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Reconciliation : Git₋xsan property and crown sovereignty Mills, Patricia Dawn 2005

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RECONCILIATION: GITXSAN PROPERTY AND CROWN SOVEREIGNTY By Patricia Dawn Mills B.A., University of British Columbia, 1988 M.Sc, Purdue University, 1993 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF DOCTOR OF PHILOSOPHY In THE FACULTY OF GRADUATE STUDIES (INTERDISCIPLINARY STUDIES [Native Law/History/Anthropology]) THE UNIVERSITY OF BRITISH COLUMBIA April 2005 © Patricia Dawn Mills Table of Contents Abstract • vi Acknowledgments vii Preface •• viii Chapter One Be gentle on the lixs giigyet, for they are like children in the territories • • 1 Chapter Two Since the Coming of the Lixs giigyet 11 The Arrival of the Lixs giigyet: The Regional Economy 1795 to 1910 ...12 Tensions between the Lixs giigyet and the Gitxsan: 1871 to 1884 18 A Conflict of Laws : 18 The Land Question 24 B.C. Colonial - Provincial Indian Land Policy:1850 to 1875 25 The Establishment of the Reserve Commission in 1875 38 Early Land Claims: 1884 to 1888. 40 Reserve Allocations: 1891 to 1898.... 42 Stewart - Vowell Commission 45 McKenna - McBride Commission: 1912 to 1916 48 After 1927: Background to the 1987 Trial 53 Canada's Position.... 59 British Columbia's Position 60 Gitxsan's Position 61 Chapter Three Gitxsan Property, Ownership and Governance 66 Wilp Property and Ownership 73 Adawaak ...76 Ayuk 77 Warns ...80 Lax'wiiyip 81 Wilp Lax 'wiiyip Have Fixed Boundaries 83 Wilp Lax 'wiiyip Exclusivity is Under-pinned by the Law of Trespass 86 Wilp Ownership Includes the Right to Grant Access ..88 Anjok .89 Amnigwootxw 90 Xkyeehl 94 ii Wilp Ownership Includes the Right to Alienate the Lax'wiiyip . 95 The Seem 'oogit and Governance Principles 99 Succession of the Seem 'oogit. 101 The Education of the Seem 'oogit. 106 Dispute Resolution Responsibilities. 109 Management Responsibilities ..113 The Fishery .113 Hunting..... 114 Trap Lines 117 Ecological Concerns 119 Li'ligit ........121 Chapter Four Trials of the Gitxsan Trials of the Gitxsan: Delgam'Uukw v. Attorney General of British Columbia, 1991 to 1997. ...131 Delgam 'Uukw v. the Attorney General of British Columbia, 1991 134 The Gitksan do it with Appeal: The British Columbia Court of Appeal Decision, 1993 '.. 145 The Majority Decision.... ....148 The Minority Decision.... 152 The Negotiation Interlude 156 Delgam 'Uukw v. British Columbia [1997]: Aboriginal Title, Infringement and Consultation and Compensation.. .159 Aboriginal Title - Its Nature and Proof. 161 Infringement. 165 Consultation and Compensation 167 Chapter Five Gitxsan Reconciliation 171 Past Usage of the Crown...... 173 Gitxsan Acts of Reconciliation 186 Gitxsan Treaty Model 190 Fish, Wildlife and Fur Resources 191 Forestry.... .......194 Mining Resources and Oil and Gas 196 Governance 199 Conclusion 202 Abbreviations 206 iii Bibliography ,207 Books and Articles 207 Newspaper Articles 211 Addresses and Statements . . 212 Agreements • 213 Colonial Document Collections 214 Letters and Journal Entries 215 Memorandums of Understanding and Policies 216 Reports..... 217 Statutes 218 Treaties ; 218 Cases...... 219 Proceedings 220 Glossary 222 3 Appendix One Adawaaks of the Gitxsan... 233 The First Adawaak ofAntgulilbix 233 The Adawaak of Tsibasaa and Antgulilbix 235 The Adawaak of Haat'ixslaxnox. ....236 The Adawaak of Hax bagootx. 237 The Second Adawaak of Antgulilbix 238 The Adawaak of Sindihl 239 The Adawaak of Hanamux 240 The Adawaak on the Move to Kuldo 242 The Adawaak of Gyoluugyat 244 The Adawaak of 'Neekt .246 The Second Adawaak of Sindihl 247 The Second Adawaak of 'Neekt. .247 The Adawaak of the Nisga'aIFn'gyef ...249 The Adawaak of Wiigyet ...250 The Second Adawaak of Wiigyet 251 The Adawaak of Biis hoont 251 The Adawaak of Malii ..257 The Adawaak of 'Wiihloots' 258 The Adawaak of Hawaaw' 259 Appendix Two A Reconciliation Agreement between Her Majesty the Queen in Right of British Columbia and the Hereditary Chiefs of the Gitxsan 261 iv Appendix Three A Cooperative Agreement to Plan and Manage Forest Use between Her Majesty in the Right of the Province of British Columbia as represented by the Ministry of Forests and Houses of the Gitxsan as represented by their Chiefs. 264 Abstract Using the Acts of Reconciliation, September 14, 1998, as a model, I argue that Canada, British Columbia and the Gitxsan can establish a respectful relationship acknowledging Gitxsan land tenure and their governance institutions. It is contended that the principal role the Federal Crown occupies toward the Gitxsan is protection of their rights and lax 'wiiyip from unnecessary Provincial infringements. In exchange for this protection, the Gitxsan can easily extend to Canada amnigwootxw rights (privileged rights of access for good deeds). Similarly, the relationship between the Gitxsan and the Provincial Crown could simply be based in xkyeehl (payment to the wilp). It is suggested that until 1997 Gitxsan aboriginal title and associated rights have been limited to Reserve lands or site-specific subsistence activities. Although the Gitxsan have the option of pursuing proof of their title in Court, they continue to press for a negotiated settlement that recognizes their ayooks (laws) and governance procedures. The Gitxsan believe that the essence of their relationship with the Crown in right of Canada and British Columbia is situated in the construction of protocols for consultation when either Canada or the Province desires to enact legislation to access resources or settle foreign populations within the boundaries of their lax'wiiyip. In the event that such acts limit Gitxsan access to their s. 35 rights or title, it is maintained by the Gitxsan that they have the right to compensation. As such, it is recommended that the second aspect of Gitxsan and Crown relations is situated in the development of indices for compensation. This case study uses the Proceedings at Trial for the Delgam 'Uukw (Muldoe) et al. v. R. in right of British Columbia and Attorney General of Canada [1991] 3 W.W.R. 97 trial heard from May 11, 1987 until June 30, 1990), the advice of various Scem'ogits and Seem 'oogits in the Hazelton, Kispiox, Kitwancool and Kitwanga areas, and the literature on the history of the Land Question in British Columbia. Acknowledgements This dissertation is dedicated to the Gitxsan people and their struggle for parity in the land question, especially Maas Gaak (Don Ryan). Further, I wish to acknowledge the Gitxsan and Wet'suwet'en Seem 'oogit and Seem 'ogit who gave testimony at the Trial, the Judiciary, the Crown (Federal and Provincial) Lawyers, the Plaintiffs Lawyers, the support researchers for the Crown (Federal and Provincial) and the Gitxsan. I would like to thank my committee, Profs. Michael Jackson, John Borrows, Doyle Hatt and Arthur Ray for their critical comments and friendship. I would like to extend additional thanks to my supervisor Prof. Michael Jackson for his invaluable suggestions to enhance the text, his insightful comments and continued support, and in the end I have truly learned what generous person he is. I wish to acknowledge the support of the Law Foundation of British Columbia, through the Small Projects Grant to Graduate Students that enabled me to visit Gitxsan Lax 'wiiyip on several occasions, on a related project. I wish to thank my husband David Botta and my daughter Azaria Botta for their endless patience, Associate Dean Rose, my friends and family for their encouragement. Lastly, I wish to thank my dear friend Jennifer Raguz for her proofreading and continual friendship throughout my tenure as a Ph. D. Student and Candidate. vn Preface When the Gitxsan Hereditary Chiefs office was located in Vancouver from 1987 until 1998,1 went often and systematically read through the arguments taken to Court in 1984, the transcripts of the Proceedings from the Trial (1987 to 1991), and the evidence that was given in support of the Testimony for the trial in the British Columbia Supreme Court (1987 to 1991), as well as the Proceedings and arguments of the subsequent appeal to the British Columbia Court of Appeal (1992 to 1993). My familiarity with Colonial, Dominion and the recent Canadian Constitutional history of British Columbia First Nation concerns (including the fact that the oral tradition encompassed both the community's legal code and their rationale of how they held territory or rights) indicated that neither the Government of Canada nor British Columbia was aware of the significance of such knowledge, nor how they could use this information for both reconciliation or the future relationship. Yet at the same time, after reading everything, contrary to the opinion of most Gitxsan (and other First Nation peoples in British Columbia) even though the Chief Justice limited his ruling to a very narrow aspect of law, I determined that his ruling in 1991 did yield a monumental victory for British Columbia First Nation Communities. The judgment in 1991 spurred the Provincial and Federal governments to design a process to settle the title question, however flawed it currently is. However, between the First Nation Summit, and Provincial and . Federal representatives, the model for Treaty in late 1991 is the proposed 1978 solution, with a small textual modification in 1993 which did not require the community to "cede and surrender" its territory as a prerequisite to negotiations. The current model adopted, and endorsed by the Royal Commission on Aboriginal Peoples (1996), is still a cede and surrender land claim agreement that aims for certainty and finality, following the Common law practice of purchasing title as stated by the Royal Proclamation of 1763. The existing Treaty Model does nothing to either address past grievances or to create progressive trust relationships. In general, First Nation Communities have had very few opportunities in either the historic treaties or contemporary Land Claims Agreements to integrate their laws and administration into either Provincial or Federal law, such agreements as do exist have allowed the community to influence the livelihood of their members in a changing regional economy. Contrary to this, the Gitxsan, during their testimony, discussed their governance system, their social and political institutions, their allocation laws and how they desired Crown protection for their aboriginal rights and title interests throughout their traditional territories. More importantly, their testimony brought to light their desire to integrate their governance and laws with those of British Columbia in the area of resource management (trees, oil and gas and the delivery of education, social services and health care), and with Canada with respect to fish, migratory birds and environmental protection, in light of Provincial legislative objectives. The Gitxsan desire to enter into a formal alliance with Canada, in exchange for continued protection of their s. 35 rights throughout their lax 'wiiyip, in order to reconcile their past occupation, both settlement and livelihood concerns, with that of the Newcomers, and to enter into a working relationship with the Province of British Columbia with respect to the management of resources in their traditional territories. Given the legal-social environment in Canada with respect to both the content and protection of aboriginal rights and title, especially the Province of British Columbia, and after much discussion with the Maas Gak and a review of the current academic literature, it was apparent that the overall concerns of the Gitxsan were not being heard. Similarly, what was being written was limited to the trial, and analysis of this subject spoke only to the more general, that of reconciling aboriginal rights within the context of litigation, and not negotiation, nor was the Gitxsan' negotiated platform was being discussed that looked to their law as its basis. viii Chapter One Be gentle on the lixs giigyet', for they are like children in the territories In 1984, the Gitxsan2 filed a statement of claim3 against the province of British Columbia seeking a declaration that they had the right of ownership of, and jurisdiction over, their house territories (wilp lax 'wiiyip). At this time the Gitxsan felt that they had exhausted all means available to them to negotiate an agreement with both the Federal and Provincial governments to settle the land question according to their traditions. The plaintiffs, 35 Gitxsan and 13 Wet'suwet'en4 hereditary chiefs (Seem 'ogits and Seem 'oogits5) alleged that since time immemorial, they and their ancestors had occupied and held jurisdiction over approximately 58,000 square kilometres in northwest British Columbia (lax 'wiiyip). They sought a judgment against the province of British Columbia that they had existing and continuing rights to ownership of, and jurisdiction over, 133 separate territories (98 Gitxsan and 35 Wet'suwet'en). This dissertation contends that reconciliation of jurisdictional authority amongst Canada, 1 In a conversation with WH Eelast (January 1998), I was asked to be respectful to the lixs giigyet (Newcomers) in the work, as until recently the Gitxsan regularly rescued them from the bush and came to the conclusion that it was important to make sure that it was known who was on the lax 'wiiyip in order that they may be safe. 2 1 use the contemporary spelling of Gitxsan, but recognize other spelling, such as Gitksan, as well as the difference between Gitxsen and Gitxsan. Also, as far as possible, the spellings of other Gitxsan words used in this dissertation are reflected in the British Columbia Supreme Court's Proceedings at Trial, May 11, 1987 to June 30, 1990. 3 The Gitxsan and Wet'suwet'en Statement of Claim was filed at the Smithers Registry October 22, 1984 in the name of Delgam 'Uukw, held at that time by Albert Tait. 4 The Wet'suwet'en, after the British Columbia Court of Appeal decision in 1992, were separately represented at the Supreme Court Hearings in 1997. 5 Seem 'ogits refers to male hereditary chiefs, and Seem 'oogits is the feminine form, and unless otherwise specified this dissertation uses the feminine term. 1 the Province of British Columbia and the Gitxsan can be based on Gitxsan ayooks of naa hlimoot ' 6 (laws of sharing). More specifically, Canada could achieve jurisdictional certainty throughout the lax 'wiiyip from the Gitxsan through the extension of privileged access (amnigwootxw1). British Columbia and the Gitxsan could attain a viable relationship by working out of consultation protocols, infringement guidelines, arid indexes for corripensation (situated in Gitxsan principles of xkyeeht) throughout the Gitxsan statement of claim area. It is suggested that the current perspective on the content of aboriginal title, as laid out by the Supreme Court, is sufficiently broad to negotiate an agreement based on Gitxsan lax 'wiiyip ownership and governance principles, as set out in the Acts of Reconciliation9. Lastly, drawing on the underlying principle of reconciliation, as articulated by Lamer C.J. in R. v. Van der Peet10, British Columbia, Canada and the Gitxsan people can build administrative relationships and develop the resources in the territories for the benefit of the Gitxsan and the Newcomers (Lixs giigyet) alike. Thus it is concluded that the principal aboriginal right of Gitxsan people is to be able to act within their legal and governance structures when engaging with either the Provincial or Federal governments. When the Gitxsan went to Court in 1988, it is generally accepted in Canada that aboriginal title11 referred to the interest, unsurrendered by treaty or unextinguished by legislation, 6 A. Mathews Proceedings at Trial (1988) vol. 75 March 16 at 4672 [Mathews]. 7 Amnigwootxw privileges are discussed in Chapter 3. A. Mathews, Proceedings at Trial (1988) vol. 73 March 14 at 4558 [Mathews]. 8 Xkyeehl privileges are extended to individuals for access to resource locations after they have offered items of equal value to the wilp in question. M . McKenzie, Proceedings at Trial (1987) vol. 7 May 20 at 383, 418 to 419 [McKenzie] and A. Mathews, Proceedings at Trial, (1988) vol. 76 March 17 at 4721 to 4722 [Mathews]. 9 Gitxsan and British Columbia, A Reconciliation Agreement between Her Majesty the Queen in Right of British Columbia and The Hereditary Chiefs of the Gitxsan, September 14, 1998. 10 R. v. Van der Peet [1996] 2 S.C.R. 507. 1 1 "Aboriginal title" is considered to be sui generis in nature, as this title does not originate in English, French or First Nation property law. As such it appears that what determines the quality of "aboriginal title," is the nature of the surrender, not the content of the title before Crown declarations of sovereignty. This position suggests that only First Nation communities who have 2 12 of aboriginal peoples to lands which they traditionally used and occupied . At minimum, the Crown presently recognizes the rights of First Nation peoples to hunt, fish, trap and gather foodstuffs in areas of their traditional use and occupancy. However, although the Courts have accepted that aboriginal interest is a proprietary interest in the land, they have also held that these rights (to hunt, trap, fish, and gather) may in some situations be modified or abridged by federal and provincial fisheries and wildlife legislation. The Courts have accepted in theory that aboriginal title (whether based on use, occupancy or "Indianness"), like aboriginal rights (especially the right to hunt, trap, fish or gather) exists until surrendered, is modified by treaty, legislation or Land Claim Agreements. For communities who have yet to enter into Agreements, their rights to land and its use are still subject to a case-by-case evaluation. Although the Supreme Court of Canada in Delgam 'Uukw13 has enlarged the quality of aboriginal title to encompass forestry and mining ventures, at the same time the Gitxsan (or other First Nation people) have not been able to obtain the legal redress necessary to sustain these rights following the destruction or degradation of the habitat by third parties who have obtained competing resource or land rights from the. Crown. The Gitxsan, despite their dependency on fish and wildlife resources, have acquired no special power to allocate, regulate or manage these resources under provincial or federal resources management programs that will ensure their sought the "protection of the Crown," (R. S. Allen, His Majesty's Indian Allies: British Indian Policy in the Defence of Canada, 1774 to 1815 (Toronto, Ont.: Dundurn Press, 1992))agreed "to be subjects of the Crown,"(W.C. Wicken, Mi'Kmaq Treaties on Trial: History, Land and Donald Marshall Junior (Toronto, Ont.: University of Toronto Press, 2001)) or contracted to "follow the regulations stipulated by the Crown from time to time" (A.J. Ray, J. Miller & F. Tough, Bounty and Benevolence: A History of Saskatchewan Treaties (Montreal, Que.: McGill-Queen's University Press, 2000)) need modify their definition of territory, title or governance methods. Besides aboriginal title lands associated with surrenders and reserves, aboriginal title is also considered to be "site specific," where "aboriginal rights activities" occur such as hunting, fishing and trapping outside of the reserve, and subject to Crown regulation (B. Slattery, "Understanding Aboriginal Rights" (1987) 66 Can. Bar R. 727). 1 2 P. Cumming and N. Mickenberg, Native Rights in Canada, 2 n d ed., (Toronto, Ont.: Indian-Eskimo Association of Canada, 1972). Delgam 'Uukw (Muldoe) et al. v. R. in Right of British Columbia and Attorney General of Canada [1997] 3 S.C.R. 1010. [Delgam'Uukw [1997]]. 3 continued access. Similarly, administrative policy and practice has for many years been based on the assumption that aboriginal rights and title have only effectively conferred upon their holders no more than a licence to enter into an area, and even this right is not held to be exclusive. In addition to maintaining the status quo with respect to the interpretation of aboriginal title and rights, the goal of the current Federal and Provincial Treaty making process still expects the First Nation community to further identify lands to be set aside for their exclusive use and to surrender their rights =and title to their traditional territories in exchange for access to specific aboriginal right activity sites, subject to Crown jurisdiction. The Gitxsan have felt that this situation has been problematic. Before 1997 it was generally assumed that the presence of the Crown had replaced First Nations' land interests on Crown lands through categorical denial of title to First Nations peoples and annexing what was considered to be "waste lands." The Gitxsan, though they do not "farm", have clear boundaries that mark the division of their wilp territories. These boundary markers vary from stone columns, blazed trees, the middle of running creeks, and named locations. Besides known boundaries and named locations, the Gitxsan cultivated berry patches through controlled burnings, used specific fishing sites, hunted animals in passes, knew the locations of all the bear dens, and practised selective harvesting of beaver and ground squirrels. In essence, the Gitxsan, as a group or individually, know the sum total of their land, (including the internal boundaries) through occupation and use. Those who could not demonstrate knowledge of its history through the recitation of the adawaak (oral histories) and through knowledge of the ayuk(s) (symbols of title) could not claim rights to it, thus with respect to Gitxsan title and tenure their lax 'wiiyip is an integral part of their social structure and the legitimate use of it is determined by birth, affinity, common residence, social status or some combination of these. Besides land use and tenure, the Gitxsan have a body of law that regulates access, use and, above all, the distribution of resources to the broader community. 4 Gitxsan law allows the individual the right to use the land, and to this end the Gitxsan have a viable system to determine who is a member of wilp or house. They also have laws and regulations that govern how secondary and tertiary rights are allocated to individuals outside of the wilp. Furthermore, the Gitxsan have mechanisms within their law that permit them to alienate or encumber their territory. These rights are limited, and in the long term do not diminish or abrogate the original owner's right to claim the territory in question as their own. Finally, the Gitxsan have the means to control and ensure that individuals use the land and resources in accordance with the availability of the resource in question, and in a manner that does not endanger the security of the group, insofar as the consequence of a particular action is foreseen. In general, the Gitxsan, like other First Nation communities across North America14, 1 4 For example, other Canadian First Nations peoples, such as the M'kmaq, Deneza and Inuit, claims to tenure are closely related to the subsistence resource and their political and social organization. The individuals in each of these societies are required to self-regulate their activities, and if any one person steps too far outside of the normal expected behaviours, they run the risk of being ostracized. Every person knows and observes sets of rules about how, where and when to hunt, fish or trap, and especially when not to hunt. At first glance, their property rights could be construed to be usufruct, in that the individual's rights lie in the products, not in the territory itself. However, a usufruct perspective does not take into account the sense of belonging to the particular locations, or the relationship between the human and the animal. For the M'kmaq, Deneza and Inuit, these feelings of belonging to a location are born out of the distinct history they have with the particular territory in question, where the territory itself is infused with specific anthropomorphic characteristics as well as being layered with personal events of their ancestors. The animal-human relationship stems from the fact that when people appeared in the regions, they found the animals already there and considered themselves moving into an existing society, that of the animals. The relationship between man and the animals is interwoven, as man derives his status, according to Richard Preston (R. Preston, Cree Narrative (Montreal, Que.: McGill-Queens Press, 2 n d Edition, 2002) at 212), not by seeking dominance over animals but according to competence and particular needs as the "other persons have," and these "persons" are animals, fish and plant life and the land itself. Frank Speck has suggested the M'kmaq feel that animal life is "tribal," and similar to the humans, only animals do not have man's "technical gifts and powers" (F.G. Speck, "Penobscot Tales and Religious Beliefs" (1935) 48 Jour, of Am. Folk. 1 at 13). For the Deneza the land has been transformed, according to Scott Rushford, by their ancestors into a place that is able to support their life (S. Rushford,Bear Lake Athapaskan Kinship and Task Formation (Ottawa, Ont.: National Museum of Man, Mercury Series, 1984) at 38). They have been taught that the animals have instructed them on how they are to be captured for food, and what must be done to secure their continued presence (P. R. Coutu and L. Hoffman-Mercredi, Ikonze: The Stones of Traditional Knowledge, a History of Northeastern Alberta (Edmonton, Alta.: Thunderwoman Ethnographies, 1999). Similarly, the 5 not only have occupied distinct territories according to systematic hunting, fishing, trapping and gathering patterns over long periods, but also have stable systems of political authority, land tenure, and resource harvesting schemes. This dissertation, as an interdisciplinary thesis encompassing law, history and anthropology, uses existing literature on aboriginal title and rights, the trial transcripts of the British Columbia Supreme Court in Delgam 'Uukw (Muldoe) et al. v. R. in Right of British Columbia and Attorney General of Canada15 (heard from May 11, 1987 to June 30, 1990), the Commissioned Evidence, and advice from selected S&m 'ogits and Saim 'oogits to illuminate the property regime of the Gitxsan as a means to advance the Gitxsan reconciliation model proposed on September 14, 1998. The history of the Gitxsan and Newcomer relationship is examined in Chapter Two, from the perspective of how the Gitxsan political authority has been compromised since the assertion of sovereignty by the Newcomers in 1846, and how they have been displaced as the original owners and managers of their huwilp lax 'wiiyip. It is suggested that although during the contact (1802 to 1840) period the Newcomers readily acknowledged Gitxsan social and political institutions, after assertion of Crown sovereignty, until the judgement of the Supreme Court of Canada in Calderl6in 1973, Gitxsan title (like that of other First Nation peoples) was strictly denied. Outlined first are the early trade relations that suggest that Gitxsan property and associated laws were recognizable to the Newcomers. Examined second are the colonial Reserve Only Policy as initiated by James Douglas (1850 to 1854), the Colonial and Provincial Inuit, as Knud Rasmussen has explained, are born of the animals and spirits (K. Rasmussen, "Iglulik and Caribou Eskimo Texts" Report of the Fifth Thule Expedition 1921- 1924 vol. 3 (Copenhagen, Nor.: 1930) at 498) and as such they know their need to be brought into man's sphere through capture and the respect that the animals must be shown at the time of their death. 15 Delgam 'Uukw (Muldoe) et al. v. R. in Right of British Columbia and Attorney General of Canada [1991] 3 W.W.R. 97. 16 Colder v. The Attorney General of British Columbia [1973] S.C.R. 313. 6 revisionism (1858 to 1871) and the subsequent national Indian policies after Confederation in 1871 that limited the ability of the Gitxsan to act within their traditional obligations, to seek a livelihood throughout their traditional territory, and to negotiate a Treaty agreement with Canada based on their law. Also discussed is how the Gitxsan, since 1884, have attempted to resolve the Land Question by the submission of petitions and by presentations to the various Inquiries and Commissions, including examination of the attempts to seek a judicial resolution in the first decade of the twentieth century. Lastly, the period from 1969 until 1978 is summarized, concluding that the then, and the now current, Comprehensive Claims process, which the Gitxsan have willingly participated in, is only a more contemporary version of the "Reserve Only" option forwarded by the Colonial authorities as a solution to the Land Question in British Columbia. Set out in Chapter Three is the Gitxsan land tenure system as it relates to their governance regime. It is suggested that Gitxsan society operates from their ayooks of naa hlimoot' (sharing) requiring the Seem 'oogits and Seem 'ogitsXo manage the lax'wiiyip in a manner that optimizes the returns from resources (fish, wildlife, and so on), while sustaining the integrity of the ecosystems for all creatures, as spoken in the adawaak(oral histories). It is maintained that the Gitxsan li'ligit system (feast complex) is a central institution, and that any one yukw (feast), whether it is one that is sponsored to give thanks to the animals or salmon for their submission, or one that is related to funerary rites, memorials, marriages, adoptions, rites of passage, or for restorative purposes, constitutes an opportunity for each Gitxsan wilp to account to the community for whatever resources arise from the wilp's lax 'wiiyip, and to circulate prestige objects (cash or commodities that signify wealth) throughout the community. In addition, it is illustrated that the yukw, besides being a means to account for wilp property, acts as a public forum validating the authority of the Seem 'oogit, and maintains the alliances with other huwilp (plural of wilp or house) through the telling (either as recitations or through song,, dance or by the performance of plays) of the adawaak (oral histories). 7 The property rights' concepts of amnigwootxw (privileged rights) and xkyeehl (payment to the huwilp through the li 'ligif) are analyzed in terms of the access rights of wilp members, and the obligations and duties of the Seem 'oogits. It is concluded that Gitxsan "Indianness" is not defined as a subsistence pattern practice, or by genealogy, but instead is situated in the relationships that base the individual in firstly, their obligations of respect for the lax 'wiiyip, secondly, the maintenance of social relations, and thirdly, the distribution of resources according to the ayooks as outlined by the adawaaks. Chapter Four examines how the Gitxsan, over the last thirty years, have tried to put forward as a negotiation platform their laws for a treaty through the litigation of Delgam 'Uukw 17 (et al) v. the Attorney General of British Columbia and Canada [1991, 1993 & 1997]. This litigation is critiqued as part of the contemporary struggle of the Gitxsan people to achieve parity with respect to the Land Question. It is suggested that enough evidence was submitted to the British Columbia Supreme Court by the Gitxsan to conclude that Gitxsan affiliations (both through kinship real and fictive), governance and laws, constitute a form of land ownership, including its regulation, cognizable by British-Canadian law. Further, it appears that the Supreme Court of British Columbia ignored the Seem 'oogits and Seem 'ogits description of their ayooks regarding the principles of amnigwootxw and xkyeehl, and saw no contemporary role for their obligations to the lax 'wiiyip the Gitxsan claim as theirs. Furthermore, though it was argued that Gitxsan aboriginal rights encompassed more than subsistence rights and occupation, the Court of Appeal, in 1993, continued to characterize "aboriginal rights" in terms of historic subsistence activities, instead of First Nations' legal, governance and political structures. Also, it is contended that the majority decision of the British Columbia Court of Appeal (1993) again disregarded the Gitxsan claim of ownership, based on the Trial Judge's interpretation of 17 Delgam 'Uukw supra note 15; Delgam 'Uukw (Muldoe) et al. v. R. in Right of British Columbia and Attorney General of Canada [1993] 5 W.W.R. 97; Delgam'Uukw [1997] supra note 13. 8 evidence. It is argued that the minority decision of the Court of Appeal laid the foundation for a negotiated settlement; however, the political climate from 1993 to 1995 prevented meaningful discussion with respect to incorporation of Gitxsan ayooks into British Columbia management practices in the area of sustainable development. Additionally, the Supreme Court judgment of 1997 is analyzed in terms of how oral histories, First Nation property rights and a land tenure system can be advanced as ways to reach reconciliation agreements that will protect any First Nation's existence in their traditional territory, while at the same time providing Canada with certainty and finality regarding the land question, allowing for legitimate Provincial legislative infringements. It is suggested that between the Supreme Court of Canada's test for "cultural distinctiveness" in Van der Peet (1996) and the test for proof of title in Delgam 'Uukw (1997) lies the foundation which will support reconciliation. Presented in Chapter Five is the Gitxsan model for reconciliation as set out in the evidence given by the Saim 'oogits and Seem 'ogits during the trial from 1987 until 199.1. It is asserted that the long held position of the Crown of framing aboriginal rights and title in terms of "use and occupation" that lead to "certainty and finality" in Treaty agreements, through the offering of additional Reserve lands, persists, thus placing an undue burden on First Nation communities. The Gitxsan model for reconciliation suggests that their aboriginal rights lie in their land tenure and governance, which encompass how wilp.lax 'wiip is held, resources are allocated, and accounted for, and how reciprocity is undertaken. As, according to Gitxsan tradition, the lax 'wiiyip is held in trust by the current Seem 'ogits for the next generations, the territory cannot be reallocated. This situation does not preclude establishing alliances with the Federal Crown for protection of the inherent limit on Gitxsan rights and title that extends to the boundaries of each wilp's lax'wiiyip, the standards necessary for determining whether Provincial legislative imperatives and resulting infringements are justified, and the subsequent consultation protocols and compensation indexes are adhered to. It is recommended that the Gitxsan 9 allocation rights of'amnigwootxw (privileged rights) and xkyeehl (payment to the huwilp through the // 'ligif) can be employed as guiding principles to assist with the reconciliation of Gitxsan title and ownership with that of the Federal Crown title, as well as the Provincial Crown's legislative imperatives. The Gitxsan land sharing and governance model is discussed in relation to the current Comprehensive Claims policy that has supported the Nisga'a Treaty. As the Gitxsan proposed during their litigation a justification for Canada and British Columbia to negotiate with them as property owners and to view their title in terms of their laws and obligations, they desire to have recognized their proprietary and management interest in the salmon fishery, in their trap lines, in the berries they gather, and the animals they hunt. They are eager to influence Federal and Provincial policy decisions, permitting their law to effect these interests throughout their lax'wiiyip, and, in the event of infringement, as a result of Crown appropriation and third party damage, trespass or nuisance, they believe that it is necessary for them to be involved in setting the conditions for appropriation, infringement and the determination of the standards for compensation. 10 Chapter Two Since the Coming of the Lixs giigyet For the most part, over the last two hundred years of either indirect or direct contact, Gitxsan people have accepted the presence of Lixs giigyet (Newcomers). Early Hudson Bay traders in the area, William Brown and Simon McGillivray acknowledged the law and authorities in Gitxsan society. By contrast, after 1862, the Lixs giigyet largely ignored Gitxsan laws of sharing and trespass, and its associated authorities. In the early contact period, from 1747 until 1862, Gitxsan economic and political life was relatively unaffected by the presence of the Lixs giigyet1. It is generally accepted that their presence enhanced the livelihood of all community members. After 1862, tensions with respect to trespass, as well as conflicts regarding competing jurisdictions and application of British-Canadian justice, emerged. The Colonial Crown, and subsequently the Provincial and Dominion Crowns, failed to understand Gitxsan law, to respect the community's right to allocate resources according to their laws in their lax 'wiiyip, and to enter into joint processes to resolve property disputes between British Columbia and Canada. In this Chapter, I review Gitxsan and Crown interaction from 1790 until 1927, and from 1927 until 1977, illustrating how the Crown ignored the existing laws and jurisdiction of the 1 It must be pointed out, however, that the Gitxsan, like other First Nation peoples were particularly vulnerable to European diseases like smallpox, measles, and the flu. Their losses from these illnesses took an enormous toll on their communities. See: J.F. Decker, "Tracing Historical Diffusion Patterns: The Case of the 17980-1782 Smallpox Epidemic among the Indians of Western Canada," (1988) 4 (1&2) Nat. St. Rev. 1; R. Boyd, "Commentary on Early Contact-Era Smallpox in the Pacific Northwest," (1996) 43 (2) Ethnohistory 307 and C. Harris, "Voices of Smallpox around the Strait of Georgia," in Resettlement of British Columbia: Essays on Colonialism and Geographic Change ( Vancouver, B.C.: University of British Columbia Press, 1997) 3 [Harris]. 11 Gitxsan. I also examine the "Reserve Only" policy of the British Columbian Colonial officials (1858 to 1875), and the Dominion's (1867 to 1916) perspectives on the content of First Nation title, concluding that the Federal/Provincial contemporary land selection model is a continuation of Governor Douglas' Reserve Only policy that neither addresses the placement of the Gitxsan's law and jurisdiction in the fabric of Canada, nor promotes First Nations' ability to act on their right to a livelihood in their traditional territories. I also review the efforts the Gitxsan made to address their concerns relative to their concepts of restorative justice and to the land questions by means of Petitions and Memoranda, until legislation made it almost impossible to,put forward land title concerns. I then examine the background to the Delgam 'uukw litigation from 1969 until 1978 following which, as a last resort, the Gitxsan filed a civil suit against the Province of British Columbia and Canada seeking a declaration of ownership of their collective lax'wiiyip, based on the adawaaks, ayuks and ayooks in 1984. The Arrival of the Lixs giigyet: Regional Economy 1795 to 1910 The Lixs giigyet were eagerly trading metal tools, copper sheeting, guns, cloth and other luxury items for sea otter pelts on the coast from the 1780's until around about 1800 . By 1805, the North West Company had established inland fur trading posts at Fort MacLeod and, by 1807, had established Fort George and Fort St. James3. For the Gitxsan, this meant that European goods were filtering in to their region from both the coast maritime trade through Nisga'a and 2 F.W. Howay, "An Outline of the Maritime Fur Trade," (Report of the Canadian Historical Association, 1932) at 147. 3 J. A. McDonald, Trying to Make a Life: The Historical Political Economy of the Kitsumalum (Unpublished Ph.D. Dissertation, Department of Anthropology and Sociology, University of British Columbia, 1985). 12 Tsimshian relations4, and by established trading networks with their easterly neighbours, the Sekani5. In an effort to trade directly with the Gitxsan, in 1822 the Hudson's Bay Company (after its merger with the Northwest Company in 1821) established Fort Kilmaurs at the head of Babine Lake6. It was not until 1826 that Hudson's Bay trader William Brown met the Gitxsan when he visited three villages, and was told of at least five other villages. It was reported that the Atanah (Gitxsan) Seem 'ogits were "much attached" to the Coastal Indian traders, and, as Brown observes, the "Atanah" were better dressed, and their fishing techniques were more sophisticated than those of the Carriers (communities to the east of the Gitxsan, known now as the Wet'suwet'en). Brown also comments that the Gitxsan, like the Carriers, cremated their dead and put feasts on for "the deposit of the bones7." More importantly, Brown observes that the Gitxsan were "men of property8," in that they held specific tracts of land that were exclusively reserved for personal wilp use. Access to these territories was by permission from specific individuals, known by other community members. In addition, Brown also observes that hunting or trapping was strictly regulated by their chiefs9, and contingent on the salmon returns. 4 "The Bella Bella Origin of Legaix" Informant: John Tate (Slaben) Gispaxloats Recorded: W. Beynon, in: M . Barbeau, Totem Poles: According to Crest and Topics & Totem Poles: According to Location Vol. II Bulletin No. 119 (Ottawa, Ont: E. Coutier, King's Printer, 1950-51) [Barbeau] at 62 to 65; "Githawn's Trading Privileges on the Upper Skeena" Informant: Harriet Hudson Recorded: W. Beynon in: Barbeau at 78 to 83; "A Trading Incident between the Nishga and the Gispaxloats." Informant: Agnes Haldane, Kincolith Recorded: W. Beynon in Ibid, at 213 to 218 & R.S. Grumet, "Changes in the Redistributive Activities in the Fort Simpson Region of British Columbia," (1975) 22 (4) Ethnoh. 295 at 301 to 302, 304 to 310. 5 J. Skogan and C. Stewart, The Princess and the Sea-Bear and Other Tsimshian Stories (Prince Rupert, B.C.: Metlakatla Band Council, 1983) at 12/ 6 A. Ray, Proceedings at Trial, (1988) vol. 202 March 20 at 13350 to 13356; 13373 & 13376 [Ray]. 7 Ray supra note 6 at 13358. , - * ; . ' ' , 8 A.J. Ray, "Fur Trade History and the Gitksari-Wef suwef en Comprehensive Claim: Men of Property and the Exercise of Title," in: K. Abel and J. Friesen eds., Aboriginal Resource Use in Canada: Historical and Legal Aspects (Winnipeg, Man.: University of Manitoba Press, 1991) 301 at 303 [Ray] 9 Ray supra note 8 at 304. 