication because the page numbers are different, but I think you'll find if you turn to page 43 of the exhibit -- A This one that was just given to me? Q That was just given to you? A Yeah. Q You will find 2/5ths of the way down page 43, the beginning of your long quotation on pages 11 and 12 of your report? A Right. Q And I just want you to go through that passage and comment on what you infer from that passage? A Do you want me to read the passage out loud? Q Well, it's in front of all of us, so I think you could just say whatever you have to say about it? A Okay. One of the things that's interesting, he mentions that there are 28 lodges of large size, each of them affording accomodation on an average to six or seven families. Now, this suggests what I guess we can call, or what's called in the case of the Iroquois, it's a longhouse type of society. In other words, it is an extended family living under a single roof, six or seven nuclear families involved in this case, that is men, husband's and wives and children, all under the single house under a house head. The village is divided in two by the river. And he goes on and describes that, and one could maybe make some comments about that. Now, the other interesting things here, one of the things he's doing here is he's differentiating the Bulkley Valley rise here, Carrier. He said: "The lodges I observed were built on the same model as the Carrier, though more spacious, and of neater construction; boards split from the cedar tree forming the sides, instead of the peeled sapling firs used by the latter." In other words, he is identifying one material culture difference between these groups and Carrier groups 13385 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 further east in a more elaborate description of the 2 house. Clearly the house is -- then in this sense 3 we're talking -- so house has two meanings. House is 4 a physical house as we think of it that people are 5 living in, and it's also a house as being a lineage of 6 related family. Now, he says there's 28 here, but 7 it's interesting to look at that in the context of his 8 list of chiefs for that area, Brown's list of that 9 village in 1823, where he cites fewer chiefs of rank, 10 which suggests either the number of chiefs had 11 increased, or some of these houses belonged to -- were 12 grouped together into a larger kinship group. 13 Q And immediately below that quotation on page 12 of 14 your report there appears the sentence: 15 16 "Twenty chiefs and men or women of property lived 17 in Hot-sett." 18 19 And then you refer to the ranking of the "nobles". 20 And I would like to take you back to tab 12 of volume 21 2 to page 6 of that tab. And that's the handwritten 22 6? 23 A "Of the Babine of Simpson's River. 24 Q And it's six pages in. 25 A All right. 26 Q And I wonder if you could just read that first 27 paragraph, please? 28 A Starting with "Of the Babines"? 29 Q Yes? 30 A "Of the Babines of Simpson's River", that's the 31 heading. 32 33 "The village of Hotset situated on the banks 34 of the Ochilcho or Simpson's River, is about 35 eighty miles to the south-west of our 36 establishment" -- 37 38 Kilmaurs: 39 40 "It is the most populous of all the Babine 41 villages." 42 43 So that's one of the interesting things about Hotset, 44 if I might interject, is it was the largest Babine, 45 i.e. the largest Carrier village: 46 47 "It being the principal resort of all of the 13386 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT A tHE COURT A THE COURT MR. ADAMS Q A MR. ADAMS THE COURT A Indians of that quarter. Judging from my own observations and the different accounts I have had of these people, I do not suppose that their numbers can be less than 750, including all ages and sexes. Of these I should imagine 200 are capable of hunting." They -- I might interject there as well. This was a common practise in Bay records. They were interested in the number of men who could hunt for both economic reasons and the potential military threat they represent. "They reckon 20 chiefs of different gradations, and 67 married men whom they denominate respectable as being heads of family and possessors of lands. The following are the most noted amongst the chiefs and those with whom we have had the most dealings." He then proceeds to give us a description of each chief. : What's that first name? Oss, O-S-S. : O-S-S? We have to remember we have a Scotsman here trying to cope with Carrier and Gitksan languages, so if we could have some Scotsman here to pronounce some of these Gitksan names maybe we could understand what he's saying. : Mr. Macaulay's a Scotsman. Now, the passage you've just read is written by William Brown in 1826, I take it? That's right. : Are you able to put a time to Ogden's observations that are quoted in your report at page 11 and 12? : I realize it is dated 1853, but does that indicate to you when it was written? Not necessarily. And there's some speculation as to whether Ogden might have been there, but he was a district -- he was in charge of a district at a later period, but it's hard to pin an exact date on the Ogden reference, but it has in common though with an earlier one, it's still describing a very large village, and what isn't certain is whether the number of chiefs had increased or not. This is the one main 13387 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 discrepancy between the two. Ogden you've got 28 2 houses by six or seven families. If you treated them 3 as small families you have a fairly substantial 4 population there. 5 MR. ADAMS: 6 Q Now, to take you back to the reference from Brown on 7 page 6 on tab 12 you read the paragraph and included 8 the phrase "Heads of families and possessors of 9 lands". And the first thing I want to ask you is why 10 would that fact be of any interest to Brown? 