Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-17] British Columbia. Supreme Court Jun 17, 1992

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 1814  Submissions by Mr. Macaulay  1 Coram:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  2  3 Vancouver, B.C.  4 June 17, 1992.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Wednesday, June the 17th, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 TAGGART, J.A.:  Yes, Mr. Macaulay.  11 MR. MACAULAY:  My lords, may I hand up the transcript references  12 for the appellants' anthropological experts, Daly,  13 Mills and Brody.  Also the exhibit references.  There  14 are a few exhibits.  15 My friend Mr. Rush has told me that he has just  16 received his copy of the overlay that was referred to  17 by Mr. Justice Lambert at the adjournment last night,  18 the unmarked, unexhibited overlap, and he informs me  19 that he wants to consider his position and deal with  20 it later.  21 TAGGART, J.A.:  Yes.  22 LAMBERT, J.A.:  Thank you very much for your help in preparing  23 this compilation for us, Mr. Macaulay.  2 4 MR. MACAULAY:  All right.  25 MR. RUSH:  Just on the matter of the overlay, my lords.  There  26 was evidence on the question of other claims, and it  27 might be more appropriate for your lordships to see  28 what the evidence is rather than to rely on a document  29 that essentially wasn't put in evidence.  We are  30 trying to determine why it was that it wasn't admitted  31 at the time, and I think that there may be another way  32 of putting that evidence before you which would be a  33 more proper way of having it before you.  So it's that  34 to which my attention will be directed.  Hopefully, I  35 will be able to answer you by tomorrow morning.  36 There is one other point I would like to raise,  37 and that is that yesterday there was a question from  38 the bench concerning bridges, and my friend made some  39 comments on that, but there is evidence with respect  40 to the bridges in the territory.  It was put in  41 through Dr. Robert Galois, and it's Exhibit 1034,  42 Appendix 7 in which Dr. Galois enumerates some ten  43 bridges reported prior to 1900, giving their sources,  44 and indicating in two instances that bridges were  45 located away from village points.  46 LAMBERT, J.A.:  But we don't know whether they were suspension  47 or cantilever. 1815  Submissions by Mr. Macaulay  1 MR. RUSH:  Not from this description we don't, my lord.  But he  2 gives the reports and he sources it, and you can find  3 this in appeal book volume number 76 at page 15241.  4 MR. MACAULAY:  I'll have to look at that exhibit.  I don't  5 recall it, but I'm sure I heard it at the time.  6 WALLACE, J.A.:  I notice on the list of exhibits you handed up,  7 Mr. Macaulay, Part IV, 145, where does that fit into  8 the material we have?  9 MR. MACAULAY:  It's the appeal book, the rather thick volume.  10 It's like this.  11 WALLACE, J.A.:  Oh, yes.  I have that.  Thank you.  12 LAMBERT, J.A.:  We are still in reference book 7, are we, Mr.  13 Macaulay?  14 MR. MACAULAY:  Yes, my lord.  We'll be able to get through that  15 one fairly quickly.  I think it's all Loring.  We were  16 at paragraph 184, tab of the same number, which  17 contains many, many -- quite a lot of exhibits, only  18 one of which I am going to refer you to.  It has to do  19 with the coastal canneries employing many Gitksan  20 during the entire period of Loring's tenure.  It had  21 started in 1887, and the reason was that the  22 Metlakatla Indians under William Duncan's leadership  23 who had been doing the fishing and working at the  24 canneries before that time left for Alaska and their  25 places were filled by others, including a very  26 substantial number of Gitksan.  So that's the first  27 appearance of the Gitksan on the coast in any numbers.  28 Among the annual reports, and that's what most of  29 these exhibits are, the one for 1895, that's  30 1209-A-55, refers to the Sikanees and Na-anees at Bear  31 Lake, and it sets out that in another report, the 1893  32 report, that the Bear Lake Carriers, and that was the  33 term used, have three houses and five acres of  34 cultivated fields at Bear Lake.  There is a continuing  35 record of the continuing presence.  36 Paragraph 185 refers to the establishment of saw  37 mills at Kispiox, at Glen Vowell, which was a new  38 reserve.  Glen Vowell was created as a result of  39 religious dissension between two rivals, and they were  40 very much rival groups at Kispiox, and Glen Vowell was  41 created to accommodate one of those who wanted to live  42 separately.  43 And I say in my text Andimaul was another reserve  44 too, another new village.  It had a strong religious  45 flavor in its origins and is reported to have  46 consisted of people from a variety of Gitksan villages  47 who settled there.  That's on the right bank of the 1816  Submissions by Mr. Macaulay  1 Skeena, not that far from Kitsegukla, but on the other  2 side of the river.  3 Timber leases were obtained in 1914 when the  4 demand for lumber was very strong, and packing and  5 freighting jobs were -- which had been available from  6 before Loring's time were still available and taken  7 up.  8 Now, again under that tab the exhibits or some of  9 them are interesting for other reasons.  Exhibit  10 1209-B-12 is the 1899 report, and it refers to the  11 Sikanees and Na-anees on Bear Lake.  12 The 1209-D-240 is the 1907 annual report, and  13 refers to the Francis Lake band.  It was being  14 reported as a separate band by that time, and it shows  15 two settlements at Francis Lake.  And we'll come back  16 to that, who was there and why later.  17 The same 1907 report gives the, for the first  18 time, the population of Sikanees and Na-anees.  That's  19 the 1907 annual report, 1209-D-240.  There were 118  20 Sikanees and 153 Na-anees.  So together they  21 constituted by comparison with most, say, Gitksan  22 villages as one of the major population centres.  23 Perhaps I shouldn't use the word "population centre",  24 but populations which appear to have been centered on  25 Bear Lake.  It wasn't a matter of half a dozen roving  26 people.  This is the first time I can find actual  27 figures for the numbers.  28 At 186 I refer to the survey and construction of  29 the railway which provided a lot of employment, and  30 although the jobs -- those jobs disappeared after 1914  31 when it was completed, there were other job  32 opportunities.  And Loring reports that in 1918 there  33 were jobs at high wages available and commercial fish  34 prices were at satisfactory levels.  Also, that the  35 Wet'suwet'en continued their traditional hunting and  36 trapping longer than the Gitksan.  The railway  37 construction in the Bulkley Valley appears to have  38 changed that.  39 Perhaps I should mention that the 1910 annual  40 report that's at 1209-D-290 refers to the land  41 question and to an all or nothing approach to the land  42 question.  43 HUTCHEON, J.A. :  Where is that?  44 MR. MACAULAY:  Well, the reference — I'll come back to it in  45 detail.  46 HUTCHEON, J.A.:  Yes.  47 MR. MACAULAY:  The reference is in Exhibit 1209-D-290. 1817  Submissions by Mr. Macaulay  1 187.  As a result of improved communications, high  2 wages and plentiful jobs, the Indians started  3 purchasing their supplies, this is their food and  4 other supplies, at the coast, and they were able to  5 accumulate savings and they were no longer in debt to  6 the local stores, the local merchants.  7 At 188 Loring reports that as the Gitksan and  8 Wet'suwet'en shifted from traditional to new  9 occupations, trapping and food fishing became less  10 important activities, although at Kisgegas and Kuldoe  11 the traditional occupations continued, migration of  12 their people to Kispiox and Hazelton, which started in  13 1902, and continued through the balance of his term as  14 Indian Agent.  15 Paragraph 189 shows the population of Kisgegas in  16 1890 and 1891 and 1910.  It increased from 1890 to  17 1891 by 15 members, but had decreased substantially by  18 1910.  It was at 235 by then.  And that continued.  19 190 and 190A were redrawn in part because of the  20 interest the court has shown, and Mr. McDougall's map  21 of his southern area.  22 Loring had spent several weeks in the summer and  23 autumn of 1905 locating and staking the appropriate  24 places for Indian rereserves at Francois and Burns and  25 Cheslatta Lakes.  The Cheslatta Lake is just below the  26 claim area.  The other two are in the claim area.  The  27 Burns Lake population included the Tibbet family.  28 They are still there, but they are not appellants.  29 They are not members of the Wet'suwet'en community.  30 The inhabitants of Francois Lake aren't identified  31 by name.  The description of the settlements includes  32 the number of buildings and horses and smoke houses  33 and graves, and they were listed as a separate band in  34 1906 and thereafter until the agency was divided, and  35 Loring's part of it excluded Francois Lake and other  36 areas thereafter.  37 Loring reported in 1905 that there was nobody  38 living at Ootsa Lake, and he identified and named two  39 recent arrivals to Ootsa Lake, recent that is in 1905.  40 One of them he described as a half Gitksan and the  41 other one a Wet'suwet'en.  42 The maps he drew are about three exhibits in.  43 They start three exhibits in and there are three of  44 them.  And behind each map I have put a transcription,  45 because it's difficult at this size of reproduction of  46 the map, which was larger, to read what he was  47 recording. 1818  Submissions by Mr. Macaulay  1 On Francois Lake, for instance, the first of those  2 maps, he locates at the very west end the Nadina River  3 end.  At the west end there is the Nadina River, and  4 the east end, which is outside the claim area,  5 Francois Lake goes beyond the claim area, is the  6 Stellato River leading to Fraser Lake.  And he  7 identifies who was living there in 1905.  And he  8 identifies what they were doing, in the sense that he  9 describes the need for hay land.  The Indians had  10 horses by this time, and he records the number of  11 horses.  12 He says that at the west end at Tahtla there were  13 11 people, seven graves and nine houses, three  14 dwellings and two smoke houses, and at the other one  15 on the south side shore of the lake there were 26  16 people, five houses, two smoke houses, two graves and  17 25 horses.  Most of those -- what he did was he staked  18 them, and you will see from the transcription, if you  19 can call it that, that is the typing up of all the  20 written material, that he staked, measured and staked  21 land that he recommended be allocated as reserves.  22 And in 1915, at the time that McKenna and McBride came  23 around to deal with this reserve allocation problem,  24 by and large those were reserved and they are reserves  25 today.  26 The next map is Cheslatta, and that deals with  27 people who are not appellants and who don't live in  28 the claim area.  The third one, though, is Burns Lake,  29 and that is in the claim area, and he describes two  30 settlements.  The eastern one is the Tibbet  31 settlement.  He notes there, there is an old  32 graveyard.  It's the only time he describes the  33 graveyard as an old graveyard.  The Tibbets were not  34 Wet'suwet'en and they had horses and cattle.  The  35 other settlement is described as Charles and brothers,  36 whoever Charles was, and there were 13 people, 31  37 graves, nine horses and 12 cattle.  By comparing the  38 two, it would appear that Burns Lake, and if you count  39 the number of graves and the character of graves, had  40 been inhabited perhaps for a longer time than Francois  41 Lake, that is settlements at those lakes.  42 If I can turn to 190A.  Special Commissioners  43 Vowell and Stewart, senior officers of the Department  44 of Indian Affairs, and with Loring, of course, because  45 he was the Indian Agent, met with the Hagwilget  46 Indians in July, 1909 concerning, amongst other  47 things, the problem of dispossession by settlers of 1819  Submissions by Mr. Macaulay  1 Indians in the areas south of Moricetown.  Twenty-six  2 Indians described their cabins and hunting and grazing  3 grounds, because they had cattle by this time, horses,  4 and the land use was different for that reason, and  5 they are in many different places, including Canyon  6 Creek and Lyetate and Tyhee, Round, Maxim, Owen, Burns  7 and Francois Lake.  That's not an exhaustive list, but  8 those were the main ones.  They each asked for the  9 allocation of a square mile.  That was their request.  10 And that is the context in which these same people or  11 many of them met with McDougall the following year.  12 The sequel was that in 1915 a lot of additional  13 reserves in that area were alloted and a number of  14 these 26 people took pre-emptions, including Johnny  15 David referred to by my friend, Mr. Rush, in his  16 submissions on this.  17 Now, the displacement of Wet'suwet'en in the area  18 south of Moricetown arose out of the pre-emption  19 system which allowed people who weren't necessarily  20 residents to go in and stake property and do the  21 necessary statutory work and qualify them for a title,  22 and apparently this was done on -- it wasn't supposed  23 to be according to the rules, the province's own  24 rules, but apparently this was done on land on which  25 Indians were living, hence the dispossessions.  And  26 that was only partly -- it was partly addressed in the  27 allocation of reserves, a lot of little reserves.  As  28 you will see, looking at the map, there are a whole  29 lot of other reserves south of Moricetown, quite small  30 ones, and partly by pre-emptions, which is, perhaps,  31 unsatisfactory, but that was the solution -- a  32 solution for some of them at the time.  And in part it  33 may be that there was no remedy provided.  34 It's very difficult to make out who a lot of the  35 26 claimants are, and it is sometimes difficult to  36 locate the precise area that they were talking about.  37 But the work on it had started -- Loring had started  38 the work on this in the southern part of this area in  39 1905 when there were very, very few people down there.  40 It also reflects something that was happening.  People  41 weren't -- were no longer living in the winter village  42 and going down in the hunting season.  They were  43 settling in specific areas, and in part that must have  44 been because they now had horses and cattle, and if  45 you have horses and cattle, you can't go live in town.  46 191.  I turn to paragraph 191.  Loring had heard,  47 during his visits to the Gitksan villages, and we have 1820  Submissions by Mr. Macaulay  1 seen this before, that a rumour had circulated to the  2 effect government officials would come to the villages  3 to survey and take away the Indians lands.  4 In July 1890 -- I am at paragraph 192 -- Loring  5 reported the Indians would welcome the Indian Reserve  6 Commissioner, and had changed their attitude from the  7 previous months.  8 At 193 Loring reports that after the Indian  9 Reserve Commissioner's visit to the claim area in  10 1891, that's Mr. O'Reilly's visit, Loring reported  11 that the trouble experienced at Kispiox was quite  12 unexpected and that there had been a sudden change of  13 attitude, as indeed there was a sudden change back.  14 At 194 I say that Loring reports that as far as he  15 could tell in October, 1891, all the Indian bands were  16 satisfied with their reserve allocations except for  17 Kispiox.  18 I am turning now to Volume 8, my lords.  We are  19 coming now to the land resurgence of the land claim,  20 the land question in its modern form.  Loring reported  21 also, I am at 195 now, a rumour that the Indians would  22 be required to buy their reserves.  And he commented  23 that this sounded like the old Metlakatla spirit.  And  24 then, as we have seen, he wrote to Edward Stuart of  25 Minskinisht in 1893, asking him whether or not he was  26 spreading false reports about the reserves.  27 At paragraph 196 Loring in 1893 reports that the  28 Kispiox people were then at their winter village, and  29 he describes it in terms that we have to assume the  30 whole village was up there.  He requested Loring to  31 come -- they requested Loring to come and meet with  32 them to discuss the allocation of their winter village  33 as a reserve.  So they had done an about face from the  34 plan at opposition in 1891.  35 197.  When the Kispiox chiefs asked the Indian  36 Reserve Commissioner to allot reserves for them in  37 1896, Loring was asked to report on the land they  38 needed.  And in his reply Loring stated that the  39 Kispiox people had thought in 1891 that their reserve  40 would encompass only their village site, and after  41 1896 the Kispiox people appeared to have taken an  42 active interest in reserve allocation.  43 At 198 I set out Loring's report in 1904 that  44 settlers were entering the Bulkley and the Kispiox  45 valleys in some numbers, but at that time it didn't  46 cause any disturbance.  47 199.  Quite suddenly in 1909 a fierce opposition 1821  Submissions by Mr. Macaulay  1 to the European population erupted, particularly at  2 Kitwangak and Kispiox.  Joe Capilano and a man named  3 Weedaldall, a Tsimshean, had visited the Gitksan  4 villages, and the basis of this discontent was the  5 Indian land question.  