13 That is, in years when the salmon were plentiful, the Gitxsan did not hunt early in the fall and postponed their trapping activities until mid-winter instead of immediately dispersing throughout their territories after the "pinks''had returned10. Similarly, when Simon McGillivray, a Chief Trader with the Hudson's Bay Company in 1833, travelled to the Forks (the confluence of the Skeena and Bulkley Rivers) in 1833, he reported that he met Atanah from the "first" and "second" villages, and noted that many of the villagers had never seen Europeans before11. More often than not, the Hudson Bay traders at the Forks were told that other traders from the Coast had recently been to the villages and, as a consequence, the Hudson's Bay did not do much trading, as there were not many or high quality furs left. During this early period between 1821 and 1840 the Hudson's Bay Company was desirous of acquiring more trade in the region. In order to achieve this, the Company tried to position forts in the area surrounding Gitxsan villages. The Hudson's Bay Company quickly found that they were unable to make 12 direct contact with Gitxsan people, as the First Nation guides would not trespass , nor could the Hudson's Bay Company induce the Gitxsan, Wet'suwet'en or Sekani to trap more beaver than was permitted by their Seem 'ogitsu. Geographical historian Robert Galois and Gitxsan historian Susan Marsden assert that part of the failure of the Hudson's Bay Company was that they were unable to reorient the Gitxsan's exchange networks14. According to Ray, it appears that until Brown found high quality "moose hides" that were greatly prized by the Gitxsan, the Hudson's Bay Company could not compete with the traditional practices or the trading allies of the A.J. Ray, The Early Economic History of the Gitksan-Wet'suwet'n-Baine Tribal Territories, 1822-1915 (Prepared for the Gitksan-Wet'suwet'en Tribal Council, January 16, 1985) at 2 to 7. 1 1 S. McGillivray, Journal 1833, Hudson's Bay Archive, D 4/126 at 31 to 33. 1 2 Ray supra note 8 at 304. 1 3 Ray supra note 6 at 13382. 1 4 R.M. Galois and S. Marsden, "The Tsimshian, The Hudson's Bay Company, and the Geopolitics of the Northwest Coast Fur Trade, 1787 - 1840," (1995) 39 Can. Geo. 169 at 173 to 176. 14 Gitxsan15. Regardless of either the quality or quantity of these hides, the trade in beaver remained sporadic and contingent on surpluses as regulated by the Scem'ogits. During this time, the Lixs giigyet had a minor presence in the interior and only a few stayed for any length of time, even after the British purportedly consolidated their interests in the northwest as a result of the Oregon Boundary Treaty in 184616 and the merging of the Mainland and the Vancouver Island colony in 186217. The Gitxsan and Lixs giigyet shared similar and complementary business interests. The Gitxsan were interested in trading opportunities with the Lixs giigyet, and gladly shared other diverse business possibilities, such as bringing to the attention of Mr. McNeill (Fort Simpson's Commander) the presence of gold up the Skeena. Mr. McNeill noted on April 8, 1852, that: [T] his day one of the Chiefs from Skeena River that arrived here yesterday, brought a few SMALL pieces of Gold ore to the fort, two large pieces of Quartz Rock with a few particles of Gold ore... He tells that the gold is to be seen in many places on the surface of the Rock for some distance, say two miles. This is a most important discovery, at least I think so18." Several years later, during the tenure of Governor James Douglas, this discovery prompted the commission of Mr. W. Downie to explore the Skeena River, taking particular note of potential mineral prospects. During his excursion up the Skeena, Mr. Downie found gold and coal seams, and he met Gitxsan from the villages of Gitsegukla (Kitsegukla), Gitanmaax 1 5 The Hudson's Bay Company obtained moose hides from trading districts located east of the Rocky Mountains, particularly the Athabasca-Mackenzie area. These hides were highly valued by the Gitxsan for use in their funeral feasts. According to Brown, they chopped up the leather and distributed it at the time of the burning of the body. Only the highest quality was good enough and if the leather was given away when the bones were disposed of, whole skins were distributed. Large white skins were preferred, for which the Gitxsan would pay any price. A. Ray, Proceedings at Trial, (1989) vol. 203 March 21 at 13466 to 13467. 1 6 Great Britain, Treaty between Her Majesty and the United States of America, for the settlement of the Oregon Boundary, signed Washington D.C., 15 June 1846. 1 Harris supra note 1 at 68 to 102. 1 8 H. Meilleur, A Pour of Rain: Stories from a West Coast Fort (Victoria, B.C.: Sono Nis Press, 1980) at 157. (Kittamarks), Kispiox (Kispyattes), Glen Vowell (Anlagasimdex), Naas Glee and Kithathatts. Downie writes: We experienced some dangers from Indians here, but by a small present of tobacco, and by a determined and unconcerned aspect, I succeeded in avoiding the danger of collision with them19. Galois suggests that when Downie "gave presents" he understood that he was "paying for safe passage" through Gitxsan territories20. When the Collins Overland Telegraph was constructed in the Kispiox-Hagwilget area the company negotiated safe passage by "paying tolls" and for the "rights to cross the rivers," accommodating the expenses as part of doing business21. Besides accommodating Gitxsan trespass laws, during the construction of the Collins Overland Telegraph line (built along the Simpson River to the Forks, then along across the Skeena to Kispiox River in 1866), Gitxsan men enjoyed steady employment as labourers and packers22. The area did not flourish as anticipated, as the Collins Overland Telegraph route was shelved in favour of the laying of the Trans-Atlantic Cable in 1867. A small Hudson's Bay Company trading house opened at Hagwilget in 1866, but closed in 1868. The trader, Thomas Hankin, stayed on, and was commissioned by the new Provincial government to improve the trails in the area, again 1 9 Major W. Downie, "1859 gold explorations, report by Mr. W. Downie of his journey to Queen Charlotte's Island, and thence by Fort Simpson to the interior of British Columbia," in: British Columbia, Further Papers relative to the Affairs of British Columbia, Part III - Copies of Dispatches from the Governor of British Columbia to the Secretary of State for the Colonies, and from the Secretary of State to the Governor, Relative to the Government of the Colony (London, Eng.: Printers to the Queen, 1860) 71 at 73. 2 0 R M . Galois, "The History of the Upper Skeena Region, 1850 to 1927" (1993 - 1994) 2 Nat. St. Rev. 113 at 120 [Galois]. 2 1 T. Elwyn [to Colonial Secretary] September 4, 1866] British Columbia (Colonial) to the Colonial Office 60/25 British Columbia Archives. 2 2 C. Mackay, "Collins Overland Telegraph" (1947) 10 (3) B.C. Hist. Quart. 187 at 208 to 210. 16 employing Gitxsan men. The economy of the region picked up after gold was discovered in the • 23 Omineca area, to the northeast of Gitxsan territory, m 1871 . These early relations could be considered principally to be business ventures where profit motivated all parties. It could be concluded that the regional economy was enhanced by the presence of the Lixs giigyet, though they were few in number and limited to fort areas. While the Lixs giigyet organized the enhancement of existing trails and road construction, First Nation community members were the bulk of the contracted labour. Employment opportunities ranged from packing, guiding, and trail construction to maintenance. However, Gitxsan regulated this employment within their own communities, making sure that huwilp trespass laws were strictly enforced24. The introduction of employment and cash payments for seasonal work and the fur trade only augmented the effective use of traditional resources, and were similarly regulated by the Seem 'ogit(s). Besides the introduction of European and Asian goods, and other trade and employment opportunities, Gitxsan use of alternative employment gave them a reputation for being industrious. In addition, their participation in the emerging commercial and salmon canneries after 1875 on the coast also attests to Gitxsan organizational abilities. Most of the fishing and canning work at this time was done on contract, and employers relied heavily on First Nations' labour, both on the water and on the cannery floor25. Like other First Nation communities throughout the Province, the Gitxsan engaged in logging pursuits, and established competitive sawmills both for on reserve lumber use and for sale. These ventures flourished J.A. MacDonald, "Images of the Nineteenth Century Economy of the Tsimshian" in: M . Sequin, ed., The Tsimshian: Images of the Past, Views of the Present (Vancouver, B.C.: University of British Columbia Press, 1984) 40 at 44. 2 4 Rev. D. Jennings, [Port Wessington, B.C.] January 11, 1893 in: The Missionary Outlook, (Spring) 1893 at 33.-2 5 D. Newell, Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries (Toronto, Ont.: University of Toronto Press, 2000); R. Knight, Indians at Work: Ah Informal History of the Native Indian Labour in British Columbia, 1858 - 1930 (Vancouver, B.C.: New Star Books, 1978) at 101 to 112 [Knight]. 17 until after the turn of the century when the Provincial government encouraged the development of remote areas through what has been described as "resources giveaways" by entering into leasing arrangements, at minimum cost, of vast tracts of timber lands to only a few corporations that organized both logging and milling2 6. Though there were alternatives to how Gitxsan earned a livelihood, resources taken from the territories and their allocation were still governed through their traditional ayooks. Tensions between the Lixs giigyet and the Gitxsan, 1871 to 1884 While it could be said that the Gitxsan were embedded in the regional economy at the time of Confederation, more important concerns began to emerge. Between 1871 and 1884, the Gitxsan were feeling the effects of the region being opened up to the Lixs giigyet for alternative uses, in particular mining and transportation, and there were clashes with respect to whose laws were valid in the region. The Gitxsan, believing that they were sovereign, felt that the Lixs giigyet were ignoring their laws, resulting in a series of blockades and molestations. Further, the Lixs giigyet remained unaware of circumstances under Gitxsan law which permitted justifiable homicide: for instance, habitual trespass onto another territory after warnings had been given, blatant trespass not followed up with compensation, the use of witchcraft causing another's death, or unexplainable death while on another's territory. A Conflict of Laws A few Lixs giigyet came into the region and, by 1872, had established businesses in Hazelton. Relations were generally good. The fire at Gitsegukla (Kitsegukla), the Cassiar Trail 2 6 Knight supra note 25 at 113 to 130. 18 Molestations and a series of justifiable homicides, created tensions. These issues brought to the surface the pressure points caused by the strain of the continued presence of the Lixs giigyet, without formal relationships having been established. A fire at Gitsegukla, in mid-June of 1872, destroyed 11 houses and 13 poles with an estimated loss of several thousands of dollars in property. The Gitxsan stated in their petition to the government: Two canoes passing up the river with white men in them stopped and built a fire immediately above our village. The weather being very dry for some time would have caused a fire to spread very quickly unless care was taken when leaving camp to see that it was safe. This fire was neglected by those camped there and the consequence was, the total destruction of the village, 11 houses and 13 poles, also ten canoes. The poles are of great value to us. Our loss is very heavy, and thousands of dollars worth of property and years of time having been expended in the building of the houses and the erection of the poles, all of which was entirely destroyed in one hour by the fire27. The cause of the fire was initially attributed to a Tsimshian named Kibl-ootsay; however the Lixs giigyet (miners) in the area were blamed. Immediately, the Gitxsan blockaded the Skeena, vowing "no white man should pass " and pressed demands for restitution for the trespass and destruction. By July 1, 1872, Thomas Hankin of Hazelton had compiled an inventory of what was lost in the fire and set out certain promises that the Government would fulfill. The river was re-opened to freight and passenger traffic pending the arrival of a magistrate to settle the matter . Later that summer, Joseph Trutch, then Lieutenant-Governor of British Columbia, travelled up the coast in the gunboat H.M.S. Scout, as far as Skeenamouth-T. Hankin [to Lieutenant Governor J. Trutch], "Petition of Indians at Kitesgoually to Lieutenant Governor" National Archives Canada, National Archives of Canada, RG 10 volume 1159 n.p. 2 8 J. Trutch, [Speeches at Metlakatla] in: Duncan to Church Missionary Society, (1873) February 3, Duncan Papers 8882/146ff University of British Columbia Archives [Trutch]. 2 9 Editorial, [Victoria Daily] Colonist, (9 July 1872) at n.p. 19 Metlakatla, for a meeting with the Gitxsan. In an elaborate show of arms and ceremony, and with William Duncan as interpreter, the Province gave six hundred dollars to the Seem 'ogits as an 30 "act of grace," (not as compensation) and a warning to the Seem 'ogits to "speak" within the law , that is the "Queen's Law." For the Gitxsan the issue was concluded satisfactorily. The Seem 'ogits interpreted the public presentation of the "gift of money," the show of arms and ceremony as the Lixs giigyet accepting responsibility for the fire at Gitsegukla. According to Galois, the events aboard i / .MS. Scout at Skeenamouth-Metlakatla were compatible with Gitxsan procedures for resolving conflicts; that is, first, there was. a meeting between both sides in which they spoke to their concerns; second, a settlement was reached; and, third, both sides displayed their power. Furthermore, the settlement that was reached met with Gitxsan standards, in that they received a cash payment, which was viewed by the Gitxsan as compensation for their losses; an agreement that the Gitsegukla Seem 'ogits would not threaten the Lixs giigyet; and entertainment that had elements of hospitality and spectacle31. Over the next few years, issues continued to arise around pack employment and issues of trespass. William Humphrey, the man in charge of the construction of a cattle trail north of Kispiox, reported in June of 1874 that the Kuldoe Indians would not allow his Indian packers any further up the trail towards the settlement, nor would the Kuldoe "pack" without doubling the fees32. Other reports, later that year, stated that Kispiox Gitxsan regularly molested the Lixs giigyet. Although there were several meetings with Seem 'ogits to resolve these tensions, little 3 0 Trutch supra note 28 & R.M. Galois, "The Burning of Kitsegukla, 1872" (1992) 94 B.C. Studies 59 at 71. 3 1 Galois supra note 20 at 132 and H. Foster, "British Columbia: Legal Institutions in the far West, from contact to 1871" (1995) 23 Man. L. Jour. 292 at 299 to 303 & 303 to 307. 3 2 A.W. Humphrey, [Diary] June 7, 1874 British Columbia Archives and Records Service E/C/H 881. 20 resulted. However, a community member was eventually "arrested" for assault and, after appearing before William Duncan at Port Essington, was imprisoned for a month . In 1875, Rev. Robert Tomlinson was asked to find out the reasons for escalating tensions between the Lixs giigyet and the Gitxsan in the Hazelton area communities. Tomlinson observed that since the slow down in the Peace River Mines most Gitxsan men were out of pack work, During the "gold excitement," community members were making hundreds of dollars as packers and providing related services, such as guiding. By 1875, they were hardly making "tens." It appears that this sudden drop in income resulted in Gitxsan men regularly stealing from, and browbeating, the few Lixs giigyet who ventured into the area34. Though at the time the issues were reportedly attributed to the slackening of the regional economy, the underlying causes were situated in trespass. According to the Gitxsan, the Lixs giigyet were infringing on their trespass laws, by not first securing permission before they entered into the territories, and not offering payment to pass through or ford rivers. The accidental death of Billy Owen at Hazelton while in the employ of A.C. Youmans, a merchant of ten years in the area, brought to the surface the hostilities between the Lixs giigyet and the Gitxsan. Youmans was killed, according to the Gitxsan law, after the accidental drowning of a young man by the name of Billy Owen. Billy's father Haatq stabbed Youmans in public, and Youmans died a short while later . Henry Roycraft, Superintendent of the B.C. Provincial Police, the assigned magistrate, demanded that the person who "murdered Youmans," surrender. Haatq did so, against the wishes of the community. Haatq admitted to stabbing E. Pettingell [Statement] September 18, 1874 in: Church Missionary Society, Duncan Papers 16055 University of British Columbia Archives. 3 4 Rev. Robert Tomlinson Journal 1874, Church Missionary Society, vol. 106 #143. 3 5 H. Foster, "The Queen's Law is Better Than Yours: International Homicide in Early British Columbia," in J. Phillips, T. Loo and S. Lewthwaite, eds., Essays in the History of Canadian Law, vol. 5, Crime and Criminal Justice (Toronto: University of Toronto Press, 1994) 41. 21 Youmans and in his defence spoke that it was his understanding that Youmans had a hand in the death of his son, as he had kept his death secret for three days. Haatq was remanded for trial and sent to Victoria. The Seem 'ogits of the area wrote to Victoria arguing for clemency and urging the Government to pardon Haatq, as he was only following First Nations' law. The Seem 'ogits explained the "laws of the Kitiskseans," and outlined the possibility that Youmans could have had a hand in the death of Billy. The Seem 'ogits said: If one Kitisksean A, asks another, B, either to work for him or to go hunting or fishing and that B should die from any cause while so employed, then A, when he arrives back at his village at once tells the relations of B and also gives the relations a present to show that he, A, had no bad feelings against B and that he does not want any bad feelings between B's relations and himself. If A does not tell about the death of B shortly after his return and is then supposed to have had a hand in the death of B then the relations will [sic] kill him for as [sic] they suppose he has killed their relations37. The resulting conviction and subsequent gaoling of Haatq brought a further lobby by Saim 'ogit Geddun-cal-doe. Saim 'ogit Geddun-cal-doe restated what other Gitxsan Saim 'ogits had said earlier, at Haatq's preliminary hearing, that Youmans' actions indicated guilt, and that Haatq was justified to take his life. The response by Attorney General John Robson only stated that though it may have been more prudent of Youmans to follow "Indian custom," he made it clear that Gitxsan law "was not binding on him," and it was the Queen's law by which all people, "Indians and Whites alike, are now governed38." Robson may have been correct in suggesting that Gitxsan Jaw was not binding on the Lixs giigyet, but'to suggest that Gitxsan law held little merit, without debate, seemed to exacerbate an already tense situation. "An Eye for an Eye," [Daily] Colonist, (21 June 1884) n.p. "Chiefs of Kitseguecla," [Daily] Colonist, (7 September 1884) n.p. Editorial [Victoria Daily] Colonist (21 June 1884) n.p. 22 Similarly, another justifiable homicide in the eyes of the Gitxsan created such tensions in the area that the Gitxsan almost declared war on the Lixs giigyet. A dispute started with a shaman called Neatsqu from Gitsegukla (Kitsegukla) who had claimed the right to the name of Hanamuq at an earlier Yukw and ended with his death at the hands of Hanamuq 's husband Kamalmuk (Kitwancool Jim) in February of 18 8 839. Kamalmuk killed Neatsqu after the death of his two sons from measles, as Kamalmuk refused to give Neatsqu some blankets, required by Gitxsan ayooks, which would have provided Neatsqu the necessary payment to prevent his sons from falling ill . Kamalmuk went home to Kitwancool believing that issue was over. Neatsqu's family, however, wanted revenge for his death and the Rev. William Pierce was able to convince them to put the entire "issue in the hands of the law40." The Kitwancool community felt that Kamalmuk was justified in killing Neatsqu. The subsequent death of Kamalmuk at the hands of the Constable escalated tensions in the region. Though the Gitxsan responded first by deferring to their own law, they eventually placed this matter before Magistrate Fitzstubbs (only after the Gitxsan had been threatened with an open armed confrontation) hearkening to the promise made after the 1872 fire at Kitsegukla. In restoring order, Fitzstubbs invited the Seem 'ogit(s) of Gitanmaax, Kitwangak, Kitsegukla, Kispiox and Hagwilget to a meeting where he summarized the Queen's Law. It was important to Fitzstubbs to outline the "terms in which they were to live in the future." This included a clear statement about how disputes were to be resolved, an outline of what the law prohibits, that it would be the Seem 'ogits who would bring forward the disputes to the Judges, and every person "Kitwancool Jim" [Victoria Daily] Colonist (7 November 1888) n.p. 4 0 W.H. Pierce, From Potlatch to Pulpit: Being the Autobiography of the Rev. William Henry Pierce, Native Missionary to the Indian Tribes of the Northwest Coast of British Columbia (Vancouver, B.C.: The Vancouver Bindery Ltd. 1933) at 58 to 59 & W.H. Pierce, "Evils of . Indian Witchcraft," The Western Recorder (1928) May at 8. 23 high or low was "bound by and protected by the law." Furthermore, the Seem 'ogits were presented with the choice to continue to operate under Gitxsan law, or be faced with war41. The Crown did not acknowledge the importance of Gitxsan law when it came to concerns over unknown deaths. The knowledge of the resolution of these matters, though understandably different from the common law, would have afforded the Crown additional understanding of Gitxsan customary law and remedies. Such an investigation at this time would have revealed the root cause of the tensions in the region - the waning independence of the community, their disappearing land and resource base, coupled with issues of forced inclusion into Canada, without definable rights. According to Rev. Tomlinson, the Gitxsan claimed that the: exclusive right we (the Gitxsan) claim to hunt, fish and gather fruit in any particular place is an hereditary right enjoyed by us before the white man came among us. It is a right most vigorously upheld by all our tribes, • 42 without exception . The only solution sought to resolve these conflicts by Canada43 was the establishment of the Babine Indian Agency in 1889, mainly to keep the peace. The Land Question Besides the inability of the Provincial and Dominion governments to acknowledge Gitxsan law, the Gitxsan were nervous that the Government was sending more Lixs giigyet to steal their land. Until the early 1880's Lixs giigyet rarely stayed around the forks of the Skeena, Bulkley and Kispiox Rivers, and appeared to be just passing through. However, the improvements to the district, the telegraph line and upgraded trails, spurred by discovery of gold 4 1 N . Fitzstubbs, Proceedings at Hazelton, (1888) October 18 in: RG 10 vol. 3802 file 49774 National Archives of Canada. . , 4 2 Editorial, [Victoria Daily] Colonist, (21 June 1884) n.p. 4 3 Department of Indian Affairs Annual Report, 1889. 24 at Lome Creek and in the Omineca district, brought steady Newcomer traffic into the area. As a result of these opportunities, the Lixs giigyet became permanent residents and they were staking out homesteads and competing for "country foods and furs" alongside the Gitxsan. This competition for resources, as well as inroads by the Lixs giigyet into Gitxsan lax 'wiiyip, was occurring without the Government sitting in council with the community. B.C. Colonial - Provincial Indian Land Policy 1850 to 1875 The Oregon Boundary Treaty in 1846 between the United States and Great Britain consolidated British interests on the Northwest Coast and provided what historian Richard Mackie has suggested was, "the legitimate opportunity for the non-Native person to settle in British territory west of the Rockies44." A charter was granted-to the Hudson's Bay Company on 13 January 184945 for the advancement of colonization and the encouragement of trade and commerce, and to clear indigenous title46. However, when the colonies of Vancouver Island and British Columbia merged in 1866, not only did the First Nation title question still exist, serious flaws were apparent in the Colonial Indian land and title policy. Following the British colonial policy as reflected in the Royal Proclamation, the Hudson's Bay Company had secured fourteen "cede and surrenders" around Fort Victoria and Port Rupert by 1854. These treaties purchased the title of the community, and laid out the rights 4 4 R. Mackie, "The Colonization of Vancouver Island, 1849 - 1858" (1992/1993) 96 B.C. St. 3 at 4 [Mackie]. 4 5 Colonial Office, "Confidential Report on Vancouver Island, 1848," in: British Columbia, "Papers Relating to the Colonization of Vancouver Island," in: Report of the Provincial Archives Department of British Columbia, British Columbia Sessional Papers (Victoria, B.C.: King's Printer, 1914) at V 72 & V 73. 4 6 A. Barclay, 17 December, 1849 at A..6/28 folio: 90d - 92 Hudson's Bay Archives. 25 of the First Nation community members . For the purpose of determining the extent of the communities' title and property rights, James Douglas viewed First Nations tenure in terms of their agricultural pursuits (as defined by the colonialists), their fishing stations, village sites, cemeteries or sacred sites. Although the prevailing treaties were silent on community member's rights, Douglas' First Nation policy in general assumed that community members were to be granted the same rights as the settlers in such matters as the additional acquisition of lands adjacent to their communities48. As Robert Cail, Robin Fisher and Paul Tennant49 observed, the land settlement policy in 1850, as set out by Governor Douglas, ought to have accommodated the clearing of First Nation title according to prevailing British and North American standards, that is, through purchase. Although it had been well known since 1760 in Eastern North America and in British Canada, that the British Crown compensated First Nations for not only their title to their settlements and gardens50, but also for their hunting grounds51, the Colonial Crown appeared to The provisions in these Treaties around Fort Victoria were straightforward: the communities ceded their territories, expected that they could continue with their fisheries as before, their livelihood could continue in areas that the Colony considered "uninhabitable" or "waste," and community members were to have the same rights as the Lixs giigyet. See: "Conveyances of Land to the Hudson's Bay Company by Indian Tribes," in: British Columbia, Papers Connected to the Indian Land Question, 1850 to 1875 (Victoria, B.C.: Queens Printer, 1875) at 5 to 11 [Papers Connected to the Indian Land Question]. 4 8 There is some debate regarding this point, as Cole Harris has pointed out even though First Nation people or their communities had the right to purchase off-reserve lands they may not have been able to meet the required conditions of the pre-emption. See: C. Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (Vancouver, B.C.: University of British Columbia-Press, 2002) at 36. : . -• 4 9 R.E. Cail, Land, Man and the Law, The Disposal of Crown Lands in British Columbia, 1871 -1913 (Vancouver, B.C.: University of British Columbia, 1974); R. Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774 - 1890 (Vancouver, B.C.: University of British Columbia Press, 1977) [Fisher] & P. Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849 to 1989 (Vancouver, B.C.: University of British Columbia Press, 1991). 5 0 W.P.M. Kennedy, Statutes, Treaties and Documents of the Canadian Constitution (Toronto, Ont: Oxford University Press, 1930) at 29 & 37. 5 1 A.J. Ray, J. Miller & F. Tough, Bounty and Benevolence: A History of Saskatchewan Treaties (Montreal, Que.: McGill-Queen's University Press, 2000) at 33 to 44. 26 remain ambivalent about the legal nature of First Nation title. The government convinced itself that the lands and resources for the settlement of foreign population or by third party interests did not displace First Nation peoples from their natural livelihood. West Coast First Nation peoples " 52 * were seen to derive their livelihood as fishers, hunters or labourers and these occupations were not seen as conflicting, as the Newcomers preferred employment as farmers, miners, foresters or industrialists. West Coast First Nation people's livelihood activities did not require, in the eyes of the Crown, vast reserves, and other than lands to be set aside for their settlements, gardens, cemeteries, or locations that held significance, were deemed to be of little value or waste. Also, in some areas the Colonial government relied on arguments that denied First Nations' title to their territory, as well as their ability to manage the lands in a beneficial manner. As the Indian agent from the Kamloops Agency, William McKay, when reporting to Indian Affairs on the status of reserve lands of the Kamloops Indian Band, said in 1885: Some of the old Indians still maintain that the lands over which they formerly roamed and hunted are theirs by right. I have met this claim by stating that as they have not fulfilled the divine command, "to subdue the 53 earth," their pretensions to ownership, in this respect, are untenable . These arguments justifying the annexation of First Nation lands were based on the idea that First Nation peoples did not use the land and resources effectively and hence, could not own them. Again, the Colonial Crown relied on the supposition that the historic or pre-contact livelihood of First Nation peoples could continue undisturbed as they held property only in the products of their labour from hunting, fishing, and trapping54, and not in the territories that they habitually used. Furthermore, since the British Crown insisted that the Vancouver Island Colony British Columbia, "Report of the Government of British Columbia on the subject of Indian Reserves" in Papers Connected to the Indian Land Question supra note 47 at 7. 5 3 W.J. McKay, "Report of the Kamloops Agency" in Canada, Annual Report of the Department of Indian Affairs, 1885, Sessional Papers, vol. 19(4) (49 Victoria) (Ottawa, Ont.: Department of Indian Affairs, 1886) n.p. 5 4 United Canada, The Report of the Commissioners Appointed on the 8th of September, 1856 to Investigate Indian Affairs in Canada (Toronto, Canada: Queen's Printer, 1858). 27 be self-sufficient, Douglas was unable to convince the House of Assembly to purchase First Nation title on either Vancouver Island after 1858 or on the Mainland after 186255 or to allocate existing funds to purchase additional titles56. The issue of "funds for surrenders" continued to be debated in the Assembly, and Mr. Foster (member from Cowichan District to the House of Assembly) raised the point that there was the widespread belief by the Colonists who were purchasing or were granted land that "the money that they paid for it was partly appropriated to secure their (First Nations') title57." However, the House felt it was the responsibility of the Home Government to quiet the Indians with respect to the title question. Instead of realizing that this was in fact a "pressing issue," the House concluded that the "quieting of those claims at this time would be a serious drawback to the improvements of the colony, taxing the resources of the Colony, making it unattractive to settlers58." Due to the lack of political will the purchase of Indian lands ceased. This set up a series of logical inconsistencies. First, the Colony blatantly disregarded in general British constitutional principles of securing "a good title" by purchase to the territory from the indigenous inhabitants, before reselling the lands leaving it open to future conflicts. Second, the Colony shirked its responsibility to the settlers by permitting them to believe that a portion of the monies they were paying for the land was going towards such purchases, and the land itself was free from all covenants. As a compromise, the colony continued to act solely on its modified Reserve Only Policy. Al l future Reserves set aside in British Columbia (on the Island and on the Mainland) were to include the First Nations' cultivated fields and village sites, as well as all lands that First Nations "invariably conceive a strong attachment to, and prize more." Drawing on Douglas' goal to establish "[settlements of Natives" in order that they, would become civilized, Christian, 5 5 Editorial, [British] Colonist, (2 March 1862) n.p. 5 6 House of Assembly, January 28, 1860 in: [British] Colonist (29 January 1861) [[British] Colonist]. 57 [British] Colonist supra note 52 at House of Assembly n.p. 58 Ibid. n.p. 28 and industrious59. Douglas felt that by establishing independent settlements, he was first being fair to the State, and second, was looking "out for the regard to the well-being of the Indians." He hoped that his plan of allowing each First Nation community to choose its lands would create Native settlements that were "entirely self-supporting." Douglas predicted that the First Nations peoples of British Columbia would easily be "assimilated" into the surrounding communities, provided that they were first "placed under the proper moral and religious training, and left, under the protection of laws that would initially provide for their own maintenance and support60." Furthermore as there was a surprising lack of information about the content of First Nation governance and the substance of their title, little was done to define either the reserves or lands outside the areas identified as "special lands, cemeteries or village sites" as having any significance to community members or even under their jurisdiction. As Wilson Duff51, anthropologist, points out, writing about the Douglas Treaties, part of the problem was that the Lixs giigyet had little understanding of the nature of the West Coast land tenure or governance structures. Duff suggests that though James Douglas understood that the Songhees groups with whom he elected to "treat" were "corporate groups" owning lands "exclusively" with "definable boundaries," he neglected to investigate the nature of inter-family relationships, the use of "shared spaces" with respect to resources exploitation, and the widely dispersed seasonal sites to which the group moved around on an annual basis62. Furthermore, though Douglas affirmed the "natural employment" of the Songhees is to be left undisturbed, he failed to integrate protection of these rights into the emerging body of law, as well as to acknowledge the community's "new rights" as subjects of the Crown. 5 9 J. Douglas, March 14, 1859, in: Papers Connected with the Indian Land Question supra note 47 at 16 to 17 [Douglas]. 6 0 Douglas supra note 59 at 16 6 1 W. Duff, "The Fort Victoria Treaties," (1969) 3 B.C. St. 3 [Duff]. 6 2 Duff supra note 61 at 16. 29 Douglas' "Reserve Only Policy" was problematic. Douglas' Reserve Only Policy goals were to provide the community with "homelands," and that, over time, community members would "pre-empt lands" adjacent to these villages according to the Colonial land policy. Surplus reserve lands, not used by the community, would be "leased or sold," with the monies invested for the benefit of the community63, that is, used to provide the necessary "tutelage" and cultural instruction to community members in order that they would become indistinguishable from the colonists. It was anticipated that the community would choose their village sites, lands that they had under cultivation, cemeteries, locations that held special significance and fishing sites. The policy anticipated that the average community would be allotted on average ten acres of land per family of five. However, although the colony had expected to allocate this acreage it appears that in practice less than five acres per family were set aside. According to the surveyors' accounts they would arrive, ask an arbitrary set of members which lands were to be set aside (gardens, fishing stations, village sites, cemeteries and ceremonial grounds) and complete a cursory survey, and then leave all in a matter of days64. Though the process of identification of Reserves was initially and faithfully carried out, formal consultation with First Nation community members - the surveys, the Gazetting, and public notification, lagged behind65. Amidst the sketchy reserve allocation processes, by 1865 some reserves that had been at least surveyed, but not Gazetted, were being, as Robin Fisher (historian) describes, "whittled down66.". Joseph Trutch, then Chief Commissioner of Lands and Works, was asked by various settlers to make available to them lands that had been set aside for First Nation communities along the Thompson River. The Colonial government relied on arguments that denied First 63 Ibid, at 17. 6 4 I. W. Powell [to the Provincial Secretary, Department of Indian Affairs] August 15,1874 in: Papers Connected with the Indian Land Question supra note 47 at 139 to 140. 6 5 K. Brealey, "Travels from Point Ellice: Peter O'Reilly and the Indian Reserve System in British Columbia," (1997/98) 115/116 B.C. St. 181 at 185 [Brealey]. 6 6 Fisher supra note 49 at 9. 30 Nation people their title to their territory, as well as their ability to manage the lands in a beneficial manner. In response to a request for a pre-emption of part of a First Nation reserve along the Thompson River, Joseph Trutch wrote: The Indians nave really no right to the lands they claim, nor are they of any actual value or utility to them; and I cannot see why they should either retain these lands to the prejudice of the general interests of the colony, or be allowed to make a market of them either to the Government or to individuals67 -Also, the Reserve Allocation Commission, when adjudicating a dispute over the re-allocation of reserve lands in the Kootenay region of British Columbia in 1887, stated: You know that the white men come to this country and take up the land, according to its laws. There is a good deal of land the Indians do not use and do not require. It is the same in the Kootenay as in other places where there are Indians68. These arguments that justified the annexation of First Nation hunting lands were based on the notion that they did not use the land and resources effectively and hence, could not own them. It appears that the context of Trutch's revisionism lay in his observation that First Nation peoples did not "use" the lands that were allotted to them "properly" or "efficiently" according to European agricultural standards, and that their "assumption" of "ownership" operated "very materially to prevent settlement69." This perspective initiated two series of events. First, the size of existing Reserves was questioned, especially Reserves that had been surveyed, but not Gazetted. Second, questions arose over the use of funds from either lease revenue or sales of J. Trutch, "Report of Lands and Works Department, Enclosure: Lower Fraser River Indian Reserves," August 28, 1867 in Papers Connected with the Indian Land Question supra note 47 at 42. I. Powell, P. O'Reilly, G. Vernon [to Chief Isadore and the Kootenay Indians] October 10, 1887 in: Canada, British Columbia, Reserve Allocation.Commission Annual Report, 1887. 6 9 J. Trutch [to Colonial Secretary] September 20, 1865, in: Papers Connected to the British Columbia Land Question, supra note 47 at 30. 31 Reserve Lands. The conclusion came in a report to Governor Seymour, which advocated the reduction of Reserves, without compensation. This revisionism was contrary to the Douglas vision of the Reserves, and the use of funds, either from leases or sales. In that vision, the lands could easily become a "homeland" for the First Nation community, and monies garnered from sales or leases could be used to support education and pensions for community members. However, the Indian land and reserve policy under Trutch developed quite quickly into denial of aboriginal title, and the arbitrary allocation of relatively small parcels of lands which could be rescinded without compensation70. Douglas' compromise, inaugurated by 1856, that of the setting aside of Reserves according to the wishes of the particular First Nation community, met the satisfaction of most. However, as Fisher points out, it was when the subsequent governors, Kennedy and Seymour, permitted the erosion o f the Reserves after 1862, that the Land Question became the "Land Issue71." 79 The revisionist position of Joseph Trutch that of reducing reserve , as well as selling unused portions of reserves73, was particularly disturbing to First Nations. Their concerns centred around first the "title question," - mainly compensation for the loss of access to their territories in which they elicited a traditional livelihood from, and second the process being allocated a "reserve" then having the reserve either rescinded or a portion thereof sold, without formal relations or consultation created considerable tension throughout the colony74. Trutch's main argument for first reducing the reserves was that the size of the reserves were for the most 7 0 R. Fisher, "Joseph Trutch and Indian Land Policy" (1971 - 72) 12 B.C. St. 3 at 16 to 19 [Fisher]. 71 Fisher.supra note 66 at 157. 7 2 See: Ibid: at 163 to 165 & Papers Connected to the Indian Land Question supra note 47 at 30 to 34; 36 to 40; 46; 48 to 60 & 86 to 91. 7 3 The Songhees Reserve was sold, and monies earned went to pay for the removal of their homes to an alternate location. It is unclear if the Community members agreed to the sale, the terms, or the use of the funds. See: Papers Connected to the Indian Land Question supra note 47 at 64 to 68, 121 to 122 & 127 and S. Hume, "Legislature is on our land, B.C. Natives: Governments are 'trespassing,' Band claims," [Vancouver] Sun (25 August 2001) A l & A8. 7 4 Fisher supra note 49 at 180. 