11 A Well, again it goes back to the problem Brown is 12 having, is that these possessors of lands who are 13 regulating access to the lands, and I must say when I 14 read these for the first time I was quite struck by 15 this. I've looked at Bay records for what was 16 Northern Quebec, Northern Ontario, all through the 17 west, and this is the first instance where I ran 18 across Bay traders talking like this about men of 19 property and possessors of lands, which struck me 20 straight away that they're dealing with a very 21 different system here than they were used to dealing 22 with, and I reiterate, my point is one of the reasons 23 why he spent so much time talking about it, it's an 24 unusual situation for them to run into. 25 Q And then just a line or 2 down page 12 of your report 26 you say, referring to the relative ranking of the 27 nobles. 2 8 A Right. 29 Q In quotes: 30 31 "Five leaders were said to stand out from the rest 32 in that they were influential outside of their own 33 'tribes'." 34 35 And "clans" in square brackets after that. 36 A Well, one of the problems we have here with the 37 terminology of course we're not -- maybe or maybe not 38 we are -- we would have made our life simpler if Brown 39 was an anthropologist and could have used all the 40 terminology that they now use. He uses a variety of 41 terms, "heads of families", "heads of house" somewhat 42 interchangeably. He talks about bands and tribes, but 43 it's clear no matter how you slice the record that 44 he's dealing with extended family groups and larger 45 groupings. And I read that comment "or influential 46 outside of their own tribes" as being groups of those 47 houses, whether you want to call them clans or clan 133? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 segments, or give them some other name, they're groups 2 of related houses, and some of those leaders stood out 3 from the rest in that they had influence beyond their 4 own immediate relatives. They influenced a larger 5 group of people, i.e. probably all of those 6 collective -- all the collective group. 7 Q Over on page 13 of your report, you appear in the 8 first two, four, six, eight lines of that page to be 9 drawing distinctions which you've already mentioned, 10 that is the difference between fear and respect and 11 between respect and rank, and I wonder if you could 12 just between all of those -- and influence, and I 13 wonder if you could comment on that out of the records 14 that this passage is based on? 15 A Well, it's quite clear that influence did not equate 16 directly with rank, that the first-ranked chief, as I 17 recall, let's see, he mentioned one first-ranked 18 chief, for example, at the time he did this was not 19 the most influential, this third-ranked chief was said 20 to be feared rather than respected, the sixth-ranked 21 chief was said to be violent, and so on, but the 22 tenth-ranked leader, Cho-led-sop, or however you would 23 pronounce that, was a peaceful man who wielded a great 24 deal of influence. As I said before, invariably when 25 he talks about men of influence beyond their immediate 26 families, he's talking about what I take to be peace 27 leaders, which again, based on other tribal societies 28 is not -- is not surprising. Amongst the Huron, for 29 example, they had peace chiefs and war chiefs, and of 30 the two, the piece chiefs were the men most respected 31 and most influenced. It wasn't the war chiefs. And 32 in this society where exchange was important, the -- 33 one of the problems, if you have loose cannons rolling 34 around you upset the patterns of trade, and in a trade 35 oriented society that's not a good thing among -- 36 among other reasons why they would put a value on it, 37 or there are other social reasons as well, but 38 certainly there would be economic ones. 39 Q Beginning on page 13 of your report under the heading 40 "Gitksan Territory" and going over the page to the 41 first paragraph on 14, and you say there with 42 reference to Brown: 43 44 "In 1826 when he travelled to the vicinity of the 45 forks of the Babine and Skeena Rivers." 46 4 7 A Mm-hmm. 13389 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 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 Q It's on the previous page, yes: "In 1825 and again in 1826". What were those trips all about? A Well, Brown had been ordered by the council of the northern department of the Hudson's Bay Company to extend trade into the northwest, i.e. the Gitksan territory, and so he sent out trading -- he led two expeditions into that quarter for that purpose, and it was part of the company's attempt to extend its trade in that direction. And it had become clear by this time to Brown that the native trading network that was operating up and down the Skeena River had to be counteracted somehow, and so he was -- A, he was going and doing what traders often did, he was going partly as a diplomat, he engages in native diplomacy, which is the gift trade or gift exchange. If you want, at some point we can go into what's a -- what that's all about. Secondly, he was on an intelligence reconnaissance expedition, or he was trying to be one. The thing Brown is trying to do in this period is decide should the company build another post further inland, so to speak, from Fort Kilmaur, and I mean inland in that you have to remember the Hudson's Bay Company is pushing westward at this point in time. They haven't built on the lower Skeena yet, so should they build one more post to the northwest. And partly what Brown is doing is he's on a reconnaissance expedition and a trade negotiating expedition. He decides after these expeditions: A, it would be unfeasible to build another post to the northwest because of the distance factor, and -- but he does negotiate with the Gitksan at this time. And he does do some trading with them, but that's basically what he was doing, reconnoitering and trying to lay down some trade relations. MR. ADAMS: My lord, that might be a convenient place to break. THE COURT: Yes, all right. Thank you. Just one moment. All right, thank you. We'll take the afternoon break. THE REGISTRAR: Order in court. Court will recess. 13390 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 (PROCEEDINGS ADJOURNED AT 3:00) 2 3 I hereby certify the foregoing to be 4 a true and accurate transcript of the 5 proceedings herein transcribed to the 6 best of my skill and ability 7 8 9 10 11 Graham D. Parker 12 Official Reporter 13 United Reporting Service Ltd. 