There were threats of violence  6 and plans to attack Hazelton, apparently, to expel --  7 there was a discussion of the expulsion of the  8 settlers.  9 And there is a lot of -- quite a number of  10 exhibits which show the development of that and the  11 fear it aroused and the character of the plans that  12 had leaked out to Loring.  Loring had people coming to  13 his back door at night telling him some of the things  14 that were going on, as he says.  15 Paragraph 200.  The Gitksan and the Wet'suwet'en  16 did not present a common front regarding this  17 question, and that resulted in harsh words between  18 them.  And he reports at -- just by the way, that  19 division of position between the Gitksan and  20 Wet'suwet'en in his letter of November 18th, 1909.  He  21 was asked to negotiate an agreement, to help negotiate  22 an agreement between the Gitanmaax Indians and the  23 Hagwilgets about reserve boundaries, and he reports  24 that that's impossible because, as he says:  25  26 "... these bands are not even on speaking terms  27 since that of Rocher Deboule refused to enter  28 into league with those of the Skeena in their  2 9 extravagant demands on the Government or offer  30 fight."  31  32 He mentions the threat made by the Wet'suwet'en  33 that they would open fire on Gitksan if any fishing  34 was attempted by the Gitksan on the Wet'suwet'en side.  35 You have to remember the Gitksan had a claim,  36 because that was Gitksan territory, and the  37 Wet'suwet'en had only moved there in the 1820's after  38 1824.  39 The result of what was going on in Kispiox is  40 sometimes called the Kispiox Raid.  At 201 I deal very  41 briefly with that.  It occurred in 1909 when 50  42 special constables went up to Kispiox and they  43 arrested some of the people thought to be at the  44 centre of the agitation, and one of them, Stephen  45 Morgan of Minskinisht, that's Tomlinson's 'Holy City',  46 and Tomlinson was still there, appears to -- he was  47 sentenced to three months, and that, according to 1822  Submissions by Mr. Macaulay  1 Loring, appears to have quietened the land claim  2 agitation.  3 At paragraph 202 Loring reported in 1910 and 1911  4 that the land claim agitation had died down, but that  5 the old people had not abandoned the idea.  6 203.  In 1912 and 1916 Loring reported the  7 Indians' anger at white settlers about the land  8 settlers occupied had subsided.  9 In 1919, paragraph 204, it was suggested to Loring  10 that there be a Kispiox village council, and he  11 recalled the events of a few years earlier, the  12 deliberations on how to drive out the white settlers,  13 and he puts in brackets, "I am putting this mildly".  14 And at 205 I say Loring did not support the idea  15 of another Kispiox council.  16 At 206 I just list some of the very large number  17 of other matters that Loring dealt with in his reports  18 that are not referred to here.  The change in dress  19 may be significant to anthropologists.  He reported on  20 his second visit to Kisgegas that while at the time of  21 his first visit the Kisgegas villagers were all still  22 in their blankets, whereas at the second visit every  23 one was in European clothing.  And that's how rapid  24 some of the changes, even in that remote area, had  25 taken place in a period of, I think it was four years,  26 the interval.  27 207 refers again just to Joe Capilano and Mr.  28 Weedaldall.  29 And 208 I set out there were new arrivals on the  30 scene in the form of lawyers, and they have been with  31 us ever since.  Mr. J.M. Clark, a lawyer from Toronto,  32 visited the Gitksan who are interested in the land  33 question, and Clark appears to have had a hand in the  34 drawing up of a petition of the Indians of the upper  35 Skeena that dealt in a general way with the land  36 question and aboriginal rights.  That document is  37 there.  It's not a lengthy one.  And it's signed by  38 six Indians, including chiefs from Kitwanga,  39 Kitwancool, Kitsegukla, Hazelton and Kispiox.  That  40 petition isn't dated, but it has to be before 1911.  41 It's addressed to Sir Wilfred Laurier.  42 And in the next tab you will see that the  43 surveyor, Ashdown Green, who heard the land claim  44 rhetoric when he was dealing with Andimaul trying to  45 set up -- survey the boundaries of the Andimaul  46 reserve, heard about the petition and about the  47 Toronto lawyer, Clark.  That's at page 2 of Mr. 1823  Submissions by Mr. Macaulay  1 Green's letter to the Department of Indian Affairs  2 where he says they, that's the residents of Andimaul:  3  4 "Informed me at first they did not want me, that  5 the whole country belonged to them, and that  6 they had been advised by a Toronto lawyer named  7 Clarke, not to accept reserves until their  8 'petition' had been answered.  This answer they  9 expected before the snow came.  When their  10 claims were settled the white men can come in."  11  12 That letter is dated August 1910 and the petition  13 must pre-date that by some time.  14 Interestingly, page 3 of Mr. Green's letter he  15 reports on McDougall's visit.  That's McDougall of --  16 the man who had the map.  He talks about McDougall  17 visiting New Kitsegukla and McDougall writing down all  18 they wanted.  Apparently McDougall is alleged to have  19 promised their old tribal boundaries on the Skeena and  20 five miles on each side of the river.  That's an  21 interesting phrasing of the claim.  It was a stretch  22 of the river and five miles on each side.  Green said  23 he doubted whether McDougall had given that kind of  24 undertaking.  25 Page 6 he describes who these people were.  The  26 Andimaul Indians, he says, are migrants from Kitwanga,  27 Kitsegukla and Kitwancool.  28 At 210 I refer to the Reverend McDougall.  He was  29 on a fact finding mission about the land question for  30 the Department of Indians Affairs, and he held  31 meetings at several Gitksan villages, and at  32 Hagwilget.  His report indicates that the Metlakatla  33 doctrine gained wide currency in Gitksan country.  But  34 it's phrased in general terms.  If you look at page 2  35 of his report, 2A, he starts off by saying:  36  37 "The Indian people of British Columbia have now  38 fully awakened to the knowledge that their  39 vested right to the ownership and long  40 centuries of occupation of the greater portion  41 of the Province of British Columbia has never  42 been dealt with by either the British or  43 Canadian governments.  That by British,  44 Sovereign, Royal Proclamation and by Canadian  45 government precedent, action, such ownership  46 and title has been conceded and respected and  47 many treaties have been made by these 1824  Submissions by Mr. Macaulay  1 governments with the Indian peoples like  2 themselves whereby the Indian title (for  3 consideration stipulated) was relinquished on  4 their side and thus righteously acquired on the  5 part of the governments."  6  7 And in B, about the middle of the paragraph, he  8 makes the observation:  9  10 "Left without title to any land whatever, unless  11 that be purchased what purports to be a title  12 from some white man or from the provincial  13 government but which in both cases the  14 intelligent Indian of today questions as to the  15 validity thereof."  16  17 He is referring, presumably, to the validity of  18 Crown grants.  19 In 211 I merely recapitulate that Loring had  20 reported some Gitksan still kept the land question  21 alive.  22 That brings us to the McKenna-McBride Commission,  23 the hearings in 1915 at the various villages in the  24 claim area.  There is not a lot -- I have included the  25 transcript of the proceedings, the relevant  26 proceedings in those places.  There is not a lot to  27 say about them.  It could be summarized easily enough  28 by saying that the Gitksan chiefs who attended made a  29 claim to absolute ownership of all lands in the areas  30 where they had traditional hunting grounds, and would  31 take no further part in the proceedings.  The  32 commissioner's duty was limited to either adding to or  33 subtracting from reserve allocations that had been  34 made earlier.  The Wet'suwet'en didn't take that  35 position and applied for additions to their reserve  36 lands, and that was dealt with in the ordinary way.  37 Paragraph 213 is merely a repetition of one that I  38 have -- about the great Ksun Fishery that I dealt with  39 before.  40 214.  I have already made this observation or  41 submission.  The Morrell map I should identify by its  42 exhibit number, the fishing map which doesn't have the  43 great Ksun fishery on it.  It's Exhibit 358-22.  That  44 exhibit does not include the text.  That was not  45 admitted as evidence.  It's the map showing all the  46 various fishing stations, not the text.  47 At 215 I assert Kisgegas and Kuldo are no longer 1825  Submissions by Mr. Macaulay  1 inhabited.  I don't think that's a matter of  2 contention.  There are -- there is one or there is  3 maybe two people who lived part of the year up at  4 Kisgegas.  There is nobody at Kuldo.  The Kisgegas  5 reserve was amalgamated with the Gitanmaax reserve.  6 The lands were transferred to the Gitanmaax reserve in  7 the 1940's, late forties.  8 I have already pointed out that there was no  9 evidence given about the winter hunting and fishing  10 camps mentioned by Loring over the years, and that  11 relates to, of course, the reliability of the  12 appellants' recollections.  13 HUTCHEON, J.A.:  I don't quite follow you.  14 MR. MACAULAY:  Well, these were places that were occupied in the  15 course of the annual round.  16 HUTCHEON, J.A.:  Yes.  17 MR. MACAULAY:  When people were still spending their time in the  18 winter out on the trapping grounds or in the summer on  19 the fishing grounds.  20 HUTCHEON, J.A.:  Yes.  21 MR. MACAULAY:  And it continued well into the 2 0th century up to  22 around 1920, at least.  Unfortunately, the reports  23 fell off very badly after 1920.  After Loring's time  24 there was nobody who made these massive number of  25 reports.  But there are people alive today who were  26 alive then, and if they aren't alive, their children  27 are alive.  They are the people that the  28 anthropologists dealt with.  Some of them are the  29 people who gave evidence at the trial.  They were by  30 and large the older people --  31 HUTCHEON, J.A.:  Yes.  32 MR. MACAULAY:  -- whose parents would have, if not themselves,  33 the parents.  34 So the anthropologists are at a serious  35 disadvantage in making out what had gone before, if  36 that was one of their objectives.  And the evidence  37 that was given by the witnesses at trial concerning a  38 great deal of evidence concerning what they were told  39 by their forefathers and so on.  40 HUTCHEON, J.A.:  Yes.  41 MR. MACAULAY:  Has to be looked at in that light too.  42 WALLACE, J.A.:  I don't follow that.  Why are the  43 anthropologists in great difficulty?  44 MR. MACAULAY:  Well, the anthropologists, as I understood the  45 evidence when I listened to it, were -- the term is  46 back streaming.  They were listening to what was being  47 said by the members of the Gitksan and Wet'suwet'en 1826  Submissions by Mr. Macaulay  1 communities and developing theories on what had taken  2 place before.  Now, if the memory of the -- that's  3 only as effective as the accuracy of the collective  4 memory of the community they are in.  5 WALLACE, J.A.:  The narrators of the story.  6 MR. MACAULAY:  Well, if a major fishery — after all, that was  7 the centre of their lives until pretty recently -- is  8 totally forgotten, so far forgotten never to have been  9 mentioned when particular questions were asked about  10 it, then that goes to the reliability of the recall of  11 those older people if it's totally forgotten.  12 WALLACE, J.A.:  You're saying the anthropologists are in great  13 difficulty because the weight that can be placed on  14 these narrations is slight or doubtful because of  15 their memory?  16 MR. MACAULAY:  Memory of recent events is surprisingly lacking.  17 You heard counsel for them assert that there were no  18 winter villages, and those are his instructions,  19 obviously.  20 WALLACE, J.A.:  Yes.  21 MR. MACAULAY:  And we see that in the 20th century there were  22 winter villages, and we read the details of what they  23 were doing there, how they were fishing under the ice  24 and what game there was there.  There were very  25 detailed descriptions, precise locations too.  26 WALLACE, J.A.:  So this really goes to the weight to be placed  27 on the information provided to the anthropologists.  28 MR. MACAULAY:  And also to the weight to be placed on the — you  29 see, a very large number of them made what's called  30 territorial affidavits.  31 WALLACE, J.A.:  Yes.  32 MR. MACAULAY:  And they tended to be the older people.  And the  33 territorial affidavits were made quite apart from the  34 evidentiary rule.  This will be addressed by Ms.  35 Koenigsberg.  Territorial affidavits give a metes and  36 bounds kind of description of areas and a lot of place  37 names, names of creeks and names of ponds and names of  38 ridges and names of this and names of that.  But when  39 you look at that, you also have to look at their total  40 lack of recollection.  41 In the case of the Wet'suwet'en of Dam olp, which  42 was obviously a major winter caribou hunting centre up  43 to the 20th century, we can't say how long after the  44 20th century it went on.  In the case of the Gitksan,  45 the major canyon fishery for the central villages  46 totally vanished from memory.  Then one asks oneself,  47 well, how can you remember the names of rivers and 1827  Submissions by Mr. Macaulay  1 ponds in an area you haven't been to for 30 years and  2 you may have only lived on 'til you were the age of  3 five years old.  4 WALLACE, J.A.:  I see.  Thank you.  5 HUTCHEON, J.A.:  The anthropologists didn't just rely upon those  6 oral histories.  They were looking at journals, they  7 were looking at the things you have taken us through.  8 MR. MACAULAY:  I don't know what journals they looked at, if  9 any.  10 HUTCHEON, J.A.: I have been looking at them, and they record  11 what Boys and people like that, Brown, they looked at  12 all those things.  13 MR. MACAULAY:  Can I leave it to my colleague, Ms. Koenigsberg,  14 to deal with that particular thing?  15 HUTCHEON, J.A.:  Yes.  16 MR. MACAULAY:  I can only say this, that there was an  17 anthropologist who worked in the 1960's among the  18 Gitksan.  His name was Adams.  He's at Harvard.  He  19 was once the senior ethnologist for what was then  20 called the Museum of Man in Ottawa.  He's an American.  21 He's at Harvard.  He records a certain state of  22 affairs that he found.  Mr. Daly, one of the two  23 anthropologists who dealt with the Gitksan, disagreed  24 entirely with Adams' observations 20 years earlier.  I  25 don't know what he was reading.  He took no notes.  26 WALLACE, J.A.:  Daly took no notes?  2 7 MR. MACAULAY:  Daly.  28 HUTCHEON, J.A.:  That is disputed.  That was disputed before us.  29 We see some notes in his report.  30 MR. MACAULAY:  Can I leave the detail of that —  31 HUTCHEON, J.A.:  Yes, certainly.  32 MR. RUSH:  Well, my lords, the exhibits, the hand-up that my  33 friend passed up this morning, contains a large number  34 of references to treatises, to reports, to journals  35 and so on.  36 MR. MACAULAY:  In treatises and journals and reports of that  37 kind, yes, but I was talking about the notes of what  38 people were saying.  39 HUTCHEON, J.A.:  I saw some of them.  I've seen them.  I've read  40 some of them.  Anyway, Ms. Koenigsberg will deal more  41 particularly with this.  42 MR. MACAULAY:  Yes.  When it comes to anthropologists, my lord,  43 I have a tin ear, my lord, and she's much better able  44 to deal with that.  45 HUTCHEON, J.A.:  Yes.  I see.  46 MR. MACAULAY:  And I have mentioned the same thing about the  47 hunting camps.  You can't find these names in the 1828  Submissions by Mr. Macaulay  1 Appendix H.  That's the main lists, the gazetteer  2 which is Appendix H to the appellants' factum.  3 At 217 I point out that the Department of  4 Fisheries last record of any Indian fishing at  5 Damdochax, that's Blackwater Lake, which is on the  6 north central part of the claim area, of the Gitksan  7 claim area, and at the Upper Copper River, which is  8 east of Smithers -- sorry, west of Smithers, in the  9 case of Damdochax was 1924.  And west of Smithers, the  10 Upper Copper River, was the 1890s.  11 There was a very good reason in the case of the  12 Upper Copper River.  There was a slide that blocked  13 the fish in the Copper River and there hasn't been any  14 fishing there since.  In the Damdochex there is no  15 obvious reason except for the fact that the Gitksan  16 withdrew from that area after that time.  17 In the Nadina River it's in the early 1900s.  The  18 Nadina River is at the west end of Francois Lake.  19 There used to be a very large salmon run there and it  20 was said to be the best salmon in the claim area by  21 some.  The salmon were particularly fat and the  22 Indians were able not only to dry or cure the salmon,  23 but they got fish oil, something like the oolichan  24 oil, they got fish oil out of these particularly  25 desirable salmon.  26 Then there was the disaster of 1914 at Hell's  27 Gate, and the Nadina River, which is part of the  28 Fraser River complex, dried up.  