32 part "disproportionate to the numbers and requirements of Indians residing in those Districts ," and, when faced with the justification of the reduction, as well as the cost, Trutch, instead of heading the advise of his colleagues to purchase the surplus lands, elected to question the legality of the allocation policy in general, as there was "no written document on the matter in the land office76." Reserve allocation and the soundness of British Columbia's.title were raised by Canada in talks with British Columbia before and after Confederation. In a letter written by Joseph Trutch on the eye of Confederation to Prime Minister J.A. MacDonald, he made it quite clear that the "Indians," as special wards of the Crown, had lands set aside that were both proportionate and sufficient for their needs, and the: title of the Indians in fee of the public lands, or any portion of, therefore, has never been acknowledged by Government, but on the contrary, is strictly denied. In no case has any special agreement been made with any of the tribes of the Mainland for the extinction of their claims of possession; but these claims have been held to have been fully satisfied by securing for each tribe, as the progress of the settlement of the country seemed to require, the use of sufficient tracts of land for their wants for 77 agriculture and pastoral purposes . However, during the Confederation debates, there was some discussion of the Indian Question. One motion proposed "protection of Indians during the change of government," (defeated 20 to 1) and another motion that would have extended "Canadian Indian Policy to the Province," was withdrawn78. Clause 13 of the final Terms of Union was added in Ottawa,.and / 5 J.W. Trutch [to w. Moberly] October 10, 1865, GR 1372 (Reel: B-1351). 7 6 J.W. Trutch, Report of the Lower Fraser Indian Reserve, August 28, 1867 in: Papers Connected to the Indian Land Question supra note 47 at 41 to 43. 7 7 J.W. Trutch [29 January] 1870 Report of the Government of British Columbia on the Subject of Indian Reserves, 1875 in: Papers Connected to the Indian Land Question supra note 47 at 11. 7 8 British Columbia Legislative Council, Debate on the Subject of Confederation with Canada, Reprinted from the Government Gazette Extraordinary of March, 1870 (Victoria, B.C.: Queen's Printer, 1870) at 146 to 147. 33 the drafting attributed to Trutch . Though Clause 13 transfers the "charge of Indians to the Dominion," it states "that a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union ." Canada was unaware that "liberal" treatment meant that it had been the practice of the local government to allocate only 10 acres per family of five. Canada's policy had been equally clear, in that its practice had been to allocate at minimum 80 acres per family of five, that the Dominion receive a formal surrender of all traditional lands, that continued access to hunting, fishing, and trapping lands be maintained, an annuity be assessed and given, and that "Indians and lands reserved for Indians" were to be administrated under the auspices of the Indian Act. After Confederation it became apparent to David Laird, Canadian Minister for the Interior, that the framers of this clause "could hardly have been aware of the marked contrast between the Indian policies which 81 had, up to that time, prevailed in Canada and British Columbia, respectively ." The response to these enquiries prompted Joseph Trutch to state emphatically that: The Canadian system, as I understand it, will hardly work here. We have never bought out any Indian Claims to land, nor do they expect we should, but we reserve for their use and benefit from time to time tracts of sufficient extent to fulfill all their reasonable requirements for cultivation or grazing. If you now commence to buy Indian title to the lands of B.C. you would go back on all that has been done here for 30 years past and would be equitably bound to compensate the tribes who inhabited the districts now settled or farmed by white people equally with those in the more remote and uncultivated portions82. It was all too apparent to the Dominion that the Indian land question was not going to be resolved easily. There were concerns and discussions going on about the state of Indian affairs 7 9 Cail supra note 49 at 187. 8 0 Report of the Government of British Columbia on the subject of Indian Reserves, August 17, 1875 in: Papers Connected with the Land Question supra note 47 Appendix at 1. 8 1 D. Laird, Memorandum November 2, 1874 in: Ibid, at 152. 8 2 J.W. Trutch [to J. A. Macdonald] in: J. Pope, Correspondence of Sir John Macdonald: Selections from the Correspondence of Sir John Alexander Macdonald, G.C.B., First Prime Minister of Canada (Toronto, Ont.: Oxford University Press, 1921) at 185. 34 in British Columbia, especially the failure to extinguish Indian title, and the report of the Justice Minister as to whether Land Laws enacted in British Columbia should be allowed or disallowed by the Dominion Government. Though there is a strong argument put forward in the report to disallow or to amend the Land Act, which affected Crown Lands in British Columbia, as Telesphore Fournier, the Justice Minister, noted, the British Columbia Legislature had by "statute admitted Indian sovereignty to all lands of the Province", and since there were no formal surrenders, "the Indians" could claim title to the entire Province. Fournier substantiated his statement by.pointing out that "from the earliest times, England has always felt it imperative to meet the Indians in council, and to obtain surrender of tracts of Canada." The compromise was to organize a Reserve Allocation Commission to settle the Indian Land Question and the Minister of Justice concluded with these words: Upon this assurance of the Government.of British Columbia the undersigned recommends that the Act be left to its operation. Although the undersigned cannot concur in the view that the objections taken are entirely removed by the action referred to; and, though he is of opinion that, according to the determination of council upon the previous Crown Lands Act; there remains serious question as to whether the Act now under consideration is within the competence of the provincial legislature, yet since, according to the information of the undersigned, the statute under consideration has been acted upon, and is being acted upon largely in British Columbia, and great inconvenience and confusion might result from its disallowance; and, considering that the condition of the question at issue between the two governments is very much improved since the date of his report, the undersigned is of opinion that it would be the better course to leave the Act to its operation83. A three-man Indian Reserve commission was set up by joint agreement of the two governments, the Government of Canada and the Government of British Columbia. More 8 3 T. Fournier, "Report of the Honourable Minister of Justice, approved by His Excellency the Governor General in Council, 23 January, 1875" in: W.E. Hodgins, comp. Correspondence, reports of the Ministers of Justice and Order in Council upon the Subject of Dominion and Provincial Legislation, 1867 - 1920 (Ottawa, Ont: Government Printing Bureau, 1896-1922) at 1:1024 to 1:1025 [Fournier]. ,35 specifically, they directed their attention to the allocation of reserves - Indian reserves in British Columbia based on the formula of 20 acres per family of five, and great care was to be taken not to disturb the "enjoyment of their customary fishing grounds," which were to be reserved for them. Fournier sensed that British Columbia was attempting to legislate with respect to public lands, as though those lands were its absolute property. As Fournier observed, Article 109 of the British North America Act, 1867 conveyed public lands "subject to any trust existing thereof, and to any interest other than that of the province in the same84" and this had been understood by the Dominion to be "some First Nations interest" in the public lands of the province. The significance of Fournier's argument to the B.C. Land Question, as far as First Nations were concerned, was that it was obvious that, until aboriginal title was cleared, they held this interest. In an attempt to bring the significance of the resolution of the Indian Land Question to the attention of not only Provincial officials, but to the general population of British Columbia, Lord Dufferin in his address in Victoria, 1876 in part stated: In Canada this has always been done: no Government, whether Provincial or central, has failed to acknowledge that the original title to the land existed in the Indian tribes and communities that hunted or wandered over them. Before we touch an acre we make a treaty with the chiefs representing the bands we are dealing with, and having agreed upon and ; paid the stipulated price, often times arrived at after a great deal of haggling and difficulty, we enter into possession, but not until then do we consider that we are entitled to deal with an acre. The result has been that in Canada our Indians are contented, well affected to the white man, and amenable to the laws and Government. At this very moment the Lieutenant Governor of Manitoba has gone on a distant expedition in order to make a treaty with the tribes to the northward of the Saskatchewan. Last year he made two treaties with the Crees and Chippeways, next year it.has been arranged that he should make a treaty with the Blackfeet, and when this is done the British Crown will have acquired a title to every acre that lies between Lake Superior and the top of the Rocky Mountains. But in British Columbia, except in a few places where, under the jurisdiction of the Hudson Bay Company or under the auspices of Sir James Douglas, a similar practice has been adopted, the Provincial Government has always assumed that the fee simple in, as well Fournier supra note 83 at 1:1024 to 1:1025. 36 as the sovereignty over the land, resided in the Queen. Acting upon this principle they have granted extensive grazing leases, and otherwise so dealt with various sections of the country as greatly to restrict or interfere with the prescriptive rights of the Queen's Indian subjects. Asa consequence, there has come to exist an unsatisfactory feeling amongst the Indian population. Intimations of this reached me at Ottawa two or three years ago, and since I have come into the Province my misgivings on the subject have been confirmed. Now, I consider that our Indian fellow-subjects are entitled to exactly the same civil rights under the law as are possessed by the white population, and that if an Indian can prove a prescriptive right of way to a fishing station, or a right of any other kind, that that right should no more be ignored than if it was the case of a white man. I am well aware that among the coast Indians the land question does not present the same characteristics as in other parts of Canada, nor as it does in the grass countries of the Interior of this Province, but I have also been able to understand that in these latter districts it may be even more necessary to deal justly and liberally with the Indian in regard to his land rights than on the prairies of the North-West. I am very happy that the British Columbian Government should have recognized the necessity of assisting the Dominion Government in ameliorating the present condition of affairs in this respect, and that it has agreed to the creation of the joint commission for the purpose of putting the interests of the Indian population on a more satisfactory footing85. According to Paul Tennant86 (political scientist), although Canada initially tried to manoeuvre British Columbia (after Confederation in 1871) into a more favourable First Nation policy, it became apparent by 1875 that the only compromise that could be reached would be with respect to Reserve size, omitting the important question of aboriginal title throughout the traditional territory of the any one of the First Nations. Thus, by the turn of the century, the myth of unencumbered Crown title prevailed in the minds of the Lixs giigyet. This was maintained, as Fisher points out, through explicit Provincial legislation that excluded the political voice of First Lord Dufferin made a tour of British Columbia and spoke with numerous First Nation leaders in Prince Rupert, throughout the interior and in the Lower Mainland before visiting Victoria where he delivered a speech laying out his sentiments regarding the. treatment of the First Nations' land question. Speech of Ld. Dufferin, September 20, 1876 in: G. Stewart, Canada Under the Administration of the Earl of Dufferin (Toronto, Ont." Rose-Belford Pub. Co., 1878) at 492 to 493. 8 6 Tennant supra note 49 at 41. 37 Nations , and by the administration of Federal Indian policy without clear "rights" set out for the communities88. The Establishment of the Reserve Commission in 1876 In the aftermath of what Cail describes as "duel-by-letter," the Indian Reserve Commission was created in 1875; its mandate was: to visit with all convenient speed, in such order as may be found desirable, each Indian nation... in British Columbia and after a full inquiry on the spot... to fix and determine for each... the number and extent, and locality of the Reserve or reserves to be allowed to it 9 0. Initially the Commission was composed of three men, Archibald McKinley (for the Province), Alexander Anderson (for the Dominion) and Gilbert Sproat (a joint appointment of both governments) with a mandate to fix reserves according to the wishes of the community, with the allocated reserves being held in trust by the Dominion91. By 1877 the Provincial government was complaining about the expense, and in 1880 Peter O'Reilly was appointed the sole Commissioner. In general, the Reserve Commission in allocating lands was to: have special regard to the habits, wants and pursuits of [Indians,] to assist [them] to raise themselves in the social and moral scale ... encourage them in any branch of industry [and to ensure] an ample provision of water93. Chief J. Mathias and G. Yabsley, "Conspiracy of Legislation: The Suppression of Indian Rights in Canada" (1991) 89 B.C. St. 34 at 3.8. 8 8 Canada, The Historical Development of the Indian Act (Ottawa, Ont.: Treaties and Historical Research Centre, P.R.E. Group, Indian and Northern Affairs, 1978) at 71 to 121. 8 9 Cail supra note 49 at 192 to 206. 9 0 R.W. Scott, Memorandum from Minister of the Interior, November 5, 1875 in: Papers Connected with the Indian Land Question supra note 47 at 161 to 16 [Scott]. 9 1 Breasley supra note 65 at 186. 9 2 P. O'Reilly held the post of Reserve Commissioner from 1880 to 1898, and during his tenure he allocated 694 reserves, with a total 654 of these reserves surviving to the present. Breasley supra note 65 at 222. 9 3 Scott supra note 90 at 163. 38 The first attempt to settle the land question by the Reserve Commission on the north coast started earnestly in 1882. O'Reilly, however, was only instructed to survey Reserves according to the prevailing standards that of the setting aside of lands that community members felt strongly about, their village sites, gardens and cemeteries94. He ran into some antagonism from the Nisga' a and Tsimshian people, Gitxsan neighbours. While the. controversy with the Nisga'a and Tsimshian had more to do with fishing issues95 and an ecclesiastical dispute at Metlakatla96, the result was that O'Reilly was expelled from the area in 1881. This expulsion led to the Northwest Coast Royal Commission in 1886. In their presentation to the Commission the Nisga'a and Tsimshian lobbied that "a treaty be made with them with reference to the land," "a sum paid down, or annual subsidies" or in "lieu of payment" community members be allowed to choose land outside of the reserves at "160 acres for each individual ." The resulting Northwest Coast Commission revealed that the Tsimshian and Nisga'a were concerned with more than just the "loss of lands." They feared a loss of freedom, were concerned about Federal Indian Administration, and they wanted a "treaty98." Their demands were determined to be unrealistic, and were only addressed in the form of the Reserve Commission re-visiting the region at a later time. The North West Commission only reported these findings to the Provincial and Federal governments; no action was taken other than continuing to allocate reserves. The Reserve Commission did not reach Gitxsan territories until the 1890's. By this time it was generally known that the setting aside of reserves begged the question of "title." When O'Reilly came to the Skeena there was widespread opposition by the Gitxsan to any reserve 9 4 J. Douglas [14 March, 1859] in: Papers Connected with the Indian Land Question supra note 47 at 16 to 17. 9 5 D. Raunet, Without Surrender, Without Consent: A History of the Nisgha Land Claims (Vancouver, B.C.: Douglas & Mclntyre, 1984) at 114 to 116. 9 6 A. Retting, "A Nativist Movement at Metlakatla Mission" (19.80) 46 B.C: St. 28. 9 7 P. Patterson, "Decade of Change: Origins of the Nisgha and Tsimshian Land Protests in the 1880's" (1983) 18(3) J. of Can. St. 40 at 44 [Patterson]. Brealey supra note 65 at 212. 39 allocation. The Gitxsan knew that the Nisga'a, fearing that their lands might be taken from them, and their removal from fishing stations assigned to Tsimshian people, had expelled the surveyors in 188299. Similarly, the Gitxsan were aware that the Tsimshian had been told about how the Songhees People had been treated in Victoria and were fearful that their reserve would also be given and then taken. E a r l y L a n d Cla ims: 1884 to 1888 The Royal Commission conducted at Lome Creek in late 1884 revealed that the concerns of the Gitxsan were not really about incidental "trespasses" or the Lixs giigyef inability to work with Gitxsan law. It was about land, resources and authority in their lax 'wiiyip. The Gitxsan petition requested Government assistance to sort out the Land Question as they saw it. To the Gitxsan the district was theirs, the resources in it - theirs and authority over the "persons" in it -theirs, and the presence of the Lixs giigyet without clear relations were unsettling and incomprehensible to them. The Seem 'ogits argued: From time immemorial the limits of the district in which our hunting grounds are found have been well defined. This district extends from a rocky point called "Andemane" some two and a half or three miles from a village on the'Skeena River to a.creek called "She-quin-khatt," which empties into the Skeena bekow Lome Creek. We claim the ground on both sides of the river, as well as the river within these limits, and as all our hunting territories, fruit gathering and fishing operations are carried out in this district, we truly say we are occupying it. The district is not held unitedly by all the members of the tribe but is portioned out among the several families, and no family has a right to trespass on another's grounds: so that if any family is hindered from hunting on their own ground, there is nowhere else for them to go - they lose all the benefits they derived from their hunting, as they cannot follow the animals across the bounds into their neighbour's grounds. We would liken this district to an animal, and our village, which is situated in it, to its Patterson supra note 97 at 49 to 52. 40 heart. Lome Creek, which may be likened to one of the animals [sic] feet, we feel that the white men, by occupying this creek, are, as it were, cutting off a foot. We know that an animal may live without one foot, or even both feet; but we also know that every such loss renders him more helpless, and we have no wish to remain inactive until we are almost or quite helpless. We have carefully abstained from molesting the white men during the past summer. We felt that though we were being wronged and robbed, but as we had not given you the time or opportunity to heip us, it would not be right for us to take the matter into our own hands. Now we bring the matter before you, and respectfully call upon you to prevent the inroads of any white men upon the land within the fore-mentioned district. In making this claim we would appeal to your sense of justice and right100. For the Seem 'ogits, the most significant parts of the petition suggested that the district was "not held unitedly by all members of the tribe," but was "portioned out among the several families" and if, "any one family is hindered on their own ground," they have no "right to trespass on another's land" losing the "benefits they derive from their hunting" if the animals cross over to another Seem'ogit's territory. The Seem 'ogits asserted: ... We hold these lands by the best of all titles. We have received them as gifts from the God of Heaven to our forefathers, and we believe that we cannot be deprived of them by anything short of direct injustice. In conclusion, we would ask you, would it be right for our chiefs to give licence to members of the tribe to go to the district of Victoria to measure out, occupy and build upon lands in that district now held by white men, as grazing or pasture land? Would the white men now in possession permit it, even if we told them that, as we were going to make a more profitable use of the land, they had no right to interfere? Would the government permit it? If it would not be right for us so to act, how can it be right for the white men to act so to us101? This claim of the Seem'ogits was based on Gitxsan law and governance structure. The Gitxsan continued to press for recognition of their title, and were desirous of reaching agreements with the Dominion that included the integration of their laws and governance in their lax 'wiiyip. They argued that their rights were exclusive rights claiming that they could hunt, fish 1 0 0 S. Rush, Proceedings at Trial, (1987) vol. 2 May 11 at 70 [Rush]. 41 101 Rush supra note 100 at 70. or gather fruit in any particular place, and these rights were: hereditary rights enjoyed by us before the white man came among us. It is a right most rigorously upheld by all our tribes without exception. Our hunting and fruit gathering are the principal sources of our livelihood. Do away with them and we are at the mercy of the white man. We are prepared to maintain them in our own way or we are willing for the government to maintain them for us by law but we will not permit them to be interfered with . Reserve Allocations: 1891 to 1898 Regrettably neither the Federal government, nor Provincial authorities, grasped Gitxsan concerns. A clear response to this petition in 1884 might have sent future "Land Question" debates on a distinctly different trajectory. There was no negotiated response. The only response came in the form of the appointment of the Reserve Commissioner, Peter O'Reilly 1 0 3. In theory, the allocation of reserves was insufficient to address Gitxsan concerns without a defined relationship and clearly articulated rights of access throughout their territories. The Reserve Only Policy forwarded initially by first the Colony (and after Confederation by the Province) and endorsed by the Dominion of Canada, fell short of the expected adherence to British North American constitutional norms, where the Crown met the First Nation community in Council to discuss terms of surrender, annuities, Reserves, rights of access to traditional territories and the subsequent relationship. -Reserve allocations, though slowed down in Nisga'a territories, went ahead as scheduled around Gitxsan communities. In August of 1891 O'Reilly made a hasty survey trip and allotted reserves at Gitanamaax, Hagwilget, Moricetown, Babine Lake, Kispiox, Gitsegukla and 1 0 2 R. Tomlinson [to the Provincial Secretary] October 20, 1884 in: Galois supra note 35 at 16459. 1 0 3 Brealey supra note 65 at 187. 42 Gitwankga and he encountered opposition at Kispiox and Gitwankga. At Kispiox, community members wanted their entire traditional territories put aside. O'Reilly could not do this, and pointed out to them that they would have continued access to their berry-picking places, hunting grounds and fishing stations. It was only when O'Reilly convinced community members they would not be confined to the "reserve," that he was able to go ahead with the survey and most issues regarding the question of title quieted104. During a second visit in 1893, opposition was voiced at Gitwankga. The resident Indian Agent, R.E. Loring, mediated the disputes, and the surveyors continued with their work. For the most part, Reserve allocation continued steadily from 1888 until 1900. Gitxsan concerns, however, were not limited to the recognition of title. Rather, issues of trespass, the imposition of Indian Act strictures with respect to movement off Reserve, the Anti-Potlatch Laws, and sales or leasing of Reserve lands, were the main considerations of the Saim 'ogit('s). In 1889, shortly after the Babine Indian Agency was opened, Loring reported that the "Kits-pioux Saim 'ogit(s)" opposed any new law that the Government was going to bring into the territory, especially the banning of the Potlatch105, emphatically reiterating what was stated to him: My Uncle is the head Chief of the Kits-pioux, the same told me, to oppose any new law that should come to this country. That they had their own laws and they wanted no other. I know that the law is against stealing etc. 1 0 4 R. Galois, Proceedings at Trial, (1989) vol. 226 May 18 at 16533 & 16536 to 16537. 1 0 5 Resistance to the "Potlatch" had been mounting in the years prior to the amendment of the Indian Act in 1884 (An Act to Amend "The Indian Act, 1880" S.C. 1884, c.27 (47 Vict.) by various Newcomers throughout the Province. The clergy had a list of reasons to "ban" the Potlatch. Their list ranged from the "wanton destruction of property," the "giving away of excessive amounts of property," the "eating of dogs", to the "fact that it promoted laziness" and "indebtedness." However there was also a similar lobby by other clergy to quiet this protest, arguing that the "potlatch" was similar to many Christian festivals. Even though there were few arrests and even fewer convictions, the legislation was quite threatening as it stipulated that, if convicted, hosts or participants in feast activities would face "imprisonment for a term [of] not more than six nor less than two months in any gaol or place of confinement." See: C. Bracken, The Potlatch Papers: A Colonial Case History (Chicago, 111.: University of Chicago Press, 1997). 43 I am an officer of the law myself. We do not want anyone to come to Kits-pioux with any new laws for the Govt. How would the Gov'ent like to have their laws locked up, as they do ours106. More importantly, the Gitxsan realized that the Lixs giigyet were not only passing through to mine, they were fencing off sections of Gitxsan lax 'wiiyip for agricultural pursuits, staying and, by 1896, were the majority in the area. Loring, like his predecessor Captain N. Fitzstubbs107, was unable to find reasonable arguments for why "potlatch" participants should be arrested. Loring agreed with Fitzstubbs that over time the Yukw would cease, and arresting Gitxsan people for either holding the "feast, or "attending" it, only courted resistance. Furthermore, the law was proving to be ambiguous, as the "Potlatch" could arguably be just a funeral feast, similar to a Christmas or Easter celebration, or just a community social108. In fact, as Loring observed, the Gitxsan within several years had already refrained from the offensive aspects of the feast. It appeared that the Gitxsan had curtailed the eating of dogs, and the wanton distribution of property, or its destruction. As far as Loring was concerned, the Yukw by 1901 had disappeared, or more accurately, had been modified. However, the Gitxsan, as Loring observed by 1897, still recognized the role of the Yukw in the significance of "becoming a man of consequence," in that by "attending the ceremony in adopting a departed's place and name" Gitxsan still retained their intimate relationship to their lax 'wiiyip. It appeared as long as the community kept the peace and acted 1 0 6 R.E. Loring [to A.W. Vowell] 12 October 1889, in: RG10 vol. 3831 file 62997 National Archives of Canada. 1 0 7 Enforcement of the Potlatch laws put the plan of indirect rule of Capt. N. Fitzstubbs into jeopardy, however the Kitwangak Seem 'ogits accepted the office of constables after Capt. N . Fitzstubbs agreed to let the Potlatch law "sleep for the winter." N . Fitzstubbs [to C.W.D. Clifford] in: RG10 vol. 3628 file 6244-1 National Archives of Canada & N . Fitzstubbs [to Attorney General] 5 January 1889] in: Babine Agency Letter-book RG 10 vol. 1585 National Archives of Canada. 1 0 8 C F . Roth, "Goods, Names, and Selves: Rethinking the Tsimshian Potlatch" (2002) 29 (1) Am. Eth. 123 and D. Cole and I. Chaikin, An Iron Hand Upon the People: The Law Against the Potlatch on the Northwest Coast (Vancouver, B.C.: Douglas & Mclntyre, 1990). 44 with discretion, Loring was satisfied to ignore "Gitxsan ritual life." Loring was kept busy settling fishing disputes, and ensuring that all community members had enough wood and food for the winters. Besides this routine business, his reports are filled with the continued allocation of Reserves and the dispensing of relief109. Stewart - Vowe l l 1 1 0 Commission In the years just prior to the 1910 Petitions, the Lixs giigyet were migrating into the Upper Skeena. The construction of the Grand Trunk Pacific Railway created new markets, as well as access to outside markets, stimulating the agricultural, mining and forestry industries. Though preferring the Bulkley Valley in Wet'suwet'en territory, the Lixs giigyet made their way into the Kispiox and Kitwanga Valley. These moves immediately alarmed the Kispiox and Kitwancool communities, raised again in earnest the land title question. From contacts at the coast, Gitxsan were able to join up with the larger Provincial Land Claims movement that sought, firstly by lobbying Ottawa, and additional legal means, to get an acknowledgement of aboriginal title. In general, First Nation Communities sought compensation for their territories that had been alienated, explicit rights for hunting, fishing and trapping, citizenship rights, and recognition of their right to self-government111. Issues around the Hazelton - Kispiox area came to a head in 1908 when a series of conflicts arose in Gitxsan, Gitanyow and Wet'suwet'en 1 0 9 R.E. Loring [to A.W. Vowell] 15 July 15 1897 in: Babine Agency Letter-book RG 10 1585 National Archives of Canada. 1 1 0 A.W. Vowell for many years was the Superintendent of Indian Affairs in Victoria became the Indian Agent at the Babine Agency in 1909 after R.E. Loring retired. Mr. Vowell also had been a surveyor under the auspice of Peter O'Reilly. See: R.M. Galois, "Indian Rights Association, Native Protest Activity and the 'Land Question' in British Columbia, 1903 - 1916" (1992) 8 (2) Nat. St. Rev. 1. 1 1 1 Proceedings, New Kitsegucka Meeting (1891) September 30. See: R.E. Loring Statement October 1, 1891 & L. Akacoket Statement October 1, 1891 in: RG 10 vol. 3571 file 126A National Archives of Canada. 45 communities over continued Newcomer inroads in the area. The Department of Indian Affairs promised an enquiry into the grievance of the communities. During the meeting in Hazelton, July 18 and 19, 1909112, Special Commissioners Stewart and Vowell (appointed by the Department of Indian Affairs) listened to Gitxsan grievances. Though nothing concrete materialized from these meetings, the Gitxsan did crystallize their sentiments about the land question. The Gitxsan claimed the right to occupy and to administer this territory according to their laws and customs, asserting that Seem 'ogits were the owners of the lands - "the lands of their forefathers," thus for the Gitxsan there was "no vacant or un-owned land" in their lax 'wiiyip, for "the sum of the territories owned by each Seem 'ogits equaled Gitxsan territory113." They contended that the current reserve system was against their traditional ways, and, as the land had neither been taken from them by conquest, nor been purchased, thus they laid claim to the entire region. It is evident that the Gitxsan wanted to re-assert their authority in their lax 'wiiyip. They said, through a gentleman from the area: Why should we give up our land to the white people? We have lived in this valley for generations. My father was killed here in a fight to drive our enemies away; my grandfather was killed further up the river in a fight for the same purpose. What reason is there for us to give up our land to the first white man that comes along?114 The only real response the government could muster was to continue the survey of additional reserves, as well as sending Rev. J. McDougall to the Skeena River to consult with the communities to determine their grievances, and ensure that the Lixs giigyet had not, and would not encroach on the community lands. However, the grievances were similar throughout the 1 1 2 R. Galois, Proceedings at Trial, (1989) vol. 227 May 19 at 16556 to 16558. 1 1 3 "Indian Unrest," [Vancouver] Province (16 July 1909). 1 1 4 "The Northern Indians," [Daily] Colonist (16 July 1909). 46 territories. The Gitxsan claim against the government was still straightforward. They professed: The Government has never done anything for us. The land belongs to us. We are living in hope day by day that the Government will do us right. Take the reserves and the Indian Act and let us die in peace. Give us back the right which was ours. Deer, fish, fruit and liberty. The strong man has done us wrong. We ask the Government to do for us what is fair and right"5. , Once again the community members wanted their historic title acknowledged. Besides affirmation of title, they desired to be given the franchise. The Gitxsan now realized that "being disenfranchised," meant that they did not have a voice in regional matters. Furthermore, they desired that separate "legal and administrative" structures be abolished116. McDougall recommended that the Federal and Provincial government secure the "extinguishment of the Indian title to the lands in British Columbia117." In 1907, the Province of British Columbia, through a Minute-in-Council, gave official notice to the Federal Government regarding two areas of disagreement over the allocation of reserves. The Province argued that some Reserves were too large, and that the reversionary interest in the Reserve lands was vested in the Province118. Adding to this turmoil, the Province launched legal proceedings in the B.C. Supreme Court laying claim to lands that First Nations had abandoned, as well as seeking the disposition of the resources on the reserves in general"9. Though the case was dropped in British Columbia to be taken to the Supreme Court of Canada 1 1 5 Galois supra note 20 at 151 & J. McDougall [to McLean] 21 September 1909 in: RG10, vol. 7786, file 27151-1 National Archives of Canada. 116 Ibid, at 152 & J. McDougall, 22 September, 1910 in: RG10, vol. 4020, file 280 at 470 to 472 National Archives of Canada. 117 Ibid, at 151 & J. McDougall [to Oliver] 11 March, 1911 in: RG10 vol. 4020, file 280 at 470 to 472 National Archives of Canada. 1 1 8 Editorial, [Victoria Daily] Times (2 January 1908) n.p. & British Columbia Gazette December 27, 1907 at 8695. 1 1 9 A. O'Mera, The Indian Land Situation in British Columbia: A Lecture, delivered in Aberdeen School, Vancouver, 22 April, 1910. 47 then dropped altogether in favour of negotiations, by this time it was apparent that the Province laid claim to the Reserve lands, and the Federal government, in order to protect the interests of the First Nation communities, sought, with First Nations' support, a judicial inquiry into the Province's claim of undisputed title. To this end, representatives of Canada and British Columbia drew up a list of ten questions, the first three having to do with Aboriginal title, and the remaining seven being concerned with the size of reserves, reserve resources such as 120 minerals and timber and the claim of the Province to abandoned reserve lands . This judicial action was brought to a halt when Richard McBride, then Premier of British 121 * Columbia, categorically refused to endorse the first three questions . British Columbia claimed that the title held by First Nations was limited to "use and occupancy," and, under Clause 13 of the Terms of Union, the Dominion held no "beneficial interest in such lands" as guardian of First Nations. Moreover, British Columbia argued, whenever the First Nation right to any reserve lands became extinguished by surrender, cessation of use, or occupancy, the lands reverted to the Province122. The Province sought to formalize the revisionism policy of Trutch. McKenna - McBride Commission: 1912 to 1916 The Dominion was nervous about the unfinished nature of the allocation of reserves, and the Provincial claim to the ceded reserve lands. Though the Indian Act had been amended to reflect the Dominion's position123, the Dominion Government negotiated with the Province the 1 2 0 Ibid, at 234. 1 2 1 Canada, Houses of Parliament, Senate - Special Joint Committee of the Senate and House of Commons Appointed to Inquire in the Claims of the Allied Tribes of British Columbia, as set forth by their Petition submitted to Parliament in 1927, Report and Evidence, Appendix to the Journal of the Senate of the Canada, First Session of the Sixteenth Parliament, 1926 - 1927. (Ottawa, Ont: King's Printer, 1927) at 11 [SpecialJoint Committee]. 1 2 2 Special Joint Committee supra note 121 at 53. 1 2 3 Cail supra note 49 at 233. 48 McKenna-McBride Agreement124 which laid out the terms of reference for the McKenna-McBride Commission. This was established to resolve reserve acreage, underlying title to reserves, and reversionary interests. Initially the size and location of the reserves were to be set. If the reserves were found to be too large, unused portions were to be sold, and the proceeds were to be split between the Province and the Department of Indian Affairs. Should new reserves or additional lands be required, the Province was to take all necessary steps to "locally reserve additional lands." After the reserves were determined, to the satisfaction of all five Commissioners, the reserve lands were to be conveyed by the Province to the Dominion. The Commission, over the next three years, recommended 482 new reserves, and "cut-off a total of 125 47,058 acres from existing reserves . The formation of the Commission brought forward a prompted and well-organized response from all British Columbia First Nation people126. By this time, First Nation politics were organized around the Indian Rights' Association, and in a circular letter sent in December of 1912, the Association critiqued the mandate of the McKenna-McBride Agreement and the future Commission. They pointed out that the main question - that of "title," was not included127. The Gitxsan, as members of the Indian Rights Association, were prepared to use the platform of the Commission to bring forth their concerns over title. When the Commission arrived to determine whether the reserves were adequate, Gitxsan representatives reiterated their position that they had forwarded earlier in the Petition they sent to the Rt. Hon. Sir W. Laurier in 1910. In this Petition, they asked that their lands be reinstated, their system of administration 1 2 4 Canada and British Columbia, McKenna - McBride Agreement of 24 September, 1912 established the Royal Commission on Indian Affairs in British Columbia. 1 2 5 Cail supra note 49 at 236 to 237. 1 2 6 Tennant supra note 86 at 96 to 124. 1 2 7 C M . Tate, [Circular Letter] December 16, 1912 in: RG10, vol. 11023 file 662 National Archives of Canada. 49 128 returned, to be taken out from under the Indian Act, and to be free under the "British flag ." 129 However, the Chairman's response was that they were there to "fix reserves ," and the question of title was not going to be dismissed. In 1915, Walter Wright, in his submission to the McKenna-McBride Commission, summarized the Gitxsan land struggle. He stated: I was born here, and all the land that we lived on practically belonged to us. It is over 20 years since our people started talking about their lands, and it is going on to 30 years - I was only a young kid when they started in to talk about their lands, and the Government sent in a party of surveyors up and some of the Timshian [sic] people refused to have these surveyors. We heard at the time that the land that they were going to survey for us was not going to be ours; it was only going to be turned into reserves. We did not want to have these surveyors until Mr. O'Reilly came and we got a good understanding from Mr. O'Reilly that we needed a certain amount of the stream and that no one would disturb us at all, and a few years after that the white people came into this place here and they have come on to this land where we need to take our berries and also on our hunting ground, and then the people look back at the promises that were made by Mr. O'Reilly when we saw the white people coming into our land. The white people started trouble with the Indians, and ever since we have had no peace. We know very well that this land belonged to our forefathers and it is ours still and we want to go back to the places where we used to pick berries and our hunting grounds, but the white people have taken up all the land. I have seen all the little reserves on the map and they are important reserves - that is where we make our living. The land which we thought was ours started at the Chsourakta, and it runs 130 down as far as Klespah . Similarly, Mr. Holland told the Commissioners: We don't want no reserve at all we want to get our own land back. You want to ask us questions, which are not in our petition at all. We did not sign our petitions for a reserve at all - we signed for our own land. The reservation is not so good for us all - it is no use for us. There are fences Tennant supra note 86 at 51 to 67. 1 2 9 Proceedings of the Royal Commission on Indian Affairs for the Province of British Columbia, Meeting with the Kuldoe Band or Tribe of Indians at Hazelton on Tuesday July 13, 1915 at 1. 1 3 0 W. Wright, in: Proceedings of the Royal Commission on Indian Affairs for the Province of British Columbia, "Meeting with the Kitselas Band or Tribe of Indians at Newtown on Thursday April 15, 1915 at 11 to 12. 50 all around so we can't do any business outside the reserves. We are just tied up in the Reservation, and that is the reason we signed our petition that we don't want any more reserves for the whole Skeena Nation131. Charles Wesley from Kispiox told the Commission: This country originally belonged to our ancestors, we were placed here by God, and it is only quite recently that the Government sent men out here to measure this land immediately around us, and we were not notified of it when they did it; then the Province came in and sold the remaining land immediately around us. Al l the old camps up the Kispaiox [sic] river, where we used to gather our salmon, and our hunting camps, and where we used to pick berries, and what we most strenuously object to is that you insist upon us having this reserve. You have measured all these reserves and you say that is yours. I was one that signed the petition in 1908 which we sent down to Ottawa, and we asked that the land which the Provincial Government had sold be returned to or given back to us - we want the reserve that is held in trust by the Dominion Government; we want to own 1 that ourselves, because it was originally planned so . The mandate of the McKenna-McBride Commission was clear: it solely was responsible to set the acreage of Reserves, settle the question whether the Province or Canada held "title to the Reserve lands," and to determine whether it was the Province or the First Nation community (through the Federal government) that administered the trusts set up from the sale, lease of lands and resources (timber or mineral). In the end it was determined that Canada was who held "title to the reserves" and would provide the community with benefits from the sale or lease of reserve lands or resources. The Gitxsan, like other British Columbian First Nation communities, rejected the findings of the McKenna-McBride Commission that either enlarged or reduced the Reserves, and sought to support initiatives of the Allied Tribes of British Columbia. As far as the Gitxsan Mr. Holland in: Proceedings of the Royal Commission on Indian Affairs for the Province of British Columbia, Meeting with the Getanmax Band or Tribe of Indians at Newtown on Thursday April 21, 1915 at 3. 