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 13391 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 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 -h2 A.J. Ray (for Plaintiffs) (PROCEEDINGS RECONVENED PURSUANT TO AFTERNOON RECESS) THE COURT MR. ADAMS THE COURT MR. ADAMS Q A A Mr. Adams. My lord, I am at the top of page 14 of Professor Ray's opinion report. Okay. Professor Ray, you made a comment before the break about the gift trade and volunteered to explain it. I am going to take you up on that offer and ask you to explain what you meant by the gift trade. Well, when native groups came in contact with each other for trading purposes it was customary to exchange gifts before they engaged in any further trade. And the purpose of gift trade -- there is a lot of literature on it. The purpose of it was it was a kind of native diplomacy. It was a prerequisite to establishing -- it either served to establish for the first time or renew peaceful alliances so that trade could take place peacefully. Usually it consisted of exchanging items of equivalent value. The exchange was primarily a ceremonial one. And when the Europeans came to North America, and in the specific case of the Hudson's Bay Company, they found that to establish trading relations they too had to engage in these activities. I have written extensively on that in the book Give Us Good Measure. There is an article on my c.v., I believe, The Factor and the Trading Captain which deals with that trading institution. Now -- Just let me stop you there for a moment to ask when you said it was common, what geographical area are we dealing with? Virtually across the continent. Almost every area where you look at in the early contact records of the various groups there are various kinds of exchange that are what anthropologists, historians and historical geographers refer to as gift exchanges. So that there are precursors to the actual barter exchange. And they have this unique or what we would probably think was sort of an odd dimension about them of trading items of roughly equivalent value they could in fact be the same item, a hatchet for a hatchet or something like that. It is the symbol behind the act. And often involved with it is the smoking of the calumet (?) or some similar kind of 13392 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 ceremony that was part of this and they would speak to 2 the friendship and so on. And often there was an 3 exchange of women, the purpose being behind the 4 exchange was to even extend the kinship bounds between 5 the groups and to give further cement to a 6 relationship, a trading relationship or a political 7 relationship that was valued. 8 Now, the Hudson's Bay Company when they 9 established their trading operations also found 10 advantage in participating in this activity. And from 11 the early years they engaged in what I call pre-trade 12 gift exchange ceremony which I have written about 13 quite a bit, as I said. And the interesting thing 14 about that is in the subarctic where the company began 15 it faced a somewhat different situation. Again they 16 were dealing with an egalitarian band society. They 17 were running a barter trade in which a lot of goods 18 were out on credit. So the company tries to 19 manipulate the system through the exchange ceremony to 20 create authority positions within native society so 21 that those people, company men who came to be called 22 in the literature trading captains, and that's again 23 applying a European name to an individual. But a 24 trading captain would be a native leader who brought a 25 band of men down to trade. And through the gift 2 6 exchange ceremony the company would tend to elevate 27 their status and position and hence their authority in 28 the eyes of their followers. So if he was a Bay 29 captain then he would have influence over his 30 followers to get them to trap, to get them to pay 31 their debts and so on. 32 Now, what's interesting about this area is it is 33 clear from Brown's account that there are exchange 34 ceremonies going on here as you would expect. He even 35 describes one in the Gitksan territory between -- not 36 between the company and him but between other natives. 37 But he also does send presents. This is another way 38 it was sometimes done is they send presents through an 39 intermediary. There are references in Brown's journal 40 to doing that. But the term trading captain and 41 lieutenants does not appear in this literature. And I 42 suspect, again I'm offering an opinion on that, the 43 reason being that he came into a system where there 44 was a well established authority structure, so you 45 don't see the term captain but you see frequently the 46 term chief. So there were men in the society with 47 authority already. They didn't have to create trading 13393 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 captains. What he was trying to do was to win over 2 chiefs to his side, that was the name of the trading 3 game for Brown. Take the men with authority and get 4 them on your side. Hopefully by doing so you get the 5 house territory, the people and the returns of that 6 territory drawn into the Hudson's Bay sphere. 7 So the trade in this area at this time then is 8 somewhat different again of what we see further east 9 because they don't have to create a trading leader. 10 They try to capture the existing native leaders into 11 their system, but they do it through exchange 12 ceremonies and the presence of gifts sent through 13 intermediaries often in advance of their first visit. 14 Q On pages 15 and 16 of your opinion report you follow 15 along with Brown through his journal in 1826 and you 16 talk about the routes by which they were travelling. 17 Then beginning at the bottom of page 15 you say: 18 19 "From the above it seems likely that the 20 'Ack koo shaw River' is none other than the 21 present-day Nichyeskwa Creek." 