The Stellaco Indians  29 fished in the Nadina River at the west end of Francois  30 Lake before that time.  So it can't be assumed that  31 the Indians we see on Loring's map in 1905 are  32 Wet'suwet'en.  33 The report I am referring to is a report that was  34 done in 1927 by a man named MacLeod, a Fisheries  35 Overseer, to the inspector of Fisheries in New  36 Westminster.  And he interviewed, and he names them,  37 five old Stellaco Indians at that time.  They reported  38 on the Nadina River fishery and the part they took in  39 it.  And they said something interesting about it.  40 They said that in their time Hazelton Indians, not  41 Hagwilget, but Hazelton Indians used to come down with  42 pack horses and take dried fish and take oil.  But  43 coming back to my first point, it can't be assumed  44 that in the Fraser River network, Burns Lake, Francois  45 Lake and those other lakes, that the Indians you see  46 are Wet'suwet'en, and it's not the case today.  Some  47 are and many, many others aren't. 1829  Submissions by Mr. Macaulay  1 This is direct evidence of the Stellaco Indians.  2 They belong to the Carrier-Sekani Tribal Council now,  3 were in and using the fishery at the west end of  4 Francois Lake.  5 218 I say the evidence shows there was practically  6 no fishing on the southern part of the Wet'suwet'en  7 claim area from 1964 to 1969.  That was evidence given  8 by Mr. Mclntyre, who was the Indian Agent for the  9 southern area.  He was also the Indian Agent for the  10 Babines.  His area included the southern part of the  11 claim area and Babine country.  12 Now, the Fraser River system hadn't recovered from  13 the 1914 disaster, probably, but there wasn't any  14 fishing.  And Mr. Mclntyre, of course, pointed out  15 that the Babines were fishermen and their fish come  16 from the Skeena.  17 At 219 I refer to the evidence of Messrs. Woloshyn  18 and Turnbull.  They are the Fisheries Officers today,  19 the one at Hazelton and the other at Smithers.  20 Between them they cover the claim area.  And their  21 evidence is that in recent times they have observed  22 Indian fishing only along the Skeena, the Bulkley and  23 the Babine Rivers, not the Kispiox River and not the  24 Morice or any of the other rivers.  Just there.  25 At 220 I report trapping stopped in 1951 when fur  26 prices fell sharply.  Sharply is hardly the word for  27 it.  Catastrophically is the better word.  And we rely  28 principally on the evidence on a Gitksan who was a  29 very, very active trapper up 'til that time.  He took  30 a job in the logging industry.  After 1951 there was  31 no point in trapping.  He reported that when he came  32 out of the bush in the spring of '51 he wasn't able to  33 cover his grub-stake that had been advanced to him by  34 the Hudson Bay Company.  With the proceeds of his furs  35 he owed them money, which he paid later out of his  36 wages as a logger.  37 At 221.  This cessation of trapping has continued  38 to the present day.  Mr. Mclntyre, who was the Indian  39 Agent in the southern area from '64 to '69,  40 reappeared.  Under his new incarnation was as an ARDA  41 development officer.  And he was first taking  42 applications from Gitksan and Wet'suwet'en who wanted  43 financial backing for trapping ventures, and then he  44 interviewed them after the applications came in.  And  45 this was in 1982.  It was his evidence that as a  46 result of all of his interviews and reading the  47 reports, actually talking to the applicants and their 1830  Submissions by Mr. Macaulay  1 colleagues, that there were four people among the  2 Gitksan and Wet'suwet'en who were active in trapping.  3 At 222 I say before 1951 trapping had become much  4 less common because of the effect of -- one reason is  5 the administration of family allowance payments and  6 the school attendance requirements.  Those were tied  7 together, apparently, according to the evidence of Mr.  8 Boys.  Boys was the Indian Agent at Hazelton from 1946  9 to 1951.  He was later Superintendent General or some  10 such title, the senior manager of British Columbia.  11 But he was talking about his time at Hazelton.  And he  12 said well, one of the things that was going on was  13 that in order to qualify for family allowance it was  14 insisted on that the children attend school, and he  15 said that tended to break up the old family trapping  16 unit.  He is talking about the period before 1951.  17 At 223 I say that many members of the last two  18 generations have grown up without any knowledge of  19 bush skills.  And I rely on the evidence of two of the  20 appellants in that regard.  21 At 224 I say the availability of alternative  22 employment, especially in the forest industry, is one  23 of the causes of the general abandonment of trapping.  24 At 225 I say some traplines were sold to  25 Europeans, white men or to Indians who aren't  26 plaintiffs, and two examples are the Art Seymour  27 trapline and the Henry Isaac trapline.  The Art  28 Seymour trapline was sold to Mr. Ross Mackie, who was  29 not an Indian, a non-Indian.  The Henry Isaac trapline  30 was sold to Isaac and Teresa Sam, who were not  31 appellants.  They are Indians, members of the Burns  32 Lake band, but they are not appellants.  Those sales  33 are, of course, entirely contrary to the -- any notion  34 of the house and feast system that the appellants  35 advance.  36 At 226 I point out that members of the Burns Lake  37 and Omineca bands in the southern part of the  38 Wet'suwet'en area did very little trapping from 1964  39 to 1969.  And the Indian Agent, that's Mclntyre's  40 efforts to encourage the members of these bands to  41 make better use of their registered traplines, didn't  42 meet with success.  43 He was asked in cross-examination by my friend Mr.  44 Grant -- he had said that he could tell whether  45 somebody was trapping or not.  He said he looked for  46 snow-shoes leaning against the backdoor or traps  47 hanging on the veranda or things of that nature.  And 1831  Submissions by Mr. Macaulay  1 in cross-examination he was asked how many of the  2 houses of the people he actually visited, and his  3 reply was he was at every house in his bailiwick in  4 the course of a year.  5 At 227 I refer to the Indian Agent Boys' evidence  6 that he knew about the crest system of the trapline  7 ownership and of the disputes between the crests about  8 traplines.  There are also disputes between heirs at  9 law and the crest claimants.  The general trend, he  10 said, was for young people to prefer descent of  11 property to family members, whereas old people wanted  12 the crest system.  And he described the crest system  13 as involving people from various villages all being  14 entitled to trap under the licence.  15 I see it's 11:15.  If that's an appropriate time  16 to break.  17 TAGGART, J.A.:  All right.  Take the morning break.  18 THE REGISTRAR:  Order in court.  19  2 0 MORNING RECESS  21  22 THE REGISTRAR:  Order in court.  23 TAGGART, J.A.:  Yes, Mr. Macaulay.  24 MR. MACAULAY:  I was at the last paragraph in Volume 8.  This  25 has to do with traplines.  Traplines are administered  26 by the Province.  They have a registration system and  27 the game warden actually issues the licenses.  An  28 application has to be made to that official, and in  29 the case of the Gitksan and the Wet'suwet'en those  30 applications were made by the Indian Agent.  When Mr.  31 Boys arrived on the scene in 1946, he found that a lot  32 of the registrations had not been attended to, and he  33 found also that a lot of the registrations were crest  34 registrations.  By that he referred to the  35 registration of John Smith and Co., and then there  36 would be a list of people all in the same crest,  37 Fireweed, whatever it was from various villages.  38 The result was that the provisions of the Indian  39 Act regarding devolution of property were extremely  40 difficult to sort out, because the Indian Act  41 provisions then and now provide that on an intestacy  42 the property devolves to the wife and children.  43 So this issue had come up before, and the policy  44 of the department was to enforce those inheritance  45 provisions not just in 1946, but all along, as we'll  46 see in the exhibits.  And there was a conservation  47 aspect.  When I say a conservation aspect, it's set 1832  Submissions by Mr. Macaulay  1 out in a 1941 letter from head office.  The Indian  2 commissioner for B.C., the senior officer in B.C. to  3 Mr. Mallinson, who was then the Indian Agent at  4 Hazelton.  It's the last exhibit under this tab, the  5 second last exhibit under this tab in which Mallinson  6 has told -- I am reading from page 1.  7  8 "Traplines in your Agency are presumably  9 registered in the name of an individual, family  10 or group.  If it is a group registration and  11 one of the group dies, his interest would pass  12 to his next of kin as required by the Act, and  13 the same would apply in the case of a trapper  14 who is the head of a family.  15 The 'Crest' system of descent or ownership  16 of property is not recognized by any Act in  17 Canada so far as I am aware.  It devolves upon  18 the department, as guardians of the Indians, to  19 ensure that their estates are handled according  20 to law and a failure of an officer of this  21 department to do so would, in my opinion,  22 render him liable to civil action by the  23 aggrieved heirs."  24  25 Then over the page the author, Mr. MacKay, says:  26  27 "Apart from the foregoing legal aspects of the  28 matter, there is serious economic and  29 administrative objections to local Indian  30 custom in respect to traplines.  It is  31 understood that under the Indian Custom  32 prevalent in the Babine Agency, and there  33 alone, a man's heir is not his next of kin as  34 set out in the Indian Act but the son of a  35 woman relative of himself."  36  37 It says of his wife, but that's corrected.  The  38 author has inserted the word "of himself"."  39  40 "Thus it is easy to see that when an Indian  41 trapper becomes aged or infirm, his own son,  42 being aware of the fact that he will receive no  43 benefit from the trapline on his father's  44 death, proceed to make a thorough job of  45 depleting the area of fur, with the result that  46 it is many years before it again becomes  47 productive.  On the other hand, if the Indian 1833  Submissions by Mr. Macaulay  1 Act were adhered to, it would encourage this  2 trapper and his family to practise conservation  3 and build up the trapline to a point where it  4 would produce a steady annual income.  5 It is for this reason that the band and  6 company traplines should be broken down as  7 speedily as possible into individual family  8 units without regard to conflicting local  9 customs ..."  10  11 Whether or not that's right, and that's not the  12 point whether or not that policy is right or wrong, it  13 was -- that was the stated -- a stated reason for the  14 policy.  And that policy was set out in a letter from  15 MacKay in 1947 to Mr. Boys, the subsequent Indian  16 Agent.  And that's a letter of June 16th, 1947.  The  17 first document is a transcript of some of Boys'  18 evidence, the second is an old letter from Boys, and  19 then the third, it's the third exhibit where Boys is  20 told:  21  22 "The Indian Act  ..."  23  24 I am reading from the middle of the second  25 paragraph on page 1.  26  27 "The Indian Act and the Game Act are quite clear  28 that there was no excuse for reregistering the  29 lines of deceased trappers in the names of  30 other than those entitled to them or the  31 administrator.  And it is not felt that this  32 course should be departed from unless the  33 responsible official is prepared to face in the  34 future date an action in court by an aggrieved  35 heir."  36  37 Boys in his evidence explained how the traplines  38 were applied for and how the Province handled them.  39 Just after the letter of 1947 there are two maps.  40 The first map shows a trapline, and there is a  41 trapline overlay.  There will be other submissions  42 concerning the coincidence of trapline boundaries and  43 some of the territory boundaries, but Boys explains  44 how the trapline boundaries came about.  The first  45 exhibit, the first of these two maps shows a  46 schematic, and that, after a conference between the  47 Indian Agent and the trapper, that accompanied the 1834  Submissions by Mr. Macaulay  1 application to the provincial official.  2 The second map shows the game warden's map, and  3 that defines the rights under the licence.  And what  4 the game warden does, instead of following this  5 straight line schematic, extends the boundaries of the  6 trapline to heights of land and other natural  7 features, as will be pointed out in another  8 submission.  A great many of these trapline map  9 boundaries coincide with what are said to be the  10 boundaries of house territories established long, long  11 ago.  12 There was another policy I referred to, and that  13 is the purchase of traplines for Indians.  The  14 exhibits show that when Mr. Louis Gelly -- he was a  15 witness.  Gelly was a Fisheries Officer, but before  16 that he was a trapper.  Gelly had a very large  17 trapline in the dead centre of the  18 Gitksan-Wet'suwet'en claim area and -- I'm sorry,  19 Giraud, not Gelly.  20 That trapline covers Canyon Lake and north to  21 Damdochax Creek.  It's number 617T002 and covers two  22 house territories.  In fact it impinges on three,  23 Baskyelaxha, Gwinin nitxw and Wii Minosik.  I'll ask  24 the registrar to hand up the trapline overlay, which  25 was an exhibit.  Each trapline has a number, and  26 that's how they are located on the map, and this is  27 0617T002 starting in the Baskyelaxha territory south  28 of Canyon Lake going east towards Babiche Hill in  29 Gwinin nitxw territory and then north towards  30 Damdochax Creek in Wii Minosik territory.  That was  31 bought by Indian Affairs from Giraud and Gelly, who  32 were partners on that trapline, for Mr. Blackwater,  33 who was one of the chiefs of the Gitksan.  But I  34 wanted to particularly draw your attention to the  35 manner in which the trapline boundaries were devised,  36 and who did it.  37 The account of how these things were done is set  38 out in the transcript or the portions of the  39 transcript of Boys' evidence, which is also attached  40 to this tab.  41 The trapline network comprises a contiguous series  42 leaving no apertures, and it was the policy of the  43 provincial government to draw the boundaries so that  44 there would be no apertures, apparently.  And that was  45 done over the years from -- that is the provincial  46 system was established in the mid-1920s and continues  47 today.  The Indian Agent and the Game Warden had to 1835  Submissions by Mr. Macaulay  1 work together because it was another policy which the  2 Province cooperated with, that an Indian trapline  3 should never, wherever possible, should not fall into  4 the hands of a non-Indian trapper.  So that if an  5 Indian -- used to be the case that an Indian applied  6 to be enfranchised, very uncommon today, but it was  7 common enough years ago, his trapline, as the exhibit  8 shows, would be taken away from him and given to  9 someone who was still an Indian.  That's as defined in  10 the Act.  11 Can I turn to Volume 9.  And Volume 9 --  12 HUTCHEON, J.A.:  Before you do, you said that looking at  13 0617T002 that the -- Mr. Boys would explain how those  14 boundaries were established.  But how were they  15 established?  16 MR. MACAULAY:  By the Game Warden by reference to heights of  17 land and other natural features.  18 HUTCHEON, J.A.:  And by no reference to the Indian?  19 MR. MACAULAY:  The Indian input, if I can put it that way,  20 resulted -- this is input -- the Indian and the Indian  21 Agent would get together and produce a map, a  22 schematic with straight lines.  23 HUTCHEON, J.A.:  Yes.  I understand.  24 MR. MACAULAY:  Covering the creeks that the trapper wanted  25 included in his trapline.  26 HUTCHEON, J.A.:  Yes.  Thank you.  27 MR. MACAULAY:  And hence the difference between the two maps.  28 The straight lines are done by the Indian Agent after  29 he has talked to the trapper or whose applied, and the  30 lines that follow the contours of the land is what was  31 given out by the Game Department along with the  32 licence.  It's attached to the licence.  Then the  33 Indian Agent would give a copy of the final drawing,  34 the Game Warden's drawing to the Indian when it came  35 back from the Game Warden's office.  36 HUTCHEON, J.A.:  Yes.  37 MR. MACAULAY:  Volume 9 deals with only one topic, and it can be  38 dealt with, I hope, fairly briefly.  It's the matter  39 of wills.  There are only two tabs and the same thing.  40 And all the sub-tabs, 1 to 43, are copies of wills and  41 in some cases other relative documents so that you can  42 identify who the beneficiaries are.  43 We had marked in evidence 133 wills, the earliest  44 being a 1904 will of Alexander Oakes, who was a chief,  45 and the most recent one was a 1987 will.  Those are  46 all we could find.  We didn't choose wills, we put in  47 evidence every will we could find, and various 1836  Submissions by Mr. Macaulay  1 sources, mostly from D.I.A. files, but in some cases  2 from the provincial system, probate and the probate  3 registry and from other sources.  