1 3 2 Charles Wesley in: Proceedings of the Royal Commission on Indian Affairs for the Province of British Columbia, Meeting with the Kispiox Band or Tribe of Indians at Newtown on Thursday April 22, 1915 at 1. 51 were concerned the issues of underlying title, control over trusts, as well as their personal legal status, were still questions that needed to be addressed. After the McKenna-McBride Commission in 1919, the northern First Nations (the Tsimshian, Nisga'a and Gitxsan) issued a statement that outlined their concerns. They stated: That from time immemorial these tribes of Indians have been in the in disputed possession of the land of the northern part of the Province. We have lived and hunted upon it, fished in the streams that run on it, harvested the berries and fruits, built our houses and made our wood fire from its timber, and our forefathers are buried underneath its soil. It has been handed down to us from uncle to nephew from time immemorial to this present time. We do not understand how it is that the White men, men of intelligence who understand the laws of property, spend their time, labor (sic) and money in trying to deny our claims and trying to make us believe that we have no right to the land. Practically throughout the rest of Canada tribal ownership has been fully acknowledged, and all dealings with the various tribes have been based upon the Indian Title so acknowledged133. The Tsimshian, Nisga'a and Gitxsan, under the umbrella of the United Tribes, continued and outlined their conditions for a settlement! They wanted to sit in Council with the Dominion, as outlined by the Royal Proclamation of 1763, and they required a voice in setting the conditions of the said surrender, as well as monies transferred from the sale be given to them in order that they might make the improvements. Additionally, they wanted to stipulate that the communities in question be consulted prior to any reduction or cutoff to their reserves. Also, they sought to have all foreshore, whether tidal or inland, be included in the reserves to which they were connected, so that the various First Nations could have full and permanent benefit. The United Tribes desired that their Indian title and rights be fully recognized by both the Provincial and Dominion governments by either concession or through a judicial ruling, supported by an act of Parliament. United Tribes, "Statement of the United Tribes of Northern British Columbia for the Government of Canada," February 27, 1919. 52 Although various First Nation communities continued to press for equality, (including the Nisga'a who attempted and had failed to present a claim against Canada through the Privy Council on their aboriginal title134) an effort was made to present these title concerns on the Indian Land Question to the Joint Parliamentary and Senate Committee on Aboriginal Issues in 1927. However, the Joint Committee concluded all the "aboriginal title" issues were closed, as First Nation Communities had accepted additional reserve lands in 1916, and as the Dominion had faithfully spent money, would continue to act on improvements to Reserve communities (medical care, education, and relief) and all First Nation members retained the right to hunt, gather or fish in unoccupied Provincial Crown lands135, the Federal government concluded that it had satisfied its obligations. The only real action that the Special Senate Parliamentary Committee took was to recommend amendments to the Indian Act, which initially prevented non-aboriginal persons from "raising funds to forward claims", later disallowing First Nation peoples to put forward claims against the Dominion, without first obtaining the permission of the Superintendent136. After 1927: Background to the 1987 Trial The amendments to the Indian Act, though they effectively silenced First Nations across the country with respect to land title claims, did not result in the cause of the grievances disappearing. By 1927 it was apparent to both British Columbia First Nation communities and Canada that an impasse with respect to the B.C. Land Question conclusion had been reached. Friends of the Indians, The Nishga Petition to His Majesty's Privy Council, A Record of Interviews with the Government of Canada together with related Documents (Victoria, B.C.: Friends of the Indians, 1919) [Friends of the Indians]. Special Joint Committee supra note 121 at 50 to 51. 136 An Act to Amend the Indian Act, S.C. (1926 - 1927) c. 32 (17 Geo. V) at pt. 149. 53 137 Furthermore, by 1921 it was generally accepted, with the conclusion of Treaty 11 , covering most of northern Alberta and part of the Northwest Territories that treaty making in Canada had come to an end. However, by the end of the 1920's there remained vast regions of Canada where no treaties had been signed. The lands in northern Quebec, Labrador, and parts of the Northwest Territories, the Yukon, and most of British Columbia fell into this category. The Federal government, at this time, argued that they fulfilled their obligations to the communities without treaty by showing consideration to these First Nation communities, in question, in the same manner as their counterparts, First Nation communities that held treaties. Canada argued that First Nations land rights in British Columbia were met and fulfilled during the McKenna-McBride Commission from 1913 to 1916. In northern Quebec, Labrador, the Yukon, and areas of the Northwest Territories, the required reserves could theoretically be set aside for the communities, if required, at a later date, as there appeared to be little need, as neither settlement nor industry had ventured into this area. It was not until after World War II that these concerns needed to be addressed. Though the 1951 Indian Actus revisions quietly swept away the more offensive aspects of the legislation (potlatch prohibitions and ability to enter in a claims process that questioned both the validity of surrenders or title concerns), the concerns of First Nation people across the country, such as control over membership, culture, trusts, and revenues from leases did not appear in this legislation. Likewise, First Nation leaders across the country were under the impression that these concerns would be addressed after the release of the Hawthorne Report139 in 1966 and in the reorganization of Indian Affairs in 1969. 1 3 7 Canada, Treaty11 (June 27, 1921) and Adhesion (July 17, 1922) with Reports, Etc. (Ottawa, Ont.: Department of Indian Affairs and Northern Development, 1926). 138 An Act respecting Indians, S.C. 1951 c. 29 (15 Geo. VI). 1 3 9 H.B. Hawthorne, ed., Survey of the Contemporary Indians of Canada: Economic, Political, Educational Needs and Policies, vol. 1 & 2 (Ottawa, Ont.: Department of Indian Affairs and Northern Development, 1966) [Hawthorne Report] 54 Instead of fulfilling the post-war concerns of First Nation people, complying with treaty obligations and addressing the land title question, in 1969 the Federal government responded with a White Paper140 that unabashedly stated that Treaties should be abolished - "an anomaly which should be reviewed to see how they could be equitably ended." Also the White Paper recommended that jurisdiction over "Indians" should be transferred to the Provinces, and that reserve lands be granted to Band Members in fee simple. Simultaneously, the Federal government made a commitment to settle past grievances, based on the Treaty relationship141. Although the federal government wanted to divest itself of "Indians and Indian lands," it was willing to act on its lawful obligations when it came to past grievances regarding the sale or lease of reserve lands, the issue of cut-off lands specific to British Columbia as a result of the findings of the McKenna-McBride Commission142, and fraud with respect to the acquisition or dispossession of reserve lands by employees or agents of the Federal government143. Regarding Aboriginal title claims, the Government determined these concerns were "too vague" to be capable of a specific remedy. First Nation communities, in general, were faced with the prospect of having their "reserve lands" divided up, and the "Indian Act dissolved." In the Treatied areas, it appeared that the "cede and surrender agreements" that the communities had entered into, in exchange for "lands set aside for their use and benefit" and "protection," were now being Canada, Statement of the Government of Canada on Indian Policy, 1969 (Ottawa, Ont: Department of Indian Affairs, 1969) [White Paper], D. Courchen, President, Manitoba Indian Brotherhood, Winnipeg, Manitoba, June 26, 1969; J. Chretien, "Statement by the Honourable Jean Chretien, Minister of Indian Affairs and Northern Development, based on a Speech delivered in Regina, October 2, 1969; National Indian Brotherhood, statement in the Proposed New "Indian Policy"; Jean Chretien, "Indian Policy... Where does it stand?", A Speech by the Honourable Jean Chretien, Minister of Indian Affairs and Northern Development, Empire Club, Toronto at 12 Noon, October 16, 1969; D. Sanders, "A Critical Review of the New Indian Policy and Native Claims" for Indian-Eskimo Association of Canada, May 1970. 1 4 1 H. Cardinal, "An Address by Harold Cardinal," President, Indian Association of Alberta, delivered at The Glendon Forum on Canadian Indians, Glendon College, York University, Toronto, October 1968. 142 The British Columbia Land Settlement Act, S.C. 1920, c.51. 1 4 3 Department of Indian Affairs and Northern Development, Outstanding Business: A Native Claims Policy, Specific Claims (Ottawa, Ont.: Ministry of Supply and Services, 1982). 55 disregarded144. For comrnunities who had yet to cede their territories formally to the Crown, it appeared these grievances were to continue to be ignored. However, the White Paper galvanized many frustrated First Nation organizations, including the National Indian Brotherhood, into rallying around for the recognition of aboriginal rights. Needless to say, the White Paper was shelved, and little was accomplished, until the Nisga'a took their claim to the Supreme Court in 1973. More importantly, First Nations voices entered into the national political arena145. \ In an attempt to resurrect their assertion of aboriginal title in the Nass Valley, the Nisga'a, in 1967, argued before the B.C. Courts that aboriginal title was recognized at common law and that the Nisga'a could satisfy the requirements of establishing title. The Nisga'a's goal was to obtain a declaration of their rights within traditional territory, in order to negotiate a Treaty. They did not claim that they were able to sell or alienate their right to possession, except to the Crown. They did, however, challenge the authority of British Columbia to make grants in derogation of their rights. Hall J. in the Supreme Court of Canada set out the contours of the Nisga'a argument: The appellants rely on the presumption that the British Crown intended to respect native rights; therefore, when the Nishga people came under British sovereignty they were entitled to assert, as a legal right, their Indian title. It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and then only by specific legislation. There was no surrender by the Nishgas and neither the Colony of British Columbia nor the Province after Confederation, enacted legislation specifically purporting to extinguish the Indian title nor did Parliament at Ottawa146. P.E. Trudeau, "Statement by the Prime Minister at a Meeting with the Indian Association of Alberta and the National Indian Brotherhood, Ottawa, June 4, 1970; H. Cardinal, "Address by Harold Cardinal," President, Indian Association of Alberta, during presentation by the Indian Chiefs of Alberta to the Prime Minister and the Government of Canada, June 4, 1970. 1 4 5 H. Cardinal, Unjust Society: The Tragedy of Canadian Indians (Scarbourough, Ont.: Prentice-Hall, 1971) & A G . Cairns, Citizen Plus: Aboriginal Peoples and the Canadian State (Vancouver, B.C.: University of British Columbia Press, 2000). 146 Calder supra note 147 at 402. 56 The Supreme Court decision was split; three judges held that the Nisga'a retained an unextinguished title; three held that whatever title the Nisga'a held was extinguished; and the seventh judge dismissed the claim as the Nisga'a had failed to obtain a fiat from British Columbia to proceed with the litigation, and, as the case was dismissed on a technicality, the Court did not address the content of aboriginal title. Six judges agreed that aboriginal title could arise at common law without legislative recognition based on colonial constitutional principles that the sovereign ought to recognize the property rights of the inhabitants upon acquisition of a new territory. While the Supreme Court's ruling was inconclusive as to the Nisga'a claim, the Colder decision made it clear that aboriginal title was alive as a legal concept, despite the Government's denial of it. Besides the Calder action, in 1973 in the Re: Paulette147 case, sixteen chiefs were successful in registering a caveat on the title to approximately 700,000 square kilometres of land in the North West Territories, based on the claim that they had never ceded their aboriginal rights to the Crown. Also, in 1973, the James Bay Cree obtained an injunction to halt the construction of a hydro-electric dam at James Bay 1 4 8. Though the James Bay Cree injunction was nullified by the Court of Appeal, this action heralded the first contemporary treaty two years later in 1975149. The year of 1973 was a year of change in law, policy and attitude towards First Nation grievances, especially for communities who had not formally ceded their territories to the Crown. After the Calder case, the Federal government conceded that its earlier 1969 position 14/ Re: Paulette et al and Registrar of Titles (No. 2) [1973] 6 W.W.R. 97. 148 La societe de developpment de la Bale James, [1975] R.J.Q. 166. 1 4 9 Quebec, Grand Council of the Crees (of Quebec) and Northern Quebec Inuit Association and Canada, Agreement between the Government of Quebec, Grand Council of the Crees (of Quebec) and Northern Quebec Inuit Association and the Government of Canada (Ottawa, Ont.: Department of Indian and Northern Affairs, 1975). 57 was deficient and responded with a comprehensive claims policy in August of 1973150. Cabinet agreed that there were two types of claims, "Specific" and "Comprehensive," and Comprehensive Claims were based on traditional use and occupancy of land in areas where First Nation interests had yet to be extinguished by treaty or superseded by law. These claims were to be settled not only in cash, but also with additional lands151. The Federal government's subsequent policy of 1977 (affirmed in 1981152) stipulated that the community's aboriginal title was to be ceded, in exchange for a modified title (reserve lands), user rights within the traditional territory and compensation. It is generally accepted that since August of 1973, with respect to First Nations' land and associated rights that have not formally been ceded to the Crown, the Federal government seeks to "signify the Government's recognition and acceptance of its continuing responsibility under the British North America Act for "Indians and Lands Reserved for Indians," which it regards "as an historic evolution dating back to the Royal Proclamation of 1763, which, whatever differences there may be about its judicial interpretation, stands as a basic declaration of the Indian people's interests in land in this 1 53 country ." This change in policy also expressed the government's willingness to negotiate claims of aboriginal title, especially in British Columbia, Northern Quebec, and in the North West Territories on the basis "that where their traditional interest can be established, an agreed-upon form of compensation or benefit will be provided to native people in return for their interest154." See: "Top court 'rejects' Nishgaland claim" [Times] Colonist (31 January 31) 1; "Calderto meet Trudeau to press Nishga campaign" [Vancouver] Sun (1 February 1973) 2. 1 5 1 "Chretien says gov't ready to settle Indian, Inuit claims with cash; land" [Vancouver] Sun (18 august 1973) 12. 1 5 2 Department of Indian Affairs and Northern Development, In All Fairness: A Native Claims Policy, Comprehensive Claims (Ottawa, Ont.: Ministry of Supply and Services, 1981). 1 5 3 Statement made by the Honourable Jean Chretien, Minister of Indian Affairs and Northern Development on Claims of Indian and Inuit People, August 8, 1973 at 2 [Chretien]. 1 5 4 Chretien supra note 153 at 4 to 5. 58 In November of 1977, there was renewed hope that the Provincial and Federal Governments would sit down with the Gitxsan to negotiate a treaty. The Gitxsan were anxious to delineate separate, as well as shared, jurisdictions. In a 1977 Declaration, the Gitxsan stated: Since time immemorial, we, the Gitksan and Carrier People of the Kitwanga, Gitanmaax, Shikadoak, Kispiox, Hagwilget and Moricetown, have exercised Sovereignty over our land. We have used and conserved the resources of our land, with care and respect. We have governed ourselves. We have governed the land, the waters, the fish and the animals. This is written on our totem poles. It is recounted in our songs and dances. It is present in our language and in our spiritual beliefs. Our Sovereignty is our Culture155. Canada's Position In 1978, the Federal comprehensive land claims position was to be a joint process that included Provincial governments. Though the particulars were underdeveloped at this time, the Federal government had made a commitment to negotiate comprehensive claims based on an inherent rights perspective: in other words, continuing use and occupancy of traditional lands where First Nations had aboriginal interests that were not relinquished by treaty or special legislation. The Federal comprehensive claims position was uncomplicated. The Federal government was willing to negotiate with the First Nation communities on a variety Of protection issues, such as hunting, fishing and trapping, land title, compensation and other rights and benefits, in exchange for a release of their general and undefined native title, according to "past usage of the Crown." Thus, the First Nation community was expected to cede their rights to their traditional territories, in exchange for a set of user rights, demarcated reserved boundaries, and a set of conditions in which government could infringe on the "reserve lands." Regarding self-government, though the Federal Crown was unwilling to entertain a model that reflected 1 5 5 Gitksan-Carrier Declaration, Kispiox, B.C., November 7, 1977. 59 sovereignty, it would consider an expanded role for Band Councils, transferring additional responsibilities for the management of services to community members. The Federal government, while recognizing traditions and culture, expected a greater accountability from the community. Self-government powers were limited to village concerns, and the management of renewable resources (except oil and gas). The Federal Crown, however, understood the underlying difficulties the Gitxsan faced from Provincial opposition regarding any "governance model" that was based on the hereditary and traditional life office of the Seem 'oogits and Seem 'ogits, and integrating their ayooks regarding resource management and access with Provincial Ministerial authority. It was also apparent that the Federal Crown, though interested in the "inherent rights" model for solving the land question, and governance, elected to shy away from any direct intervention on behalf of the Gitxsan, regarding the Province's position on title and rights. British Columbia's Position Although British Columbia was willing to sit at the negotiating table as observers in 1977, they were unwilling to: recognize the existence of an unextinguished [sic] aboriginal title to land in the Province, nor does it recognize claims relating to aboriginal title which give rise to other interest in lands based on traditional use and occupation of land156. The Province was prepared to engage in discussions in the areas related to the harvesting of game or fur-bearing animals, joint management protocols with respect to future resource development, environmental protection, economic development, delivery of services, and First 1 5 6 British Columbia, Response of the Government of British Columbia to the Position Paper of the Nishga Tribal Council, 10 January 1978. 60 Nation culture. Moreover, if additional "Reserve lands" were necessary, then the Province would entertain "selling the land to the Federal government," only if it was determined that such "sales" would not be detrimental to Provincial management, or that the loss of control over lands and resources for the benefit of all residents of British Columbia would not be affected. The Province, at this time, would not discuss matters that First Nations peoples maintained endowed them with additional benefits associated with their historic or current status as indigenous people, or, as what the Hawthorne Report defined as "Citizens Plus 1 5 7." British Columbia's negotiation position was straightforward: the communities would have to relinquish their tax-free status and adopt a municipal-style form of self-government, if "Citizen Plus" issues were broached. Gitxsan's Position Initially, in response to both the Federal and Provincial positions the Gitxsan sought to negotiate first a "blanket trap-line licence" from the Provincial government, and second, the opportunity to re-claim their inland salmon fishery. The Gitxsan felt that as they had co-existed with the animals and salmon for thousands of years, they had not only the right to manage these resources but they also believed that it was in the best interests of the animals and the environment that they take on this responsibility. They proposed, besides desiring to control what species were trapped and the numbers thereof, that each wilp ought to be responsible for the areas within their lax 'wiiyip, contrary to the current Provincial trap line registration requirements, that neither respected wilp lax 'wiiyip boundaries, nor their rules of inheritance. Hawthorne Report supra note 139 at 1:211 to 234. Generally "Citizens Plus rights" are associated with First Nations' inherent right of access to unsettled lands for hunting, fishing, and trapping for subsistence, ceremonial and social purposes and to some form of self-government limited to Reserve Lands. 61 In the management of the fishery, the Gitxsan have made efforts to resolve the conflict between the Department of Fisheries and Oceans and that of traditional authority of the Seem 'oogits and Seem 'oogits over allocations and the scheduling of openings. The Gitxsan believe that they ought be able to fish and process their catch where they live. Ax Gwin Desxw, in his evidence, described these efforts at reconciliation: We wanted to develop an inland fishery that resembled our traditional one, so we wanted our people to be able to use, buy, sell, trade or barter fish caught on the Skeena in accordance to our traditional laws and customs. We wanted to reclaim the fishery that belongs to the hereditary chiefs. There are houses that own specific fishing stations or holes, sites, and the plan was that each household would use their own site or station. We wanted the chiefs to be the ones that would be in authority over the inland commercial fishery, so that house members would get some economic benefit from the inland fishery. We planned to use traps and fish weirs, because with a fish trap you can be very selective. If all we wanted, for instance, was say sockeye, we would only take the sockeye even though all the salmon would go through the trap. They would not be damaged, as . opposed to being caught in a net. Furthermore, you can grade the salmon as they come through. If we did not want the steelhead, we could just take them out of the traps and let them go, without being damaged. The same is with a fish weir; fish weirs are just a fence. You are in a boat or a canoe on the other side of the fish weir. As the salmon jump into the boat, you can throw the ones you do not want, like steelhead, you can just let them go again. We want to work with other user groups, other native groups up and down the Skeena. We also want to meet with the commercial fishermen on the coast, and also the sport fishermen. We want to try and work out an arrangement of how we could all work together on the fishery on the Skeena River. The salmon are a real part of our lives. The Gitksan and Wet'suwet'en peoples are not going to leave where they live to fish, and we want to ensure that the resource is protected, we want to sustain the resource, we want to protect it for the future. We want to make sure that sawmills and logging companies do not have a negative impact on the habitat around the 158 river or spawning beds . . G. Williams, Proceedings at Trial, (1988) vol. 107 June 1 at 6761 to 6769. 62 Besides the desire to control in part their trap lines, to regulate the harvest of animals and to allocate and to use traditional gear for the salmon fishery, the Gitxsan wanted a say in the environmental standards when it came to forestry management. The Seem 'ogits and Seem 'oogits believed that the Newcomer forest practices were making their ability to use the lax'wiiip for subsistence impossible. As Tenimgyet testified: You will not see moose standing in the middle of a clear-cut because they would not find anything to eat there. The same goes for the ground hogs, the martens, and even the mushrooms or our berries will never grow in a i 159 clear-cut. Clear-cut logging scares off animals. And I have indicated that we have a bear den at one of these in the general area of below Win luu gan, and one of our berry patches is there. Our berries would never grow sweet and would not be edible. They would grow, but they would be a different kind of berries we call in our language 'mii gan, and this means that they are wood berries, they are bush berries. They have no texture. They would be too sour and seedy, and if you try to preserve these berries, you would put tons and tons of sugar, and it would never sweeten up very much. If the logging was done according to selective logging practice, you just would just take out certain species and, therefore, you would not disturb the habitats of the animals that are there160. These negotiations to this treaty, however, concluded as soon as they started. The Gitxsan had very little choice but to consider litigation, as they were unwilling to accept a treaty that required them to first "cede and surrender" their territories, and second acquire a "list of rights" subject to Crown regulation. They believed if they were party to this treaty model, they would be powerless to effect their aboriginal rights. In other words, they still would be required to compromise their traditional governance and limit their livelihood ventures to only a proportion of their lax 'wiiyp, and modify their ayooks with respect to the hunting, fishery and berry picking locations in light of Crown legislative initiatives and third party use, without adequate consultation or compensation. A. Mathews, Proceedings at Trial, (1988) vol. 76 March 16 at 4695. A. Mathews, Proceedings at Trial, (1988) vol. 75 March 16 at 4705. 63 When the Lixs giigyet arrived in the territories circa 1825 to trade, the Gitxsan remained independent, maintaining their own laws. Gitxsan people knew as early as 1884 that the loss of use of lax'wiiyip meant that their means of livelihood was undermined. They also knew that retaining authority in their territories was important for respectful relationships among themselves and the animals. Adherence to the laws of trespass, and the ability to shoulder responsibility for respectful relations, were obligations placed on all who came to the territories, according to Gitxsan ayooks. The Lixs giigyet initially respected the laws of the Gitxsan, however, after 1872, the situation changed. Restitution waned. Issues regarding trespasses and the inability of the Lixs giigyet to respect the laws that governed a person's conduct in light of trespass or accidental death, while under the employ of another, created tensions between the Gitxsan communities and the local authorities. The unwillingness of the Government to carefully analyze the situation regarding the trespass and homicide issues in the early 1880's created a sea of distrust that persists. Similarly early Provincial insistence on allocating Reserves without addressing the interrelationship between aboriginal title, self-government and continued livelihood, as well as the harmonization of laws and jurisdiction has not favoured respectful relations. In 1910, the Gitxsan crystallized their position regarding the Land Question. They believed that the Lixs giigyet were trespassing onto their territories, as well as ignoring that their laws regarding the right to allocate resources (fish, fur, and berries as well become engaged in related business ventures such as mining and forestry). The Gitxsan, like other British Columbian First Nation people, knew they had land and social rights that rested in Imperial Colonial law and practice. Moreover, James Douglas, at the time of declared sovereignty, knew that First Nations held "distinct ideas of property in land" and recognized their exclusive 64 possessory rights161. However, after the failed attempt at litigation by the Allied Tribes of British Columbia in 1910, the Nisga'a Petition of 1916 and the United Tribes statement in 1919, when the Special Joint Senate Parliamentary Committee met to discuss the state of affairs in 1927, British Columbian First Nation delegates stated that the issues of title, annuities, and citizenship concerns were considered by them to be unfinished business. J. Douglas [to the Duke of Newcastle] 25 March 1861 in: Papers Connected with the Indian Land Question supra note 47 at 19. 65 Chapter Three Gitxsan Property, Ownership and Governance The Gitxsan have lived in the Skeena, Bulkley and Kispiox watersheds since time immemorial. According to the Gitxsan, when everyone lived at T'am Lax amit1, the Animals, Fish, Plants and Humans had clear understandings among themselves, and were able to talk with one another. As time wore on, the Humans over-hunted2, and according to the Gitxsan adawaaks (oral histories) the Mountain Goats, in defence, invited the people to a great feast, but the Humans continued to disrespect the Goats and killed them without shame. The Mountain Goats brought the mountain of Stekyooden down around the Gitxsan peoples in retaliation3. Later, at the lake at the foot of Stekyooden the young ladies, after salmon fishing season was over, played with the bones of some of the trout they had just finished catching. This disrespect 1 T'am Lax amit was a great village located along the Skeena River that extended from present day Gisegyukla to Kispiox. M . Johnson, Proceedings at Trial, (1987) vol. 11 May 27 at 670 [Johnson]. . 2 Txa'mse kills little Pitch; Txa'mse kills Grizzly Bear; Txa'mse kills Deer; Txa'mse imitates Chief Seal; Txa'mse imitates Chief Kingfisher; Txa'mse imitates the Thrush; Txa'mse and the Cormorant; Txa'mse and Chief Grouse; Txa'mse returns to the Wolves. F. Boas, Tsimshian Mythology (Washington, D.C.: Smithsonian Institution, 31 Annual Report for the Bureau of American Ethnology for the Years 1909 - 10, 1916) at 86 to 100 [Boas]. 3 As discussed in greater detail later in this chapter, the adawaaks generally speaking record wilp origins, migrations, and the boundaries of the lax'wiiyip of each wilp. The source for, together with the text of, the adawaak referred to can be found in Appendix One. See: The First Adawaak of Antgulilbix in Appendix One at 233. Chronicled in this adawaak is the story of how the boy who wantonly killed animals, especially Mountain Goats, and after a change in heart heeded the advice of the elders and saving a young goat, was able to be the sole survivor of landslide at the Mountain Goat's village. Afterwards, the boy takes for his crest the image of the one-horned Mountain Goat as a memorial for those who died and to remember not to overkill the animals. 66 for the remains of the trout aroused the wrath ofMediik4, and in his rage he brought a great flood clearing the land of people5. Even after this the people at T'am Lax amit continued to ignore the warnings of the Sun God and allowed a young boy to poke fun at the sky when it continued to snow late in the spring. The Sky did not like the taunts, and brought more snows, creating the glaciers6. It was at this time that the larger animals - Bear, Mountain Goat, Wolf, Deer and Mountain Lion - wanted to rid the world of the humans and prevent them from returning. However, the smaller animals, - Skunk, Ground Squirrel, Raccoon and Mouse - felt that this was a bit too harsh and lobbied for a negotiated agreement, as they were rarely taken by the Humans and relied on them for their existence. The compromise that the animals worked out was that the people of T'am Lax amit were to be banished from the territories, and when they had learned not to over-hunt or disrespect the animals, and they were able to follow the ayooks (laws), they could return . Winter lasted a long time. When they got out of the ice and snow their land was changed and it was like new. Each group followed those they could understand, so some went in Q different directions . 4 Johnson supra note 1 at 668. 5 The Adawaak oiTsibasaa and Antgulilbix (Appendix One at 235) relates how after the fall of the Mountain Goat's village, those from XheWilps of Tsibasaa and Antgulilbix had finished smoking fish for the winter and the young ladies were playing and laughing, fooling around with the remains of the fish. Then came the great Mediik gaining strength along the streams and river into the lake, crashing into the village and in its wake drowning all. * The Adawaak of Haat'ixslaxnox in Appendix One at 236. It was spring time, and the Spring Salmon had been handed out, however, a little boy started to poke fun at the falling snow and the mountains. The snow fell harder and eventually covered the land and the villages. 7 Boas supra note 2 at 106 to 108. There used to be one language at T'am Laxa mit before they used tsimxsan language. They called this sim algyax and now the Gitxsan use what is known as gyanimx. Johnson supra note 1 at 668. 67 Gitxsan society rests on the foundation of the wilp9. One is born into, socialized and inherits from one's mother's family. The wilp is the basic social and political unit in Gitxsan society and collectively the wilp owns its history (adwaaks) which are associated with its crests or symbols of title (ayuks) to its territory (lea 'wiiyip), which are displayed on various ceremonial regalia (Gwiis gan 'malacit - robes or blankets, 'Am hcilitx, - headdresses and Am bilan -aprons) and poles (T'saari) at different feasts (li 'ligit)w. There are sixty-four wilps associated with the Gitxsan lax 'wiiyip and Gitxsan society, and like that of other Northwest Coast peoples, is divided into four groups calledpteex". Thepteex existed before the Deluge when all lived at T'am Lax amit, and when the people scattered after the deluge, the people carried with them their pteex affiliation12. According to Gitxsan historian, Susan Marsden13, after the people dug themselves out from under the snows14, the people of the Genada - Laxsel pteex (Frog/Raven Clan) returned first to the Lax 'wiiyipxs, the great plateau to the northwest. The Laxgibuu (Wolf Clan) 9 The wilp membership may include anywhere form 25 to upwards to 200 people at any one given time. Currently, there are about ten thousand Gitxsan people and approximately 80% live in or around their historic villages in north central British Columbia. 1 0 Even though either man or woman can hold the title of Seem 'ogit or Seem 'oogit, the preferred head of the wilp is one's mother's uncle, brother or nephew. In conversation with J. Angus, April 16,2000. 11 Pteex membership is inherited through the mother, and as such, marriage partners are sought outside of that pteex (S. Marsden, Proceedings at Trial, (1989) vol. 233 June 6 at.17087). To marry inside that pteex is to commit g'aats or incest (M. McKenzie, Proceedings at Trial, (1987) vol. 6 May 19 at 379 [McKenzie]). Persons who consider themselves related by a common origin or migration refer to each other as the wil'na t'ahl group of huwilp (The Adawaak of Gyoluugyat in Appendix One at 248 & The Second Adawaak of Antgulilbix in Appendix One at 242. In these two adawaaks the relationship is laid between the Wilp of' Gyoluugya and Antgulilbix, and at a Yukw they would be recited one after the other.) 1 2 (S. Marsden, Proceedings at Trial (1989) vol. 234 June 7 at 17108 to 17114, 17119 to 17120 [Marsden]). 1 3 S. Marsden, Proceedings at Trial, (1989) vol. 232 June 5 at 17104. 14 The Adawaak ofHax bagootxw in Appendix One at 237. In this adawaak, the sisters become heads of the Wilp Antgulilbix claiming the crest of the One-Horned Mountain Goat and the dirge song for their brother. 1 5 See: The Second Adawaak of Antgulilbix in Appendix One at 238. In this adawaak the young people learn from 'Wiitax max meexw hunting, trapping and fishing skills after the floods recede. 68 followed16, then the Laxskiik (Eagle Clan), and lastly the Giskaast pteexs (Fireweed Clan) migrated into the area. After the dispersal, some members of the Genada - Laxsel pteex 17 (Frog/Raven Clan) stayed on Haida Gwaii (Queen Charlotte Islands) while others travelled to Alaska18. The Laxgibuu (Wolf Clan) lived on the north coast for a while and were forced back up the Nass River by the Tlingit, and lastly some Laxskiik (Eagle Clan) from the Nass River region moved down into Upper Skeena and finally to Kitwanga19 (Gitwankga). Lastly, the Giskaast pteexs (Fireweed Clan) moved in from the north . The return to the lax 'wiiyip occurred family by family (wilp by wilp21), and according to the adawaak (oral history) those of common pteex assisted each other and settled in paired pteex groups at village sites along the banks of major rivers near canyons or by productive fishing sites . Pteex affiliation, like inheritance of wilp property rights and political status, is determined by matrilineal inheritance. Those who are of the same pteex consider themselves at one time related or from the same village before the flood and are thought of as family, and refer to each other as wil'na t'ahl. The wil'na t'ahl are called on by a wilp on when one of their members passes on to assist with the funeral, as support workers for the necessary li'ligit that affirms the succession of a. Saim 'ogit or 1 6 See: The Adawaak of Biis hoont Adawaak in Appendix One at 25.1. In this adawaak the Wilp of Tenimgyet tells of their migration into the Lax 'wiiyip of the Gitxsan. 17 See: The Adawaak of 'Neekt in Appendix One at 246. This adawaak chronicles the route that the Laxskiik took from the Nass Valley to Haida Gwaii, back to the Nass River then on to Kitwanga. 18 See: the Adawaak of Sindihl in Appendix One at 239. Outlined in this adawaak is how the Wilp of Sindihl claimed their territories when they all lived in the village of Gitangasx, until their move to Gitan 'yaaw. 1 9 M . McKenzie, Proceedings at Trial, (1987) vol. 8 May 21 at 472 [McKenzie]. 2 0 See: The Adawaak of Hanamuxw in Appendix One at 240. The Wilp of Hanamuxw has chronicled in this adawaak their origins, ayuks and their purpose as peace keepers among the Gitxsan. 2 1 The term "wilp" literally means dwelling place of a family and is the resource owning group and wilp membership is restricted to the Saim 'oogit (woman) or Seem 'ogit (man) (McKenzie , supra note 19 at 484), her or his brothers, sisters, sisters' children, and sisters' daughters' children (H. Harris, Proceedings at Trial (1989) vol. 168 January 16 at 10697 [Harris]). 2 2 Marsdenra^ra note 11 at 17126 to 17127. 23 Ibid, at 17104 to 17105. 69 Seem 'oogit, and in situations where additional help or labour is required by any one of the affiliated wilps. In historic times, each family had a dwelling located in the village of origin24, and although male wilp members usually did not leave this village (patrilocal), in most cases women when they marry move to their husband's uncle's village . The woman's sons (or daughters) at puberty would return to their mother's village to be trained by their mother's brother26. Early training in the laws (ayooks) and history of the Gitxsan is the responsibility of one's father's wilp (or wilksiwitxw). This body of people, besides being responsible for the early education and training, maintains special relationships throughout the lives of any children. The wilksiwitxw provides the first and last bed of any child, and assists with the ceremonial obligations of these children (from sponsoring ones naming li'ligits to pay for special events at one's funeral)27. More importantly, while one's father is alive, one has access to particular fishing sites, hunting grounds, or berry grounds, as well as trapping privileges in ones father wilp's lax 'wiiyip. Thus, ones wilksiwithxw, assists the wilp in establishing the next generation, and knits the society together28. Besides these alliances, which cements Gitxsan society, their affiliation with other wilps, wilksiwitxw, or wilksiwithxw members who reside the other villages29 Gitxsan wilps establish 2 4 S. Mardsen Proceedings at Trial, (1988) vol. 93 May 6 at 5896 [Marsden]. 2 5 Seem 'ogit Molxan, Speech in: W. Beynon, Potlatch at Gitsegukla: William Beynon's 1945 Field Notebooks, M . Anderson and M . Halpin,, eds. (Vancouver, B.C.: University of British Columbia Press, 2000 at 25 [Beynon]. 2 6 A. Mathews, Proceedings at Trial, (1988) vol. 73 March 14 at 4539 & 4543 to 4544 [Mathews]. 2 7 In conversation with J.Angus, April 16, 2001. 2 8 In conversation with M . McKenzie, April 18, 2001. 2 9 Although Gitxsan villages in themselves do not form political and social units, wilp members that live in the villages are usually more or less central, or at least close to the wilp's lax 'wiiyip. Also, in times of crisis, villages will align themselves against a common enemy, or as in contemporary times have banned together as unit under the banner of the Gitxsan Hereditary Chief Society (or the Gitxsan Treaty Society) to forward their court action and now their treaty . 