22 23 A Yes. 24 Q And you go onto talk about where that is in relation 25 to other geographical features. And I simply want to 26 ask you is that part of a geographer's area of 27 expertise to draw conclusions of that kind? 28 A It is certainly what geographers and ethnohistorians 29 do a lot. I mean the thing is he is travelling -- you 30 take a modern map, pick up with the journal and follow 31 him as he goes along, and one makes reasonable 32 inferences on existing geography and the geography 33 described. And it is clear if you look at the modern 34 map after leaving Babine Lake there is only one small 35 lake that he could have crossed, and shortly 36 thereafter there is only one left bank tributary that 37 he could have passed. So it is by reasonable 38 inference. We cannot be absolutely sure and 39 historical geographers wouldn't claim to be 100 per 40 cent sure, but I would say there is very high 41 probability given the context again of the description 42 that that is a reasonable conclusion -- 43 Q Is that — 44 A -- given the authorities, in fact the lack of 45 alternatives. 46 Q Is that what you were doing when you wrote passages 47 like this, following on a topo map? 13394 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A 2 3 4 5 6 Q 7 8 9 10 11 12 13 A 14 15 16 17 Q 18 19 20 21 22 23 A 24 THE COURT 25 MR. ADAMS 26 THE COURT 27 MR. ADAMS 28 29 30 THE COURT 31 32 MR. ADAMS 33 Q 34 35 36 37 38 A 39 Q 40 41 42 43 44 45 46 A 47 That's right. In fact you can see I superimposed them on a topo map. And myself when I do these kinds of things I try alternate scenarios and see if they will add up to it. I usually take the best case scenario once I'm finished. Now, on page 16 still following along with his journals you say five lines into the second paragraph on page 16: "Unfortunately, journal entries for the 6th and 7th of March are missing." Yes. Well I discovered subsequently as we were preparing it the copy that had been sent to me was missing those two pages, but that those two dates do in fact exist in the journal. I would like to take you to those now, and they are at tab 14 in volume 2. And if you flip to the third page of that tab you will see a page that is headed Need Chip's, N-E-E-D, new word, C-H-I-P apostrophe S, Village and on the other page March 1826. Do you have that? Yes, I have. I'm sorry, I haven't got that. It is three pages into tab 14. I've got that. The second page should say Babine Lake on the upper left, and the next page after that it should say Need Chip's. : Oh, it's the heading you are looking at. Yes, I have that. And it appears that on that page it says "Monday 6th" on the left-hand side and "Tuesday 7th" on the right-hand side. I want to ask you first of all are those the journal entries which at the time you wrote your report you were missing? That's right. They are. Okay. Now, I want to show you -- sorry, used to be right in front of me. What I somewhere is a typescript. Here it is. my effort at rendering parts of those two entries. What I would like to see if you can do is have you read through the text and correct or adopt or add to what is written on this page. You want me to struggle through the longhand version starting with Monday the 6th? my lord, it have Now, this is 13395 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q Yes, please. 2 A "Weather clear and pleasant. At sunrise 3 started again on our journey about 11 a.m." 4 5 They have abt and that's an abbreviation. 6 7 "Passed the mouth of the river we ascended 8 last spring." 9 10 Q Are you reading descended or ascended? 11 A Sorry, descended, right. 12 Q Okay. 13 A "...descended last spring - and two hours 14 before sunset encamped about a mile below 15 the high rocks where we left our trains. 16 The distance I suppose may be six leagues - 17 four miles or thereby below our 18 encampment..." 19 20 abbreviated again, 21 22 "...of last night. A river flows in from 23 the north." 24 25 This would be the north of -- the north side of the 2 6 Babine River. 27 28 "...which runs which we understand takes its 29 rise in Vermillion Lake so-called from the 30 Carries and Siccaunnies procuring a kind of 31 red earth there which they in painting..." 32 33 i.e. in painting themselves. 34 35 "...this lake belongs to..." 36 37 T-A-P-Y it looks like or T-A-S-S-Y, it could be a 38 double S as well. K-A-D-I-N-T-A-S. And then it looks 39 like X-C or something. Double S it could be. 40 41 "...and that river - which is said to abound 42 in beaver / is the property of Needchip 43 that Atnah chief. The route today was in 44 general along the shore..." 45 46 Was to shore something or other, 47 13396 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 "...and was tolerably good, but it was some 2 or several places" 3 4 There is a word there I can't quite make out. There 5 was some something there. 6 7 "...several places where it would be 8 impossible to cross." 9 10 There are places in the river you can't get across. 11 12 "...contrary to the opinion I..." something 13 "...last spring." 14 Q "Formed"? 15 A All right. "...formed last spring." It is two words. 16 17 "...the opinion I formed last spring I now 18 think it will be practicable to descend and 19 ascend, et cetera, to canoe this far, and 2 0 in this opinion I am somewhat confirmed 21 from it by the idea of..." 22 23 It looks like P-I-S-M or something to that effect 24 Reni, R-E-N-I, 25 2 6 "...who are both good judges." 27 28 Oh, yeah. Okay, he is talking about two men, two of 29 his guides. 30 THE COURT: There is a part left out of the typed portion in 31 there, Mr. Adams. 32 MR. ADAMS: Yes, designedly. 33 THE COURT: Is it? 34 MR. ADAMS: 35 Q Yes. It is just that Professor Ray is reading without 36 the benefit of the typescript. 37 A Shall I continue? 38 Q No. That's fine, thanks, for the moment. What I want 39 to do is go back into that and maybe you can have my 40 effort of it in front of you. I want to ask what you 41 take from the references two, four, six, eight, ten, 42 eleven lines down -- no, I'm sorry, ten lines down in 43 the typescript where it says: 44 45 "this lake belongs to..." 46 47 And then there is a name. 13397 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 "And that river / which is said to abound in 3 beaver / is the property of Needchip the 4 Atnah Chief." 