4 HUTCHEON, J.A.:  Could I ask the purpose of —  5 MR. MACAULAY:  It has to do essentially with traplines and the  6 devolution of traplines; that is, of the right to user  7 of the various compartments into which this whole  8 territory is divided under the trapline system.  The  9 appellants say that each house decides who will become  10 the next chief, and that chief is -- then gets the  11 name and the territory, which he administers for the  12 benefit of the house members.  That is the appellants'  13 case.  And that that transaction, while it's done in  14 the house, is then ratified at the feast.  15 HUTCHEON, J.A.:  I see.  16 MR. MACAULAY:  The wills show a different regime.  17 Now, nobody is compelled to make a will, although  18 both Indian Agents who gave evidence said that they  19 encouraged Indians to make wills.  20 HUTCHEON, J.A.:  The letters say so.  Those letters say so.  The  21 letters that you just referred to say that.  22 MR. MACAULAY:  That they encouraged to make wills?  23 HUTCHEON, J.A.:  Oh, yes.  Otherwise they would be sued or  24 something like that.  2 5 MR. MACAULAY:  Well, no.  26 HUTCHEON, J.A.:  Well, that's what Mr. MacKay was saying to the  27 Indian Agent, 'You better do this or you are liable to  28 be sued.  If you allow them to continue their old  29 method of devolution, you are going to end up in  30 court.'  31 MR. MACAULAY:  He said that, but nobody said that Indians were  32 compelled to make wills.  33 HUTCHEON, J.A.:  No.  No.  Encouraged.  34 MR. MACAULAY: They were encouraged to make wills.  35 HUTCHEON, J.A.:  Yes.  36 MR. MACAULAY:  And 133 of them since the turn of the century  37 did.  38 Some of them are form wills, and they take all  39 sorts of forms, and one of them, in fact, we located  40 in the hands of one of the appellants' witnesses, one  41 of the wills.  42 For the most part the wills are of Indian reserve  43 allotments and land, which are not relevant to this  44 action.  Ninety-nine of them provided for inheritance  45 of houses and land on Indian reserves by beneficiaries  46 who are members of the testator's immediate family,  47 that is wives and children, and in some cases 1837  Submissions by Mr. Macaulay  1 grandchildren.  But 43 of the wills bequeath traplines  2 as property of the testators.  And of that number --  3 now, all 43 are included in this book, book 9.  That's  4 why we have 43 tabs.  Of the 43, 33 provide for  5 devolution to beneficiaries who are not of the same  6 clan, and that is, therefore, not the customary or  7 crest form of devolution.  If you're not of the same  8 clan, you are obviously not of the same house either  9 LAMBERT, J.A.: In respect of your exchange with Mr. Justice  10 Hutcheon, I looked back to the letter of June 16,  11 1947.  Don't look back at it unless you feel after I  12 make this observation that you have to.  Under Tab 228  13 at the end of the previous book, and as Mr. Justice  14 Hutcheon said, there was -- unless the responsible  15 official is prepared to face in the future date an  16 action in court by an aggrieved heir, and then at the  17 end of the next paragraph it says:  "Obviously the  18 simple experience is to require each registrant to  19 make a will."  And that's not saying they should be  20 encouraged to make wills.  It is saying they should be  21 required to make a will.  Now, of course we don't  22 know -- I don't know whether that was carried out or,  23 if so, how, but it could be made a condition of  24 registration.  2 5 MR. MACAULAY:  To my knowledge that never was, and, as you can  26 see, if in a century 133 wills are made, not very many  27 people make wills.  28 LAMBERT, J.A.:  Well, this is a letter of June 16, 1947.  2 9 MR. MACAULAY:  Yes.  30 LAMBERT, J.A.:  We've had half a century since then.  31 MR. MACAULAY:  Well, we have half the number of wills then.  32 Since 1950 -- we have 81 wills since 1950.  33 LAMBERT, J.A.:  I can't tell whether that means that every one  34 who had a trapline had to make a will or whether it  35 doesn't tell that.  36 MR. MACAULAY:  Only 43 people with traplines made wills, and  37 some of them are before 1947.  If they do make a will,  38 though, they can leave their trapline to clan members.  39 LAMBERT, J.A.:  Of course.  Or not to clan members that is.  4 0 MR. MACAULAY:  Or not.  41 LAMBERT, J.A.:  Yes.  At least under our system they could.  42 MR. MACAULAY:  They could do either.  43 LAMBERT, J.A.:  Yes.  44 MR. MACAULAY:  If somebody was required, you have to make a  45 will, then he will draw up his will.  Mr. Mclntyre was  46 examined on that point, whether or not he forced  47 people to make wills.  And he said no, he didn't force 1838  Submissions by Mr. Macaulay  1 people, nor did he dictate the terms.  2 Anyhow, 43 people over time made wills.  Tab 1 is  3 Jimmy Blackwater's will made in August 1931.  And he  4 leaves his -- he says in one of the provisions:  5  6 "And my trapline in the Blackwater Lake district  7 together with all traps and the cabin thereon  8 and all my personal effects, including all  9 monies owing to me or on deposit in my name  10 with any bank or company, to my wife Mary  11 Blackwater."  12  13 And on the death of his wife, his properties and  14 personal effects be divided between his children.  15 Most of these 43 wills mention traplines in those  16 words.  Some use the term "hunting grounds", six of  17 them in the formula "all I possess", and similar  18 expressions are used on five occasions.  But in 31  19 cases it's just trapline or trapping ground.  20 Thirty-three of the 43 did not leave their  21 traplines in accordance with the crest system.  Of the  22 10 who did, one was after this litigation began, and  23 the witnesses were -- identified themselves as legal  24 information councillors, and only two left them to  25 their -- the succeeding chief.  26 Now, most of these beneficiaries were sons or  27 daughters, as is usually the case with other people.  28 When that's done, the trapline, which is part of the  29 network of house properties, goes out of the house and  30 clan to somewhere else, and it supports the statement  31 Loring makes that the old system was being abandoned.  32 The very idea of leaving the trapline in a will  33 doesn't conform with the system as described by the  34 appellants.  And that's all I am going to use this  35 volume for.  36 LAMBERT, J.A.:  Can I just ask you a general question.  I don't  37 understand much about trapping.  For some there is a  38 provincial statute and it provides or regulates  39 trapping and provides for the registration of  40 traplines and provides that there is a proprietary  41 interest in the trapline.  What's the name of that  42 Act?  43 MR. MACAULAY:  Game Act.  It's now the Wildlife Act.  44 LAMBERT, J.A.:  It was originally the Game Act, it's now the  45 Wildlife Act, and it's part -- it's a segment of the  46 Act, and I know we've been referred to other parts of  47 the Act that deal with post-season and this kind of 1839  Submissions by Mr. Macaulay  1 thing.  2 MR. MACAULAY:  So far as devolution of traplines is concerned,  3 since they are dealt with as private property, in the  4 case of an Indian within the meaning of the Act, the  5 Act governs -- on an intestacy there is a provision,  6 and then, of course, there are wills provisions in the  7 Indian Act.  8 LAMBERT, J.A.:  Yes.  But the thing that makes it a proprietary  9 interest in land must presume to be the Game Act and  10 the Wildlife Act.  11 MR. MACAULAY:  Yes.  At 231 I say that as a practical matter  12 pre-emption ended trapping on that part of the  13 trapline.  The trapper had two years under the  14 provincial regulations to wind up his trapping  15 affairs.  16 At 232 I say that on the evidence berry picking is  17 still done in some places in the claim area.  The  18 appellants' evidence on this refers mainly but not  19 exclusively to territory near villages.  And some of  20 this evidence is not precise as to location, and we  21 deal with that in Appendix A to our factum, and my  22 colleague Mr. Wolf will be addressing that.  23 At 233 we say there was hunting of game by members  24 of the Burns Lake and Omineca bands in the southern  25 part of the claim area.  The Burns Lake band are not  26 appellants and many of the Omineca.  Some, but not all  27 of the Omineca.  28 234.  Indians in the northern part of the  29 Wet'suwet'en and the Gitksan claim areas hunt game  30 also.  31 235.  According to the appellants' evidence,  32 hunting is done in many places in the claim area and  33 has been done by their immediate ancestors going back  34 to the beginning of this century and perhaps earlier.  35 Hunting evidence in the peripheral areas, particularly  36 in the north and northeast, that is Bear Lake and  37 beyond, is very, very thin or nonexistent.  And there  38 is not much evidence of hunting in the south and  39 southwest, the extreme south and southwest of the  40 Wet'suwet'en claim area.  And again that is covered on  41 a site by site basis in Appendix A and will be dealt  42 with by Mr. Wolf.  43 236 I list the reserves that have been established  44 near Bear Lake, and none of them are occupied or used  45 by appellants.  There are nine reserves.  And I give  46 the dates most of them were alloted -- the majority  47 were alloted in 1916 by the McKenna-McBride 1840  Submissions by Mr. Macaulay  1 Commission.  2 At 237 I list all the reserves in the southern  3 part of the Wet'suwet'en claim area for Indians who  4 are not Wet'suwet'en, with the exception of some  5 Wet'suwet'en appellants who are members of the Broman  6 Lake and Nee-Tahi Buhn bands.  That once was called  7 the Omineca band and it's now in two divisions.  8 At 238 I point out that there is a Tsimshean  9 Reserve in the claim area.  10 At 239 I refer to the Kitwancool Reserve that's in  11 the claim area.  12 At 240 I refer to the six overlapping and  13 competing claims, and I refer, and I haven't got the  14 map here, to Exhibit 101.  I can hand copies of that  15 up after the adjournment.  That is the largest one, in  16 terms of square miles, it must be the largest one of  17 the Carrier-Sekani.  18 They are shown on Mr. Magwood's map, which is  19 Exhibit 1177-3, and they will be dealt with by the  20 overlap question by Ms. Koenigsberg under the rubric  21 reputation evidence.  And that's the matter I referred  22 to earlier, 'What do the neighbours say about the  23 boundary?'  And they will be referred to by Ms.  24 Russell, who will make submissions on the six  25 overlapping and competing claims as well.  26 In the Statement of Claim the appellants make a  27 claim and make their assertion as against all other  28 Indian groups.  29 At 241 I refer to the Tsimshean position regarding  30 Chig in kaht.  If you remember, that was at the bottom  31 end of the area that was claimed by Kitwanga in 1884  32 and later.  33 O'Reilly had this note.  He was making notes of --  34 he was allocating actual reserves, additional reserves  35 in that area when he went back in 1893, the attendance  36 having been so poor in 1891 in that village, and about  37 Chig in kaht he says:  38  39 "This reserve is claimed by both the Kitwangas  40 and the Tsimpsean tribes."  41  42 He is using the term "tribe" in the 19th century  43 sense.  44  45 "Both bands were represented at my interview  46 with them and both strongly urged their  47 respective rights to the land.  As I had not 1841  Submissions by Mr. Macaulay  1 sufficient evidence to warrant me in coming to  2 a conclusion I left this question in abeyance,  3 the ownership to be decided by their respective  4 agents."  5  6 And apparently the Gitksan want out, and they have  7 a reserve there today.  8 At 242 the Wet'suwet'en and Babine Indians who  9 lived beyond the eastern so-called frontier of the  10 Wet'suwet'en claim area share common ancestors and a  11 common language, they attend each other's feasts, they  12 have common chiefly names, they belong to the same  13 houses and the same clans, and they work together,  14 they speak for each other when one branch of the tribe  15 is not present, and have rights respecting the use of  16 each other's territories.  17 LAMBERT, J.A.:  I don't quite understand what you mean by "each  18 other" throughout that paragraph.  Do you mean as  19 between the Wet'suwet'en and the Babine Indians who  20 are entirely outside the claimed territory this  21 interchange takes place?  22 MR. MACAULAY:  Yes.  23 LAMBERT, J.A.:  You don't mean that there is an interchange  24 between them and the people in the claimed territory?  25 MR. MACAULAY:  Well, can I put it this way.  I didn't make  26 myself clear, obviously.  Starting with chiefly names  27 and chiefly regalia, which is a very important matter  28 to a chief and it forms no part of this lawsuit  29 particularly.  Mr. Alfred, who has a chiefly name, he  30 was Wah Tah Keg'ht —  31 LAMBERT, J.A.:  I think that perhaps I am diverting you --  32 MR. MACAULAY:  -- went to Babine country in order to retrieve  33 his regalia from Wah Tah Keg'ht's family there.  He  34 says that he speaks through them when they are not  35 around.  He says that they, the Wah Tah Keg'ht family  36 in Babine country, have rights to his house's  37 territory.  38 LAMBERT, J.A.:  Inside the claimed area.  39 MR. MACAULAY:  Inside the claimed area.  40 LAMBERT, J.A.:  The point is a gramatical one.  You talk about  41 the Wet'suwet'en and Babine Indians who live beyond  42 the western frontier, and then you talk about each  43 other, each other, each other, and I had supposed that  44 you were talking about the Wet'suwet'en and Babine who  45 were living beyond the eastern frontier.  You don't  46 mean that.  You mean that as between the people beyond  47 the eastern frontier and the people within the claimed 1842  Submissions by Mr. Macaulay  1 area there is an interchange?  2 MR. MACAULAY:  Yes.  3 LAMBERT, J.A.:  All right.  4 MR. MACAULAY:  Another way of saying there is not really a  5 frontier any more than there was in 1825.  6 The people who have rights who live at Old Fort or  7 Topley Landing aren't represented.  The Wet'suwet'en  8 chiefs claim exclusive jurisdiction.  Clearly that  9 affects the rights of the -- those who live -- who are  10 called Babines and who live outside the claim area.  11 And the same applies to the claim for ownership.  12 At 243 the British Columbia government and its  13 delegates exercise jurisdiction over the entire claim  14 area and particularly in such matters as  15 administration of justice, forestry and mining, et  16 cetera.  And there are alienation maps and documents,  17 and I give the exhibit numbers, the evidence of that,  18 if any is needed.  19 244 is just a repetition of something earlier.  So  20 is 245, except that it recites the obvious, and that  21 is there is a very considerable commercial fishing  22 presence at the coast, 85 boats or thereabouts.  There  23 was when this trial took place.  And that's shown in  24 the Palmer report, that is the fisheries -- a former  25 fisheries official who gave expert evidence about the  26 Gitksan presence on the coast for fishing then and  2 7 now.  28 In the claim area the enforcement of regulations  29 under the Fisheries Act started in 1904.  There was  30 nobody to do it before then, and the Gitksan and the  31 Wet'suwet'en who are Indians within the main of the  32 Acts, and that doesn't cover them all, of course, were  33 members of various bands in the claim area and who  34 live on the various reserves.  They are now governed  35 by elected councils that derive their authority from  36 the Indian Act, particularly Section 81.  I have  37 attached that section.  38 The only significant federal areas of presence and  39 jurisdiction now in the claim area are Fisheries,  40 Indian reserves, postal service, unemployment  41 insurance and the Smithers airport and a couple of  42 other things.  During the war there was a considerable  43 military presence, that's how the Smithers airport  44 came into being, and there was another airport at  45 Woodcock where there was an air grown staff and  46 fighter planes.  But that's all vanished.  47 My lords, I have what I hope will be a short 1843  Proceedings  1 submission to make on the list, but it's almost 12:30.  2 TAGGART, J.A.:  We'll break now.  Two o'clock.  3 MR. WILLIAMS:  Just before the clerk arises, I thought I should  4 mention that we have just received this morning the  5 decision from the high court of Australia, which is  6 some 218 pages long.  Because the judgment of the  7 majority appears to be very close to the province's  8 position, we will want to be raising this before the  9 court.  I wondered whether I should try to have copies  10 made for the court or whether the librarian in the  11 court will already have them.  The date of the  12 judgment was the 3rd of June '92.  13 TAGGART, J.A.:  If it's possible for you to do it conveniently,  14 I think that would be of --  15 MR. WILLIAMS: I'll try to have that for you this afternoon, my  16 lord, or at worst tomorrow morning.  17 TAGGART, J.A.:  All right.  Thank you.  18 THE REGISTRAR:  Order in court.  Court stands adjourned.  19  2 0 NOON RECESS  21  22 I HEREBY CERTIFY THE FOREGOING TO  23 BE A TRUE AND ACCURATE TRANSCRIPT  24 OF THE PROCEEDINGS TRANSCRIBED TO  25 THE BEST OF MY SKILL AND ABILITY.  