70 close relationships with other communities throughout the region. Thus, Gitxsan society, although the property of the wilp is maintained through the adherence to a matrilineal inheritance system, social relations throughout the region (including with neighbouring communities) are maintained through marriage, knowing the wilp's place of origin as remembered in the adawaak, and by acknowledging the importance of their pteex affiliation . Political and social aggregation among the Gitxsan rests on the foundation established by wilp membership, and is interwoven with claims of exclusivity to specific territories (lax'wiiyip), various titles (ayuks) and histories (adwaaks) by.the wilp that is tempered by the desire to maintain access to additional territories and economic endeavours31. These relations are cemented by marriage, historical ties and shared histories. The wilp is the property holding group, in which it members have rights and obligations, and as such it is only the members of the wilp, directed by the Seem 'ogit or Seem 'oogit, that may transact business associated with the wilp's lax 'wiiyip, ayuks or names (warns) . As part of the Gitxsan's renewed contract with the Animals, the Gitxsan were to remember the events that banished them from the lax 'wiiyip, and as part of the renewed relationship the Seem 'oogits were entrusted to manage the resources in the wilp lax'wiiyip, as well as to maintain respectful relations between the huwilp and wilp members. Besides the respect that they were to show to each other and their wil'na t'ahl (related wilps of the same pteex) the Gitxsan were to acknowledge the contributions of their wilksiwitxw (one's father's relatives). This is remembered in their adawaaks. Thus the purpose of the adawaak is to bring 33 the past into the present, and to show that the ayooks of naa hlimoot '(their laws of sharing) negotiations. However, the relationship is better described as an alliance of wilps, In conversation with J. Angus. 3 0 In conversation with V. Smith, April 23, 2001. 3 1 In conversation with A. Mathews, April 22, 2001. 3 2 In conversation with D. Ryan, April 18, 2000. 3 3 A. Mathews, Proceedings at Trial, (1988) vol. 74 March 15 at 4587 to 4589 [Mathews]. 71 given to the Gitxsan promote respectful relations. Respectful relations must exist not only between the huwilp, but also between the Gitxsan and the animals. Historically, Gitxsan traditional political and legal life, like other First Nation peoples in North America, has been considered to have been replaced with Indian Act Administration and compliance with Federal and Provincial laws. However, the Gitxsan can illustrate that several groups or individuals may hold different kinds of rights in the same resource or piece of land. It could be said that individual rights (in resources or land) as Gordon Wilson34 contends, are "dependent" upon "social relationships," and even then the individual can only have "definite rights" to participate in the use and/or to share the produce from particular locations, governed by specific rules. Rights to resources for members of a community, like Max Gluckman has suggested, are determined by status inside it, and by meeting obligations inherent in that status. Thus the Gitxsan Seem 'ogit or Seem 'oogit must carry the responsibility to manage their lax 'wiiyip in such a manner that will enable the wilp members to have enough to eat, and similarly wilp members and those affiliated with the wilp, regardless of political status, must respect the ayooks, and heed the word of the Seem 'ogit or Seem 'oogit. Yet, at the same time, Gitxsan society, like most societies, is organized and governed according to principles that first maintain that the lax'wiiyip of the wilps is "owned as a whole" in alliance with each other, and then individual wilp members are "delegated rights" according to specific relationships and in particular territories36. Fundamentally, the Gitxsan are corporate group owners of their Lax 'wiiyip, and this includes, 3 4 G. Wilson, The Land Rights of Individuals Among the Nyakyusa (Rhodes-Livingstone Papers, 1938) at 39. M . Gluckman, Ideas in Barotse Jurisprudence (New Haven, Con.: Yale University Press, 1965) at 79. 3 6 Such a statement suggests that all land can be considered to be "communal in nature," whether one is referring to land in nation states or in stateless societies, and keeping in mind that relying on terms such as "communal," "ownership," "beneficial occupation," or "usufruct," as Robert Lowie has argued, one might be masking the real pattern of rights to land and/or resources. See: R. H. Lowie, Primitive Society, (London, Engl.: Routledge 1921) at 201. 72 besides the ownership of the land: user rights, exchange rights, distribution entitlements, a management system and instruments authority to support the management of the resources. In this chapter I consider Gitxsan property ownership, as it relates to their land tenure system and governance. First I examine Gitxsan property, which includes first their property as articulated in the wilp adawaak, ayuks, warns, and lastly, their real property their lax 'wiiyip and the resources on it. Second I discuss the Gitxsan land tenure system and wilp exclusivity, including the right of the wilp to grant access to, as well as alienate from, their lax 'wiiyip for specific purposes. Third, I talk about the role of the Seem 'ogit, and Gitxsan governance principles. Lastly, I examine the Li 'ligit as a central institution that binds wilp members together in cooperation, and demonstrates the reciprocity among all Gitxsan huwilp. Wilp Property and Ownership For the Gitxsan their lax 'wiiyip is part of them, their status, and their history. On May 12, 1987 Delgam 'Uukw37 and Gisday Wa38 in their opening address to the Court stated that: For us, the ownership of the territory is a marriage of the chief and the land. Each chief has an ancestor who encountered and acknowledged the life of the land. From such encounters comes power. The land, the plants, the animals and the people, all have spirit; they all must be shown respect. That is the basis of our law. The Chief is responsible for ensuring that all the people in his house respect the land, and all living things. When a Chief directs his House 3 7 At the time of the filing of the statement of claim the Gitxsan name of Delgam 'Uukw (October 24, 1884) was held by Albert Tait, and in January 1987 the name of Delgam 'Uukw was passed on to Ken Muldoe (See: M . McKenzie, Proceedings at Trial, (1987) vol. 4 May 13 at 258) and near the end of the trial, the name of Delgam 'Uukw was given to Earl Muldoe after Ken Muldoe suddenly passed away on April 8, 1990 (S. Rush, Proceedings at Trial, (1990) vol. 319 April 9 at 23993). 3 8 At the time of the trial the Wet'suwet'en name of Gisday Wa was held by Alfred Joseph. A. Joseph, Proceedings at Trial (1987) vol. 23 June 19 at 1523. 73 properly and the laws are followed, then that original power can be recreated. That is the source of the Chiefs authority. My power is carried in my House's histories, songs, dances and the crests. It is recreated at the feast when the histories are told, the songs and the dances performed and the crests displayed. With the wealth that comes from respectful use of the territory, the House feeds the name of the chief in the feast hall. In this way, the law, the Chief, the territory and feast become one. The unity of the Chiefs authority and his House's ownership of its territory are witnessed and thus affirmed by other chiefs at the feast. By following the law, the power flows from the land to the people through the Chief; by using the wealth of the territory, the House feasts its Chief so he can properly fulfil the law39. Delgam 'Uukw and Gisday Wa also asserted that, as they hold the name of a Seem 'ogit, they hold title, and that the property of the wilp is part of the status named by that title. They are, as Saim 'ogits, responsible for ensuring that all the people of their wilp have enough to eat, respect the land and all living things in that territory. The Gitxsan people know it is when the Saim 'ogit directs wilp members properly, and the laws are followed, the power of the wilp is recreated. It is in the name of the wilp that the Saim 'ogit has authority to direct the wilp members on wilp lax 'wiiyip. They also assert a justification for Canada and British Columbia to negotiate with them as property owners, and to view their title in terms of their laws and obligations. The Gitxsan desire to have recognized their proprietary and management interest in the salmon fishery, in their trap lines, in the berries they gather, and the other animals they hunt. They are eager to influence Federal and Provincial policy decisions, permitting their law to affect these interests throughout their lax 'wiiyip. In the event of infringement, as a result of Crown appropriation and third party damage, trespass or nuisance, they believe that it is necessary that they be involved to set the conditions for appropriation, infringement and determination of standards for compensation. K. Muldoe & A. Joseph, Proceedings at Trial (1987) vol. 2 May 11 at 55 to 66. 74 For the Gitxsan, tenure and ownership lies coded in a series of cultural images, practices and, more importantly, the historic relationship to the land. Similarly, Gitxsan leadership, though hereditary, is contingent on responsible behaviour and the fulfilling of duties and obligations. Access to resources is granted firstly to immediate family members, and secondly to spouses of family members and their children. Generally Gitxsan property, like that of common law property, has everything to do with the rights of persons to access resources for food, ceremony and economic pursuits of the wilp. However, Gitxsan wilp property is firmly situated in the fact that persons do not necessarily have rights over "things," but have obligations owed to each other (relations, the animals, fish, trees, rocks and so on). Thus, Gitxsan property and its underlying laws consist of sets of principles that sustain particular practices, such as fishing, hunting and sharing (both labour to access the food and the food itself) that must be discovered by listening first to the adawaak, acknowledging the ayuks and finally abstracting the principles of law that become embedded in the events such as fishing, hunting, gathering and sharing. Since Gitxsan status is tied to governance roles, which are situated in specific locations with particular duties, the lax 'wiiyip, and the wealth that is held on it, is an intricate and vital component of Gitxsan public and private life. The nax nox or power that the wilp'holds is contingent on respectful use of the territory: that, in turn, is reflected in the well-being of all members. These features stem from the capacity of the wilp to hold exclusivity over their lax 'wiiyip against other wilps. This right of exclusivity is further coupled with a correlative duty of other wilps to agree to stay out of the territories in question40, unless permission is given. However, the Soon 'oogit has the additional obligation to maintain the ecological integrity of the lax 'wiiyip in order that the animals remain. In Gitxsan society Seem 'oogit have responsibilities to manage the resources carefully, in order that all of their wilp members have plenty to eat. 4 0 W. W. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (New Haven, Con.: Yale University Press, 1923) at 123. 75 They are similarly entrusted to act as stewards of the land, rivers and air, so that the fish, birds, animals and plants will continue to exist. For the Gitxsan it is on the land that, both individually and collectively, they encounter life, and it is when the narratives and songs are told and performed at any one of Gitxsan //' 'ligit (feasts) that the authority of the Seem 'oogit is legitimized. The display of the crests, the narratives and the bounty fed to guests lays the foundation for the subsequent affirmation or refuting of property decisions by the management of the wilp. Adawaak The wilp first owns its history - the adawaetks, which as charter narratives41 outline the migrations back into the lax'wiiyip, the relationships among their pteex (clan) relatives42, and the lax'wiiyip boundaries43. In some cases the adawaaks recite inter-w'/p tensions and inter-community wars44. Generally speaking the adawaaks record wilp origins, migrations and the lax'wiiyip of each wilp. Also encoded in the adawaaks are the individual Gitxsan wilp symbols of their title, the crests - ayuks45 which give the wilp the right to occupy and use the territory it 4 1 B. Malinowski, Soil Tilling and Agricultural Rites in the Trobriand Islands (London, Engl.: George Allen & Unwin Ltd., 1966) at 341 to 381. 4 2 The Adawaak ofHax bagootxw in Appendix One at 237. Explained in the Adwaak of Hax bagootxw is how relationships are maintained between sisters who live in different territories. 4 3 The Adawaak on the Move to Kuldo in Appendix One at 242. Gyologyet explained in the Adawaak on the Move to Kuldo how the wilps established themselves in the Kuldo Terrtitories. 44 Adawaak of Hanamuxw in Appendix One at 240. Gwaans retold in detail that it was during the time of inter-community wars that the Wilp of Hanamuxw was formed and subdued the warring wilps. 45 Ayuks(s) are presented on T'saan (poles), gwiis gan 'malaa (robes), am bilan (aprons) and 'am halitx (headdresses) and relate directly to the lax 'wiiyip. S. Marsden, Proceedings at Trial, (1988) vol. 93 May 6 at 5922 [Marsden], and also The Adawaak of Hawaaw' in Appendix One at 264 to 265. As Tenimgyet explained how the wilp, by re-telling the Adawaak of Hawaaw', can acquire ayuks or songs, adding to the history of the wilp through the remembering of important events. See: Appendix One at 259. 76 claims. Adawaaks, as Gyologyet explained at trial, are central to Gitxsan life and are considered to be the primary aspect of Gitxsan wilp property and knowledge: Adawaak in the Gitksan language is a powerful word for describing what the House stands for, what the territory stands for, is the adawaak. It's not a story, it's how the people traveled back into the territory47. This is the adawaak. And it's the most important thing in Gitksan, is to have an adawaak. Without an adawaak you can't very well say you are a chief or you own a territory. Without the adawaak - it has to come first, the adawaak - names come after, songs come after, crests come after it, and the territory that's held, fishing places48 - all those come into one, and that's the adawaak49. The adawaak is: history, and it's the happening of how the Gitxsan people have their names right from infant to a chief. The Adawaak refers to the songs that are made for the purpose of each chief to use. The Adawaak tells of the Nax nox, why it was created and how it's shown amongst the people in the Feast House. The Adawaak also tells of the territory of the chief50. Ayuk Besides the adawaak, which encompasses Gitxsan wilp history and their laws, Gitxsan wilps own ayuks. The ayuks are sets of symbols that bind the wilp to their lax 'wiiyip and to the animals from the time before the floods. The symbols illustrate to others the wilp's territorial 4 6 At the time of the trial the name of Gyologyet was held by Mary McKenzie. M . McKenzie, Proceedings at Trial, (1987) vol. 3 May 13 at 160 [McKenzie]. 4 7 The Adawaak on the Move to Kuldo in Appendix One at 242. 4 8 The Second Adawaak of Wiigyet in: Appendix One at 251. There is a place where Wiiget fell back to earth and at this place the salmon also pool before proceeding up stream. This place is considered to be an excellent fishing spot. 4 9 McKenzie supra note 37 at 236. 5 0 McKenzie supra note 46 at 185. 77 holdings and their relationship to other wilps. These symbols, the ayuks, as Xamlaxyeltxw5 testifies: are always acquired from the territory, and in the ancient time it was very hard to get these ayuks. Each house has its own ayuks, and no-one from another house is supposed to use another house's ayuk, or crest52. These ayuks or crests, according to Ax Gwin Desxw53 are: very important symbols to Gitksan people. The ayuk shows how the house groups attained their land initially, who inhabits a particular piece of land, or how they killed different animals. The ayuk clearly identifies who you are, and to which house group you belong. Ayuks define how much land you have, how much power you have, and your authority over that piece of land. Nobody just goes up and uses somebody's ayuks, because if you try and take somebody's ayuks you are taking their land away. For instance, like people like Tenimgyet in Gitwangak, their ayuks are the bear cubs54. Our house has the grizzly bear with the two baby bear cubs on the ears55. This identifies who I am, and I know who Tenimgyet is because I know what his ayuks are. And those ayuks are illustrated on their particular totem-poles. This shows the people that they have power and the authority over the land, they have fishing holes, the ayuk(s) clearly identify who they are. It tells the people that this land belongs to us. If you look at Tenimgyet's ayuks and know the adawaak of how the bear captured the woman, you know that happened where Tenimgyet's territory is today. That is how the ayuks are tied right back into the land. 5 1 At the time of the Trial the name of Xamlaxyeltxw was held by S. Mardsen. S. Marsden, Proceedings at Trial, (1988) vol. 92 May 5 at 5870 [Marsden]. 5 2 Marsden supra note 24 at 5922. 5 3 At the time of the Trial the name of Ax Gwin Desxw was held by G. Williams. G. Williams, Proceedings at Trial, (1988) vol. 105 May 30 at 6627 [Williams]. 5 4 The Adawaak of Biis hoont in Appendix One at 251. Besides the narrative telling of the coming of the Wilp of Tenimgyet into Gitxsan territories, this adawaak describes the major ayuks of the Wilp of Tenimgyet. 5 5 The Adawaak of Malii in Appendix One at 257. The image of the mother bear with the two cubs abut her ears are one of the ayuks symbolizing the property of the Wilp of Malii. 78 These ayuks are displayed on the regalia of the Seem 'oogit or Seem 'ogit and on other wilp property, such as 'am halitx, gwiis gan 'malaa and am bilan. However, the most important examples of wilp property displaying wilp ayuks are the T'saan or poles56. As Hdnamuxw5 testified: The pole indicates that you have a house. Without the pole it would be difficult to identify the House of Hanamuxw because your pole records the experiences of your house58. They are the history of your house. The pole is evidence that Hanamuxw's house did exist, does exist and will continue to exist59. Putting up a new pole is a way of reaffirming and confirming the Dax gyet of Hanamuxw. It is the way of establishing that the property of Hanamuxw has not been abandoned, nor will it be in the future. It is a way of telling the other chiefs that the house is as strong as it was before, and that it will continue to exist because we have a fair number of people in our houses who will continue with the activities associated with the House of Hanamuxw, and who will ensure that it will exist in the future60. As Xamlaxyeltxw stated: When the chief is planning to raise the pole, it is very important that he thinks back to his territory. It is on the pole that he puts all the power and authority that he has. He puts all the crests of his adawaak on this pole. These poles show where the chief s jurisdiction is 6 1. Similarly, Gwaans62 in her evidence testified: The totem pole is like a map. The pole holds everything. They hold the fishing sites and they hold the hunting ground and they hold the house63. Marsden supra note 24 at 5922. 5 7 At the time of the Trial the name Hanamuxw was held by J. Ryan. J. Ryan, Proceedings at Trial (1988) vol. 79 March 23 at 4975 [Ryan]. The Adawaak of 'Neekt in Appendix One at 246. The story of the Wilp of 'Neekt like that of the Wilp of Hanamux is recorded on the wilp's T'saan. 5 9 O. Ryan, Proceedings at Trial, (1987) vol. 17 June 11 at 1091 to 1098 [Ryan]. 6 0 J. Ryan, Proceedings at Trial, (1988) vol. 80 March 23 at 5017 & 5026. 6 1 S. Marsden, Proceedings at Trial, (1988) vol. 94 May 9 at 5963 to 5964 [Marsden]. 6 2 At the time of the Trial, the name of Gwaans was held by O. Ryan. O. Ryan, Proceedings at Trial, (1987) vol. 16 June 10 at 1013. 79 Wants The continuous succession of ownership of lax 'wiiyip is through the passing of chiefly names that legally and spiritually connect the present generation to their ancestors. Besides adawaaks and ayuks, the wilp owns, as property, warns or names and these are significant as markers in the individual Gitxsan life cycle, especially with respect to the succession of the Seem 'oogit and governance of wilp property. The inheritance of the Gitxsan lax 'wiiyip upon the death of the Saim 'oogit is renewed by the transfer of the chiefly warn and other named positions, duly witnessed by others of similar rank at various // 'ligit (general feasts). It is the name of the Seem 'oogit, according to Gitxsan tradition, which carries the dax gyet (power) of the wilp and its genealogy can be traced back over the history of the Gitxsan people. In the most ordinary sense, a warn of a person marks the transitional stages of a person's life. One is named at birth, as a young person, and perhaps later in life. This is as Gyologyet testified: Starting from when a child is born they're given a name, and then at puberty. When they reach the age of adult they're given another, and if he or she is in line of becoming a Chief a name is given to that person, and it is shown in the Feasting House just who are the people that are in line to become a Chief, as they are given an extra name64. Some warns hold, by virtue of the name itself, political influence. The highest ranking warn in a wilp is the name of the wilp; for example, Delgam 'uukw is the highest ranking warn in the wilp of Delgam 'Uukw. Correspondingly, the person holding this name holds the most authority in the wilp and is referred to as the Sam 'oogit or Saim 'ogit. To a large degree, the Seem 'oogit is the embodiment of the wilp. Similarly, there are names for members who act as spokespersons, and Ryan supra note 62 at 1078. McKenzie• supra note 37 at 243. 80 names specific to women and children . However, not every person's name traditionally permits him or her to enter the yukw. One must hold a wa 'ayin warn to sit at the yukw, as it is at the yukw that warns given to wilp members are validated66. Inheritance of warns (names) and social positions, specific to a particular wilp, are reckoned through a matrilineal descent pattern67, and rights to resources are attributes of political status fixed by warns, which in themselves are the property of the wilp. Those who hold the authority to allocate quotas for fish, and determine the locations for hunting and trapping have obligations to ensure that there are enough resources for their kin, kin related through marriage, and those who are allied, to the wilp by historic ties. Lax'wiiyip For the Gitxsan their lax'wiiyip, especially resources sites (fishing sites, mountain passes, bear dens, and so on), are subject to control by the wilp. Wilp lax 'wiiyip and the ayuks (crests) are the material foundation of the wilp, the basis for their social identity and the history of its members. As Xhliimlaxha6^ testified: ' In Gitxsan society the owner of Xhliimlaxha territory are all the members of the house. This area is where they get their supply of food. Xhliimlaxha has been the owner since they discovered it, since they left Temlaham69. The land is corporate property, in that the wilp as a unit holds a proprietary interest, but lends rights of access to other groups: At the same time, the land essentially holds incorporeal 6 5 "Introduction" in Beynon supra note 25 at 22 [Beynon] & McKenzie supra note 46 at 189. 6 6 McKenzie supra note 37 at 218. 6 7 Williams supra note 53 at 6659. 6 8 At the time of the trial the name of Xhliimlaxha was held by Martha Brown. M . Brown, Commissioned Evidence (1985) vol. 1 September 18 at 1 [Brown]. 6 9 M . Brown, Commissioned Evidence (1985) vol. 3 September 21 at 5. 81 attributes, in that the Gitxsan belief structure compels them to view their relationship in terms of the human-animal relationship and their history of encounters on it. These two aspects of property, the corporate and incorporeal, for the Gitxsan are interwoven through the presence of the Seem 'oogit, who is considered to be the literal embodiment of the wilp's holdings and its activities. The right to grant or withhold consent, or to use wilp lax 'wiiyip, is contingent on the Seem 'ogit or Seem 'oogit having the public responsibility to see that the lax'wiiyip is used, its general fertility is maintained and no-one is left hungry. Those who are not members of one's wilp may be granted permission to use hunting territories and fishing stations. These persons are part of the wilksiwitxw or from the spouse's kinship groups or andimbanak. Others may seek permission, which is usually granted subject to terms of some form of payment. As Tenimgyet has stated, "the fish are part of the rivers, as they have their own houses," and "it is not a wilp's right to deny another a livelihood," however, "the fishing station at site Gwin k'alp is the wilp of Tenimgyet and those people using it must adhere to the laws of the wilp of Tenimgyet10The. user of the fishing site, berry patch or hunting territory could make an on-the-spot contribution for the use (daawxiis) or, the user was expected to present the payment at a. yukw. In response to the contribution, the wilp receiving the payment would acknowledge it and state to the community who has rights on their lax 'wiiyip. Permission is sought from the Seem 'oogit to go onto the wilp territories to hunt, trap, gather or fish71, or as Gwiiyeehl testified: After Gitludahl passed on and the name was passed on to me, I have the full authority to look after the place or to give permission to anyone that wants to go there and this includes the hunting, or trapping, or fishing, whatever Gitludahl had rights to give out. It's my responsibility to do it. If I give anyone permission or they come to me and ask me if they want to go there, I will show them where to go and where to trap or where to hunt beaver or anything like that. We don't always go into the same place at the same year, we always move onto different territories72. 7 A. Mathews in correspondence, April 10, 1999. 7 1 McKenzie supra note 11 at 361. 7 2 P. Muldoe, Proceedings at Trial (1988) vol. 100 May 19 at 6310 [Muldoe]. 82 In essence, ownership of Gitxsan property is predicated on the ability of the Seem 'oogit to make appropriate decisions regarding the allocation of resources first to wilp members, second to relations - including spouses and their respective families - and lastly to others who seek permission. The Seem 'oogit represents the wilp group's right to exclusive possession of land and resources. As such, it is incumbent on the Seem 'oogit to be able to manage resource activities, and the labour necessary, as well as to provide the appropriate political and spiritual leadership. " Together the adawaaks, ayuks, and warns give the wilp its basis for its collectivity. The adawaak situates the wilp in Gitxsan territory in relationship to other wilps. The adawaak also defined the parameters of their territory that is directly associated with their history in the territory, and the ayuks (or titles) that are carried into the yukw on ceremonial objects or on t'saan, illustrate to others present their specific lax 'wiiyip. Warns reinforce the human-territorial relationship, either referencing the history directly, or through associating the person with a particular location on their lax 'wiiyip and giving authority to those who have over the years demonstrated the ability to direct others and manage the resources on the wilp's lax 'wiiyip. Wilp Lax'wiiyip Have Fixed Boundaries Wilp boundaries have been fixed since the time when the Gitxsan returned after the ice and snow retreated. Each Gitxsan wilp, through the recitation of their adawaaks which chronicle the order in which they arrived into the lax 'wiiyip after the glaciers receded, can establish a proprietary interest in their respective pteex lax 'wiiyip. Furthermore, through a display of ayuks, each Gitxsan wilp can prove their respective boundaries and exclusivity to their particular lax 'wiiyip. Moreover, the ayuks displayed on T'saan in any one generation lists the relationships of the wilp to their wilksiwitxw, affirming the territorial links through marriage and 83 the proprietary resources, uses and interests of the children. Since huwilp adawaaks describe the route wilp members took upon their return to the lax'wiiyip, when the lax 'wiiyip is spoken about 7 1 at a yukw it is referenced to named geographical, historical features and specific events . These boundaries originate from the time of the migrations after the glaciers retreated and the adawaak chronicles these migration routes74 into the lax 'wiiyip of the wilp, and are illustrated by the wilp 7 S through the owning of various ayuk(s) that reference particular locations . This is, as Tenimgyet16 explains: Like, for instance, in our starvation adawaak, it describes in great detail our territory, the territorial names, the trails, and exterior boundaries, camp sites, bear dens; that is, where food is available77. Where there are no distinguishing physical land features, trees are blazed or rocks are piled up fixing the boundaries. As Gwis Gyen78 related: I have talked about Gwis Gyen's territory and there is WU Hlengwax's territory, there's Luulak's territory. We use our own laws and we know where our territories are. These territories have been passed down from generation to generation. The boundaries are always the same. We always go by these boundaries because we have had these boundaries for thousands of years now and they are still the same today79. The Adawaak on the Move to Kuldo in Appendix One at 242, and The Adawaak of 'Wiihloots' in Appendix One at 258. Outlined in these two adawaaks are the boundaries of the Wilp of Tenimgyet and that ofthe Wilp of Gyologyet. 7 4 Mathews supra note 26 at 4561 to 4577 [Mathews]. 7 5 Mathews supra note 26 at 4581 to 4585 & A. Mathews, Proceedings at Trial, (1988) vol. 75 March 16 at 4586 to 4595. 7 6 The name of Tenimgyet at the time of the Trial was held by A. Mathews. Ibid, at 4513. 77 Ibid, at 4561. 7 8 The name Gwis Gyen at the time of the Trial was held by Stanley Williams. S. Williams, Commissioned Evidence (1988) vol. 1 April 11 at 1 [Williams]. 7 9 Williams supra note 79 at 51. 84 Txaaxwok testified: An Hi diks, it means that this landmark is where there is a post on the corner of a boundary, or a tree that has been blazed. A boundary can be a creek or a mountain that's never moved, or the creek that is not dry, a creek that runs all the time. They call this An Hi diks. It does not move. They don't use anything that moves because it's a boundary. It's still the same today. They never changed. No one can change that. People sitting in the feast hall here, know that you have identified a boundary, and they know where that boundary is. You name the place where the post is, like An Hi diks, and they know where the boundary is 8 1. As Tenimgyet clarified: Where there are no other markers, trees are blazed, and we continually do this every time we come upon one. That is called, Xsi gwin ixst'aat, or we re-identify the mark by going over on top of the old blaze. And as you get out of the tree line and start onto the mountain itself, there are piles of rocks used as markers along the ledges of the mountain. These rock piles are about 20, 30 feet apart and about two feet high. These markers are still up on the Tsihl Gwellii territory82. Although the boundaries of each lax 'wiiyip are fixed and that specific wilps may lay claim to particular territories, a wilp may loose control over the ability to allocate resources on their lax 'wiiyip. According to Gitxsan law, a wilp must forfeit the right to a resource location when one of their members is guilty of a capital crime, such as murder, rape or larceny. In these cases, the lax 'wiiyip may revert back to the original wilp, only if the respondent is satisfied that 83 the benefit received from the resource location has made up for the loss. . Also, if the wilp has The name of Txaaxwok the time of the Trial was held by James Morrison. J. Morrison, Proceedings at Trial, (1988) vol. 82 April 18 at 5133 [Morrison]. 8 1 Morrison supra note 80 at 5133. 8 2 A. Mathews, Proceedings at Trial, (1988) vol. 76 March 17 at 4723 to 4724 [Mathews]. 8 3 In conversation with J. Ryan, August 15, 2000. 85 difficulty covering the cost of funerals for its members, then it will borrow funds from others, and these people until the wilp is able to repay them will hold one of the resource sites . Wilp Lax'wiiyip Exclusivity is Underpinned by the Law of Trespass Property rights in all societies are guarded carefully and Gitxsan laws of trespass require that the boundaries of the wilp('s) lax 'wiiyip are known and permission is sought to hunt or fish on wilp lax'wiiyip. As Tenimgyet testified: Territorial place names are announced in various ways. They are announced as an adawaak and they are announced when you bring your soup, your tea, your bread; they are announced and said this meat comes from, and it is specified which mountain or the territory it comes from. Each creek is mentioned. So in our rules and laws, we say that if you eat and digest the words, it is within your very soul . A hunter, according to Xhliimlaxha, must respect the boundary lines, and, conversely, others are obligated not to cross into another's lax 'wiiyip. She testified: It is Gitksan law that we have a line or boundary that whoever owns on one side cannot take from the other side. They cannot cross the line and take from the other side, otherwise they can take what one has taken. In turn the other side cannot enter into our boundary86. Trespass is equated with stealing. One knows not to go onto another's lax 'wiiyip and one knows the consequences of such practice. Before the Lixs giigyet were established in the region, a habitual trespasser could easily be killed for his behaviour. As Gwaans stated: In conversation with A. Mathews, August 18, 2000. Mathews supra note 76 at 4607 M . Brown, Commissioned Evidence (1986) vol. 4 January 22 at 102. 86 if you cross someone's trap line to go to your own, you don't allow the trapper to use somebody else's hunting ground. That's the law of Gitksan. You have to go to your own. So if you do that and they warn you, and if • 87 you don't listen, they kill you right there. Saagit they call it . Similarly, Gwis Gyen testified: In the chiefs'houses we have our laws, our laws concerning the boundaries. Each chief knows his own boundaries and this is held in their house. They know where their boundaries are and they know that no one could trespass over this boundary. They mention these boundaries in the - - feast hall, and they have chiefs and other Gitksan people' listening to him, and they are witnessing this while he describes the boundary of his territory. Our people have our laws within the territories. Our law is that if a person has trespassed on your land'and he has been warned and the third time he is caught there, he will be killed instantly. When this happens, the owner of the land will paint his face black88. In this situation, one's kin cannot seek revenge, nor reimbursement, as Gwis Gyen stated: There was a trespasser that went onto Nishga territory, and this trespasser was killed and was put back into the T'aam Gins xhoux (Sand Lake) and the people of Tenimgyet took the body and never said anything because they know that he was trespassing89. While the Gitxsan acknowledge the seriousness of trespass, accidental wanderings and hunting on another's lax 'wiiyip their remedies are usually put aside if the person goes to the Seem 'oogit, admits their wrong doing, and offers compensation. Similarly, the Gitxsan recognize the need to "pass through" another's lax'wiiyip in order to get to their own. Furthermore, it is acknowledged that provisioning during the course of a journey is permitted, however, one cannot actively hunt in another's lax 'wiiyip. According to Xamlaxyeltxw: When saagit or justifiable homicide occurs in Gitxsan society it is usually as a result of habitual stealing of another wilp('s) resources. Ryan supra note 59 at 1134. 8 8 S. Williams, Commissioned Evidence (1988) vol. 2 April 18 at 198 [Williams]. o n Williams supra note 88 at 168. 87 When one of the family owns one territory up further than this territory here, then they walk on the territory of that other chief s to get to their territory. They don't go off of the trail and start hunting on that territory. They just keep walking until they get to their own territory. They could shoot that animal on the trail, but they can't go in and hunt on that territory90. However, it was expected that the casual trespasser would recognize and compensate the owner of the lax 'wiiyip at a yukw for extending this privilege. As Xamlaxyeltxw testified: If this should happen, the person who trespassed apologizes to the chief then the chief would forgive this person. This would happen at a Feast, any kind of a Feast. This is done while the Feast is going on, in order for the people to hear. The trespasser will compensate the chief at the time when he apologizes in the Feast house. The Gitksan people don't apologize just to the Chief, because no one would know about it. In order for people to recognize what has happened and what's going on, they announce it in the Feast, and as it is a correction that is made before the people91. Wilp Ownership Includes the Right to Grant Access The Seem 'oogit, in the name of the wilp, gives permission to go onto the lax 'wiiyip to fish, hunt, trap or gather food. The right to grant or withhold consent to use wilp lax 'wiiyip is closely linked to the owner's responsibility to see that the land is well used, its fertility maintained, and that no one lacks basic subsistence. Those who are not members of the wilp, persons from one's father's side, the wilksiwitxw and from the spouses' kinship group -andimhanak, may seek permission and be granted permission to use the laxwiiyip of the wilp. Persons who are not related to the wilp may ask permission as well; however, access given to a particular site or resource is usually for a specific and short period, and is announced at a yukw. 9 0 Marsden supra note 61 at 5956 to 5957, 91 Ibid, at 5938 to 5939. ' 88 The Seem 'oogit has the responsibility for the management of the lax'wiiyip, and all wilp members have the obligation to seek permission from the Seem 'oogit to go onto the lax 'wiiyip. It is the Seem 'oogit, in consultation with other Seem 'oogit(s), who determines the quantities of fish, and animals trapped or hunted in each year. As Gyolugyet has testified: It's Gitksan law that we have to have permission. No one goes onto anybody's territory without getting permission from a head chief of the House of that territory, even if it's your own husband or your wife or your children. That's the law in Gitksan. Everybody has to ask permission, and be given permission92. Anjok The Gitxsan adhere to what is known as "Anjok," or to be called out by the Seem 'oogit(s) to use a resource, in order to avoid trespass. This practice ensures that those interested in using a fishing site, hunting territory or berry patch will have an opportunity to be given permission by the wilp to use a particular resource of a wilp. Xhliimlaxha testified: When it is time for fishing or berry picking the Seem 'ogit will invite the rest of the family. It is the traditional role of the Seem 'ogit to call first the family, then others who are related, the parents of the spouses, and lastly others who ask permission93. After permission has been given the Saim 'oogit(s) provides one with a sign or symbol that illustrates to others that permission has been given. Tenimgyet testified: In earlier years the ladies of our House would make special straps that were colourful and visible. And if someone wanted to go onto the territory they would ask permission from the chief, who controls the areas. They would give the chief something that came from their own territory. McKenzie supra note 11 at 361. Brown supra note 68 at 20. 89 They would exchange something for the permission to go to these berry patches, and they would have these strings tied to the baskets that they called deex iiyasxw. They were given these fancy coloured straps to identify that they already obtained permission from the chief94. Tenimgyet further explains: If a man came to the chief, and went to the territory without any member of our house accompanying him, then he would have to have some identification that said he had gained permission. This was done by a staff we call k'aat'. That's just a large staff they use to go up the mountain. And this staff would be coloured kind of a light blue colour and the way that this colour is obtained is from a lake we call in our language T'am si maa'yaast, and maa'yaast is trimming. If you stick a "stick" into the lake sediment and leave it for a few days, it would then change the colour of this cane, and this is the "staff that we use for identification95. Amnigwootxw The Stem 'oogits regulate access to the wilp's lax 'wiiyip according to established laws. Wilp members have access rights to wilp resources on their lax 'wiiyip, following the direction of the Seem 'oogit. Access rights to wilp lax 'wiiyip are granted to non-wilp members96; thus, all Gitxsan people have access to one's wilp lax'wiiyip, one's father's lax'wiiyip and the lax 'wiiyip of one's spouse. This ensures that all Gitxsan people have access to the multitude of resources throughout the area. Under the principle of amnigwootxw Gitxsan children have a right of access to their father's lax 'wiiyip while their father is alive97. After the death of their.father, children J 4 Mathews supra note 82 at 4720 to 4721. 95 Ibid, at 4722 to 4723. : " 9 6 That is, rights are granted to the children of fathers are wilp members, as well as to one's spouse's lax 'wiiyip. These rights are contingent on proper use and if the marriage dissolves, so do the rights. In conversation with M . McKenzie, April 18, 2001. Williams supra note 88 at 232. 