5 6 A Well, he is giving us the only actual concrete 7 description of an Atnah chief territory. In this case 8 he is talking about -- going through these journals it 9 is clear that you can differentiate the Gitksan and 10 what I would call upper and lower. It is sort of the 11 terms that he used. The upper Gitksan are the 12 remaining Gitksan in the Babine River. And he is 13 explaining one of the Babine Gitksan chiefs, Need Chip 14 in this case, as being a territory lying to the north 15 of the Babine River. And this would be to the north 16 of the Babine River and to the east of the upper 17 Skeena because the village of that chief is at the 18 junction and he hasn't quite gotten there yet. So it 19 is a description of a house territory is what it is. 20 Q Now, in the passage after that it says: 21 22 "Contrary to the opinion I formed last 23 spring..." 24 25 and so forth. What, if anything, does that tell you 26 about Brown's flexibility of mind or otherwise. 27 A Well, as I said Brown is gathering intelligence and he 28 does it in a variety of ways. One is by talking to 29 Indians and that was a common Hudson's Bay practice. 30 Going back to the story I told you earlier about the 31 maps at York Factory, the French maps that I talked 32 about, that information in the interior had been 33 obtained by asking questions of Indians. And what the 34 traders did in advance of making forays into native 35 country is they would ask natives who had been to the 36 post: Where do you come from? Where do you get your 37 furs? Who do you trade with. They get as much 38 information as they could. They would then, in due 39 course if that was their goal, travel these 40 territories. And then, of course, on the basis of 41 seeing things firsthand they would alter and modify 42 their opinions. And Brown does a lot of that in his 43 accounts, and he says so. And in various places in 44 his own records where he says: I'm putting this in 45 for now, but I don't want to be held accountable for 46 it until I have had a chance to confirm it. Then he 47 will later confirm it or delete it or whatever. So he 1339? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 is constantly updating his information over this 2 period from 1822 to 1826. So I think it is just 3 typical of Brown. I would say he was fairly flexible 4 in that regard. I don't think it is just that he 5 heard -- you know, he wrote down the latest thing he 6 heard because he is weighing it against what he 7 already heard and he is gathering it as he goes along. 8 Q The entry on the date Tuesday the 7th which is on the 9 right-hand side of the page, perhaps you can compare 10 that with the typescript and agree or disagree with it 11 and fill in the gaps if you are able. 12 A Where? 13 Q It is on the bottom of the typescript where it says 14 "Tuesday the 7th"? 15 A Yes. 16 Q And it is on the right-hand side where it says "March 17 1826". 18 A Yes. 19 Q I have omitted a line there and where I have begun is 20 the second line on the right-hand side where it 21 appears to say "Renewed our voyage" and gone on from 22 there. 23 A "Renewed our voyage." Let me see here. Do you want 24 me to read the longhand or what? 25 Q Well, whatever is fastest to have you compare them. 26 Maybe what I can do is read you the typescript and you 27 follow in the longhand. 28 A Okay. 29 Q And correct me if I make a mistake. 30 A Right. Okay. 31 Q "Renewed our voyage before sunrise and at 32 9:00 a.m. reached the village of Needchip - 33 where we found..." 34 35 There is a word I can't read. 36 A "...tracks but no people." 37 Q "...tracks but no people"? 38 A In other words, he found evidence there had been 39 people there but they were not in the village when he 40 arrived. A common reference in the Bay records. 41 Q "however I..." something "...breakfast" 42 A I remained -- 43 Q Do you read the next word as "breakfast"? 44 A The next word is "breakfast". 45 Q "...and before that was over I was 46 joined by him and 40 others." 47 13399 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A Right. 2 Q ". . .as usual all were armed"? 3 A "Him" being Needchip in this case. 4 Q "Someone had been on the mountains and heard 5 the men calling to their boys." 6 A "Dogs". 7 Q "Dogs". 8 A These guys are always travel with dog trains. 9 Q "On which they immediately went below and 10 gave the alarm - as far as I can judge from 11 their conversation there are few or no furs 12 amongst them - they by their own statement 13 were prevented from hunting on account of 14 a great many of the Band being sick and 15 several dying - to this may be added the 16 Indians of the coast was..." 17 18 And I do read that as 19 20 "was here in the fall." 21 A Right. 22 Q "...and of course traded everything of the 23 fur kind they had - they as on the last 24 voyage..." 25 2 6 And then there is a word I can't read. 27 A "Received". They abbreviate received that way. It 28 basically means R-E-C apostrophe D. 29 Q "received us very kindly after their first 30 alarm and agitation was over - I intended 31 to have proceeded further down but at the 32 earnest request of the chief I have 33 consented to pass the night here - he made 34 me a present of a. . . " 35 36 And there is a word I can't read before "13". 37 A "Dog". The men ate dogs. The French Canadian 38 servants and whatnot in the feast -- the festivals 39 they ate dogs. And by this time the Indians knew that 40 because they were trying to buy Carrier dogs and 41 Gitksan dogs. 42 Q Okay. 43 "...present of a dog and 13 salmon and a 44 piece of..." 45 46 A "Berry cakes". Again a very common important food in 47 the diet. 13400 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q "...and his brother of a dog..." 2 And then there is a word I can't read. 3 A No, it is: 4 "- the walking today was also tolerable 5 good." 6 Q "...but rather more dangerous on account of 7 the open water and weak ice - it would be 8 altogether impossible to raft today's route 9 if the weather was open." 10 A Right. 11 Q Okay. 12 A So again you are getting a partial description here of 13 a -- that was an expression of friendship. And again 14 it is the native diplomacy at work here. The giving 15 of food is usually part of these exchanges. And dogs 16 were -- they would have known by now that these were 17 things valued by these Europeans. 18 Q Is there anything out of the historical record that 19 you're familiar with that would account for the 20 comment to "...a great many of the Band being sick and 21 several dying"? 