26  27  2 8    2 9 LORI OXLEY  30 OFFICIAL REPORTER  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1844  Submissions by Mr. Macaulay  1 (LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Mr. Macaulay, just before you begin, we had an  5 opportunity to discuss amongst ourselves the time  6 remaining for oral argument.  And by virtue of the  7 fact that the Province took almost two and a half  8 days, I think, or two days at any rate, or perhaps a  9 day and three quarters less time than was anticipated,  10 it would seem that we have a day in hand.  11 We propose to consider how best to utilize that  12 day, which will probably give some relief to those who  13 have yet to be heard.  We can, of course, only do that  14 if the timetable that is now fixed is adhered to.  And  15 by my notes of the allocation of time, the Crown in  16 the Right of Canada will complete on the -- I believe  17 the 22nd.  Monday the 22nd.  Monday next.  18 And on that basis, we will consider amongst  19 ourselves how best to utilize that day.  And having  20 come -- having formulated a plan, we will then advise  21 counsel of our proposal in the event that any  22 submissions are to be made on that.  We would try to  23 do that early next week, and possibly even before the  24 end of this week.  But I wanted to make it clear that  25 we are doing that on the basis that the Crown in the  26 Right of Canada will finish next Monday afternoon.  So  27 shall we proceed?  28 MR. MACAULAY:  In response to those remarks, I might say, my  29 lord, that we have had to undertake something that we  30 had not originally planned, and that was to uphold the  31 findings of fact in the judgment.  That primary  32 responsibility rested on the Province in that regard.  33 But that is the result.  34 I refer -- I had referred in my submissions to an  35 exhibit showing one of the overlaps.  It is Exhibit  36 101, and it is here.  We will have copies of that in  37 book 15 of our reference books which will be coming  38 along soon enough.  So there will be a copy for each  39 member of the court.  40 This is a map that was used at the conference I  41 spoke about between the Gitksan-Wet'suwet'en on the  42 one hand and the Carrier-Sikanni on the other.  43 It shows house territories, but they are not -- that's  44 not what I'm referring to.  The house territories  45 changed after that map was made, or a lot of them did.  46 But at either the preparation for or at the conference  47 this heavy black line was drawn showing the extent to 1845  Submissions by Mr. Macaulay  1 which the Carrier Sikanni claim overlaps that of the  2 Gitksan in regard to the north of territory at Bear  3 Lake and west of it and the Wet'suwet'en claim to the  4 south.  Telkwa is here and Houston there, which will  5 give you some idea of the dimensions.  6 The thinner black line, of course, is the outer  7 boundary of the claim area as it existed then and with  8 slight modifications exists today.  There are some  9 other very large overlaps in the north, north and  10 west.  And some are overlaps of overlaps.  That is in  11 some areas there are now three competing tribes  12 claiming the same territory.  13 May I, in the conclusion of submissions on part 1,  14 turn first to the appeal book, part 1, the pleadings,  15 the Statement of Claim.  This is the last Statement of  16 Claim, the last amendment which was filed on February  17 9, 1990.  I assumed the court would have the copies of  18 the appeal books.  19 TAGGART, J.A.:  We haven't unless you have told the registrar to  20 bring them out.  Which one is this?  21 MR. MACAULAY:  I am just referring to the Statement of Claim,  22 the last Statement of Claim that I was sure the court  23 would have.  24 TAGGART, J.A.:  Well, I am sure we have it somewhere, Mr.  25 Macaulay.  But it is necessary that some notice be  26 given so that the registrar can take out the volumes  27 for us.  28 MR. MACAULAY:  It's the very first document in the very first  2 9 tab.  30 TAGGART, J.A.:  No.  We've been using the reference books up to  31 this point.  Are we back into the factum?  32 MR. MACAULAY:  No, my lord.  I am making a submission on the  33 part 1.  Particularily, it answers questions of the  34 court on the relevance of the significance of part 1.  35 And I am referring now to the appeal book.  We are not  36 back into the factum.  37 TAGGART, J.A.:  Well, where would it be convenient to make notes  38 with respect to this material?  39 MR. MACAULAY:  At the conclusion of part 1 of the factum.  40 LAMBERT, J.A.:  The whole of your factum has the paragraphs  41 divided into tabs like this.  42 MR. MACAULAY:  Yes.  But it appears also in the factum itself.  43 LAMBERT, J.A.:  Have we finished with References 10?  4 4 MR. MACAULAY:  Yes.  We are.  45 LAMBERT, J.A.:  And are we -- so where does part 1 of the factum  46 end in relation to the reference?  47 MR. MACAULAY:  It ends with the last tab of the reference book 1846  Submissions by Mr. Macaulay  1 number 10.  2 LAMBERT, J.A.:  So if we took out reference book number 11 would  3 we be at the point that we are just going to make  4 submissions on?  5 MR. MACAULAY:  No, my lord.  6 LAMBERT, J.A.:  These submissions are interleafed, as it were?  7 MR. MACAULAY:  They are interleafed.  And they are in response,  8 in large measure, to questions raised by the court  9 from time to time.  10 LAMBERT, J.A.:  Yes, I understand.  Did you —  11 MR. MACAULAY:  As to the relevance of some of the material.  12 LAMBERT, J.A.:  Yes.  13 TAGGART, J.A.:  Well, all right.  14 MR. MACAULAY:  The Appellants say in paragraphs 56 to 63  15 inclusive that from time immemorial they have owned  16 and exercised jurisdiction over the claim area, and  17 also that they have owned and exercised jurisdiction  18 over the external boundary.  19 TAGGART, J.A.:  Could I have those paragraph numbers again,  20 please?  21 MR. MACAULAY:  56 to 63.  And in paragraph 57 of those — that  22 series of paragraphs they give particulars.  They say  23 they lived in the territory.  They harvested, managed  24 and conserved their resources within the territory,  25 governed themselves according to their laws, governed  26 the territory according to their laws and spiritual  27 beliefs and practices.  And I am skipping E.  28 The next is they maintained their institutions and  29 exercised their authority over the territory through  30 their institutions, that they protected and maintained  31 the boundaries of the territory, that they asserted  32 their ownership by specific claim, and that they  33 confirmed their ownership of and jurisdiction over the  34 territory through the Feast System.  That's  35 capitalized, Feast System.  36 And in the next paragraph they say that they  37 continue to do that to the present time.  It is  38 continuous.  39 They say that these rights of ownership and  40 jurisdiction and the resources in the territory were  41 at all material times a right enjoyed by the Gitksan  42 Chiefs and members of their Houses and by the  43 Wet'suwet'en Chiefs and members of their Houses.  44 They say that they, their ancestors, and/or  45 predecessors, that's and predecessor or predecessors,  46 exercised jurisdiction over the territory as against  47 other aboriginal peoples, and that they continue to 1847  Submissions by Mr. Macaulay  1 exercise jurisdiction over all land within the  2 territory in accordance with Gitksan and Wet'suwet'en  3 laws.  4 And, finally, that they continue to own and  5 exercise jurisdiction over the resources on, under and  6 over all lands within the territory in accordance with  7 Gitksan and Wet'suwet'en laws.  8 The evidence led by the Appellants was intended to  9 prove those allegations, and it's on that footing that  10 they made their claim that I referred to in my  11 opening.  And that is the right of ownership of all  12 the lands in the claim area and the right of  13 jurisdiction described -- that they described as an  14 inherent right of self-government exercisable through  15 their own institutions.  16 The Chief Justice made many findings after hearing  17 all the evidence on those allegations.  And it was our  18 intention in drafting our factum and then preparing to  19 present our arguments to submit that those findings  20 were properly made.  There was in every case more than  21 enough evidence upon the basis of which a finding  22 could be made.  This is not a trial de novo.  All we  23 have to show this court to satisfy the court is that  24 the trial judge could have made those findings on that  25 evidence and was entitled to do so, including findings  26 of credibility.  27 And the authorities we rely on are in Part 3 of  28 our factum which, given the time that has gone by, my  29 colleague, Ms. Koenigsberg, will draw your attention  30 to.  31 But I want to deal with the findings of fact.  And  32 first at pages 200 of the reasons and the following  33 five pages.  These findings have to do with the Hudson  34 Bay records.  35 THE COURT:  Could I have that page number, please?  36 MR. MACAULAY:  200 to 205.  It starts right at the bottom of 200  37 under the heading "Historical geography (Dr. Ray)".  38 The Chief Justice at page 201 quotes Dr. Ray to this  39 effect:  40  41 "When Europeans first reached the middle and  42 upper Skeena River area in the 1820s they  43 discovered that local natives were settled in a  44 number of relatively large villages.  The  45 people subsisted largely off their fisheries  46 which, with about two months of work per year,  47 allowed them to meet most of their food needs. 1848  Submissions by Mr. Macaulay  1 Summer villages were located beside their  2 fisheries.  Large game and fur bearers were  3 hunted on surrounding, and sometimes, on more  4 distant lands.  Hunting territories were held  5 by "nobles" on behalf of lineages they  6 represented and these native leaders closely  7 regulated the hunting of valued species.  The  8 various villages were linked into a regional  9 exchange network.  Indigenous commodities and  10 European trade goods circulated within and  11 between villages by feasting, trading and  12 gambling activities."  13  14 And then the Chief makes the following comment:  15  16 "The foregoing represents the strongest  17 statement supporting the plaintiff's basic  18 position which is to be found in any of the  19 independent evidence adduced at trial."  20  21 He refers to the same author in the following  22 page, 202, where Dr. Ray says:  23  24 "In contrast of beaver, some other resources  25 were not as carefully husbanded and the  26 'nobles' do not appear to have had first claim  27 on them.  For example, men who did not have  28 what Brown referred to as a 'land stake' were  29 allowed to trap martin, the other fur that was  30 in strong demand from the area by Europeans.  31 No mention is made about prohibitions  32 concerning the hunting of large game or the  33 taking of fish.  Presumably commoners could  34 exploit the territory of their house for  35 subsistence needs as required."  36  37 He then reached his conclusions at page 204.  He  38 says in the -- at the middle of the page:  39  40 "I think it reasonable to infer from this  41 evidence",  42  43 and this is Dr. Ray's evidence and the scientific  44 evidence,  45  46 "...that before the commencement of the fur  47 trade some aboriginals were living in villages 1849  Submissions by Mr. Macaulay  1 on Babine Lake and along the Babine River, as  2 described by Brown.  It is also reasonable to  3 infer, as I do, that the situation in the  4 Skeena and Bulkley valleys was not dissimilar."  5  6 And then at the bottom of the page he says:  7  8 "I therefore infer that the ancestors of a  9 reasonable number of the plaintiffs were  10 present in parts of the territory for a long,  11 long time prior to sovereignty."  12  13 All these findings to be found at those pages we  14 adopt.  And we say that in adopting, to the extent  15 that he adopted Dr. Ray's opinion, it was perhaps  16 going a little farther than some people might go on  17 the raw material.  18 The Hudson Bay records deal with -- are relevant  19 to jurisdiction and to ownership.  There were  20 obviously village societies, but with limited  21 cohesion.  As Brown said, each man was his own master,  22 or appeared that way.  Chiefs and heads of family  23 there were, but with limited powers.  24 There were many exclusive tracts for hunting, but  25 apparently that was, according to Dr. Brown, that  26 exclusivity related to valued species and  27 particularily beaver.  There were feasts and some  28 system of diminution of names and those properties.  29 There are inter-village social ties.  In fact, they  30 were all the same race, that is all the Babines.  31 Fishing provided the food supply.  There was  32 trade, including the fur trade, by the time the first  33 Europeans arrived.  They shared hunting areas.  And  34 you remember that the Babines of Simpson's River came  35 as a body and spent the summer and spring hunting and  36 fishing at Lake Babine.  37 There were external pressures.  We know of only  38 one from the Hudson Bay record.  That is apparently a  39 war had developed with the Carriers to the south.  40 There were inter-village fights.  There were frequent  41 killings.  There was instability due to fear of attack  42 and there was anxiety and danger.  The anxiety was so  43 great that from time to time villages abandoned their  44 fishing and their hunting grounds.  And it is  45 significant that on one occasion they abandoned their  46 hunting grounds because that was the staff of life,  47 how great the anxiety or how great the danger was. 1850  Submissions by Mr. Macaulay  1 Now, I was asked by the court why is violence  2 significant at all in and that there are societies  3 that have all the powers and jurisdictions that one  4 could imagine and yet they were violent societies, and  5 that's true.  There is a long, long list of them, and  6 including recent times violent but sovereign  7 societies.  8 But you have to look at all the characteristics of  9 this one as a whole.  You have a very individualistic  10 centrifugal society, a society where the chief's writ  11 doesn't run far in the village.  Were there was a  12 fundamental fishing base in its economy, the necessary  13 food supply was obtained in that way.  You add to that  14 considerable distances between villages, great  15 distances if you are going on foot, and then bolt on  16 to the backs of those village societies the kind of  17 fear and anxiety and danger that the -- what I call  18 the expectations produced.  19 In those circumstances, there was first no reason  20 to go very far from the villages for hunting purposes.  21 The fish, of course, were in the lake.  And there was  22 some danger in doing so.  It is not a society that was  23 likely to have exercised any kind of jurisdiction over  24 any broad area.  And that's the relevance of a level  25 of violence that certainly has been exceeded in  26 history many times.  But that's -- not with those  27 particular other characteristics.  28 Game wasn't essential for the food supply.  And,  29 in fact, there wasn't much game according to the early  30 recorders of history.  One of whom said -- I believe  31 it was Harmon who said that the Carrier, and he was  32 talking about the neighbours but we're extrapolating  33 anyhow here, didn't eat meat one year in ten except at  34 the feast.  That's an extrapolation.  But the whole --  35 all of this is an extrapolation because we have no  36 adequate record of the Gitksan or Wet'suwet'en in the  37 1820s at all.  We have just very brief encounters with  38 them, particularily with the Gitksan.  39 The Chief Justice was right in holding and finding  40 that there were village societies, that they were  41 organized village societies, that they controlled --  42 they had controlled and occupied, and they used the  43 hunting grounds more or less contiguous within a  44 radius of -- we finally settled on 20 miles, and 20  45 miles along the rivers.  I don't know if that  46 particular measure was a finding of fact or not.  It  47 was a solution to the problem. 1851  Submissions by Mr. Macaulay  1 The second leg of our trip through history was the  2 Loring reports.  In contrast to the earlier part, we  3 have a tremendous amount of detail.  And that's  4 discussed at greater length.  Not surprisingly, there  5 was more of it.  At pages 315 to 25.  And findings are  6 made along the way to those pages.  Many of the  7 matters I have referred to in part 1.  8 At page 324 and the top of 325 he made findings,  9 including one that is particularily attacked by the  10 Appellants, the finding that:  11  12 "Traditional methods of dealing with ownership  13 claims to -- ownership and claims to ownership  14 of fishing stations, smokehouses, trapping and  15 hunting grounds, if any, were no longer  16 employed."  17  18 And there was a mountain of evidence concerning  19 Loring's carrying out of his duties.  And these were  20 statutory duties.  These weren't things that Loring  21 was doing outside his terms of reference.  And these  22 were duties that had been outlined to the Indians.  23 This was a function that had been outlined to the  24 Indians in 1888.  They were told they were not to  25 meddle one village with the other, that the chiefs  26 were to bring their disputes to the judge.  And Loring  27 was a magistrate as well as an Indian agent.  And that  28 the administration of justice would be done by the  2 9 government.  