90 must ask permission, unless they are granted continued access by the Seem 'oogit of that wilp . Xamlaxyeltxw explains: Amnigwootxw is when the son travels with his father on his territory, and he will be with his father until his father dies. But after his father dies he does not say he owns this territory. He leaves and if he wants to go back there he has to get permission from the head chief of that territory before he goes back on to the territory where he and his father were before". Similarly, when one's daughter marries, the Seem 'og/Y-will grant to the couple hunting privileg in their wilp's lax 'wiiyip and the use of a fishing site. As Xamlaxyeltxw testified: When a young man marries into the house of the young woman and they are both Gitksan people, what usually happens is the head chief of that woman's house gives a part of the land to this young man and he tells this young man to use this land to bring his children up on this land. And he also would give him a fishing site. If they happen to separate, then he has no rights to that territory. But if they go on living until his death, then he'll use that until his death. And then it goes back to his children. This is known as Yuugwilatxw100. According to Ax Gwin Desxw, when he married, his wife's wilp (Haalus) gave their family access to a fishing site: The fishing hole is theirs, and she has some rights to it. And I have a responsibility to be with her. If we use the fishing hole it's under her direction. I also want to encourage my children to learn about fishing, and teach them our Gitksan laws. And before Haalus passed on he made sure we had a fishing hole101. M . McKenzie, Proceedings at Trial, (1987) vol, 7 May 20 at 423 to 424 [McKenzie]. Marsden supra note 61 at 5948 0 Ibid, at 5940 to 5941. 1 Williams supra note 53 at 6646 to 6647. Furthermore, all Gitxsan wilps have the right to extend privileged amnigwootxw rights to members outside their wilp, when, an individual is brought in as a guardian to care for orphaned children and wilp property. As Tenimgyet states: There are, in our house and all Gitksan houses, two types of amnigwootxw. Privileged amnigwootxw right is you don't have a name from our house but you're privileged to come on our territory through your father's side. This amnigwootxw I'm talking about now, Charlie Smith was the actual taking of a name from our house and using it to show control, jurisdiction, and ownership. If he did not obtain the name Bii Lax ha all other chiefs wouldn't have recognized his voice and he would have had no business talking about this house, he had no rights to be a care keeper, so in that sense he had to obtain the name Bii lax ha. You might say that the type of amnigwootxw he was given was that he took the territory and held it in trust102. In this form of amnigwootxw the wilp extends to a person the authority to make decisions regarding the management of the wilp's lax 'wiiyip for surviving children. The guardian will be "given a warn" from the wilp, and is entrusted with the property of the wilp. This person looks after the resources, the children and their tutelage, transferring back to them their inheritance 103 when they come of age and are able to look after the wilp's property . Similarly, amnigwootxw is extended to the heirs of a past wilp Sxm 'ogit, allowing the wilp to show respect to that individual. In speaking about hunting privileges at a place called Tsihl Gwelli, Tenimgyet says that his grandfather's children could trap there through amnigwootxw. Tenimgyet testified: Amnigwootxw privileges are extended to them because they are the children of the former chief of our house104. In this case, amnigwootxw was given to the children of the father, not for fishing, but for hunting and trapping. Access to fishing sites usually ceases on the death of any Saim 'ogit, unless Mathews supra note 26 at 4557. Marsden supra note 61 at 5955 to 5956. Mathews supra note 26 at 4643. 92 permission is given. A "fishing site" usually has a guardian assigned to look after its defence and regulation106. When the holder of such a "name" passes on, the obligations and responsibilities associated with that name pass to another. The new guardian of the fishing site, in consultation with the Seem 'oogit, is delegated the responsibility to allocate fish to wilp members from the site in question, or to others. Priority is given to siblings and to spouses of the immediate family to ensure that the children are cared for107. With respect to fishing sites, permission is given to wilp outsiders on a seasonal basis. Thus, Tenimgyet explains usage of the fishing site Gwin k 'alp: And at this fishing site we give Niis Noohl amnigwootxw to use the site. He requests permission every year to use this site . In addition, amnigwootxw rights are extended to other Gitxsan huwilp in recognition for services. By doing this, the wilp is able to acknowledge the other's kindness. For example, when the wilp of Tenimgyet could not afford the many funerals that they were responsible for, the wilps of Haalus and Gwis gyen paid for them. In return, the wilp of Tenimgyet extended amnigwootxw privileges to them. As Tenimgyet testified: Gwis gyen and his father did a great amount of work within our house. When people died, it was expensive. We were down at our lowest level, and his father Ts'ii yee did a lot of work for us and helped us quite a bit, so we consider Gwis gyen as amnigwootxw. In ancient history Xsi gwin ixst'aat in the Tsihl Gwellii area was always known An t'ookxw. And it simply means a banquet table. We welcomed them and have granted permission to them to come and use our territory109. Ibid, at 4521. to 4522. Mathews supra note 26 at 4648. O. Ryan, Proceedings at Trial, (1987) vol. 18 June 12, at 1168. Mathews supra note 26 at 4642. A. Mathews, Proceedings at Trial, (1988) vol. 77 March 18 at 4776. 93 In all cases, the giving of amnigwootxw privileges exists for a specific term. When a non-wilp individual is given a name in order to care for orphans, amnigwootxw privileges are extended to that person until the rightful owners are given back their names. However, it is usual to extend continued amnigwootxw privileges to this person in recognition of their service to the wilp. Xkyeehl Besides being embodied in inter-generational networks that enables anyone's wilp to have multiple accesses to a varied lax 'wiiyip by amnigwootxw, a Saim 'oogit can grant another wilp or individual temporary access to specific locations through the principles of xkyeehl. However, unlike amnigwootxw access given as a reward, xkyeehl is given to the individual who approaches the wilp with some form of payment. As Tenimgyet explained: Xamlaxyeltxw approached me with a really high priced article, which we use with our ceremonial nax nox in the feast hall. He has given me what we call an am bilan. That's part of the apron the chiefs use when they are in full regalia, and the an am bilan has these little bells and the designs on it. The reason he gave me this is he wants to use one of our fishing sites. The members of the house will have to get together along with my mother, and we will then decide which of these fishing sites will best be suited to what he wants, whether he wants spring or sockeye salmon, then a decision will have to be made on which area he wants to use. This is called xkyeehl, it is done through the yukw110. Also Gyolugyet testified: There's a place in our territory where they get their red dye from the rocks. And this dye is used by the carvers on the totem poles as paint, for dye on baskets and cedar mats, and it used by the Halayts for their faces. Especially the Halayts would use this red colour for their faces or for the dye for their robes and head gears. So when people needed this dye they would come to my grandmother and ask her permission to go and get this red dye. In the Feast House a gift would be given to her, as the dye would Mathews supra note 82 at 4721 to 4722. 94 be shared. So this is why she gives the people permission to go and get what they need, and in the Feast House it is told to the people how they got this red dye and why they would give her a gift for it . The granting of permission and the acknowledgement of this permission by the giving and accepting gifts for the use of another's wilp resources, or xkyeehl, at a. yukw formalizes the wilp's authority over the lax 'wiiyip in question. Such practices affirm the authority of the Seem 'oogit in public to grant permission, and the wilp's right of exclusivity. Thus others, unrelated to the wilp, 1 ' . . 112 can acquire rights to resources or resource locations (or labour) through payment at a yukw . In practice, Gitxsan hold rights against each other, and owe obligations to one another. Gitxsan tenure and ownership arises, and is maintained, through the fulfilment of obligations to others, in combination with the title to the land itself. Wilp Ownership Includes the Right to Alienate the Lax 'wiiyip In Gitxsan society the boundaries of wilp lax 'wiiyip have been divided and fixed by the Creator113, and the resources are given to the wilps to use as their table. The wilp is entrusted with the management of these territories as long as they are respectful. Part of this obligation of respect is to provide for the funeral of the departed Saim 'oogit, in a manner fitting of the honour of the departed. However, there are some situations, such as the failure on behalf of a wilp to pay the funeral expenses of a wilp member, especially a departed Seem 'oogit, another wilp must sponsor the funeral and a lien is placed on the wilp's lax 'wiiyip until this debt is paid back. In the situation when it is necessary to compensate another wilp for the loss of a life, either by accident or homicide, wilp lax'wiiyip is given to other wilp as compensation, until their hearts are 1 1 1 McKenzie supra note 98 at 418 to 419. 1 1 2 In correspondence with A. Mathews, April 19, 1999. 113 Morrison supra note 80 at 5124. 95 full (as determined by the recipient wilp), and eventually this lax 'wiiyip reverts back to the original wilp, and this is one of the purgatives of the Seem 'oogit. In order to uphold the honour of the wilp, the incoming Seem 'oogit must be able to afford the responsibilities of this office. Part of this responsibility is to pay for the funeral of the late Seem 'ogit114. Though most of the obligations for this expense fall on the shoulders of the new • f. incumbent, the wilp will pool its resources to sponsor the various ceremonies and feasts that accompany the funeral and the memorial ceremonies. In some cases, these expenses are paid for by one's wil'na t'ahl or wilksiwitxw. In these situations, one's wilp owes a debt, and until the debt is paid, the creditor's wilp may hold part of the debtor's wilp's lax 'wiiyip. As Txaaxwok explained: Sduutxw'm lax ha is the owner as I stated before. Anytime when these people were working together on a funeral feast, they were helped by Waiget (of the Fireweed) with all the expenses in the feast. The Xsi maxhla saa Giiblax territory was turned over to Waiget. They turned it over to him because that's the only way they can thank these people. The Fireweed put up the feast and the Wolf and the Frog Clan were seated. Al l three clans were there to witness and approve what was put into the feast115. Wiaget had become the Daxyukdit lax yip"6, the caretaker of the territory. This is what was approved at the feast.. In keeping with restorative justice principles, if a feud between two persons escalates and one is killed, the wilp of the offending party could transfer some lax 'wiiyip, until their hearts are full. This basically means, that when there is a Mix Kaax11'', peace made between two wilps, over the wrongful death of one of its members, restitution must be made in the form of the transfer of a 1 1 4 O. Ryan, Proceedings at Trial, vol. 19 June 15at 1275 [Ryan]. 1 1 5 J. Morrison Proceedings at Trial, (1988) vol. 83 April 19 at 5170 to 5171 [Morrison]. 1 1 6 Morrison supra note 115 at 5244. 1 1 7 McKenzie supra note 37 at 249. 96 portion of the offending wilp's resource property (hunting area, fishing station or trapping line) until such a time when the other wilp believed restitution for the loss had been fulfilled. For example, Gwaans testified: Hanamuxw acquired the fishing site An si bilaa after 'Niitsxw was killed. Ha'atxw was trying to marry his sister, 'Niitsxw's sister. 'Niitsxw refused to let Ha 'atxw marry his sister, and Ha 'atxw killed him. There was a peace made between them, Gawa gyanii and the fishing site of An si bilaa was 118 given to Hanamuxw Similarly, Antgulilbix119 related that the wilps of Antgulilbix and Tsibasaa were awarded, as xsiixw, for the killing of Yal, the territory beyond the ridge outside of Kispiox: At the end of the Xsi Wis An Skit grandmother told me, at the end where the ridge is, is their boundary, but the other side of the ridge was given to both Antgulilbix and Tsibasaa as a compensation because Yal was murdered on the ice where Xsagangaxda runs into the Skeena River. There was a tree standing there and they would smear this tree with blood. The crest on this tree is a sun. That's the Giskaast crest, and that tree represents the compensation that was given in exchange for the blood (of Yal) and it won't be taken back from us until the end of the world 1 2 0. Besides being awarded lax'wiiyip for compensation for the accidental or intentional death of another, one's wilp could acquire territories as a result of inter-community raiding and warfare. As Lett stated after the failed raid of the Stikine: The big chief of the Stikine waved the wings of the birds of Meziaden. And as he waved them, he said, there will be peace. This will be your land, we will not return here, we will return to our own village and there will be no more wars. ' 1 8 Ryan supra note 114 at 1249 to 1251. 1 1 9 At the time of the trial, the name of Antgulilbix was held by Mary Johnson. M . Johnson Proceedings at Trial, (1987) vol. 10 May 26 at 617. 1 2 0 M . Johnson, Proceedings at Trial, (1987) vol. 13 May 29 at 800 to 801. 1 2 1 At the time of the trial the name of Lelt was held by Fred Johnson. F. Johnson, Commissioned Evidence (1986) vol. 1 September 2 at 1 [Johnson]. 97 Then the Stikine person waved his hand, saying "this will be your land." "This will be your land." He waved his hand some more. And he blew the eagle down. The eagle down floated all around. 122 Xsiisxw. They compensated us for the killing of Txawok and Ligigalwil . Furthermore, even if there is an accidental death, as happened at Kispiox, the offending wilp was quick to offer compensation. As Antgulilbix testified: This happened at Kispiox. The folks from Glen Vowell were pretending to attack Kispiox, they pretended to have a war and they captured one of the chiefs, from the house of Ma 'uus. They took him away to Glen Vowell. On the next night the people of KispiOx were preparing to attack Glen Vowell and take back the one that was captured. After they left the ladies also decided to go. The ladies got guns that were also emptied of bullets. Then they started out over the ice to Glen Vowell. And not far from Gwin o 'op they met men from the House of both Dawamuxw's and 'Niista hunk's and his brother, Laan. The ladies pretended to shoot him. They just said "guxw, guxw, guxw". One young lady that came along with them pointed the gun to the side of this man and it went off. The man said slowly "You — you shot me." and then he flopped down really slow. The wilp of the young lady who shot the man sent a little boy to spy on the house of the man who died. When the little boy came back to their house, he said the other house was singing their war song. They were preparing to strike back. The Chief had put on all his regalia — his blankets, head dress and got his rattle; and he went to the other house. When the Chief went into the house, he sang his Xsinaahlxw (breath song) with his rattle in his hand. After the breath song, he spoke to the Chiefs of the man that was shot and he told them he was willing to give part of his house's hunting ground to them. So everything was settled. He gave the land, the hunting ground after the breath song, as xsiisxw -compensation123. Although it appears that the wilp may alienate their territory as a means to settle or prevent a blood feud, the lax 'wiiyip in question is still owned by the wilp that offered it. This portion of Johnson supra note 121 at 59 to 61. M . Johnson, Proceedings at Trial (1987) vol. 12 May 28 at 748. 98 territory will eventually be returned to the original wilp, when the other wilp has determined that the loss that occurred has been forgotten. As the lax 'wiiyip does not belong to individual Gitxsan people, it is held, and its use is allocated and administered by the residing Sazm 'oogit, for the benefit of all wilp members, and it can only be alienated under certain circumstance, and only then for particular periods124. The Scem'oogit and Governance Principles" ? The Seem 'ogit (or Seem 'oogit) represents all wilp members' rights of ownership, acting as a steward of the land and has the responsibility to direct and safeguard the wilp's production components: the fruits of the land, labour and knowledge necessary for each wilp member to attain the appropriate standard of living. In accordance with Gitxsan rules of succession most every one in a wilp has the opportunity to become a Seem 'oogit. Although it is more likely that one will inherit a position from a close relative, it takes more than just being in line for this position. The Seem 'oogits and Seem 'ogits are responsible for the management of wilp property. This entails that they interweave aggressive exclusivity with the conferring of rights of access to others, based on reciprocity. This necessitates, first that wilp members have enough for food, to cover the costs of running the fishery, to cover the wilp's trade, and to be able to provide for collective wilp obligations. Also, the Seem 'oogit must ensure that wilp needs, in conjunction with other huwilp, do not damage the breeding stock. Similarly, in the seasonal round associated with hunting, trapping, and berry picking, it is the responsibility of the Seem 'oogit to direct when, and where, one hunts or traps, again in conference with other Sxm 'oogits or Seem 'ogits, in order to protect the animals. The Seem 'oogit, in consultation with wilp members, then allocates access 1 2 4 In conversation with D. Ryan, January 29, 2003. 99 to resources to the spouses of the wilp members in order that the children are cared for. Similarly, one's father's wilp reciprocates, allocating or granting permission to their wilp's resources. Although property and rank comes from the mother's family, the father's family occupies an important place in Gitxsan society. It is the responsibility of the father's family at a birth to provide the cradle, and at a death it is the father's descendants who look after the body, dig the grave, and provide the coffin125. During an early lifetime, it is the task of the father's family to teach the ayook126 and it is the duty of a father's family to put the money up to validate the names a person receives over their lifetime127. During the father's lifetime, permission is sought through the father, and afterwards permission is granted by the new Seem 'oogit128. This establishes a pattern of reciprocity that continues throughout the father's lifetime. At the time of the father's death, though a person is enveloped by the father's wil'na t 'ahl, the contribution of the father's family is never forgotten. Wilp resources are allocated to others for good deeds, and one may draw upon wilp resources through payment. This is expressed in the day-to-day routines of wilp members, relatives, spouses and ivm-wilp members to ask permission from the Saim 'oogit to go onto wilp lax 'wiiyip to hunt, trap, fish or gather berries, and it is incumbent on the Seem 'oogit to know the capacity of resources in order that thoughtful advice be given to wilp members. If wilp members disregard the word of the Saim 'oogit and over-hunt or over-fish, the fish or animals have the right to withdraw from the wilp's lax 'wiiyip129. Each wilp member must respect the authority of the Saim 'oogit, as she alone bears the cost of the animals' withdrawal from the territory. The Saim 'oogit must ensure that respect is afforded towards the animals in that wilp members are McKenzie supra note 37 at 213 to 216 & McKenzie supra note 98 at 383. 1 2 6 Ryan supra note 60 at 5030. 1 2 7 McKenzie supra note 46 at 203 to 204. " * 1 1 2 8 Mardsen supra note 61 at 5940 to 5949. 1 2 9 Mathews supra note 26 at 4582. 100 expected to not overkill them130, to thank them for submitting131, to look after their remains in order that they too may be reincarnated132 and each wilp member has an obligation not to trespass on another's lax 'wiiyip while hunting, trapping or gathering. These relationships are vetted and witnessed at any one of the wz'//?-sponsored yukws. One is trained in the wilp's adawaak; ayuks and ayooks and one's character and ability to manage the resources of the wilp are factored into the decision by both the current Seem 'oogit and other wilp members. Succession of the Seem'oogit The dax gyet of the wilp is contingent on the wilp being able to fulfil its ritual obligations at the passing on of one of their members and at the succession of either Seem 'oogit. Thus, it is incumbent on the current or incoming Seem 'oogit or Saim 'ogit to be able to ensure individually and collectively that wilp members are able to sustain its members, to respect the animals and fish, and meet their ritual and ceremonial obligations. The passage of the Gitxsan lax 'wiiyip upon the death of the Seem 'oogit is renewed by the transfer of the chiefly name duly witnessed by others of similar rank at a Yukw. At the time of a Saim 'oogit or Seem 'ogit's impending death, members of one's wilp and wil'na t'ahl congregate to initiate discussion of who is going to be the successor133. As Xamlaxyeltxw testified: It is only when the chief dies, that the name of the head chief is passed on. The head chief is responsible for the house and it is he who has the power for that house, and the only time they can put this name on somebody is when the chief dies. When the new chief takes the head chiefs name, then he is responsible for everything in that house134. I J U Mathews supra note 76 at 4668 to 4670. m Ibid, at 4669. 1 3 2 Mathews supra note 26 at 4565 to 4566 & Ryan supra note 60 at 5027. 1 3 3 Marsden supra note 24 at 5926 134iZwV/.at5911. 101 The qualities of the person chosen for this position must be more than just being in line, and being able to manage and afford the obligations of the Yukw135. As Hanamuxw testified, the elders must have observed a potential Saim 'oogit as able to: handle situations, and I think one of the most important qualities that they need to see in you as the future candidate for a chief is whether you accepted your creator, the protection that he gives you, the guidance, the wisdom that he provides for you and that you respect your elders at all times136. At the conclusion of wilp and wil 'na t 'ahl meetings a successor is asked to be the Seem 'oogit. Those in attendance endorse the new Saim 'oogit, and the community begins the funeral preparations for the departed Chief137. Emphasis at this time is on the burial of the departed Saim 'ogit, however the incoming Saim 'oogit is introduced to the rest of the community. With the inheritance of the Seem 'ogit's warn, comes the inheritance of wilp property, as Gyolugyet testified at trial: Al l the Chiefs get together, they come with their regalia on, and they sing their limxoo 'y (dirge songs). They speak to the dead Chief. The Chiefs say all what he has done during his lifetime, we repeat his adawaak, and name all the feasts that he has put on. We call the new Chief out by her baby name, asking for her to come in. We ask her to see her grandfather buried138. As Hanamuxw testified at trial when she assumed the hereditary title of Hanamuxw, her elders addressed her with this statement: "Hlaa niin xsi gyalatxwit dim ant guuhl hli dax gyets dip niye'en. Dim guudinhl wa midim 'y ama gya 'adihl Lax yip " This roughly means: that you are the one that has been selected to take the land that was your inheritance, to hold it, and to take care of it. • • 135 Williams supra note 53 at 6680. 1 3 6 Ryan supra note 57 at 4982. 1 3 7 M . McKenzie, Proceedings at Trial (1987) vol. 5 May 15 at 283 [McKenzie]. 1 3 8 McKenzie supra note 137 at 311 to 312 & 332 to 333 & McKenzie supra note 37 at 246. 102 This means the land that your forefathers had, that includes the regalia, the adawaak, the pole, the resources on the land, the name Hanamuxw, and the right to use that name within the Gitksan territory and that you are the one that has been selected to take the land that was your inheritance, to hold it, and to take care of it. This also means the right to use the authority of the chief, which includes providing leadership for the people, the Gisk'aast as well as the other clans in Gitsegukla. It means preserving the history of the house. It means taking care of the present, and always with the idea that you link it with the future. It means having the right to assist not just the people in your own house, but everyone in your community if they need help. It means going to other levels of authority whenever you need to negotiate with them to take care of. the needs of the people, or it may mean going to neighbouring nations and negotiating with them issues that deal with the Indian problems, or it may mean offering suggestions as to how these can be solved. It also means that you as the chief have the responsibility of training the younger members of your family so that all the traditions, all the customs, all the rituals within your house are maintained. So in a sense the chief is also the teacher for the • * 139 younger people as well as a counsellor, as well as a spiritual leader . At the Hidinsim Getingan Yukw (headstone or totem pole raising feasts usually held a year after the passing of the Seem 'oogit) the new incumbent is fully endorsed by Gitxsan society. At a series of yukws the hosting wilp displays its dag gyet by asking other huwilp to endorse the new Seem 'oogit. It is at this time that the Gal dim algyakm (speaker) for the wilp introduces the Seem 'oogit to the community, leading her to the seat in the Yukw of the departed Seem 'ogit. The other Seem 'oogits from other wilps call out her new name as she passes them, they say: "Ee dim umayees " 1 4 1 . During the course of events, the Gal dim algyak calls out the names of the boundaries of the wilp's lax 'wiiyip, and the adawaaks of the wilp are re-enacted. Similarly the wilp's ayuks are either recounted or performed using the wilp's songs and dances. The other Seem 'ogits in attendance, in response to the presentation of the Seem 'oogit's symbols of authority, i J Ryan supra note 60 at 5006 to 5007. 1 4 0 Williams supra note 53 at 6655 to 6656. 1 4 1 "Ee dim uma yees" means "on the breath of your ancestor." McKenzie supra note 11 at 334. 103 present their adawaak142. This presentation constitutes a re-enactment of the time the Gitxsan were cast out of T'am Lax amit, and their return to the region after the ice left. The adawaak told by the new Seem 'oogit at this time indicates to the community one's knowledge of the wilp's lax 'wiiyip, its history, all its ayuks and its inter-relations to all other huwilp. Accuracy on behalf of the incumbent is imperative, as the adawaak is a description of the property of the wilp. In addition, it is within the ritual of the yukw that the dax gyet, or power of the Saim 'oogit, is refuted or affirmed, as Ax Gwin Desxw explained: The authority is within that particular house group, and the main host, of that feast is mainly the hereditary chief of that house who is the major decision-maker along with his house members. They are the ones that are in main control of the feast. What the chief is doing is that he is demonstrating publicly in that feast to the other chiefs that he has invited, that he knows the laws that he has to follow for that particular feast, and he is demonstrating publicly that he has land, that he has fishing holes, that he has power, that he has wealth and that he owns the land; and these are my other members of my immediate house. He is publicly telling all the people in that feast hall, that this is who I am, I am a chief, I am a high chief, and this is my authority143. It is important that the witnessing Saim 'oogits and Saim 'ogits pay close attention to what is recited at this time. This is as Gitludahl144 has said: The Chiefs are there and they witness everything that is done during the feast. They see that everything is done properly, and that we speak about what is to be done. And that is why all the chiefs are there to witness the feast. If everything is done the right way, they say they are glad they attended and witnessed the feast. They are all satisfied. If I say anything wrong or something is given away that does not belong to Gitludahl or in any of our territories, one of the chiefs is going to stand up and speak up and say this is not true145. McKenzie supra note 37 at 237. 1 4 3 G. Williams, Proceedings at Trial (1988) vol. 107 June 1 at 6812 [Williams]. 1 4 4 The name Gitludahl, at the time of the trial was held by Peter Muldoe. P. Muldoe, Proceedings at Trial, (1988) vol. 97 May 16 at 6090 [Muldoe]. 1 4 5 Muldoe supra note 144 at 6113. 104 If the new Seem 'oogit makes an error it is up to the Seem 'oogits and Seem 'ogits witnessing the yukw to tell the 'NU dil (sponsor of the incoming Seem 'oogit), who will in turn inform the new Seem'oogit146. The new Seem 'oogit will rectify the error at a subsequent yukw called to correct the mistake, as Tenimgyet testified: You stand up and speak and mention that this is not quite right (either a boundary, adawaak, or ayuk) and then it is noted by the people, by whoever's House that is putting on the feast. It is noted what you objected to, and so the next time you put up your feast what others have objected to, it is then corrected147. At the various Yukws that are associated with the funeral of the departing Seem 'ogit and the investiture of the incoming Seem'oogit is the public display of the wilp's possessions and prosperity. As Gyolugyet testified, this Yukw is to: get the people together to witness the giving of the name of the deceased chief to another. Of course, there is a lot of people that we ask to work for the family, especially at the Burial Feast; and even at a Totem Pole Feast. There are people that are invited and asked to do certain work. Like at the burial,, we have to gef peoplelb dig the grave; at a'totem pole raising, we have to have people dig a hole to put the totem pole in, so all these little things that are done, we have to pay them for this. The other chiefs would witness that the family has paid for whatever is necessary. The most important part of a Feast is when a name is given to a chief and the authority of what that name stands for, and what it holds. The names of the House's fishing sites, the trap lines on the territory, these are things that have to be told to the people every time there is a new chief. At every Feast there has to be an adawaak given. When one person dies in a House, the a dawaak of that House is told in the Feast House. The a dawaak tells how they get their names, their songs and their fishing places, where they hold their trap lines, their hunting places, and their berry picking places; these are all told at a Feast, so that everyone knows and understands where these people have their territory and how they get their names. This is the importance of a Feast. We change our names four times before we become a chief. So with all these changes, we have to have a Feast so that these changes may be recorded, as names are also given to others in the House. In conversation with G. Williams, May 20, 2002. Mathews supra note 82 at 4756. 105 In the name of the wilp the new Seem 'oogit affirms the boundaries to their lax 'wiiyip and their claims to the ayuks. At the yukws associated with the succession of the Saim 'oogit, the adawaak is recited and the nax nox of the wilp performed. In response to this display of dax gyet, other huwilp in attendance endorse the new Sxm 'oogit and wilp's claim of ownership by responding with their adawaak and displaying their nax nox and ayuks. Throughout the life of a Saim 'oogit, she will be called upon to witness other new Saim 'oogits' initiations, to bury other wilp members, to help the wilp, the community, and look after the wilp's property (lax'wiiyip, warns, ayuks and adawaaks). During her later years, she will be actively 148 grooming another to take her place when she passes on . The Education of the Saim'oogit In the early life of all Gitxsan people they are trained in the adawaaks of their father's and mother's wilps, the respective ayuks and boundaries of the lax 'wiiyip. Ax Gwin Desxw states: The education of a chief starts at a very early age. I probably was around four or five when we started to learn the stories of our huwilp. Also we used to help our parents out at the smokehouse. We went fishing with them. We always used to help them. And they always told us how to help the elders and people who were in need149. Children are instructed in the adawaak, first of their father's wilp, then of their mother's. As Hanamuxw testified: So your training is based on what your future is going to be. Your training is given first by your wilksi witxw. That is their prime responsibility, to train you, but then your wil 'na t 'ahl also plays a very important part in insuring what you have learned from the wilksi witxw is correct and that you maintain the standards that are expected of you as the chief designate150. Our wilksi witxw is responsible not just in training the chiefs but also the other members of my family. Our wilksi witxw has a responsibility of McKenzie supra note 11 at 353 to 354. Williams supra note 53 at 6651. Ryan supra note 57 at 4978. ensuring all the members in my immediate family have the. same knowledge as I have. Members of the wil 'na t'ahl, like Gwis gyen, will for instance, every time we go to his house he will tell us about the rules and regulations of the Gitksan. He will be telling us about the adawaak151. Over time this training becomes more philosophical, spiritual and the moral aspects of adawaak are taught, as Tenimgyet testified: After I received my first name, Ligii ooyax the teaching started progressing from there. We are first told short versions about the Biis hoont Adawaak153. As you grow older the adawaak continues to expand in more detail with the territorial names, the trails, the cabins, the exterior boundaries, and what we do from day to day. It covers philosophy, spirituality, the purification ritual of sisatxw154, about reincarnation755 and why we have certain naxnoxs156. Adawaaks are about life, death, and survival, and how we do it and how we realize things. Like, for instance, in our starvation Adawaak of 'Wiihloots' it describes in great detail our territory, how to know the hunting signs, our camp sites, the bear dens, and where food in general is available157. More importantly, as Xamlaxyeltxw testified, the basis for the Seem 'oogit authority is rooted in the adawaak. He testified: In the beginning when there were the Gitksan people here they used to live in long houses. The chief would sleep at the back centre of the house and then his brothers and his nephews would live along the sides. Early each morning the chief would rise and he would tell his brothers, nephews and the house members the adawaak. He would go over the adawaak, and then he would go over his plans of what they were going to do that day. If they were going to have a feast, they would plan the feast. When the older chief passes, the new chief takes the same name, he does the same thing. Every morning he rises early and tells the adawaak, and this keeps going on and on, and they keep changing chiefs. They still do 1 5 1 Ryan supra note 60 at 5030. 1 5 2 Mathews supra note 26 at 4559. 1 5 3 The Biis hoont Adawaak in Appendix One at 251. 1 5 4 The Biis hoont Adawaak in Appendix One at 251. 1 5 5 The Adawaak of 'Wiihloots' in Appendix One at 258. 1 5 6 The Adawaak of Hawaaw' in Appendix One at 259; 1 5 7 Mathews supra note 26 at 4560. 107 the same thing, they tell the adawaak, and what has happened during the 158 lifetime of the first chief . In historic times, the children would accompany their parents as they travelled around the respective lax 'wiiyips, learning how to hunt, trap, and gather berries and fish 1 5 9. During these times adawaak is no longer a narrative, and for the persons who are to become the Seem 'oogit it must be part of their experience, as Tenimgyet testified: I remember one time at Xsi Gwin ixstaat near our berry patch called Win luu gan. We went out early in the morning. My uncle, Ax dii mihl didn't tell me where we're going. He just said "Come." We went, and we went up the trail past this berry patch, and he took me to a bear den he knew there. This was early March. The snow at the mouth of the cave was just beginning to melt. He sharpened the end of a stick and he gave it to me and said, "Get in there and wake the bear up." With great respect and honour for my uncle, I went in. I went half-way in and just like everybody else, I chickened out and came crawling back out. So he told me, "Just go in there. It's not going to kill you. Just wake him up," which I did. I felt better when he told me about our adawaak, Biis hoon, because I had sincere belief in the adawaak. So I went in there and gave the bear a good poke. I could feel the bear moving around. I then came back out, and the bear was right behind me. And my uncle shot the bear once. When the bear was half dead, my uncle grabbed me and rubbed my face on the bear's mouth giving me power, the same power as the grizzly had at the time of Biis hoon160. Concurrent to this education, one is presented to the community at various times throughout one's early life. As Gyolugyet explains: The way I describe myself from birth up until now shows the preparation to become a Chief. In Gitksan law, right from infants we prepare our children to reach the stage of becoming ahead Chief of a House, or to Marsden supra note 24 at 5896! In conversation with A. Mathews, April 23, 2001. Mathews supra note 26 at 4578 to 4579. 108 become the wing of a Chief of the House. This began when I was born. Two weeks later there was a Feasting put on by my family's House, for the head Chiefs to recognize me, and our wilxsi'witxw would aid me in any way, and this was the first time that they have given me what is needed for this preparation. A cradle was made for me by my uncle, WU Hlengwax and they put me in this cradle and they took me around to the head Chiefs to give power to me. I was given my infant name, K'am akst. Three years later my father's sisters came and they pierced my ears and the day after it was done they held a Feasting to show the head Chiefs that I had my ears pierced, and then a name was given to me again at that time, Sgwina mix]6\ Dispute Resolution Responsibilities Those who show leadership promise, early in their life have their ears pierced in order that they neither hear bad.things about others, nor engage in gossip that will hurt another162. This marks to others that they were being trained to be impartial, and were receiving additional training in spiritual matters to prepare the mind and body to take on the additional responsibilities of being the Xsgoogam Seem 'oogit163. These additional responsibilities include the mediation of disputes. The most common internal wilp dispute among the Gitxsan is over the inheritance of a name. If the ailing Seem 'oogit has not clearly identified her successor, her choice is not supported by wilp consensus, or the Seem 'oogit passes away unexpectedly, those making the choice may disagree among themselves as to who will inherit the Seem 'oogit's position. The wilp, if they are unable to resolve the matter amongst themselves, can either at the time of the passing Seem 'oogit '.s funeral announce to the community they are burying the name164, or they may call on other Seem 'ogits and Seem 'oogits to mediate a resolve. As Gyolugyet testified: 1 6 1 McKenzie supra note 37 at 212 to 216. 162 Ibid, at 216 & McKenzie supra note 11 at 3 63. 1 6 3 There are various ranks of Seem 'oogit, and a. Xsgoogam holds the authority to delegate to other persons who are designated as HH Kaaxhl. McKenzie supra note supra note 142 at 161 & Ryan supra note 60 at 5011. The rank and wilp affiliation of a Saim 'oogit is shown by the seating order at a yukw. McKenzie supra note 37 at 270. 164 Ibid, at 250 to 251. 109 Miluulak died, one of the head chiefs of the Gisk'aast, and they had to have a person to take her name. At that time there was the two people who could be the chief. They both felt that they ought to be the person to take the name of Miluulak. It was not settled by the day of the funeral amongst the Miluulak's House. The family was still pulling for one, or the other. This is when the chiefs of the different clans, the Frog and the Fireweed, were called to Miluulak's House. The head chiefs, who were called to the House, were asked to settle this. So after a lengthy discussion, we settled that one of the people would take the name of Miluulak, and the other would look after the territory165. This panel of Saim 'oogits works with the wilp to find a solution that all can agree on. The conflict, as well as the resolution, is brought out in the open at the inauguration of the new Saim 'oogit. As Gyolugyet explained: All this had to be told at the Feast of how the family disagreed and how it could not be settled. It was also told that they called on the chiefs of the different clans to settle it for them and that they had all agreed, the family of Miluulak's, and the wil 'na t 'ahl agreed with that. This was all said and settled in the Feasting House166. Another common dispute between the huwilp is at the time of the succession of the new Saim 'oogit over the presentation of the adawaak. The adawaak told by the new Saim 'oogit at this time indicates to the community one's knowledge of the wilp's lax 'wiiyip, its:history, all its ayuks and its inter-relations to all other huwilp. Accuracy on behalf of the incumbent is imperative, as the adawaak is a description of the property of the wilp. In addition, it is within the ritual of theyukw that the dax gyet, or power of the Saim 'oogit, is refuted or affirmed167. It is important that the witnessing Saim 'oogits and Saim'ogits pay close attention to what is McKenzie supra note 137 at 366. Ibid, at 367. Williams supra note 143 at 6812. 