22 A Very likely diseases coming up the Skeena River. And 23 he doesn't give us a good enough account to know what 24 that would be, but it could be smallpox. It could be 25 measles. Those are the two most common killers in the 26 1820's. They were repeated -- I mean these European 27 ships, trading ships that arrived on the coast, I mean 28 they were many of them floating cesspools really and 29 carried about every disease that you would imagine 30 with them. It is surprising that the natives survived 31 at all. These contact points were often point of 32 entry for disease, so this is probably what we are 33 saying. In fact, he said the Indians had been there 34 the previous year and traded and may very well have 35 been the source of this particular epidemic. 36 Q The reference to "...a present of the dog 13 salmon 37 and a piece of berry cakes", does that connect in some 38 way with what you've described as a gift exchange? 39 A Exactly. First of all, remember he wants to travel on 40 but Needchip wants him to stop and he does. And they 41 hold a feast for him. As well as I think -- is that 42 described here or is it the next village on down where 43 a feast is held for him. This would be part of this. 44 It is a form of treaty that you're seeing there. 45 Brown doesn't say in this instance that he 46 reciprocated, but he says somewhere else in his 47 record. I can't say that it relates to this 13401 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 particular episode, but I know on an earlier occasion 2 he is dispatching gifts to the Gitksan through Babine 3 intermediaries. It could possibly be a repayment of a 4 gift given, but he doesn't say that that is so and 5 that may be stretching it a bit. But this is an 6 expression of a welcome and friendship that we are 7 seeing here. 8 Q Now, on pages 16 and 17 of your opinion report, I take 9 it you are carrying on down the Babine River? 10 A Yes. 11 Q And on page 16 it says: 12 13 "Five miles beyond Sojick's settlement..." 14 15 S-O-J-I-C-K. 16 A Yes. 17 Q "...the village of chief Quo em was 18 situated. It was called 'Weep sim'." 19 20 Q-U-O, new word, E-M and W-E-E-P, new word, S-I-M. 21 A Right. 22 Q And then you say a line or two later: 23 24 "Brown visited the latter village on the 9 25 March." 26 27 And I believe attached to everyone's copy of this 28 typescript is an extract again from tab 14 this time 29 the entry for Thursday the 9th? 30 A Right. 31 Q Now, parts of this is reproduced elsewhere in your 32 opinion report. I don't want to go over that again if 33 I can avoid it. Yes. It's on page 43 of your opinion 34 report. And it starts seven lines into the 35 typescript: "he made his appearance." Now that you 36 already have quoted. I want to take a piece out right 37 now to "...a brace of Pistols stuck in his belt." 38 A Right. 39 Q Which appears two, four, six, eight, ten, twelve lines 40 from the bottom on the first page of the typescript. 41 Now, what I want to ask you to do is to read from the 42 beginning of the entry from the 9th down to that point 43 and then skip over it and carry on. 44 A Run that by me again. What was it that you wanted me 45 to do? 46 Q All right. Thursday the 9th? 47 A Right. 13402 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q Is on the fourth page of tab 14. 2 A Right. Yeah, Thursday the 9th, right. 3 Q Right at the top of the page. 4 A Right. 5 Q And I have just started the typescript three lines in 6 on the right-hand side. And again maybe I can read 7 the typescript and have you follow and verify or 8 otherwise what I've got here. 9 10 "Reached the village of Quo em - the 11 distance between these two may be about 12 five miles. ... Found Quo Em nearly in his 13 birthday suit. He made a long harangue to 14 us of his poverty etc. however sometime 15 after he went out and called his young men 16 into another lodge where I understood he 17 was going to dance - after an hour had been 18 expended in dressing himself and the rest 19 of the party he made his appearance..." 20 21 and that's where the piece that you've already 22 described picks up. And I will just read through that 23 quickly. 24 25 "...dressed out in a number of trinkets, and 26 in particular with a very fine plaid or 27 blanket made out of the mountain sheeps 28 wool - the colors of it were good and the 29 figures similar to those on some of the 30 Chin nock..." C-H-I-N, new word, N-O-C-K 31 "...hats with a fringe of about 8 inches 32 drop of fine wool very neatly plaited." 33 34 P-L-A-I-T-E-D. 35 36 "His head was covered with a most enormous 37 load of hair with different colors - and 38 his lower parts with a very fanastic..." 39 40 And that word I don't think either of us have been 41 able to decipher. 42 43 "...and a pair of leggings. He was 44 accompanied by several others one of whom 45 had a plaid nearly the same as his own in 46 size and colour, but was made of cotton 47 instead of wool. Another had a sort of 13403 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 blue grey coat with a brace of pistols 2 stuck in his belt." 3 4 And that's where you stop on page 43 of your opinion 5 report. 6 A Right. 7 Q And I have carried on here. 8 A Right. 9 Q "But none of the party danced except Quo em 10 himself - in the course of his 11 evolutions..." 12 A Yeah, that's reasonable. 13 Q "...he produced a false face and a head of a 14 monstrous appearnce which he managed so 15 dextrously by bending his neck and hiding 16 his head with his plaid and..." 17 18 There is a word I can't read, something of hair. 19 A "Hassock of hair". 20 Q H-A-S-S-O-C-K? 21 A That's what it looks like to me. 22 Q "...and placing this false head in its stead 23 that a person unacquainted with a thing of 24 the kind would be apt to conclude that it 25 really was his own head. When this..." 26 27 And there is a word I can't read. 28 A It looks like "equipped". 29 Q Could it be "when thus equipped". 30 A "When thus equipped", that's what it is, "he 31 frequently placed himself..." 32 Q "...in a threatening position before me to 33 try I suppose what effect it would have. 34 The dance being over one of his followers 35 presented me with sixteen prime martens ... 36 in return for which I gave him a small 37 moose skin 1..." 38 39 And I have read that word as "scalping", but I'm not 40 very sure about it. 41 A Excuse me, after "sixteen prime martens". 