There was more than enough evidence on  30 the basis of which the Chief Justice could make those  31 all seven findings, including number 5.  32 At pages 373 and 4, and this was also identified  33 by the Appellants as -- 374.  May I have a second, My  34 Lord.  It is at 374 is my reference.  The judge says  35 at the bottom of the page, the last paragraph on page  36 374:  37  38 "Brown's reports in the 1820s and Mr. Loring's  39 reports starting in about 1890 hardly mention  40 the feast, particularily as a legislative body.  41 In fact, one of Loring's principal functions  42 seems to have been the settlement of disputes.  43 And the evidence strongly suggests that it was  44 he who governed the territory.  I do not  45 suggest the Indians have not always  46 participated in feasting practices, and I  47 accept that it has played and still plays a 1852  Submissions by Mr. Macaulay  1 crucial role in the social organization of  2 these people.  I am not persuaded that the  3 feast has ever operated as a legislative  4 institution in the regulation of land.  There  5 are simply too many instances of prominant  6 chiefs who have conducted themselves other than  7 in accordance with the land law system for  8 which the plaintiffs contend."  9  10 And then he says he will discuss the particular  11 inconsistencies in part 17.  12 Now, Brown's reports and Loring's reports support  13 not only that finding, but it would support the  14 proposition that no jurisdictional function, not only  15 no legislative but no jurisdictional function, was  16 performed at the feast except in the most limited  17 sense of that word.  And that is the decision in  18 earlier times on who was going to be the succeeding  19 chief, who would be chiefs.  And before the British  20 Columbia and Canadian systems arrived in the area,  21 most likely who would succeed to lands of individual  22 families or individual chiefs.  The feast may very  23 well have regulated the business of the village  24 societies, too.  25 The third body of evidence is the modern -- the  26 evidence of what is going on in modern times.  Now,  27 that is more -- is directed not only to the question  28 of jurisdiction, but to use and occupation.  That  29 shows that the -- as the economy changed for a second  30 time -- it had changed once when the fur trade was  31 introduced.  When the economy changed in its various  32 ways, the Gitksan, and to a lesser extent time the  33 Wet'suwet'en, withdrew from territories farther away  34 from their villages and haven't been there now for at  35 least two generations and longer.  There is such a  36 thing, too, and I think it is legitimate to refer to  37 it, as the whole course of or the weight of history.  38 And the history starting in the 1880s, and  39 particularily August 1888, for the past 100 years --  40 for the 100 years since then.  41 A full and far reaching jurisdiction you could see  42 and deal with was established then, and it's  43 continued.  And the extent of it may be shown by the  44 trapline map, an overlay of which was handed up this  45 morning.  And it was of two kinds.  Many of the  46 Appellants were governed under the provisions of the  47 Indian Act.  But all citizens, and the Appellants to a 1853  Submissions by Ms. Koenigsberg  1 great degree, were also governed by the provincial  2 laws and the provincial system.  And that's why the  3 history of the area developed the way it did.  If what  4 the Appellants allege were true, there would still be  5 a very tiny non-Indian population in the claim area.  6 But as it is, the non-Indians form the majority by  7 something like three to one.  8 Those are my submissions on part 1, My Lords.  I  9 was going to deal with something that necessarily  10 follows from it, but I think perhaps Ms. Koenigsberg  11 could cover it, and that is the jurisprudence  12 concerning what we have to do in order to support the  13 judgment insofar as the findings of fact are  14 concerned.  15 TAGGART, J.A.:  Thank you, Mr. Macaulay.  16 MS. KOENIGSBERG:  My Lords, there will be a little bit of  17 housekeeping here.  18 THE COURT:  Would it be wise to take the break, or do you  19 want --  20 MS. KOENIGSBERG:  I was going to suggest that maybe we could at  21 least pull out the materials and let me explain how it  22 works.  It is a bit of a jigsaw puzzle.  And then make  23 we can take the break before we started.  24 WALLACE, J.A.:  Are we through with this big blue book?  25 MS. KOENIGSBERG:  Yes.  And I believe you have been handed up —  26 not yet.  This afternoon we will be using three  27 volumes, volumes -- reference volumes 11, 13 and 14.  28 TAGGART, J.A.:  In that order?  29 MS. KOENIGSBERG:  Yes.  You only have 11 with you, so that's  30 fine.  If you want a place to make a note, because  31 this is just going to give you a map to the jigsaw  32 puzzle, this submission is found, but don't look for  33 it, in tab 5 of the factum.  34 TAGGART, J.A.:  Of the factum.  35 MS. KOENIGSBERG:  Volume 1.  But it incorporates a list of other  36 pieces which are found in volume 3 of the factum,  37 which volume is the volume which incorporates the  38 Province's earlier factum which has been adopted by  39 the Attorney General of Canada.  40 So for ease of reference for the submissions, we  41 won't go to the factum for 5.  We will use the  42 reference books.  And we have, of course, put each  43 paragraph with the references that I will be making  44 reference to and the parts from volume 3 one right  45 after the other.  So we will start at 11.  46 WALLACE, J.A.:  It is already in there?  The references from  47 volume 3 are already in the reference book? 1854  Submissions by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Yes.  You will only need the reference book,  want you to know what it is that we are going to  11, 12 and 13?  That's right for today.  Sorry, 11, 13 and 14  MS. KOENIGSBERG  But I  cover  TAGGART, J.A.:  MS. KOENIGSBERG  today.  The topics are evidentiary issues.  And I will be  dealing over this afternoon and tomorrow morning with  reputation evidence generally, with oral histories  generally from an evidentiary point of view, and  opinion evidence, in particular anthropological  opinion evidence.  And it is that topic,  anthropological opinion evidence, that I will deal  with specifically this afternoon.  Those topics are encompassed, for your reference,  in the following list.  It includes parts of -- and  these are all found in volume 3, tab 3, paragraphs 1  to 17 of the Province's earlier factum.  TAGGART, J.A.:  Just a second.  Volume 3?  MS. KOENIGSBERG:  These are all in volume 3 of our factum.  Tab  3, paragraphs 1 to 17.  It will also include appendix  5.  It will also include appendix 1, a small part of  it.  And that will be identified when we get to it.  Appendix 9, a small part, and tab 5.  Those are all  parts of the Province's earlier factum.  And I have attempted to stitch them together.  It  was a little like doing a jigsaw puzzle with cream of  wheat.  And I have attempted to make it easier for us  all by putting it all together with paragraphs so that  we can deal with it.  But I will deal first with the burden that we deal  with in the jurisprudence, and then we will move right  into the issue of anthropological evidence.  And I can  either begin now or we can have the afternoon break.  J.A.:  Well, we might as well take a break.  J.A.:  Mr. Macaulay, you were going to give us your  speaking notes from your introduction.  I wonder if  you've forgotten, or if they are --  MACAULAY:  No.  I haven't forgotten.  I am trying to piece  together what I actually said.  Those were just notes.  I wasn't reading from a script.  J.A.:  Oh, well, yes.  I'm sorry, I misunderstood.  I  thought that you were reading from something that had  already been typed and that I wasn't asking you to  prepare something.  But if it is so, then as Mr.  Justice Macfarlane reminds me, we can in the end go to  the transcript and get it from that, rather than have  TAGGART,  LAMBERT,  MR.  LAMBERT, 1855  Submissions by Ms. Koenigsberg  1 you concoct something from your own recollection of  2 what you said.  3 MR. MACAULAY:  I was reading at times and not at others.  4 LAMBERT, J.A.:  Yes.  Well, I don't want to hold you to it if it  5 is burdensome for you to do it.  6 MR. MACAULAY:  It's not.  7 LAMBERT, J.A.:  I just thought it was simple.  Whatever you want  8 to do is all right.  9  10 (AFTERNOON RECESS)  11  12 THE REGISTRAR:  Order in court.  13 TAGGART, J.A.:  Yes.  14 MS. KOENIGSBERG:  Beginning then at tab 385, which is the first  15 tab of volume 11.  And its an incorporation of part 3  16 from volume 3.  And it deals with the evidentiary  17 issues and the burden on this appeal.  And I am going  18 to go over this very quickly because you heard a lot  19 of this.  But I simply want to highlight some of the  20 words and the concepts that I say are especially  21 apposite in this rather cliched area of the law at  22 this point.  23 The test, obviously, is that "an appellate court  24 should not reverse the trial judge in the absence of  25 palpable and overriding error which affected his or  26 her assessment of the facts".  We take some comfort  27 and we think that it is extremely apposite in this  28 case, the words of the court in Bear Island in the  2 9 Supreme Court of Canada.  30  31 "These findings were essentially factual, and  32 were drawn from the massive historical  33 documentary evidence adduced over the course of  34 130 days of trial."  35  36 A mere one-third of this trial.  37 HUTCHEON, J.A.:  Could I just ask, does this paragraph 1 apply  38 to Bear Island, or is that taken --  39 MS. KOENIGSBERG:  Yes.  That is a quote from Bear Island.  40 HUTCHEON, J.A.:  No.  These findings are from Bear Island, but  41 the other one?  42 MS. KOENIGSBERG:  I'm sorry, the test?  43 HUTCHEON, J.A.:  Yes.  The test is from Stein, I take it.  44 MS. KOENIGSBERG:  Yes.  45 HUTCHEON, J.A.:  Does Bear Island apply the same test?  I don't  46 believe it does, does it?  47 MS. KOENIGSBERG:  Well, I believe it relies on the standard.  I 1856  Submissions by Ms. Koenigsberg  1 don't think it changed the test, which I believe to be  2 a pretty standard test.  However --  3 HUTCHEON, J.A.:  It is standard when you are talking about  4 incidents that happened yesterday.  5 MS. KOENIGSBERG:  Yes.  6 HUTCHEON, J.A.:  Or last week and witnesses are describing.  But  7 where you are looking at historical documents, I  8 cannot think that the test is the same at all.  I  9 haven't looked into it, but surely --  10 MS. KOENIGSBERG:  Well, My Lord, if I can answer you, I think  11 the test is the same, but I think the application is  12 different.  And I think that we have to take into  13 account what can amount to palpable error?  What is it  14 that would cause the court to say that there has been  15 a sufficient error?  And we get to the word disregard  16 for the evidence and so on.  17 HUTCHEON, J.A.:  Well, I would have thought that when you are  18 looking at historical documents and the Court of  19 Appeal is in as good a position as the trial judge,  20 when you are just looking at historical documents I  21 don't see why we would be in any different position.  22 I am speaking now for myself.  I just don't think --  23 MS. KOENIGSBERG:  Well —  24 HUTCHEON, J.A.:  I think this test of overriding error is  25 certainly applicable when you are talking about a  26 motor vehicle accident last June.  But I cannot think  27 that when you are talking about events in 1810 that  28 you bring that test to it at all.  I just -- as I say,  29 I haven't looked into this really.  30 LAMBERT, J.A.:  If I can add -- before you respond if I can just  31 say that the cases that go behind Stein v. The Kathy  32 "K" are cases that talk about the assessment of  33 witnesses and demeanor of witnesses.  34 MS. KOENIGSBERG:  Yes.  35 LAMBERT, J.A.:  And the advantage the trial judge has from  36 assessing the demeanor of the witnesses.  So I  37 believe, as Mr. Justice Hutcheon does, that this test  38 is a test that grew out of the favourable position of  39 the trial judge in assessing oral testimony.  40 MS. KOENIGSBERG:  Yes.  But its application, in fairness, has  41 not been restricted.  42 LAMBERT, J.A.:  No.  No.  43 MS. KOENIGSBERG:  To the questions, for instance, of  44 credibility.  And we come to some of those cases.  But  45 I don't want to spend an undue amount of time on this  46 subject for this reason, that I will concede for the  47 purposes of this argument that this court might be, 1857  Submissions by Ms. Koenigsberg  1 Lord help you, in the same position as the trial judge  2 to assess all of the historical documentary evidence  3 if the parties had been content for the trial judge to  4 rely on just the historical documents, but they  5 weren't on neither side.  6 There was interpretation.  And the interpretation  7 of those documents became the subject of findings of  8 credibility.  And not findings in credibility of "are  9 you lying", but findings of credibility in terms of  10 how much emphasis, how much weight should be given to  11 a body of opinion evidence attached to historical  12 documents given that these areas of opinion evidence  13 on historical material are ongoing subjects of  14 academic debate.  That is their very essence.  15 And it is the marrying up of the legal system and  16 the rules of evidence and the way judges assess  17 evidence and an academic discipline where debate --  18 where putting together facts to fit a theory is part  19 of the activity that comes into the courtroom and must  20 be assessed for its evidentiary value in determining  21 legal rights.  22 And in my submission, that was something that  23 involved two essential factors for the trial judge,  24 one half of which your lordships are in the same  25 position as the trial judge.  One of them, of course,  26 was the actual demeanor in the context of the -- of  27 the examination and cross-examination of the witnesses  28 and their way of dealing with contrary opinions, et  29 cetera.  Those all went to that assessment.  30 The other is the overwhelming amount of complexity  31 in the evidence.  It is not a matter of taking one  32 binder of documents and saying:  What do these  33 documents mean?  Well, we had a witness here.  And  34 this witness said they meant this, according to this  35 particular theory.  I will tell your lordships, and I  36 will try to show it to you, but I doubt if I can, that  37 there is not a topic that is the subject of all of  38 these binders or a subject of a finding of that trial  39 judge that isn't weighted in another binder that I  40 have forgotten about until I trip over a paragraph  41 that I have also forgotten about.  42 The immensity of this subject and the immensity of  43 the material brought to bear on the resolution of the  44 issues cannot be described.  You have some idea  45 because you've seen the breadth of this material.  But  46 to attempt to assess it is not a step by step make a  47 decision on this, go to the next one, make a decision 1858  Submissions by Ms. Koenigsberg  1 on that.  The decision of the credibility of one  2 witness might depend in the end -- credibility in the  3 context of their discipline and what they are doing,  4 might depend in the end on something that is said by  5 another witness who happened to have something to do  6 with that witness and that -- and that way in which  7 they have expressed themselves.  Almost every witness  8 was the subject of comment by another witness.  9 I think your lordships have said to overturn the  10 trial judge on these subjects you would have to read  11 and deal with the anthropological evidence.  And we  12 will get to it, the whole report and all of the  13 testimony.  In my submission, you certainly will.  And  14 you will have to read it all.  It is not a happy task.  15 It is lengthy.  16 But every other expert and cross-examination on  17 the expert that had anything to do with them, because  18 I submit to you that had to have played into the total  19 picture.  There were so many subtleties in this trial  20 on every issue.  Every issue of evidence, every issue  21 of law was turned on its head and turned inside out.  22 Because we are not dealing with a normal  23 judiciable issue.  We are dealing with issues of law  24 and politics and academics.  And we are marrying them  25 up and trying to appreciate a completely different  26 concept.  Aboriginal rights far beyond anything that  27 we have imagined before that have been put before this  28 court, sovereignty and jurisdiction and ownership in a  29 different -- in a different culture.  30 It is not -- I am not exaggerating to say to your  31 lordships that we were all floored when the Appellants  32 served 23 expert reports on us.  But the breadth of  33 the issues as they have even brought them before this  34 court well deserved 23 and could have used more.  So  35 it is not a simple task.  36 And it is the cumulation that has importance, and  37 which, in my submission, makes it very difficult to  38 put this court in the same position as the trial  39 judge.  I don't say it is impossible, but it is very  40 difficult.  And I don't think I could, if I stood here  41 for a week and talked about all of the small things  42 that might have an affect in your mind if I brought  43 them to your attention and if I was clever enough to  44 pull them all together, that you would be able to  45 appreciate the subtleties that influenced.  