110 recited at this time. This is as Gitludahl has said: The Chiefs are there and they witness everything that is done during the feast. They see that everything is done properly, and that we speak about what is to be done. And that is why all the chiefs are there to witness the feast. If everything is done the right way, they say they are glad they attended and witnessed the feast. They are all satisfied. If I say anything wrong or something is given away that does not belong to Gitludahl ox in any of our territories, one of the chiefs is going to .stand up and speak up and say this is not true168. ' • If the new Seem'oogit makes an error it is up to the Seem 'oogits and Seem 'ogits witnessing the yukw to tell the 'NU dil (sponsor of the incoming Seem 'oogit), who will in turn inform the new Saim 'oogit. The new Seem 'oogit will rectify the error at a subsequent yukw called to correct the mistake, as Tenimgyet testified: You stand up and speak and mention that this is not quite right (either a boundary, adawaak, or ayuk) and then it is noted by the people, by whoever's House that is putting on the feast. It is noted what you objected to, and so the next time you put up your feast what others have objected to, it is then corrected169. Similarly, a Seem 'ogit in the role of a 'NU Dil, uses his own knowledge to assist others in resolving conflicts, as Tenimgyet stated: I will speak of how my role as a 'NU Dil was when there was a dispute concerning the area around Boulder Creek. Sinankxws came to me when there was a meeting in Hazelton about this area and it was said that this area was theirs. So I spoke to her 'NU Dil. I then rose at the meeting, and said the Boulder Creek area actually belonged to them, was true. Also the late Ax tii hiikw was in a similar situation when the Ganeda was trying to put a chiefs name on a non-Indian. Lett said it's up to our 'NU 168 169 Muldoe supra note 144 at 6113. Mathews supra note 82 at 4756. I l l Dil to say, and then my grandfather, Ax tii hiikw, stood up and he says "No, it cannot be held by this person," and it was then stopped170. In other situations, such as larger problems between communities, the Seem 'ogits and Seem 'oogits are "pulled out," to a series of meetings to resolve either a local concern or to forward a concern Sinankxws means that we have to involve other chiefs, the wilxsi leks and others. Then you do "sisixsek," that mean "you pull out the chiefs," the forerunning chiefs, to make the decisions. This is not in the Feast Hall, but when you have a dispute you would go to certain chiefs and ask them to help you in these decision-making roles. We usually "pull them out" from all the houses. We try to pull from every house in each of the villages. At times we go to the Wet'suwet'en in Hagwilget, so everybody 171 is involved As Hanamuxw testified at trial, all the Saim 'ogits and Saim 'oogits are bound to consult with others: Consultation starts at your house level and then it would go to your wil'na t'ahl and to your wilksiwitxw. Next, the village must decide if the action that has been proposed is right, this involves all the clans172. As explained by Ax Gwin Desxw, the Seem 'ogits and Saim 'oogits have the final word: Generally there is a fair bit of discussion on certain issues. Different individuals, whether they are young or older, make their views known publicly, and in some cases where things are very difficult, the chiefs will listen and if things are not going properly, they will speak, and then they overrule what the younger people are saying. And even the council, they are the last ones to speak, they say the final word, and nobody else speaks after that, and then the discussion is finished. The Chiefs have the final to an outside community. As Tenimgyet testified: word 173 170 Ibid, at 4756 to 475.7. Ibid, at 4756. Ryan supra note 60 at 5013 G. Williams, Proceedings at Trial, (1988) vol. 106 May 31 at 6716. 171 172 173 112 Management Responsibilities The Seem 'oogit directs and protects wilp resources for use by its wilp members, the spouses of wilp members, one's father's family, and lastly, all others who ask to use this property. Thus, any one Gitxsan person will have access to their own wilp's lax 'wiiyip, the lax 'wiiyip of their father's wilp, and the lax 'wiiyip of their spouse's wilp. The Seem 'oogit, in the role as steward, controls not only the members of her wilp, but also access to wilp resources by related huwilp. The Saim 'oogit, according to Richard Daly, exercises a proprietary right towards the land vis-a-vis the claims of other groups and simultaneously reciprocal stewardship vis-a-vis the land and creatures who live on it 1 7 4 . Wilp members look to the Saim 'oogits and Seem'ogits to manage wilp resources in order that individual wilp members can support their families. Thus, access to resources of wilp members are safeguarded by the Saim 'oogit authority of the manage wilp members claims, as well as give voice those rights protecting them against the claims of others. It is expected that wilp members, as well as non-wilp members will heed the word of the Seem 'oogit, as the individual has equal obligation to the animals, plants, and fish who reside on the territories and in the streams, even though it will be the Seem'oogit, in the name of the wilp, that will bear the burden of shame, if the animal, plants and fish disappear from the lax'wiiyip. The Fishery The Seem 'oogit, in the name of the wilp, organizes and directs the fishery and manages hunting and trapping on the lax 'wiiyip in accordance with selective harvesting principles. If a wilp takes too many fish in one season, they run the risk of other wilps, as well as neighbouring 1 7 4 R. Daly, "Our Box Was Full" Ethnography of the Plaintiffs (Vancouver, B.C.: University of British Columbia Press, 2004) at 271. 113 communities upstream from them not meeting their quotas. In order to keep the peace, it is the responsibility of the Seem 'oogit, in consultation with wilp members, to determine the number of fish needed175. Each member is asked to review their larders to determine their needs for the upcoming year based on their consumption of fish of the previous year. Before allocating to the wilp's need, the Seem 'oogit must ensure that debts from trading owed by the wilp, and the costs associated with the running of the fishery are met. Thus, as Tenimgyet explained: She asks me "how much do you need?;" I tell her how much I need, how much my sister needs, and how much my brothers need. This is calculated along with what is needed for our trade and what might be needed as the payment for the equipment that we will be using. In late August we congregate at the smoke house and my mom would have a tarp laid out here, a bright red tarp, and all the fish that was processed all summer would be divided and counted into bundles of 40, we call k'i'yhl luuks. People give us things, like, for instance, the net was supplied by one of the Kitwancool members, and in return he wants some of these prize fish, prized huxws (Spring Salmon); and in the case of the boat, that boat we use T'ewelasxw's boat. The stern kicker itself is supplied by our minister, Reverend McLeod and in turn we have to pay him back. Usually we try to deal with these outside things first before we accommodate our own needs176. Hunting The Seem 'oogit can only allow wilp members to take the amount of fish, or game, that is needed, and no more. Other Seem 'oogit consult with each other in order that they know what the needs of their wilp members are to make sure that they do not deplete the stock. After the fishery Ryan supra note 60 at 5007. A. Mathews, Proceedings at Trail, (1988) vol. 74 March 15 at 4651 to 4660 [Mathews]. 114 has shut down in early fall, hunting and trapping is planned. As Tenimgyet testified: We look after the land by using it. If you don't hunt and fish your territories, the salmon, the mountain goats, the beaver, and the ground-hogs won't stay round. If you are not active they just go away. We've always taken just what we needed, and then we protect the life cycle of the rest. We have always limited our hunting to fall and winter, when the young are no longer dependent on their mothers. We guard the spawning beds, we burned the berry patches to keep them healthy and productive. We even used controlled burning to get rid of the insects which kill off the "trees177. " " * 1 All Gitxsan people must follow the rules of the hunt, and share what has been taken. According to the Adawaak Wiihlootsm, if Gitxsan people quarrel over food, a siyehl widit (curse) will be brought onto their wilp. When the law of respect and sharing is broken, tss 'uu wijix19 will occur or the animals and fish will disappear, leaving the wilp to starve180. The laws of the hunt and sharing were put in place to ensure that those in the hunting party adhere to specific codes of behaviour, and the accompanying Seem 'ogits are responsible for ensuring that the laws are followed. Similarly, their laws of sharing reflect first an age grade that looks after the elders first, and the families with small children (property flows through the matri-line) so this means that brothers (hunter and fishers) supply their sisters with food resources, who in turn will support their brother's political roles. Husbands and wives are looked after accordingly by their own wilp. The laws, as Tenimgyet says, are: The first one is we decide on how many animals we are going to kill, depending on the number in the hunting group, and then we don't over kill. The second one is never kill a mother sheep with young ones. The next one is the animal has to be cleaned where it was killed. Gaak, the raven, who announced the kill, has to be fed. A. Mathews in: R. Daly, Proceedings at Trial, (1989) vol. 187 February 23 at 12086 to 12087. Mathews supra note 26 at 4582 to 4585 & Mathews supra note 176 at 4589 to 4595. This means "they fought over the kill of a caribou." Mathews Ibid, at 4586. Ibid, at 4588. 115 After field dressing, the cuts, the hide, whatever that we do not need, has to be burned, in order that we satisfy our belief in reincarnation. The fifth one would be the actual roasting of the head of the goat, which is 181 pointed towards the mountains that provided this goat, as thanks . Similarly, as Gitludahl has said about the adherence to the laws of the hunt: I will show them where to go and where to trap, or hunt beaver. We don't always go to the same place in the same year, we always move onto 182 different territories . Gitxsan hunters upon return to their village further divide what has been killed and share first with their elders183, their wilxsileksm and those in which they have special obligations towards, one's 'Nil dil. Gitxsan ayooks ofnaa hlimoot' besides directing them to share amongst themselves, respect each other and the environment, the Seem 'ogits must inform each other of their hunting plans, as Txaaxwok testified: The three clans that lived at Kisgagas, the Fireweed, Frog clan and the Wolf clan decided to meet with each other to discuss how to use the area called Luu skadakwit for hunting. In this area there is moose, bear, ground squirrels, and at the lake called Dam ansa koots, there is beaver. The meeting was called to decide what animals were to be hunted in this area, and how many would be killed 1 8 5. 1 Mathews supra note 82 at 4668 to 4669. 2 Muldoe supra note 72 at 6310. 3 Mathews supra note 82 at 4670. 4 Wilxsileks is the plural form of wilksiwitxw, one's father's side. Ibid, at 4671. 5 Morrison supra note 113 at 5234 to 5235. 116 Trap Lines Besides fishing sites and hunting grounds, the wilp owns trap lines. Txaaxwok in his evidence about the management of his wilp's trap lines stated: We start to trap in some areas in the fall and winter, then and we moved back and forth over a larger area. You know when to start and when to end trapping or hunting in an area. You are going back and forth on this territory in order to cover the whole territory. Sometimes in the spring when young ones come you must be careful and not shoot them186. The Gitxsan, in order to protect their historic interests after the Crown asserted 187 sovereignty, registered their trap lines with the Province (and have paid vigilant attention to their transfer on the death of a Seem 'oogit. As Gyolugyet testified: In 1935, Joseph Danes died. He was Gyolugyet at that time and while he was alive he would go onto our territory and hunt and trap. Sometimes Joseph Danes would take Tommy Muldoe (from the wilp of Spookw' and at this time his name was Madiigim gyetu) up onto our territory and they would trap together. After Joseph Danes died in 1937 Tommy Muldoe claimed this trapping area as his own. My mother heard about this and went to Captain Mortimer, the Indian Agent in Hazelton, charging Tommy Muldoe with trespassing. My family went to the hearing called at the Indian Agent office in Hazelton and it was not settled that year. The next year Tommy Muldoe again tried to claim the trap line on our territory as his. So my grandmother went to the wilp of Spookw' and said "You are not going to own that territory." They said "It does not belongs to Gyolugyet, but it belongs to all the Houses." So we went to the Court again. This time all head chiefs from the different clans came to the hearing. Now all the chiefs that spoke said that this territory belonged to Gyolugyet and their other Houses in their Wi 'nat 'ahl. The chiefs pointed out to the Indian Agent and they mentioned all the creeks that they knew were on that l*b Morrison supra note 80 at 5136 to 5137. 1 8 7 The Gitxsan in keeping with their commitment to comply with the Queen's Law registered their traplines with the Province. They also have abided by the requirement to take inter-w/p property disputes to the residing Justice of the Peace, who for most of the last century has been the local Indian Agent. In conversation with M . McKenzie, December 16, 2001. territory and told who held the creeks, and they are from Gyolugyet's, like Kwamoon, Hlo 'oxs and Mediik. They told Mr. Muldoe that he had his own House and own territory, that he was not supposed to be on Gyolugyet's territory. So that is when it was settled then and he did not try again to take over and own our territory188. However, as Gyolugyet continues, some Gitxsan people have trespassed onto others' territories when registering their trap lines: Mr. W. Danes, who is the son of Joseph Danes, has a trap line on the territory called Win skahl Guuhl. In order to get to his trap line he needs to go through the Am Nigwootxw, which is on our territory. Also occasionally he will ask permission to go and trap on that place. We always give permission as he is the son of the late Joseph Danes who was Gyolugyet before me. However, Mr. W. Blackwater, one of our neighbours has a trap line that overlaps on our territory. The same happened when Mr. W. Wilson registered his trap line in Smithers; he partly registered his trap line on our territory. These events happened because the Provincial Fish and Wildlife Department insisted that everyone register their trap lines on their traditional territories or lose However, as Txaaxwok testified: My father held the name of Waiget, and was the registered owner of the trap line on the territory called Luu ska'yans't. When he passed on there was a caretaker for the territory for a while and then the name of Waiget was passed to Elsie Morrison. The trap line is now registered in her name; she is the legal owner of it. And speaking of his territory, he continues: Mr. John Robinson was the holder of the registered trap line in Txaaxwok's territory as he was Txaaxwok before me. Just before he died he transferred the trap line to me, and the person that replaces the chief is to manage resources on the territory190. McKenzie supra note 19 at 441 to 442. Ibid, at 462 to 463. J. Morrison, Proceedings at Trial, (1988) vol. 84 April 20 at 5287 & 5300 [Morrison]. 11 Ecological Concerns With respect to hunting and trapping of wildlife, the Seem 'ogits believe that the animals and birds have been placed in particular locations for their benefit, and that part of their responsibility is to be actively engaged on the territories. However as Txaaxwok says: The other Chiefs taught me how to hunt and to trap, and to go to certain places at different times of the year for different animals, how to learn to use the territory, and not to abuse it. There are some places where you can get mountain goats and caribou. They told me that certain mountains are better than another place. The name of the best place is Xsi Maxla Saa Giiblax. The best place to get moose is a place called Lax stanaast, it is a naturally open place. Also at Lax stanaast is a plant we call Ax, it tastes like a potato and is shaped like a banana. That is where we dig this root up. If you wanted to trap beaver, for example, you go down to a place where the river is quiet, where the dams are. But if you want to get prairie dogs, then you have to go further up the river and onto the plateau. When we trap beaver we set our traps in a certain way so we do not trap the female beavers or the young ones. We set our traps away from the beaver houses, by a creek that runs into the pond usually about one hundred yards away from the beaver house. We do that to protect the young and the females. You count to make sure what animals you have taken out of an area, and you have to move around, and you learn not to overkill the animals as they will never come back. You never leave any meat in the bush to rot, and you always clean up in the area where the animal was killed. You never shoot an animal that you do not need. Any animal that you kill is based on your house's need'91. When you are out on the territory hunting or trapping you are not alone. There may be 10 to 15 other chiefs and sub-chiefs there as well, like myself, managing their territory. We all talk to each other as we have to know where everyone has been trapping, where they have been hunting, and what animals have been taken. We have to report this to each other to know what animals have taken from the different groups and locations each year192. Morrison supra note 80 at 5 J23 to 5124 Ibid, at 5143. 119 Because I am a hunter and trapper, I know what should be done on that territory. When a person replaces the other Chief, it is up to the Chief to manage the animals on the House's hunting ground. It is up to the Chief to see that the laws are followed, and this is no different than thousands of years ago, because the fish have been set there for us by the Creator, the animals have been set there for us by the Creator, and the Creator has shown us how to fish, hunt and trap193. Similarly, when speaking about the obligations that the Seem 'oogit has towards the berry grounds and it is important that every few years the area is burnt, in order to preserve the quality and quantity of the berries, Saxum Higookx94 explained: In our tradition we usually burn the berry patches over in order for the berries to come back. The berries usually come back about three years later after we burn it 1 9 5 . Besides directing the seasonal round of subsistence activities, the obligation that the Gitxsan have towards the animals extends beyond just making sure that they do not over-fish, hunt or trap. It is incumbent on the Seem 'oogit to ensure that the environment is conducive for the animals to continue with their lives. Besides directing the fishery from April until late September or early October, the Seem 'oogits are also responsible for the environment of the salmon. As Ax Gwin Desxw has said regarding stream and river habitat: We guard the salmon spawning beds, as you can not walk on where fish eggs are laid. It is important that you clean out the trees that have fallen into the streams. You respect the salmon and do not play with salmon bones, or make fun of them. And, you return the remains to the river1 9 6. 1 9 3 Morrison supra note 190 at 5285 to 5286. . 1 9 4 Vernon Smith at the time of the trial held the name ofSakum Higookx. V. Smith, Proceedings at Trial, (1988) vol. 89 May 2 at 5616 [Smith]. ' ' • • 1 9 5 Smith supra note 194 at 5665. 1 9 6 Williams supra note 143 at 6815. 120 Li'ligit It is at the various // 'ligit (feasts) that Gitxsan huwilp come together to acknowledge the history, the continuation of the wilp, the bounty that has come from.the lax 'wiiyip, and to endorse the current business. The Seem 'oogit, as trustee of wilp resources, has the main responsibility to direct and safeguard the wilp's resources and property. It is incumbent on the Saim 'oogit to ensure that all wilp members have surpluses available to fulfil the wilp's collective obligation to host or contribute to a yukw. When wilp members are unable to contribute to the funeral expenses for their departed, it falls on non-wilp members to put up necessary funds and goods to maintain the dax gyet of the wilp. However, for doing this, the wilp that was assisted risks eroding its lax 'wiiyip base, unless the debt is repaid. There are li 'ligit for naming197, the first kill of a young man198, marriage199, adoption200, divorce201, the settlement of disputes202, the wiping off of shame203, funerals204, succession of Seem 'oogit or Saim 'ogit205, and the raising of a pole or a headstone. Besides li 'ligit that are 197 There are various times in a person's life that one is named. McKenzie supra note 37 at 243. mIbid. at 248. 199 Ibid, at 244. 2 0 0 There are two types of adoption, sihlguxhlxwst and ts'imilguudit and both types of adoption must be verified at a Yukw. See: McKenzie Ibid, at 244 & McKenzie supra note 98 at 369, 378 & 381; M . Johnson, Proceedings at Trial, (1987) vol. 11 May 27 at 636 & 656 [Johnson]; Ryan supra note 62 at 1076 to 1078; Harris supra note 62 at 10896 to 10898. 2 0 1 Johnson supra note 200 at 629. 2 0 2 McKenzie supra note 37 at 249. 203 Ibid, at 245. 2 0 4 There are a series of feasts for a Funeral, these being: Xmi 'yeenasxw ("Smoke Feasts" associated with funeral announcements); Bexwinsxw/Ludelinsxw (Welcoming guests to the community usually associated with a funeral or totem pole raising); Hl'oom (Settlement Feasts payment by the Wilp of the funeral expenses); Box 'magam Lo 'op (settling of the final costs and setting of a gravestone or headstone). Ibid, at 249 to 250. 2 0 5 Sometimes at the death of Saim 'oogit the family has not decided who will succeed, and the name is buried for a while and this feast is called Dim tk'alwok'dimhl wa. Eventually the wilp will call a Gisyadinasimweh, which is a yukw to announce their successor to be verified by the community. Ibid, at 250 to 251. 121 associated with wilp relations, there are also ceremonies of Xai mooksisim (first snowfall)206 and the Skoog'm Hon (first salmon ceremony)207 that honour the bounty that comes from the lax 'wiiyip, specifically recognizing the willingness of the animals and salmon to submit themselves to the Gitxsan as food. In December, or after the first snowfall, the Lax Gibuu pteex hosts the Xai mooksisim Lax Gibuu. The Lax Gibuu's 'NU dil (sponsor) calls on the Lax Gibuu pteex to put on a feast for the villagers, as it is the time in which the footprints of the wolves are seen in the snow. This feast, the Xai mooksisim Lax Gibuu, is a way for the Gitxsan to give thanks to all the animals for submitting to them as food. Al l of the foods that come from the territories are served, and the places that they have come from are named . In April, when the Spring Salmon return, the first salmon is caught, placed on a special mat and carefully cooked. Pieces of this fish are given to the other villagers, and as one receives this fish, one gives thanks to the creator for providing salmon. In this ceremony, the Skoog'm hon, the creator is asked to protect the salmon and replenish them. Also, one asks the creator to protect the fishermen as they fish on the river. Above all, one asks forgiveness from the creator for having to destroy creatures smaller than oneself in order for one's life to be sustained209. In terms of keeping track of wilp obligations, especially when it comes to the burial of wilp members or the passing and succession of a Saim 'oogit, the current or incoming Seem 'oogit is responsible for managing wilp resources in order that all wilp members can contribute to the yukw of others, or any li 'ligit hosted by the wilp. This entails knowing what surplus food and cash is available from each wilp household, so that the wilp can sponsor or contribute substantively to any one of the // 'ligits the wilp has been invited to. Furthermore, it is the 2 0 6 Mathews supra note 76 at 4675. 2 0 7 Ryan supra note 60 at 5027. 2 0 8 Mathews supra note 76 at 4675. 122 2 0 9 Ryan supra note 60 at 5027. responsibility of the Seem 'oogit to pay particular attention to the ritual aspects of the li 'ligit in question, ensuring that wilp members are informed and practised in their roles for the event. Moreover the li 'ligit is informed by a set of laws and rituals which emphasizes the de-centralized and independent nature of Gitxsan huwilp, while at the same time reiterating the principles of sharing and reciprocity amongst them. It is at the yukw, or feasts associated with funerals, especially, that the initiation of the Seem 'oogit or Seem 'oogit, can be considered to be the central institution of the Gitxsan as it is at the core of their social and landholding system. During these series of yukws (that may take up to several years to complete), the host wilp displays and performs the wilp's ayuks and may relate the adawaak either as a narrative or through the presentation of a play accompanied by songs and dances210. It is at these yukws that the relationship between the huwilp and the lax'wiiyip is brought to life. Gifts of food (and other items) are first announced and then served (as well as given) to those present211. It is at the yukw, through the public display of ayuks and the telling of the adawaak witnessed by other Seem 'oogit, both from one's wil'na t'ahl, wilksiwitxw and other pteexs, that the hosting wilp and Seem 'oogit validate and affirm the claim of ownership to the lax 'wiiyip. It is at ayukw that the Gitxsan formalize their social, political and legal affairs. Al l acquisitions and inheritance of warns and lax 'wiiyip, declarations of formal rights of access, marriage agreements and trade alliances are validated and witnessed at these yukws. It is at the . yukw that dax gyet or power of life expressed in all creatures, and in the land itself, is diplayed. This is expressed, and acknowledged by Gitxsan people through the acting out of the nax nox of the wilp at the yukws. This power, or dax gyet, is expressed as a showing of wealth that comes 2 1 0 McKenzie supra note 37 at 243 2 1 1 McKenzie supra note 137 at 295. 123 from the ability to manage the -wilp's resources on the lax 'wiiyip for the well-being of all wilp members. Ax Gwin Desxw calls this the "feast economy," and testified at trial: At the yukw there is a redistribution of the wealth. Certain individuals, like people from your father's side, are commissioned to undertake certain tasks, and whatever wealth you have is transferred or given over to these people. Whatever money or gifts you have taken in, is given back. At the end of the yukw, money is given out to the high ranking chiefs, to your father's side or whomever you have asked to do certain things for the main house group. Also the food you bring to the feast is given out to all the other guests in the feast hall. There is usually more than enough food and some is given out at the end of the yukw, it is redistributed. This is called Ligii will, and it means all the gifts and all the food in your possession represents the wealth of a particular house. The more food you have indicates the wealth of that particular chief in that house group. We always used to live off the land. Al l the food and all the activity came from the land, and you ensured that you prepared berries, you prepared moose meat, bear meat, salmon, you did all these things, and planned out the amount of food that you have to survive all winter, and to give at a yukw. They can distribute other things if they want. I have seen where they have distributed guns that are worth a thousand dollars, and TV's. I can see that in the future when we have the rightful economic benefits from our territories that we could give more valuable things as we gain the economic benefit from our territories and redistribute this in the feast 212 system . When animals from a hunt, fish or berries are given at a yukw, the location of where they have been taken is announced. Tenimgyet quite eloquently testified: Al l what you take off your territory, and the location where it came from is announced at the feasts. You would name each place on your territories where this food comes from. If it was given by wilksiwitxw, you would mention that. 2 1 2 Williams supra note 143 at 6818 to 6820. " 124 The food is announced and they say where this meat comes from, and they specify each mountain where the berries come from or whose territory where it comes from. Each creek is mentioned where the fish are caught. While you are eating this food, you digest the part of the territory where it 213' comes from . During the performance of the Nax nox214, or if the Nax nox touches the guests, those performing or touched are compensated. In historic times the Seem 'oogits or Seem 'ogits would be given a feather or eagle down; now, as Gyoluugyat explains, they are given money: If the chiefs at the yukw have been touched by this Nax nox, or a song, you give them money. Before money we gave each a feather or down. The feather or down would be given after the Nax nox went around. The host chief now gives money out and records the name of the chief who has been given money, because this money has to be returned during another feasting. The same way with Nax nox, and there is a time at the feasting that a chief would make a dance, a song is sung, a person is in their regalia and this is what we call Gus'maga 'mixKaax. This is the "returning of the down or the feather215." In practice, Gitxsan hold rights against each other, and owe obligations to one another. According to Richard Daly, at the root of Gitxsan ownership is the management of the necessary labour to access the resource sites for their self-preservation, and is this expressed at any one of the Gitxsan li 'ligit. Daly states: The nature of the relationship between proprietor and land is one of balanced, reciprocal interaction, not at all unlike that which carries on between two founding clans in a village, or between two Houses in a mother's side - father's side relationship to one another. The land is the 2 1 3 Mathews supra note 176 at 4607. 214 Nax nox is either owned by the wilp or by individuals. This power is acquired by either an event or events experienced on the lax 'wiiyip. McKenzie supra note 11 at 362. 2 1 5 McKenzie supra note 137 at 294. • ' ' 125 material foundation of the House, the basis for the very social identity and history of its members216. Daly continues: These inter-House relations that deal with both use and the proprietorship of territory, and use and proprietorship of kinship labour and fertility are symbolized by the payments that go on in the feast hall. Announcements about family business, and the accompanying exchange of gifts and services between the sides of the family work to legitimize relationships which each child has with the House of both parents. These Houses acknowledge the rights of the children, through their whole lifetime, to use and enjoy the benefits from the land and labour of the two Houses with which they are most intimately connected. These relations between Houses are in essence economic even though they have vivid domestic, political and legal dimensions as well 2 1 7 . Gitxsan tenure and ownership arises, and is maintained, through the fulfilment of obligations to others, in combination with the title to the land itself. Gitxsan society is predicated on the acknowledgement that in the distant past disputes have arisen and that the sanctity of life, both human and animal, warrants respect. Since the return to the lax 'wiiyip after the fall of T'am Lax amit, the Gitxsan have adhered to the ayooks of the hunt and fishery, and against trespass onto another's lax 'wiiyip as recorded in individual wilp and huwilp adawaaks. Wilp members look to the Saim 'oogits and Saim 'ogits to manage wilp resources in order that individual wilp members can support their families. Furthermore, the dax gyet of the wilp is contingent on the wilp being able to fulfil its ritual obligations at the passing on of one of their members and at the succession of either Saim 'oogit or Saim 'ogit. Thus, it is incumbent on the current or incoming Seem'oogit or. Seem 'ogit to be able to ensure individually and collectively that wilp members are able to sustain it members, to respect the animals and fish, and meet their ritual and ceremonial obligations. • • 2 1 6 R. Daly, "Our Box Was Full"- The Gitksan - Wet'suwet'en Economy" Opinion Evidence, June 1987 at 100 [Daly]. 2 1 7 Daly supra note 216 at 64. 126 Through the holding of a name owned by the wilp, or that of an ancestor, they become privileged to host or witness ceremonial events. More importantly, they are accountable for the present conditions of the lax'wiiyip through participation in the decision-making processes associated with the allocation of user rights; first, to wilp members, second, to their spouses (and their parents) and third, to others for good deeds or by payment to the.wilp. Furthermore, as wilp members of hunting, trapping, gathering and fishing parties they must adhere to the laws of the fishery and hunt or trap only in areas.that have been designated to them by the Saim 'oogit. Regardless of how the Saim 'oogit is chosen, she must be endorsed by other Saim 'ogits and Saim 'oogits at a. yukw and the individual chosen must be able to have the necessary character in order to be able to fulfill the responsibilities, duties and obligations that come with that office. Gitxsan governance starts when the individual is given a wa'ayin warn, or a name that permits one to enter and witness the events at a yukw, conferring onto the incumbent the right to witness community leadership decisions. After one is able to sit at a yukw, one has the potential to become the Seem 'oogit. As the office of the Saim 'oogit is a lifelong station, after initiation the incumbent must be capable of holding the office, fulfilling the ceremonial duties and managing the lax 'wiiyip for the benefit of the wilp members. If the current Saim 'oogit is female, her brother is usually chosen to look after the lax 'wiiyip and manage the fishery, hunting, and trapping. If the Seem 'ogit is male, he would make most of the final decisions with respect to the lax'wiiyip in consultation with other wilp members, and he would delegate responsibilities according to the strengths of the individuals in the wilp. In terms of governance it is at the yukw that the allocation of access rights is confirmed and announced to the entire community, as well as an accounting of wilp resources that have come from the lax'wiiyip, It is also at ayukw that the social and political relationships among the Gitxsan are illustrated, and affirmed. When Saim 'ogits and Saim 'oogits from the huwilp in turn recount their adawaak and perform their nax nox, they are illustrating to the other witnesses in 127 the yukw their relationship, both historically and currently (usually in regard to a marriage, birth of children, at the death of wilp member or Seem 'ogit or Seem 'oogit, as well as at the conferring of wa 'ayin warns and for the succession of a Sxm 'ogit or Seem 'oogit). In order to achieve and maintain wilp standing it is necessary for the Seem 'oogit to ensure that all wilp members are able to sustain themselves using wilp lax 'wiiyip, and the wilp has the required surplus in order that it may fulfill its ceremonial obligations at funerals, the annual Xai mooksisim (First Snowfall) and the Skoog'm hon (First Salmon) ceremonies, as well as being able to coordinate and manage the erection of a T'saan (pole), that solidifies one's role as the Seem 'oogit. Thus it is incumbent, in consultation with wilp members and other Saim 'ogit and Seem 'oogit, to know how many fish are needed for each family, the number of animals trapped or hunted, and the conditions of their lax 'wiiyip in general. In order to achieve this annually, the Saim 'oogit is kept abreast of the conditions on the lax'wiiyip. The Seem 'oogit must make sure, or delegate the responsibility to ensure, that the paths are kept clear, the salmon spawning beds are not disturbed and obstructions in the river are cleared. An additional role of the Seem 'oogit is to settle disputes and to provide leadership for the community. Disputes that arise within the wilp are usually settled within the wilp. However, if settlement is not possible, other Seem 'ogits and Saim 'oogits are called in, according to the tradition of sisixsek. Likewise, when there is a larger problem that affects the entire community, it is the Seem 'ogits and Seem 'oogits, in consultation with wilp members, who are called on to make the necessary decisions. The Seem 'ogits and Seem 'oogits will listen to wilp members, and eventually they intervene and give direction to the concern to form a consensus. However, consensus building requires that the Saim 'ogits and Seem 'oogits be well informed of the issue, and either carry out consultation with their wilp members, or lead the debate. Al l Gitxsan people are taught the adawaaks from their father's and mother's families. It is in the adawaak that the boundaries of individual lax'wiiyip have been recorded, and make . . 1 2 8 reference to the ayuks. Ayuks may be either exclusive to a wilp, or may be shared by a series of wilps. Besides these references the adawaaks, in narrative form, hold the important ayooks Of the wilp that govern how the Gitxsan people must behave towards one another, as well as conduct themselves while fishing, hunting, and gathering food and also how the Seem 'ogits and Saim 'oogits must perform management tasks and dispute resolution duties. Property relations, for the Gitxsan, are maintained by strict adherence to the ayooks, as spoken in the adawaaks, which are premised on respect and recognition. Gitxsan property, their lax 'wiiyip, their adawaaks, ayuks and warns, are the exclusive to wilp. Resources on wilp lax 'wiiyip are first allocated to wilp members, second to spouses and third to those from ones father's family. Wilp resources may also be allocated to non-wz/p members through privileged amnigwootxw and by payment to the wilp or xkyeehl. It is at the // 'ligit or feast that socially and politically individual wilps in Gitxsan society illustrate their power, through their generosity. It is also at the // 'ligit that wilp solidarity is demonstrated, the wealth that comes from the lax 'wiiyip is accounted to community, and redistributed. Since the coming of the Lixs giigyet and the establishment of the reserve system the Crown has afforded little time to the Gitxsan that either acknowledges, understands or accommodates Gitxsan laws, their land tenure system or management scheme into either Federal or Provincial law. After this time the ability of the Gitxsan to adhere to their boundaries and to act with their ayooks has been severely compromised. The Gitxsan had attempted to negotiate their laws into early Provincial management up until 1927 and when their was renewed hope to negotiate a conclusion to the land title question in 1973, the Gitxsan were eager to establish a blanket trapline licence throughout their traditional territories and were interested in establishing joint management of the salmon fishery in the Skeena, Kispiox and Bulkley watersheds as a platform for their reconciled relationship with Crown sovereignty. It was apparent by 1984 that 129 these negotiation attempts had failed, leaving the Gitxsan little choice but to litigate, based their continued ownership. Chapter Four Trials of the Gitxsan: Delgam'Uukw v. Attorney General of British Columbia, 1991 to 1997 In 1884 the Gitxsan argued that the reserve system was akin to laming an animal1. Although an animal may live, the quality of its life diminishes as it loses its feet, and so on until it is unable to fend for itself. The practice of using the lax 'wiiyp, for subsistence and ceremonial purposes through fishing, hunting, gathering and trapping, under Provincial and Federal management, has weakened the ability of the Gitxsan to derive a livelihood. It was the goal of the Gitxsan when they filed their claim on October 24, 1984 against the Province, to argue that their ayooks and governance had a place in contemporary Canadian society, and that their ayooks of naa hlimoot' (their laws of sharing) and traditional management regimes warranted respect and recognition. The Gitxsan believed that their aboriginal and title rights to their lax 'wiiyip still existed, until they formally surrendered them to the Crown. Moreover, it was their belief that the ensuing treaty relationship could start from the respectful position of integrating their ayooks into Provincial and Federal legislation. The Gitxsan fully acknowledge the presence of the lixs giigyet and their desire to live in the area, however, they also believe that the Crown has an obligation to them as indigenous people to protect their resources (which could include forestry and mineral resources) and their aboriginal title lands. When the Gitxsan filed suit against the Province they had exhausted all respectful avenues for negotiation. In the Opening Statement of the Plaintiffs, Delgam'Uukw and Gisday Wa asserted: Officials who are not accountable to this land, its laws or its owners have 1 S. Rush, Proceedings at Trial, (1987) vol. 2 May 11 at 70. 131 attempted to displace our laws with legislation and regulations. The politicians have consciously blocked each path within their system that we take to assert our title. The courts, until perhaps now, have similarly denied our existence. In our legal system, how will you deal with the idea that the Chiefs own the land? The attempts to quash our laws and extinguish our system have been unsuccessful. Gisday Wa has not been extinguished. If the Canadian legal system has not recognized our ownership and jurisdiction but at the same time not extinguished it, what has been done with it? Judges and legislators have taken the reality of aboriginal title, as we know it, and tried to wrap it in something called aboriginal rights. An aboriginal rights package can be put on the shelf to be forgotten or to be endlessly debated at Constitutional Conferences. We are not interested in asserting aboriginal rights. We are here to discuss territory and authority. When this case ends and the package has been unwrapped, it will have to be our ownership and our jurisdiction under our law that is on the table2. A total of thirty-five Gitxsan and thirteen Wet'suwet'en Seem 'ogits and Scem'oogits filed suit against the Attorney General of British Columbia arguing that, as they had not surrendered ownership and jurisdiction over the lax 'wiiyip, they governed themselves according to the ayooks as laid down in the adawaaks. As far as the Gitxsan were concerned, their title and authority over their lax 'wiiyip had not been extinguished. The Gitxsan asked the Court to define their legal rights in terms of ownership and jurisdiction, enabling the Saim 'ogits and Saim 'oogits to negotiate a Treaty placing this ownership and jurisdiction in the context of Canada. For the Gitxsan the purpose of the litigation from 1987 until the Supreme Court ruling in 1997 was to find a place for Gitxsan ayooks of naa hlimoot' (laws of sharing) in Canada, to legitimize their governance, the gim litxwid 4 (alliances of the Seem'ogits and Seem 'oogits and their Hlikaaxhl5) 2 K. Muldoe & A. Joseph, Proceedings at Trial (1987) vol. 2 May 11 at 66 to 67. 