42 Q Yes. Oh, I'm sorry there is a deletion at that point. 43 A Yeah, there is "three common marten and a dog". 44 Q Okay. "...in return for which I gave him"? 45 A Right. 46 Q "...a small moose skin 1." There is a word describing 47 the knife. 13404 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 A 2 Q 3 A 4 Q 5 6 7 8 A 9 10 11 Q 12 A 13 THE COURT 14 THE WITNE 15 16 17 18 THE COURT 19 MR. ADAMS 20 Q 21 A 22 23 24 25 26 Q 27 A 28 Q 29 A 30 31 Q 32 A 33 Q 34 A 35 36 37 MR. ADAMS 38 39 40 41 42 43 44 45 46 47 "Scalping knife". "Scalping knife"? Which is a loose term for a category of knives. "One half doz. brass rings, one half dozen brass thimbles, six..." There is something else. Strings of -- six strings of some kind of beads. It could be some kind of beads. They were sold in strings. "1 flint 1..."? "Gun worm". : Sorry? 3S: A gun worm. It was a -- you know in the old flint locks they had those little twisty pieces of metal around the end of the ramrod. You put the copper around that and it's just -- : Yes. "1 awl", A-W-L, "one half..." "One half foot of tobacco". Now, tobacco was twisted -- this is the Brazil tobacco was twisted in what they call ropes or carrots and they would sell it by the length. So a half foot long would be the tabacco which would be approximately an inch thick. "One half pound of powder"? Right. One something shot? "One pound of shot." That's their abbreviated simple for shot -- I mean for pound. Is there a word after shot there? And eight ball. These would be ball for guns. Okay. So powder shot. Shot was the smaller gauged stuff for birds and ball was the bigger stuff that was used for game. : And then carrying on: "Still the fellow did not think himself paid for his martens. Finding this to be the case I placed them beside the above articles and gave him to understand that I had offered him four times the value of his martens still he did not seem to be pleased, therefore he was at liberty rather to take the property or the martens..." 13405 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 And then there is a word I can't read. 2 MR. WILLMS: I think it is "either take the property or" — 3 THE WITNESS: Yeah, "either take the property or the martens". 4 MR. ADAMS: 5 Q "Either" rather than "rather"? 6 A It is a terrible xerox at this point. 7 "The chief did not wish to take back his 8 guns..." 9 Q Guns or furs. 10 A Sorry, "take back his furs". 11 Q "...after he had given them"? 12 A "...after he had given them." 13 Q "But observed he was much in want of a shirt 14 and hoped I would give him one. This as a 15 matter of course I refused to do and at the 16 same time gave him a few hints of the 17 opinion I had formed of his meanness. I 18 made a trial to trade salmon to serve me to 19 the next village below, but was unable 20 without paying ten times the price of them, 21 and even then they would demand more. 22 These people are so accustomed to the 23 irregular trade of the Indians from the 24 coast that it is hardly possible to deal 25 with them. This being the case and finding 26 that no furs worth mentioning are to be 27 produced..." 28 29 And there is something I can't read. 30 A "...produced amongst them." 31 Q "...amongst them"? 32 A They carry the st over to the next line. 33 Q "...1 have made up my mind to return from 34 here in the morning." 35 A So he ran into a bunch of tough traders is what he 36 did. And it is interesting in this case the traders 37 taking the form of a balanced reciprocal exchange in 38 which the -- this again is common in early stages of 39 trade among traders in the world in fact in the most 40 elementary for which is sometimes referred to as 41 silent trade where the two parties do not even speak 42 and do not even see each other. One group puts down a 43 parcel of stuff and wants to exchange and then goes 44 away. I am talking about silent trade. And then the 45 other group will come by and put down a parcel of 46 things they think that is worth and leave. The first 47 group comes back and if they think that is fair they 13406 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. THE MR. A Q A Q A ADAMS COURT ADAMS Q will take what is offered and leave and then the other party will come back. And this is the way you can carry on trade when you don't speak the language and you have no interpreter. This suggests a trade at a stage where a series of "presents" are given of a certain value. Brown reciprocates with a parcel of goods he regards is of equivalent value. But in this case the Indians basically said: Hey, no way. We can get a better deal elsewhere. Somewhat unusual again, I haven't run across too many instances. This isn't one -- there is an instance elsewhere in the record where the Indians make a present and he makes a present and they come back the next day and take back their presents which was most unusual for them to do that. So any in any event he has run into some hard nosed Indian traders. He refers -- as you notice here he refers to them as mean and that's mean spirited in terms -- in that trading sense. Page 18 of your opinion report. Now, there are a number of references on this page to something you put in quotes as the Beast River. Right. And I understand that you have determined that that should be Bears instead, B-E-A-R-S? Yes. Well, if we could go to the original you could see the problem. It is at tab 14. Tab 14, right. Page what? Page 9. Page 9 or the ninth page? MR. THE MR. THE THE THE THE THE MR. That I have to determine. It is the printed ten, handwritten 18. I have two different notes. Oh, I'm sorry, there is something else I want to ask you about, this passage -- A I was thinking of the printed, the 1826 journal first. And tab what was it, 14? ADAMS: It is tab 14. It is five pages in. COURT: Are there page numbers on there? ADAMS: There may be, but I can't read any of them. COURT: I can't find them. WITNESS: You are talking about the 1826 journal again? COURT: Yes. WITNESS: I don't think there are any numbers on them. COURT: Where will we find Bears River? ADAMS: Q This is the last paragraph on the right-hand side. It 13407 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 is the paragraph that you were reproducing, the second 2 part of your long quote "From Sojick's village..." 