46 And you can see that in the Appellants' position  47 so far.  I will give you the example.  The whole 1859  Submissions by Ms. Koenigsberg  1 debate about were the territories owned beyond using,  2 ownership in the aboriginal sense, owned beyond  3 villages and contiguous areas?  And we are talking in  4 precise boundaries here.  Or was it a function of the  5 fur trade?  Well, we have a lot of historical material  6 that helps us.  And my colleague Mr. Macaulay has  7 taken you through that, and the Appellants have taken  8 you through that.  9 But there are numerous experts, some of whom gave  10 evidence, some of whose treatises were put to those  11 witnesses and some of those treatises sit alone in  12 binders and have been referred to.  There is a real  13 debate about that.  And it is not a simple issue of  14 did it affect, because obviously it had an affect.  15 The fur trade had an affect on land tenures.  But how  16 much of an affect?  Because we can see antecedents  17 before and after.  And you can find academics on both  18 sides of that debate.  You will find them from 50  19 years ago and you will find them today.  20 And it is put -- and that is very central.  Really  21 it is the central issue between the findings of fact  22 in the cases that have been put to you by the  23 Appellants and by the Attorney General of Canada, and  24 I might say the Province.  How far does the  25 jurisdictional ownership go?  Because there is no  26 debate, not from the Attorney General of Canada, that  27 within villages and surrounding areas that there was a  28 social organization which involved land use.  29 HUTCHEON, J.A.:  Which involved?  30 MS. KOENIGSBERG:  Land use, allocation, control.  No question.  31 But the trial judge found that, too.  But we have gone  32 quite far beyond that.  And again it is an example of  33 the complexities and the subtleties of that issue that  34 that finding, I don't think was made clear in this  35 courtroom until probably very recently, that basically  36 on the basis of all the evidence the trial judge found  37 that.  38 So I've got a long way around to -- but it has  39 been bothering me how to put across, if possible, the  40 difficulty of the task that confronts you in terms of  41 dealing with this kind of case.  How many times did  42 the trial judge say:  This is not a Royal Commission.  43 But it certainly bears the stamp in a lot of ways, for  44 one because it is so far ranging.  45 In that context, I say that whatever the test is,  46 its center has never changed, and that is that you  47 must be cautious.  You can't go behind those findings 1860  Submissions by Ms. Koenigsberg  1 of fact unless you can be satisfied that you are in as  2 good a position as the trial judge to make those  3 findings.  And I think I have already told you why I  4 don't think that on the basis that they are just  5 historical documents that you can feel comfortable  6 doing so.  7 But I come back to the Supreme Court of Canada and  8 Bear Island because that, too, was a case at trial  9 taking 130 days, I believe, one-third the number of  10 days that this trial took, and full argument before  11 the Supreme Court of Canada on major issues.  But that  12 Court said:  13  14 "These findings were essentially factual"  15  16 and they weren't entirely comfortable with all of it.  17  18 "...and were drawn from the massive historical  19 documentary evidence adduced over the course of  20 130 days."  21  22 We come over, if we just turn over the page to  23 paragraph 3, this quote from Powell v. Streatham which  24 is again just another way of expressing the  25 difficulties.  26  27 "Am I - who sits there without those  2 8 advantages",  29  30 And I think I have tried to -- I don't know how  31 advantageous they were, but with the time invested and  32 the effort invested:  33  34 "Am I - who sits here without those advantages,  35 sometime broad and sometimes subtle, which are  36 the privilege of the judge who heard and tried  37 the case - in a position not having those  38 privileges, to come to a clear conclusion that  39 the judge who had them was plainly wrong?  If I  40 cannot be satisfied in my own mind that the  41 judge with those privileges was plainly wrong,  42 then it appears to me to be my duty to defer to  4 3 his judgment."  44  45 And I am not going to read through all of these.  4 6 But I want to just touch on them and draw them to your  47 attention.  Paragraph 4.  Here the privileged position 1861  Submissions by Ms. Koenigsberg  1 of the trial judge cannot be overemphasized.  The  2 Chief Justice heard 318 days of evidence between May  3 11 and February 7, '87 and '90.  61 witnesses gave  4 evidence at trial.  15 witnesses gave evidence on  5 commission and 30 deponents were cross-examined  6 out-of-court.  Experts from the videotapes of some of  7 the out of court examinations were shown in court.  In  8 addition, the Chief Justice, "visited many parts of  9 the territory".  And you'll recall that the Chief  10 Justice makes comment about how influenced he was by  11 the vastness, and he said emptiness of the territory.  12 He meant in its vast regions its emptiness, obviously  13 not in the populated areas.  14 Certain comments made by the Chief Justice, and I  15 am at paragraph 5, in his summary of the "view" are  16 apposite.  And he, at the request of the Appellants,  17 went up in a helicopter, reviewed two-thirds, only  18 two-thirds of the area.  And he says in the second  19 paragraph:  20  21 "Before I describe the magnificent country we  22 viewed, I wish to say that no one can gain  23 proper appreciation of the overwhelming  24 vastness and isolation of this magnificent but  25 almost empty territory without spending at  26 least the amount of time I spent there.  I also  27 wish to add that I wish I could have spent more  28 time in the territory but helicopter travel is  29 very expensive and although logging roads are  30 pushing further and further into the territory,  31 they are not always available for private  32 traffic, and exploration by land in such  33 country is a long, slow, tedious and often  34 uncomfortable enterprise."  35  36 That kind of experience, in my submission, has  37 some weight in analyzing and weighing the evidence of  38 the lay witnesses and the experts, the experts who did  39 participant observation and lived up there and talked  40 about the way people used the land, where they go,  41 what they do.  And they are talking about going out  42 into the vast reaches of this land.  And in my  43 submission, it is not just because he saw how big it  44 was.  It is an appreciation for how huge this area is  45 that cannot be described in words that would have  46 something, some part to play in the evaluation of the  47 evidence about the use of those vast territories. 1862  Submissions by Ms. Koenigsberg  1 He used that kind of experience, I note at  2 paragraph 6, in rejecting Canada's argument on  3 abandonment.  And you are going to be taken through a  4 brief review of the evidence where in our arguments we  5 went through all of the evidence.  And we took every  6 bit of evidence given for a given territory, any kind,  7 and organized it all so that there could be some  8 notion of the actual evidence in relation to the use  9 or occupation of a given territory.  10 From that we argued that large areas had not been  11 used.  There was no evidence of use.  And there was  12 some evidence in favour that it wouldn't have been  13 used.  For instance, that trapping had died in 1951  14 and nobody went trapping.  And we argued from that the  15 concept of abandonment.  And the Chief Justice  16 rejected that notion.  And his reason, in part, is set  17 out in paragraph 6.  He says:  18  19 "While this case is very close to the line, and  20 I do not think there is very much aboriginal  21 activity in the territory, I do not think I can  22 safely conclude that the intention to use these  23 lands for aboriginal purposes has been  24 abandoned, even though many Indians have not  25 used them for many years...  26 ... On the occasion of my visit to Tenimgyet's  27 smokehouse in June 1988, I noticed his elderly  28 father, Art Mathews Sr., had a small gill net  29 out in the Skeena with several sockeye salmon  30 already caught.  On the same trip I visited  31 Glen Williams' smokehouse at the back of his  32 modern home in Kitwangak, where I had an  33 opportunity to sample the salmon he was  34 curing."  35  36 I don't think that those incidents played an enormous  37 part, but they played a part.  38 Going on then to paragraph 7, an expert witness,  39 when qualified to give opinion evidence, is like any  40 other witness.  A trial judge is entitled to accept or  41 reject any part of the evidence of an expert and is  42 also entitled to accord the evidence the weight that  43 he or she thinks the evidence deserves.  And here is a  44 quote which I think is apposite.  45  46 "Expert witnesses present certain difficulties,  47 their evidence possibly being of a partisan 1863  Submissions by Ms. Koenigsberg  1 character, usually evidence of opinion, and  2 sometimes presented as fact although based on  3 hearsay.  More weight should be given to facts  4 which are proved than to conclusions drawn from  5 scientific investigations."  6  7 And we will come back to that in discussing Dr.  8 Daly's evidence and the weight.  But here again, and  9 your lordships have been concerned about what I think  10 has been described as the dismissal, disregard of  11 expert evidence.  My submission to you is the evidence  12 was not disregarded.  He didn't fail to appreciate it.  13 He admitted it.  He heard it.  He weighed it and gave  14 it very little weight.  And he gave a lot of reasons  15 for that, and I am going to go into those.  16 In my submission, it does not fall into the  17 category of a failure to appreciate or a disregard.  18 He gave it little weight.  But the important part is  19 he admitted it.  And he admitted it after a lengthy  20 argument that he should not admit it because it  21 doesn't meet essential necessity or trustworthiness  22 tests.  And we will come back to those.  But he did  23 admit it and he heard it.  24 LAMBERT, J.A.:  Is it not the result of your argument that  25 the -- then, that if the Carrier Sikanni claim in the  26 next-door territory came before a different judge who  27 assessed the oral evidence and expert evidence very  28 much, perhaps, like the evidence in this case, but  29 taking a different view of it, could reach an entirely  30 different view?  And so depending on which -- who was  31 the trial judge, we will have then a patchwork of  32 Indian claims and non-Indian claims based not on  33 historical practices, not on the expert evidence, but  34 on how easy it is to pursuade individual trial judges  35 by anthropological evidence?  36 MS. KOENIGSBERG:  I am not sure I understand the thrust of your  37 lordship's concern.  If your Lordship's concern is  38 that the normal rules of evidence, and I am not  39 talking about technical rules, I am talking about  40 common sense rules applied liberally and flexibly.  If  41 that -- that these issues -- I mean I take from what  42 your Lordship is saying that these issues appear not  43 to be judiciable.  44 LAMBERT, J.A.:  That's exactly what I am saying, really.  They  45 may be judiciable, but better not.  That is both the  46 Appellants and the Province now are saying:  These  47 shouldn't be decided in a judicial way.  Give us a 1864  Submissions by Ms. Koenigsberg  1 chance to decide them in some other way.  Because I  2 believe that the submissions that you are making go  3 very much to the questions that both the Appellants  4 and the Province are asking us to put over, and very  5 little to the questions that they are asking us to  6 decide.  7 MS. KOENIGSBERG:  I don't think I can subscribe to that.  They  8 do go to the issue that your Lordship has raised.  And  9 essentially my answer to your Lordship is this:  The  10 issues of on the ground actual use, occupation or  11 interference, however we want to characterize it,  12 extinguishment, diminishment, whatever, on the ground  13 acre by acre, in my submission, while they may be  14 judiciable but they should not be the subject of this  15 kind of proceeding.  And perhaps not, for practical  16 reasons, the subject before a trial judge.  The sheer  17 immensity of it contends against it.  18 But the issues that are before your Lordship, in  19 my submissions, the breadth, scope, constitutional  20 place of aboriginal rights, along with the  21 corresponding duties and powers of the governments,  22 and the affect that that has had, in my submission,  23 are before your Lordship.  24 Now, can you decide those in the absence of a very  25 broad factual base?  In my submission, yes, you can.  26 But you cannot decide them as comfortably, in my  27 submission, or as well in the absence of a very broad  28 factual base.  29 I guess what I am saying to your Lordship is all  30 of this evidence, and there is a lot of it, is useful  31 in terms of testing the parameters of the issues.  32 What do we mean when we say jurisdiction?  Well, I  33 think it is a very difficult concept to deal with in  34 the abstract unless we are going to talk about  35 international law terms.  And we are not talking about  36 that.  We are talking about a sui generis concept.  37 And we are talking about it in relation to how people  38 lived before.  And if we are going to make it a  39 judiciable issue, it is how those people lived before.  40 And so all of this evidence, however unsatisfactory it  41 might be, in my submission, is of assistance to your  42 Lordship and should give you greater comfort, however  43 painful it is, to fit the contours of these concepts.  44 In my submission, aboriginal rights as a  45 justiciable issue are totally fact driven.  And you  46 can't appreciate their scope, their content, how they  47 arose, how comfortable you feel about their very 1865  Submissions by Ms. Koenigsberg  1 parameters from exclusive possession to inchoate right  2 to hunt without an examination of the actual evidence.  3 It is germane, in my submission, how long that right  4 has been exercised in that place and in relation to  5 whom and for what.  That is the very nature of the  6 rights.  It doesn't matter whether we talk natural  7 rights or customary rights, whatever.  They were --  8 laws are and rights are, of custom, brought in.  9 And so we must look as best we can at aboriginal  10 life.  And our best glimpse of aboriginal life is  11 after contact.  And we may be concerned about this  12 concept, for instance, of back streaming by  13 anthropologists, and critical of it.  It certainly has  14 been engaged in.  But what it really is talking about  15 is looking at a society today, or 10 years ago, or 40  16 years ago, looking at its institutions and working  17 back.  Is this a continuation or is this new?  What is  18 its function?  Is its function different or an  19 evolution?  2 0 We have no other way of getting at the fundamental  21 aspects of the right unless we simply throw up our  22 hands and declare:  If you were there before the  23 whiteman then it's yours, for whatever purpose you  24 wish.  In other words, you're sovereign.  If it is not  25 sovereignty then we must, in my submission, analyze  26 all the rest.  And all of this evidence is germane.  27 Well, a lot of it is germane to those issues.  28 And for that reason, I think that the facts in  29 this case are important.  And I think that the Chief  30 Justice was correct in admitting as much as he did,  31 even of evidence which ultimately under the Abbey via  32 Sopinka, Lavallee test has no weight.  It does have a  33 weight in a semi-political sense, and for or against.  34 And the Chief Justice did let it all in.  And it all  35 has been sifted.  36 And I am not suggesting to Your Lordships that  37 you, say, might not sift it differently.  I am going  38 to submit to you that there is lots of evidence the  39 sifting was appropriate.  But it doesn't have to do  40 with deciding particular rights.  It has to do with on  41 the ground, acre-by-acre rights.  It has to do with  42 defining a society and its rights in relation to the  43 larger society.  44 I don't know if that helped, My Lord, but --  45 LAMBERT, J.A.:  Yes.  Yes.  It helped me, anyway.  46 MS. KOENIGSBERG:  Well, I think I could probably, if I may,  47 pretty much skip over the jurisprudence.  My 1866  Submissions by Ms. Koenigsberg  1 submissions to you are that this jurisprudence, and  2 it's in paragraphs 10, Geffen, Harper, they propose a  3 test.  And the test changes, the words change.  But in  4 my submission, they change in relation to the subject  5 matter that courts, appellate courts, are dealing  6 with.  So whether it is manifest error, blatant  7 disregard, whatever the words are, essentially what  8 the court has to be satisfied of, in my submission, is  9 that the trial judge had no reasonable evidence upon  10 which to base the conclusions.  11 And I won't engage in the stretching of the words,  12 but would recommend to Your Lordships, well, first of  13 all, to look at those cases.  When you are looking at  14 those cases and thinking about that, that Your  15 Lordships be mindful of the complexity, and more  16 importantly the subtlety of the total weight of all of  17 this evidence.  