3 A. Mathews, Proceedings at Trial, (1988) vol. 75 March 16 at 4672. 4 The Gim litxwid means the governing body of the Gitxsan Hereditary Chiefs in their entirety, appointed traditionally and recognized by the huwilp. In conversation with Don Ryan, January 25, 2004. 5 According to Maize Wright, Gitxsan Community Planner, Hlikaaxh (the persons considered "chiefs" in their own right) are under the authority of the Saim 'oogits or Saim 'ogits and are assigned warns, or names, associated with particular locations or characters referenced to wilp lax 'wiiyip or adawaak. These individuals could be considered to be in line for the position 132 and to participate in the resource management and access inside their territorial boundaries (anjok). The Delgam 'uukw litigation is an integral part of the Gitxsan struggle to achieve their goal of integrating their ownership and jurisdiction over land and authority through political negotiation and the Canadian Courts. At trial, the Seem 'ogits and Saim 'oogits argued that their aboriginal rights included the right to govern their traditional territories (lax 'wiiyip) for themselves and their house (wilp) members according to their laws (ayooks), their political alliances (gim litxwid), their legal code (adawaak) and the social institution of the feast (yukw). They argued that their rights included the right to ratify or refuse land titles or grants issued by the Province of British Columbia as of October 24, 1984, and claimed damages for the loss of all lands and resources transferred to third parties since the establishment of the colony in 1862. The province of British Columbia counterclaimed that the plaintiffs had no right, title or interest in and to the disputed territory and its resources, and that the plaintiffs' cause of action with respect to their aboriginal title, right or interest in and to the territory was solely for compensation from Canada. This chapter outlines the Gitxsan litigation that was taken to the British Columbia Supreme Court and Court of Appeal, then to the Supreme Court of Canada, and lastly the rulings of all three courts. The Gitxsan position has remained constant since the assertion of Crown sovereignty, in that they hold title, until it is formally ceded to the Federal Crown, and in terms of reconciliation of their aboriginal rights and title, they desire access and management rights to their entire lax 'wiiyip, as well as the right to self-government, based on the principles of the gim litxwid (alliances among the Gitxsan) contained in the adawaaks and their ayooks. Saim 'oogits or Seem 'ogits at the time of the incumbent's death. In addition these individuals form an advisory council around the Seem 'ogits and Saim 'oogits. See: M . Wright, A Study of the Traditional Government of the Gitxsan: Its Relevance Today (Unpublished Master's Thesis, University of British Columbia, 1997) at 41. 133 The Trial: Delgam'Uukw v. the Attorney General of British Columbia, 19916 The Gitxsan, spurred by the lack of movement at the Treaty Table in the late 1970's and an inability to negotiate any substantive relationship with either the Federal or Provincial Crown, elected to pursue the matter through the Courts. They filed suit against the Attorney-General of British Columbia on October 24, 1984. The trial took place over 3 years from 1987 to 1990, during which time the British Columbia Supreme Court was asked to rule on the legitimacy of Gitxsan ownership and jurisdiction that would enable the Gitxsan, through treaty, to place this ownership and jurisdiction into the context of. Canada. Seem 'ogits and Seem 'oogits, in their pleadings (in 1984), admitted that the underlying title to the soil of the territory, as outlined in their Statement of Claim, was in the Crown in Right of British Columbia. However, they alleged that their aboriginal title and rights entitled them to occupy and possess their individual wilp territories. As to aboriginal title, the Gitxsan and Wet'suwet'en acknowledged they could not alienate their lands by sale, transfer, mortgage or other dispossession, except to Canada, in accordance with the requirements of the Royal Proclamation, 1763. The Seem 'ogits and Seem 'oogits sought to establish that they continued to be an organized society with common language, traditions and culture similar in all important respects to the kind of social organization enjoyed by their ancestors. Thus, they led their evidence in their respective languages, presented their customs, told their adawaaks (oral histories) and explained their ayooks in order to support and to confirm the theories, as well as findings of the expert evidence from anthropology, archaeology, linguistics, history, geology and fisheries. The Gitxsan believed that they met the four requirements of the Baker Lake test for, 6 Delgam 'Uukw (Muldoe) et al. v. R. in Right of British Columbia and Attorney General of Canada [1991] 3 W.'W.R. 97 [Delgam'Uukw 1991]. 7 Hamlet of Baker Lake (et al) v. Minister of Indian Affairs and Northern Development (et al) 134 establishing aboriginal title as an organized society. Specifically, the Gitxsan presented evidence that: they and their ancestors were members of an organized society, their society occupied the specific territory over which they assert aboriginal title, that this occupation was exclusive, and that this occupation was established when Great Britain asserted sovereignty. The Gitxsan argued that they and their ancestors have from time immemorial lived in, owned, controlled, possessed and exercised jurisdiction over their territory according to their laws. During the course of the trial in the British Columbia Supreme Court, 1987 to 1991, the Gitxsan Q opened their gelenk (treasure boxes) and told the Court how they originally lived in the territories claimed in the Skeena-Bulkley-Kispiox watersheds, were expelled and their subsequent migration back. The Seem 'oogits and Seem 'ogits told the Court how they held authority and that it was contingent on adherence to their ayooks, which included stewardship towards the land and animals. The Gitxsan stated in their pleadings that they had not relinquished title to their territories, and contended that their jurisdiction and authority ought to encompass their entire lax 'wiiyip. The judgment handed down in 1991 by Chief Justice McEachern fell short of their expectations. Chief Justice McEachern only saw the trial as "political," "about vast forest reserves," in a "vast emptiness" in northwest British Columbia9. The Chief Justice was only able to conclude that Gitxsan aboriginal interests in the territory were lawfully extinguished by the Crown during the colonial period and non-reserve Crown lands, titles and tenures granted by the (1979), 107 D.L.R. (3ra) at 542. 8 A. Mathews, Proceedings at Trial, (1988) vol. 73 March 14 at 4563. 9 Delgam 'Uukw 1991 supra note 6 at 117. 135 Grown since the creation of the colony are unencumbered by any claim of aboriginal title10. In this matter, he referenced the 13 Calder Proclamations11 as evidence of extinguishment of "aboriginal title" by the Colony and relied on them as "clear and intentional extinguishment" of Gitxsan aboriginal interest to their lax 'wiiyip outside of their villages and reserves. However, the Chief Justice continued and determined that the Gitxsan, Wet'suwet'en and Gitanyow were entitled to a declaration that they could use vacant Crown Lands within the territories for 1 2 aboriginal sustenance pursuits, subject to Provincial law and Federal regulations . The Chief Justice, in essence, affirmed the traditional stance of British Columbia towards aboriginal title13 and mused that Gitxsan life, either currently or historically, was "far from stable and it stretches credulity to believe that remote ancestors considered themselves bound to specific lands14," suggesting that the Gitxsan land tenure system and its governance were hollow. Moreover, the Chief Justice felt that this instability continued into the present, in that "they [the Gitxsan] have gradually moved into other segments of the cash economy," and increasingly do not pursue "an Aboriginal life" and that "there is practically no-one trapping and hunting full time." The Chief Justice determined that even in these "aboriginal pursuits, the plaintiffs do not seem to consider themselves tied to particular territories15." Again, the Chief Justice uses the documented record selectively, in that, (although he lauds the use of Hudson's Bay Records16), he dismisses the Chief Factor's observations that the 17 Gitxsan actively pursue trapping. Trapping was carried out, however, according to their law 10 Ibid, at 387 to 388. 11 Calder v. the Attorney General of British Columbia [1973] S.C.R. 313 at 324 to 339 [Calder]. 12 Calder supra note 11 at 425. 1 3 See: J. Gagne, "The Content of Aboriginal Title at Common Law: A Look at the Nisgha Claim" (1982/83) 47 Sask.L.R. 309. 14 Delgam 'Uukw 1991 supra note 6 at 177. 15 Ibid, at 117 to 118; 371 to 374. 16 Ibid, at 201. 1 7 A. Ray, "Creating the Image of the Savage in Defence of the Crown: The Ethnohistorian in Court," (1990) 6 (2) Native Studies Review 13 at 15 to 16 & 17 to 18. 136 and surplus pelts (that were not used for domestic purposes - clothing, shoes and blankets) were used as "gifts" at Yukws and "for gambling18." The Chief Justice's only conclusion, however, was that "commercial trapping" was a phenomenon of European contact19. The Chief Justice, besides upholding the traditional stance of the British Columbia government that "aboriginal title no longer exists," also concluded that the Royal Proclamation of 1763 did not have any application or operation in British Columbia, and the "Indian title arising from occupation" was lawfully extinguished between 1803 and 1858. Furthermore, subsequent and various aboriginal rights, after British assertions of sovereignty, existed at the discretion of the Crown. The Colonial Crown's intention had been clear: it meant to extinguish First Nations' land rights in order to give unburdened title to Newcomers. As far as the Chief Justice was concerned, it was beyond his authority to rule on the issues of separate sovereignty, or the legislative authority of the Gitxsan and Wet'suwet'en. Furthermore, "as Judges could not 20 impose non-legal solutions on parties ," he was reluctant to comment on general social justice issues. The Chief Justice felt that fishing was the only "aboriginal" activity exercised and did not require any more territory beyond the existing Reserve allocations. Thus, the Chief Justice suggested that Gitxsan "aboriginality" depended on the practice of fishing, hunting and gathering throughout the claimed territory, and that the use of historic territories and activities had been abandoned long ago. The Chief Justice said: Witness after witness admitted participation in the wage or cash economy. Art Mathews (Tenimyget), for example, is an enthusiastic weekend aboriginal hunter. Pete Muldoe (Gitludah) has followed a variety of non-aboriginal vocations including logging on the lands claimed by another chief; Joan Ryan (Hanamuxw) teaches school in Prince Rupert; and many, 1 8 A. Ray, Proceedings at Trial (1988) vol. 203 March 21 at 13427 to 13428. 19 Delgam 'Uukw 1991 supra note 6 at 203 to 204. 20 Ibid, at 118. 137 many Indians and chiefs have found seasonal or full-time employment in the forest products and coast commercial fishing industry21. • • 22 Although the Chief Justice made a ruling permitting the introduction of oral histories, in 1988 , as a means to prove ownership, in the end, in effect, he gave them no weight. It is apparent that the Chief Justice was reluctant to endorse the significance of oral histories. For the most part, it appears that the Chief Justice dismissed most of the oral testimony in which the witnesses themselves could not directly state as fact, or relate, in the case of the Gitxsan, to their wilp or house boundaries. What the Chief Justice failed to connect was that events (whether these events were a migration, hunting excursion or war party as well as the route taken to get to the actual location) and locations where events occurred were, and are, used by the Gitxsan as maps while they are on the lax 'wiiyip. The Chief Justice further contended what was offered as proof of the adawaak's authenticity was personal knowledge. As personal knowledge, the Chief Justice felt that the information lacked trustworthiness, in that each wilp placed different significance on the private or public use of the adawaak. For the Chief Justice there was a serious lack of details about the specific lands the plaintiffs were describing, and that the plaintiffs sought to authenticate the adawaaks by referencing published material, which did not tie the narratives back to the lax'wiiyip themselves. Furthermore, as the Chief Justice pointed out, many of these published adawaaks held references to historic phenomena, such as guns, moose, the Hudson's Bay Company, and to peoples outside the statement of claim area and that the adawaaks to which the 21 Ibid, at 178. 2 2 This decision by the Chief Justice on admission of oral histories and evidence, as well as evidence from deceased persons, was laid down as a series of tests for Counsel to follow. However, it is evident from the proceedings that counsel for the Gitxsan and Wet'suwet'en neglected to contextualize the adawaaks, ayuks or ayooks for the Court. Uukw et al v. R. in Right of British Columbia and the Attorney General of Canada [1988] 1 C.N.L.R. 188. 138 witnesses referred were not exclusive to the Gitxsan people23. It appears that the Chief Justice placed emphasis on the mythological or legendary characteristics of the accounts, instead of legal meaning; that is, the boundaries, how rights were allocated, how transgressions were adjudicated, and how subsistence activities were to be carried out. The adawaaks of the Gitxsan (as well as other West Coast First Nation peoples' oral histories and related property) before Delgam 'Uukw (1991)24 were defined as "myth or legends about their past" and were analyzed in terms of how they contributed to their rich cultural and artistic life. Ethnographers Franz Boas25 (1899 to 1915) and Marius Barbeau26 (1915 to 1957) recorded narratives, photographed totem poles and other regalia, and generally treated the adawaaks and ayuks as traditions that were on the verge of disappearing27. Boas recorded hundreds of narratives throughout the Northwest and his analysis emphasized both the unique material cultures of specific societies, as well as where both stories and social organizational attributes intersected amongst the different cultural groups . Boas' work, though immensely important, does not tie the specific wUp histories to specific territories or governance practices. l i Delgam 'Uukw 1991 supra note 6 at 175 to 182. 2 4 Delgam 'Uukw (Muldoe) et al. v. R. in right of British Columbia and Attorney General of Canada [1997] 3 S.C.R. 1010 at 1065 to 1079. However, the Supreme Court granted a re-trial in part as it was determined that First Nation oral histories could be used to determine their claim of title. 2 5 F. Boas, Tsimshian Mythology (Washington, D.C: Smithsonian Institution, 31 Annual Report for the Bureau of American Ethnology for the Years 1909 - 10, 1916) [Boas]. 2 6 J. Cove and G.F MacDonald, eds., Tsimshian Narratives, Vol.1 & II collected by Marius Barbeau and William Beynon (Ottawa, Ont.: Canadian Museum of Civilization, 1987) [Barbeau]. 2 7 This ethnographic period from 1899 through to the 1960's, is known as "salvage ethnography," where teams of ethnographers would go into the field and collect ethnographic material (language, narratives, ceremonies, cultural practices, clothing, religious artefacts, and so on), of indigenous cultures that were thought to be on the verge of disappearing. The purpose was to "collect" as much information as possible about Indigenous peoples and their cultures before they "died out" or were "assimilated" into the broader population. Emphasis was placed on examining and recording the historic social structures, ceremonial life and cultural uses of images and narratives. See: G.W. Stocking, Objects and Others: Essays on Museums and Material Culture (Madison, Wise: University of Wisconsin Press, 1983). 2 8 Boas supra note 26 at 565 - 958. 139 Furthermore, though the Gitxsan are sometimes allied to their neighbours, the Nisga'a and Tsimshian, and share many of the narratives analyzed, they are only obliquely alluded to. Similarly, Barbeau, working with Mr. William Beynon as well, continues to place significance on the mythological and ceremonial nature of collected narratives, with a similar oblique reference to governance and territory. However, unlike Boas, Barbeau did record a wider range of narratives from specific Gitxsan, Nisga'a and Coast Tsimshian communities. Similarly, the comparatively recent work by ethnographer John Cove30 further analyzed the texts collected by Beynon and Barbeau that related the mythological narratives to aspects of Gitxsan spirituality. Again Cove's analysis gives the impression that the adawaaks are stories situated in the Gitxsan's past. The importance of such analysis, as anthropologist Marie Francois Guedon31 points out, is that one has to understand the cosmology of the Gitxsan in order to comprehend how authority and influence in the community is held. Guedon states: [t]here is between the play and reality a very thin line which is easily crossed when one remembers that in the Tsimshian cosmology all representations, all images of an event or entity, call the power of that event back into action32. In terms of Reconciliation, this comment by Guedon and the analyses undertaken by Boas, Barbeau, Beynon and Cove are especially apt and invaluable. It may be observed that Gitxsan cultural life has remained constant, despite the pressures of Canadian life. These past records and the interpretations of the adawaaks, in conjunction with the testimony of the 2 9 William Beynon was one of Franz Boas's informants as well as a collector in his own right. Mr. Beynon held the warn of Gusgai'in among the Coast Gitlan and recently his notebooks have been published. See: W. Beynon, PoUatch at Gitsegukla: William Beynon's 1945 Field Notebooks, ed. M . Anderson and M . Halpin (Vancouver, B.C.: University of British Columbia Press, 2000). 30 J. Cove, Shattered Images: Dialogues and Meditations on Tsimshian Narratives (Ottawa, Ont.: Carleton University Press, 1987) at 49 to 156. 3 1 M.-F. Guedon, in C. Faber, "Afterwards: Time in a Box" in M. Sequin, ed., Tsimshian: Images of the Past, Views from the Present (Vancouver, B.C.: University of British Columbia Press, 1984) 309 [Guedon]. Guedon supra note 31 at 311. 140 Seem 'ogits and Seem 'oogits given during the trial from 1987 until 1990, as well as in the Affidavits and Commissioned Evidence, illustrates a high degree of fidelity, and this corpus of material can be read as an indicator of how much the Gitxsan rely on, and refer to their adawaak, in a continuing and contemporary manner. Beside this, it was evident during the trial, that the purpose of the adawaak was to bring the past into the present, to show that the ayooks given to the Gitxsan people promote respectful relations, not only between the wilps, but also between the Gitxsan and the animals. With respect to the "proof of the authenticity of the adawaak" and lack of detail about the land in the adawaaks, the Chief Justice neglected to see that it was not important that the events coincide directly with the landscape as the Province understood it, but how the Seem 'ogits and Saim 'oogits saw the land, used the land, and were able to assert their authority over the land, as well as enlist the cooperation of wilp, their wil 'na t'ahl and the wilksiwitxw to access resources for their mutual benefit. That is, the Gitxsan people turned to the knowledge remembered in the adawaak of each wilp. The adawaaks speak directly to the calamities that were cast onto the Gitxsan for disrespecting the animals, as well as relations with each other. The ayooks were given to all Gitxsan in order that the huwilp could co-exist in mutual respect. However, the Chief Justice, though he recalled in great detail that although Saim 'oogits Gyolgyet and Antigulilbix knew the history of their wilps and spoke comprehensibly about their "legends," neither were deeply familiar with the boundaries of territories33 which suggested to him that their territories were not "held exclusively." What the Chief Justice missed was that Gitxsan people through their Saim 'ogits and Saim 'oogits can only control the access to the lax 'wiiyip they claim as their own, subject to any lien of access for another wilp's contribution to funeral costs of one of their members, and for the loss of life at the hands of one of their members. Thus, exclusivity Delgam'Uukw 1991 supra note 6 at 179. 141 is relative to the wilps V affiliations it has with other wilps and its obligations. However, the Chief Justice was able to ascertain: there are far too many inconsistencies in the plaintiffs' evidence to permit me to conclude that individual chiefs or Houses have discrete aboriginal rights or interests in the various territories defined by the internal boundaries34. Unfortunately, the Chief Justice was unable to understand that the adawaaks are told in the context of the governance of the wilp, and it is within the telling of, and referencing of, current business, that territorial boundaries are maintained, access shared and disputes brought to the surface and settled. Furthermore, adawaaks, though exclusive to the wilp, are shared with others in the region. This shared exclusivity cements people from other villages together, based in marriage and kinship, as they can speak of their common origins . It is through public performances, the telling of, or listening to, the adawaak at the yukw in which property relations within the wilp, and to other wilps is stated . The adawaak is where the record of the degree of exclusivity of territoriality is maintained amongst first the Gitxsan, and then their neighbours, the Tsimshian, Nisga'a, Gitanyow, Tahltan/Stikine, Tsetsaut, Kaska-Dene, and Carrier-Sekani peoples37. It is at the yukw, that wilp property, especially resources that come from the territory, is accounted for, and more importantly, re-distributed back to the community38. The Chief Justice, besides considering and rejecting the claims of ownership of the Gitxsan, examined and rejected their claims to governance. It is clear that the Chief Justice ignored the opening statement by Seem 'ogits Delgam 'Uukw and Gisday Wa. It was said that the purpose of the trial was to "find a place for Gitxsan and Wet'suwet'en law and jurisdiction in 34 Ibid, at 443. 3 5 M . McKenzie, Proceedings at Trial, vol. 8 May 21 at 468. 3 6 O. Ryan Proceedings at Trial, (1987) vol. 17 June 11 at 1111 to 1123. 3 7 M . Brown, Commissioned Evidence (1985) vol. 2 September 19 at 22 to 25. 3 8 G. Williams, Proceedings at Trial, (1988) vol. 105 May 30 at 6632 to 6634. 142 Canada ." Although there was no argument for sovereignty, the Gitxsan argued for inclusion of their law, jurisdiction, social and political institutions. The Gitxsan considered that their claim to ownership entitled them to govern their territory through their own institutions, regulating the harvesting, management and conservation of those lands and resources. As such, they claimed the right to ratify land titles, leases or grants issued by the province after 1984 and that these rights were affirmed as of 1982 by s. 35 of the Constitution Act. Thus, they sought provincial-like powers in the area of land use, social service, health and education. Regarding governance, all the Chief Justice could say was: that it was inconceivable that another form of government could exist in the colony after the Crown imposed English law, appointed a Governor with the power to legislate, took title to all the land of the colony and set up the authority of the Crown40. Furthermore, in speaking with respect to the post-1871 situation, the Chief Justice continued: the enactment of the British North America Act, 1867, and the adherence to it by the colony of British Columbia in 1871, which was accomplished by Imperial, Canadian and colonial legislation, confirmed the establishment of a federal nation with all legislative powers divided only between Canada and the province41. What is conspicuous is the absence of the Gitxsan or other First Nations' voices as part of the Confederation debates in 1870. In addition, there are no records of the responses by Victoria or Ottawa to the petitions sent by the Gitxsan, in the 1880's, asking Government to meet with them and examine their laws, as a means to integrate them into Canada. In the end the Chief Justice i J Delgam 'Uukw 1991 supra note 6 at 128. 4 0 Ibid, at 407. 41 Ibid, at 408. • 143 concluded that the ayooks of the Gitxsan: during the course of the trial that what the Gitksan and Wet'suwet'en witnesses describe as law is really a most uncertain and highly flexible set of customs which are frequently not followed by the Indians themselves42. The further rejection of Gitxsan ayooks is particularly strange as the Saim 'oogits and Seem 'ogits pay close attention to how access rights to wilp resources are allocated and managed. Access is given first to kin and those related through marriage, and then through the principles of amnigwootxw or xkyeehl. Here the Chief Justice concluded that amnigwootxw rights were "so flexible and uncertain that they cannot be classified as laws43." It appears that the Chief Justice missed the essence of Gitxsan property - the right to a livelihood by controlled access. Potentially any one Gitxsan person has access to at least three distinctly different territories (so in any Gitxsan family, husband and wife, there are at least five areas which the family can draw on). More particularly, amnigwootxw rights are conferred onto a father's children, in order that they may accompany and help him when he goes onto his wilp's lax 'wiiyip to hunt, fish, gather or trap. Amnigwootxw rights are given by the wil'na t'ahl to the guardians of orphans. In this case the foster family is granted access (and other privileges) in order that they may raise the orphaned children on their lax 'wiiyip. With respect to the xkyeehl rights, these rights, like amnigwootxw rights, are conferred on to a person for a specific period, place and resource. The person in essence "purchases or leases" access to a particular location or resources. Again, the decision, though announced by the Saim 'oogits and Seem 'ogits to the community at a // 'ligit, is made by the wilp as a whole, whether to accept, or reject the request by the outsider. 42 43 Ibid, at 379. Ibid, at 380. 144 As Mark Walters44, legal scholar, has suggested, discussion about "Gitxsan lifestyles" may be immaterial, considering that it is the responsibility of the Crown to adhere to the constitutional principle of "exclusivity" that unmistakably contends that, in order for the Crown to hold "title" to territory, it must clearly and unequivocally demonstrate that the land discovered was vacant, won in war, or had acquired "title" purchased in a public forum. Furthermore, Walters advocates that the rights of the First Nation Community are bound up in the terms of cession, even if the community has lost its territory through an altercation, and, in situations where the community has yet to cede its territory, the "property rights" associated with their laws, remain intact. Neither of these situations occurred before the trial in 1984. The Gitksan do it with Appeal: The British Columbia Court of Appeal Decision, 199345 To Gitxsan and Wet'suwet'en people, the date of 8 March 1991 is known as "Black Friday." Black Friday is the day the Chief Justice of the British Columbia Supreme Court handed down the Delgam'Uukw Trial judgement. The trial decision, as Chief Joseph Mathias (Squamish) noted, had "eliminated the basis to negotiate," suggesting that there "was nothing to compel the parties to come to the table46." Though both Provincial and Federal ministers responsible for Indian Affairs were quick to counter such a claim, as well as affirming their commitment to negotiations, the Delgam 'Uukw decision raised the possibility that "land" would 4 4 M . Walters, "British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgam'Uukw v. British Columbia" (1992) 17 Queen's L.J. 350. 4 5 Delgam 'Uukw (Muldoe) et al. v. R. in right of British Columbia and Attorney General of Canada [1993] 5 W.W.R. 97 [Delgam'Uukw 1993]. 4 6 M . McCullough, "Laying Down the Law: The Gitksan Decision Reinforces Government Indian Policy" British Columbia Report: The Weekly Newsmagazine (1991) 2 (30) 6 at 10. [McCullough]. 145 not be on the table. That is, as Jack Weisgerber (Reform Aboriginal Critic) stated: [w]e were brought very quickly to a realization that foremost in the minds of the people we were meeting with was the land question," and now "[w]e're going to have to reconsider the context of negotiations47. After the conclusion of the British Columbia Supreme Court trial in 1991, the Provincial position on aboriginal title changed, accepting at least that First Nations in British Columbia had, at the very least, a "political" claim to title. As such, the Province was willing to negotiate treaties with British Columbia First Nation communities. In support of this change in perspective the Province of British Columbia, Canada and the First Nations Summit accepted the British Columbia Claims Task Force's Report that provided the mandate for the British Columbia Treaty Commission48 Although the Province conceded for the Appeal that there had been no "blanket extinguishment prior to Confederation" and it submitted that some aboriginal rights may have been extinguished or impaired as a result of the Province exercising its right to land (and resources) under s. 109 of the Constitution Act, 1867, the Province continued to contend that the plaintiffs did not have a right of ownership of, or a proprietary interest in, the lands and resources which they claimed. The Province agreed with the Chief Justice, as they believed the plaintiffs had failed to prove they held the claimed lands exclusively, nor had they proved they maintained external or internal boundaries. With respect to jurisdiction or self-government, the Province also agreed with the Chief Justice, in that though the plaintiffs had lived in organized societies, and certain rights or freedoms to self-government may continue to exist, they were subject to the 4 7 McCullough supra note 46 at 10. In 1993, the British Columbia Treaty Commission Office opened its doors with a mandate to facilitate tripartite agreements that would give British Columbia First Nation communities, the Federal and Provincial Crowns "certainty and finality." British Columbia Treaty Commission Act, 1995 c.45. 146 laws of Canada and the Province. The Province agreed with the Chief Justice with respect to the weight that was given to the expert evidence and the Hudson's Bay records, and also supported the Chief Justice's conclusion as to the value of the Oral histories. Lastly, the Province agreed with the Chief Justice that he was correct to characterize the plaintiffs' aboriginal rights as sui generis. The Province, however, qualified this point by suggesting that the precise location, scope, content, and consequence of the plaintiffs' aboriginal rights remain the subject of negotiation and further judicial consideration. The Gitxsan were quick to file an appeal, even though the Province was willing to meet the Gitxsan at the negotiation table, and the Gitxsan felt that though the Province had modified its position from "blanket extinguishment" to recognizing that there was, at least, the "political legitimacy of aboriginal rights and title and inherent rights to self-government49", there was not enough clarity to bring the Gitxsan a satisfactory treaty. The Gitxsan felt that negotiating under the assumption that Gitxsan land and rights had been legally extinguished at the time of "sovereignty," only to be politically resurrected in the Constitutional Act50 of 1982 and endorsed by the Province, was far too ambiguous to achieve the necessary "certainty and finality" desired by the Gitxsan51. The Gitxsan preferred a negotiating position that unequivocally acknowledged * 52 their proprietary claim to their lax 'wiiyip and their aboriginal rights to self-government . 4 9 L. Dolha, "Province Recognizes 'Political Legitimacy'" (1992) 10 (1) Kahtou: The Voice of BC's First Nations at 1 & 2. 50 Constitution Act, Sched. B of the Canada Act (U.K.), 1982 c. 11 [Constitution Act]. 5 1 L. Dolha, "Extinguishment Agenda Exposed" (1991) 9 (11) Kahtou: The Voice of BC's First Nations at 1 to 2. 5 2 T. McFeely, "Arguing Against Itself: The Government Takes a New Tack in the Gitksan Appeal" (1992) 3 (33) British Columbia Report: The Weekly Newsmagazine at 8. 147 The Majority Decision The Court of Appeal judgement was handed down on 25 June, 1993, when all five Appeal Court Judges agreed that aboriginal rights "to title" existed (based on the modified stance of the Province), but rejected contemporary claims of ownership by the Gitxsan by 3 -2 5 3. The Court of Appeal clearly incorporated the change in the Province's position, in that there was "no blanket extinguishment of title prior to 1871," and that the Gitxsan had an existing aboriginal right of "occupancy and use" over much of the territory claimed. The Judges agreed that the extent and content of such title should be left to negotiations. The majority judgments of MacFarlane J.A., (Taggart J.A. concurring) and Wallace J.A. concluded that the trial judge had made no palpable error in his assessment of the evidence, and they agreed with the Chief Justice's conclusions that any aboriginal right held by the Gitxsan to exercise jurisdiction over the territory had been extinguished by 1870. The Appeal Court, incorporating the new position of the Province, allowed for the possibility that "aboriginal title" had not been entirely extinguished by the colony of British Columbia prior to 1871, but after Confederation First Nations held non-exclusive aboriginal title. According to Macfarlane J.A., the continuance of aboriginal title and rights lay in the argument that: I do not think that all aboriginal interests in respect of land were extinguished before 1871. They (aboriginal rights or title) could not be extinguished by the Province after 1871. The trial judge held that legislation enacted between 1858 and 1871 providing for the settlement of the colony was completely inconsistent with the continued exercise of aboriginal rights, and that a clear and plain intention to extinguish aboriginal rights should be inferred from that legislation. I am not persuaded aboriginal rights could not coexist with settlement, nor that the Crown intended, by virtue of those legislative steps, to completely negate the Indian interest. Indeed, the British continued to recognize the Indian interest. The Crown promised to preserve and protect Indian settlements. The Terms of Union, 1871 between British Columbia and Canada Delgam 'Uukw 1993 supra note 45 at 99 to 100. 148 provided that lands would be set aside, and would be transferred to the Dominion for the use and benefit of the Indians, a process not completed until 1938. The courts have continued to give effect to claims in respect of aboriginal rights. For instance, they have recognized unextinguished fishing and hunting rights in places other than reserves, but having a . connection with aboriginal lands. Al l of this supports the conclusion that the pre-Confederation legislation was not clearly and plainly intended to extinguish aboriginal rights54. Macfarlane, J.A., when speaking about aboriginal rights, concluded that: The essential nature of an aboriginal right stems from occupation and use. The right attaches to land occupied and used by aboriginal peoples as their traditional home prior to the assertion of sovereignty. Rights of occupancy are usually exclusive. Other rights, like hunting or fishing, may be shared. What is an aboriginal use may vary from case to case. Aboriginal rights are fact and site specific. They are rights which are integral to the distinctive culture of an aboriginal society. The nature and content of the right, and the area within which the right was exercised, are questions of fact. The precise bundle of rights that a particular aboriginal community can assert may depend upon a number of factors including the nature, kind and purpose of the use of occupancy of the land by the aboriginal community in question, and the extent to which such use and/or occupancy was exclusive or non-exclusive55. Concerning the claim to governance of the territories irt question, Macfarlane J.A. agreed with the trial judge that the division of powers at Confederation had extinguished any Gitxsan rights: I have said there is no question the Gitksan and Wet'suwet'en people had an organized society. It is pointless to argue that such a society was without traditions, rules and regulations. Insofar as those continue to exist there is no reason why those traditions may not continue so long as members of the Indian community agree to adhere to them. But those traditions, rules and regulations cannot operate if they are in conflict with laws of the Province or of Canada. In 1871, when British Columbia joined Confederation, legislative power was divided between Canada and the provinces. The division exhausted the source of such power. Any 54 Ibid, at 178, para. 279. 55 Ibid, at 128 to 129, para. 65 to 66. 149 form of Indian self-government, then existing, was superseded by the Constitution Act, 186/as adopted by the Province in 187 1 5 6 . As Robert Freedman57, legal scholar, points out, there was a degree of ambiguity surrounding the meaning of self-government, and this may have had its roots in how the pleadings themselves were set out. In the statement of claim the Seem 'oogits and Seem 'ogits asked the Courts to "recognize that they governed themselves" according to their own laws, and that they have the right to govern themselves. Such a statement, Freedman suggests, could entail anything from a measure of self-regulation in the territories of the Gitxsan to the ability that they could make their own laws, independent of either Canada or British Columbia, through their own institutions. When speaking about jurisdiction, Macfarlane, J.A. in supporting the trial judge, elaborated on his conclusion: Rights to self-government, encompassing a power to make general laws governing the land and resources in the territory, and the people in that territory, can only be described as legislative powers. They serve to limit provincial legislative jurisdiction in the territory and to allow the plaintiffs to establish a third order of government in Canada. Putting the proposition in another way: the jurisdiction of the plaintiffs would diminish the provincial and federal share of the total distribution of legislative power in Canada . As Macfarlane. J.A. concludes: Furthermore, the claim to the right to control and manage the use of the lands and resources in the territories cannot succeed because the plaintiffs failed to establish the necessary ownership needed to support such a jurisdiction59. ibIbid. at 178, para. 281. 5 7 R. Freedman, "The Space for Aboriginal Self-Government in British Columbia: The Effect of the Decision of the British Columbia Court of Appeal mDelgamuukw v. British Columbia" (1994) 28(1) U.B.C. L. Rev. 51. 58 Delgam 'Uukw 1993 supra note 45 at 151, para. 165. 59 Ibid, at 153, para. 174. 150 Wallace, J.A. in responding to the plaintiffs pleadings that they continued to hold jurisdiction, stated: Jurisdiction or self-government includes the power to pass laws which will be recognized by the community in question, and the ability to enforce such laws. Prior to the acquisition of sovereignty over British Columbia, the Indians exercised jurisdiction in the territory to the extent made possible by their social organization. However, once sovereignty was asserted, the Indians became subjects of the Crown and the common law applied throughout the territory and to all inhabitants60. Wallace, J.A. determined that: After the exercise of sovereignty by the Crown, the plaintiffs no longer retained the aboriginal right of self-government or jurisdiction over any part of the territory or the members of their House. Any rights of self-regulation must arise from agreement between the plaintiffs and the provincial or federal Crown or by decision of the trial court. The plaintiffs established a non-exclusive aboriginal right of traditional occupancy and use of that portion of territory designated by the trial judge61. It is surprising that the analysis of self-regulation or self-government was interpreted in such narrow and absolute terms. The British constitutional principle of "Continuity" seemingly implies that the First Nation communities have a right to govern themselves according to their law in all matters, except where aboriginal law and the common law would intersect. In these situations, such as natural justice concerns and when the Crown's sovereignty is put in jeopardy, it is expected that both parties ought to be afforded the respect of sitting in council to come to a mutual agreement as to the shape of the law, as well as the expected and necessary remedy. Outside of these concerns, First Nation people, including the Gitxsan, have the right to govern themselves and to expect both protection from thirdparty interest from the Crown, as well as the ou Ibid, at 224, para. 478. 61 Ibid, at 99. 151 cooperation of the Crown in safeguarding these rights, in light of Federal or Provincial legislative imperatives. The Minority Decision Lambert J.A., drawing on the "settlement rule62" and the "Doctrine of Continuity63," stated that aboriginal title is only one aspect of aboriginal rights64, and as a "right" it had its origins in the First Nation societies that existed before European settlers arrived. Lambert J.A. contended that at the time of contact and declaration of sovereignty, these rights continued and warranted protection both from the aboriginal societies as well as recognition and protection by the common law65. As Lambert, J.A. maintains, the settlement rule stipulates: If, either before or after the beginning of the process of settlement, Sovereignty was asserted by the Crown, that Sovereignty would carry with it the power to make just laws for all the inhabitants of the land over which Sovereignty was asserted, but Sovereignty itself would not displace the existing rights and social system of the indigenous people66. Lambert J.A. held that it follows that when the Crown asserted sovereignty and adopted the common law as the law over the territories in question, then i