3 A Right. I found it now. "From the entrance of Beast 4 River." 5 THE COURT: Yes. 6 THE WITNESS: That's the way I looked at that. Now, looking at 7 what was it the district -- I was comparing his 8 handwriting on another document that was more legible. 9 The way he writes his r's it looked to me that it is 10 just as reasonable, and in the context more 11 reasonable, that he is referring to Bears River. 12 MR. ADAMS: 13 Q Yes, it is at tab 12 in the same volume. Handwritten 14 page 28 which is towards the back but really in the 15 middle? 16 A Right. Where we have the word "bear" on the trading 17 list, right? 18 Q Yes. 19 A Yes, there we are. Handwritten 28 follows printed 20 page 15? 21 Q That's right. 22 A Yes. 23 "I hunted all over to try and find a 24 reasonable bear as a possibility." 25 26 And if you look at the "bear" there and this here to 27 me is very similar. In any event, the thing is that 28 by this time -- the other logic is that by this time 29 there was elsewhere in the records reference to Bear 30 Lake and Bear flowing out of that lake. And this is 31 the single only case where I translated something to 32 be Beast River. There is no other reference to Beast 33 River. And I suspect Brown would have known about 34 Bear Lake by this time. So given the problem of 35 deciphering that miserable xerox and the other use of 36 bear I think that it is reasonable to suppose that he 37 is referring to Bear River there. But again there is 38 a problem of the terrible handwriting. 39 Q So out of all of that are you able to form an opinion? 40 A Well, first of all I would -- given the context and 41 given the location, he is referring to a river flowing 42 out of Bear Lake to the northeast which would be -- 43 Bear Lake is one of the uppermost trubitaries of the 44 Skeena as I recall. I don't remember if it was on 45 that map that I stuck at the back here. There is a 46 very general term being used to describe that 47 particular route. 1340? A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT: But if he's going from Old Fort to what I thought was Gitksan country -- THE WITNESS: No, he is going down the Babine River. THE COURT: Down the Babine River. THE WITNESS: So he is going north from Kilmaurs, northwest. THE COURT: He is following the Babine River out of Babine Lake to the Skeena, is he? THE WITNESS: That's right. And he is just short of the junction where the Babine joins the Skeena River. THE COURT: Does the Bear flow down in the south, Bear River? THE WITNESS: The Bear joins the Skeena River up north. THE COURT: Yes. THE WITNESS: If you follow it from the Bear River or from Bear Lake down the Bear River then it becomes the Skeena River. And then the Skeena joins the Babine. THE COURT: But he was never way up there, was he? THE WITNESS: No, he wasn't. He is describing what he heard. THE COURT: I see. THE WITNESS: No, he never was up there. THE COURT: What do you think, Mr. Adams, should we adjourn now? MR. ADAMS: Let me find my place again, my lord, and I will see if there is anything I can deal with. I just have one more question about that passage and then that would be a good place to stop. THE COURT: Certainly. MR. On page 18 of your opinion report in the first paragraph of the quotation we've been discussing. Mh'm. The following appears: "Quo em acknowledged that on his lands there were few or no beaver. Need chip & Sojick on the contrary said that there were a great many small Lakes & Rivers in the lands belonging to them, where beaver were abundant but that they did not know how to work them." COURT ADAMS Q A Q A Q A The interesting thing -- remember, go back here to that earlier comment on the Vermillion River. It is in keeping with that remark. In what respect? It said that that river was abounded in beaver. So in that case Need chip would be correct in speaking about his own land. Where was that now, wherever that remark was about the Vermillion River. 13409 A.J. Ray (for Plaintiffs) In chief by Mr. Adams 1 Q That was on -- 2 A It is on the bottom of -- okay. Third page in on the 3 longhand report. This belongs to: 4 5 "The river which is said to abound in beaver 6 is the property of Need chip". 7 8 So the two observations agree with each other on that 9 point. 10 Q Okay. And finally on that passage, what, if anything, 11 are you able to make of the observation that they did 12 not know how to work that, referring I take it to the 13 beaver? 14 A It means trap the beaver. Well, there are two ways to 15 read that. Either they actually didn't know how to 16 trap beaver which is probably not so. At least the 17 natives would have had their own way to take beaver 18 because it would have been important. What the 19 Indians are saying is that they don't wish to trap 2 0 them and trade them to the Hudson's Bay Company. It 21 is a fairly common practice through these records that 22 you find that the native people when actually asked to 23 do something for the company very rarely came out and 24 said no. They usually gave a reason why they couldn't 25 do something. They would give a long explanation as 26 to why you might like us to do this, but for this and 27 that reason it is just impossible. And I think again 28 you look at the accounts across the country of native 29 kind of diplomacy, they very rarely were blunt. They 30 tended more to excuse themselves from doing what they 31 didn't want to do. And that's the way I would read 32 this because we know in fact that they hunted beaver. 33 MR. ADAMS: That would be a convenient place to stop, my lord. 34 THE COURT: All right. 10 o'clock tomorrow morning. Thank you. 35 THE REGISTRAR: Order in court. Court will adjourn to 10 a.m. 36 tomorrow. 37 (PROCEEDINGS ADJOURNED UNTIL MARCH 21, 1989 AT 10:00 a.m.) 38 39 I hereby certify the foregoing to 40 be a true and accurate transcript 41 of the proceedings herein to the 42 best of my skill and ability. 43 4 4 45 LISA FRANKO, OFFICIAL REPORTER 4 6 UNITED REPORTING SERVICE LTD. 47
Pagination restarts from 13324.
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.
Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/
Original Format: University of British Columbia. Library. Law Library.
[Proceedings of the Supreme Court of British Columbia 1989-03-20]
Text