18 That takes us out of this book and, unfortunately,  19 a brief visit into volume 13.  And the reason for that  20 is logistical.  We had to print the spines before we  21 made all of our decisions and, therefore, the one tab  22 that I need is in volume 13.  It is the last tab.  23 LAMBERT, J.A.:  Are we going to come back to this one?  24 MS. KOENIGSBERG:  No.  Not today.  I am moving to tab 416, which  25 is in volume 13.  It's the last tab.  And in it at tab  26 416 is a summary, very much a summary of the reasons  27 why, in our submission, the anthropological evidence  28 was dealt with appropriately.  29 TAGGART, J.A.:  This is tab again?  30 MS. KOENIGSBERG:  416.  It is the very last tab, My Lord.  If  31 Your Lordships are wondering, and you might be, you  32 will notice there is a difference in the tabbing.  33 There are bold tabs 414, 415, 416.  Those tabs  34 correspond to the paragraphs in the first factum of  35 the Attorney General of Canada.  The subparagraphs,  36 for instance, if you flip at -- if you look at the  37 front, 413, you will see that all the subtabs have  38 appendix 9 and then a variety of sub subparagraphs,  39 paragraph 23 through 44.  That's where we have taken a  40 part of volume 3 from the Province's earlier factum,  41 incorporated it as close as we could come to the most  42 relevant paragraph of our factum.  So that's why you  43 see that, those subparagraphs.  But at the very moment  44 we don't have to worry about that.  I just didn't want  45 you to get confused.  46 Coming to paragraph 416 and our summary, I am  47 going to elaborate on these topics in the following 1867  Submissions by Ms. Koenigsberg  1 tabs.  But I think it might help to get a bit of an  2 overview.  These summary points, in our submission,  3 apply equally to Drs. Daly, Mills and Brody, who were  4 the three major anthropologists called by the  5 Appellants, and whose evidence was given little, if  6 any, weight by the trial judge.  7 First, there are over 150 volumes of transcript  8 evidence of the Appellants describing their culture,  9 their economy, their kinship system and telling their  10 oral histories.  In our submission, it was not  11 necessary for the trial judge to rely on the  12 anthropologist's evidence of what other Appellants,  13 who did not testify, said to him or her on those very  14 subjects, or to state what this witnesses who did give  15 evidence said to the anthropologist out of court.  16 And essentially that, in our submission, was the  17 nature of some of the evidence which the  18 anthropologists gave.  And that's premised on the  19 notion that when a party calls a witness to court to  20 give evidence, and there was no reason not to rely on  21 it in this case, that the trial judge could understand  22 the evidence that was being given.  And there was a  23 very large amount of that evidence given.  And in our  24 submission, the trial judge was asked to listen to it  25 and evaluate it.  And he was competent to do so, and  26 he did so.  And it was not necessary to have an  27 anthropologist for the purposes of telling us what  28 other witnesses would have said if only they had come  29 to court.  That's point number 1.  30 Point number 2, anthropologists cannot assist with  31 what a witness really meant by his evidence.  They  32 cannot interpret or explain the evidence given in this  33 case.  In my submission, for instance, Mr. Brody in  34 one of his -- in his report devoted an entire chapter  35 to what the witnesses' evidence given in the case  36 really meant.  37 In my submission, that was for the trial judge.  38 It does not assist to have an anthropologist come  39 along and tell us:  Now, let me back up and tell you  40 why especially that's so.  Because in my submission,  41 Mr. Brody, Dr. Mills and Dr. Daly were all  42 anthropologists retained by the Appellants, the Tribal  43 Council, during -- to conduct investigations during  44 the conduct of this litigation, even during the trial.  45 And they were asked to do that in relation to the  46 claims being made by the Appellants.  These are not --  47 HUTCHEON, J.A.:  That is quite often the case with experts, 1868  Submissions by Ms. Koenigsberg  1 isn't it?  2 MS. KOENIGSBERG:  In my submission, not with all of those  3 circumstances it's not.  4 HUTCHEON, J.A.:  I'm sorry.  5 MS. KOENIGSBERG:  And if it is, in my submission, and we have to  6 look at an individual case if it is, I would say to  7 your Lordship it is not that it can't happen or should  8 never happen.  I am saying that your Lordships and the  9 trial judge would have to be very, very careful on  10 weighing that evidence, especially in all of the  11 circumstances that I am going to draw to your  12 Lordship's attention.  13 In my submission, it is not particularily helpful  14 to have an anthropologist who comes during the conduct  15 of a case to give expert evidence, supposedly  16 completely independent, having talked to the witnesses  17 out of court to gain what they really meant, to come  18 after the fact, after the witness gives his evidence  19 and say:  Well, what they really meant to say was  2 0 something other than what the trial judge might have  21 thought they meant.  22 And I am not talking about -- we are not dealing  23 with the area of mysticism and the ocult here.  We are  24 dealing in terms of people, people who live normal,  25 simple lives.  And in my submission, their culture is  26 very important to them, and their culture is an  27 important aspect of what was before the judge.  But  28 what they said or what they meant by what they said to  29 the trial judge was not mystical, did not require  30 someone else to come along and tell us what they  31 really meant.  And in my submission, it came to no  32 more than that in numerous instances.  I am not  33 talking about complex social organization and  34 comparative studies.  I am talking about what  35 witnesses meant when they said:  I went hunting on my  36 trapline.  37 Number 3, although an anthropologist can give  38 evidence of an opinion which is based on facts not in  39 evidence, those facts do not thereby become evidence  40 in the case.  This applies to all of the facts set out  41 in the land claims interviews, unless, of course, the  42 person came and gave evidence.  Here I am talking  43 about a body, a considerable body of interviews which  44 were conducted, usually not by the anthropologists but  45 by researchers with the Tribal Council, other Gitksan  46 or Wet'suwet'en persons, eight years before we got to  47 trial, and which were mainly reviewed by the 1869  Submissions by Ms. Koenigsberg  1 anthropologist.  And, in my submission, because an  2 anthropologist reviews those does not make them facts.  3 Fourth, although matters of motivation,  4 sensibility and inner emotional or psychological state  5 may be a valid subject of inquiry for an  6 anthropologist, they are not relevant nor were they  7 really admissible in this case.  But we had a  8 considerable amount of expert opinion on exactly those  9 subjects, both about white people and about Indians.  10 Fifth, several of the Appellants' anthropologists  11 relied exclusively on the technique known as  12 participant observation.  And I want to correct that.  13 I don't know if any anthropologist relied exclusively.  14 Two of them, Dr. Daly and Dr. Mills, relied  15 principally for the opinions that they came to on  16 participant observation.  It is submitted that to the  17 extent an expert witness relied solely upon this  18 technique, and I am now talking about when their  19 opinions rested on that, without testing those  20 findings by available empirical or objective methods  21 (like counting or measuring).  22 And it sounds technical, but I can give you some  23 interesting illustrations of how it would have been  24 nice.  It substantially weakens the weight of the  25 anthropological opinion to say:  I had the impression  26 from what I saw and from the people that I talked to  27 that a particular phenomenon exists.  And you ask the  28 witness:  Well, did you attempt to determine if that  29 really happened?  In this particular case it was cross  30 cousin marriages.  We will come to it, cross cousin  31 marriages.  Well, it does happen, says the  32 anthropologist.  I said:  Well, did you say count it?  33 Do you know that it actually did happen, greater than  34 chance?  He assumed it happened greater than chance.  35 He was directed to a study done in the claim area by  36 another anthropologist who counted who came to the  37 conclusion that cross cousin marriage takes place less  38 than by chance.  39 In my submission, the opinion that he gave and the  40 weight to be given to any of his impressions would be  41 weakened by the failure to "count", simply attempt to  42 validate in some way -- one doesn't have to  43 necessarily only count, the validity of your  44 impressions.  And I am not saying that it gets rid of  45 the opinion.  I am saying that it certainly goes to  4 6 the weight.  47 The failure to record, and here we were dealing 1870  Submissions by Ms. Koenigsberg  1 with Dr. Daly in particular.  Dr. Daly's failure to  2 regularly record his participant observations, a daily  3 recording, an after-the-day recording.  And we say  4 daily recording was shown to be an accepted  5 anthropological technique, quite frankly, for common  6 sense reasons.  Over a long period of time you are  7 talking to a lot of people and you are forming a lot  8 of impressions.  It is really helpful for those who  9 have to critique, whether it is your colleagues,  10 another anthropologist, your thesis committee, or a  11 lawyer if you've made a record of what it is that you  12 base your conclusions on.  13 HUTCHEON, J.A.:  He had some field notes.  14 MS. KOENIGSBERG:  Oh, yes, he did.  He had some field notes and  15 he conducted some what he called formal interviews.  16 But the bulk of his participant observation, and it  17 was the subject of considerable discussion with him at  18 the trial, was done without recording it.  He did not  19 keep a daily journal.  He did not make notes, with  20 some exceptions.  He did record certain interviews  21 with chiefs.  But as he says, he based his opinions  22 almost completely on the impressions that he gained  23 from immersing himself in the culture and living with  24 these people and talking to them.  But he did not  25 record what he saw, what he heard.  26 And in our submission, his notes themselves tended  27 to be so vague that what they did was to frustrate any  28 attempt to validate or to replicate what he had  29 written down.  And that, again, isn't an accepted, we  30 would say, anthropological technique.  Someone else  31 comes along 10 years later, gets your notes.  And if  32 they are vague, if you use a general word or an  33 abstract word instead of a concrete description, they  34 won't know if you hallucinated it.  And let's not  35 assume that you are prone to hallucination, but you  36 are prone to putting together two concepts, or to  37 confusing something, or simply to coming to wrong  38 conclusions.  No one can test that if you haven't  39 written it down.  That was the weakness of Dr. Daly's  40 methods, in our submission.  41 Next, Dr. Daly, Mr. Brody and Dr. Mills were  42 clearly all advocates on behalf of the Appellants'  43 land claim.  This Respondent submits that the trial  44 judge was correct when he found that such advocacy  45 undermined the credibility of their anthropological  46 opinions.  I can't emphasize that too much in these  47 circumstances.  And there are a variety of reasons for 1871  Submissions by Ms. Koenigsberg  1 it.  And again it's cumulative.  I will give you an  2 example.  Any academic person, especially a social  3 scientist, and let's talk about anthropologists, has a  4 clientele.  And the clientele in the case of  5 anthropologists who study Indian or aboriginal  6 cultures are the aboriginal culture.  7 And the purpose of anthropology, as this has been  8 all over the transcripts, is to interpret the world  9 from the aboriginal point of view, but also to  10 objectify it.  In other words, to make it  11 understandable and so that we know the difference  12 between perception and realty, if there is one.  13 In the case here when an expert asked to give  14 evidence becomes so closely associated with in this  15 case the Appellants that their interpretations of  16 everything that happened fit very neatly into a  17 Statement of Claim, I think that the evidence that  18 they are closely associated, that they are not only  19 sympathetic but part of the process, and that they are  20 under an ethical obligation to not hurt the interests  21 of Indian people, and that has far reaching  22 implications.  And there is not only nothing wrong  23 with that, there is every good reason for it.  But its  24 translation when you are involved in a land claims  25 lawsuit and the anthropologist is retained to give an  26 opinion to substantiate the claim and they become  27 involved with the people in the lawsuit, in my  28 submission, you have to be very careful when you weigh  29 that evidence as to its objectivity, as to whether  30 they have become a champion, and not simply a champion  31 of the idea but a champion of the person or the  32 people.  And in my submission, all three of these  33 witnesses crossed that line and they crossed it way  34 across.  35 And in my submission, that wouldn't necessarily --  36 and, two, the trial judge didn't mean that they  37 couldn't give evidence, but it coloured their  38 evidence.  It tainted their evidence.  And in my  39 submission, it should have.  40 All of the Appellants' anthropologists made their  41 investigations of this "traditional" society after the  42 emergence of the dispute.  We are not talking 50 years  43 ago or 20 years ago.  We are talking during, after the  44 writ has been served, or in contemplation of service  45 of that writ.  Thus, practically all of their  46 informants were persons who were, or would shortly  47 become, interested in this litigation. 1872  Submissions by Ms. Koenigsberg  1 Furthermore, and this is very important in  2 weighing these competing -- the limits, if you will.  3 Several of the most important informants, and here we  4 are into the chiefs, were actively engaged in research  5 for this litigation.  Dr. Daly's, some of his major  6 informants had been actively engaged in researching  7 this land claim.  Not just their culture, this land  8 claim for eight to ten years before Dr. Daly arrived  9 on the scene.  10 Now, in my submission, Dr. Daly comes as an  11 anthropologist to study these people to see what their  12 perceptions are and what their social institutions  13 are, and I might say with the Statement of Claim in  14 hand, to further the notion that they have ownership  15 and jurisdiction.  I am not saying that if he found  16 they didn't have ownership and jurisdiction that he  17 would have said that they didn't, that if he thought  18 that they didn't that he would have lied.  I say when  19 he comes to it and the people that he gets this  20 information from are the people who have been  21 educating themselves to the claim, it won't be  22 surprising that the information that he gets conforms  23 to the claim.  But it won't be good anthropology, in  2 4 my submission.  25 An example of that very difficulty caused by the  26 interested nature of the informants was their failure  27 to inform Dr. Daly, for instance, of what were -- was  28 damaging material but which was highly relevant to his  29 opinion on the continuity of the culture.  Because he  30 wrote a 690 some odd page report on the continuity of  31 the culture.  And the Chief Justice commented on that,  32 and that's why I bring it up.  33 There had been a survey that had been done of over  34 1,000 people in this community, native people in this  35 community.  And the survey was done by people in the  36 community, that is Gitksan and Wet'suwet'en people.  37 And it is a questionnaire, and it was a lengthy  38 questionnaire.  It covered every aspect of their  39 culture and their activities, their economic  40 activities.  What kind of jobs did they have?  Did  41 they go to the feast?  Did they trap?  Did they hunt,  42 et cetera.  43 This was conducted and available, at least in  44 preliminary form, before Dr. Daly arrived.  Dr. Daly  45 never saw it until it was put to him in  46 cross-examination.  But Dr. Daly himself didn't have  47 it.  In my submission, it was appropriate for the 1873  Submissions by Ms. Koenigsberg  1 Chief Justice to see the failure to provide such data,  2 however flawed it might be, because clearly the people  3 who spent the money and the time to get this data  4 weren't saying it's flawed, would give it to their  5 anthropologist and say:  Make of it what you will.  6 But they didn't.  And it was directly relevant.  7 In my submission, that is part of the very complex  8 puzzle of the credibility of Dr. Daly as an expert.  9 That is what he was brought to study, how he dealt  10 with the dilemma of being there during a lawsuit, and  11 how he translated all of that into a report.  And the  12 Chief Justice heard all of that and weighed it.  13 And I might tell your lordships, and I am going to  14 take you through some of this so that you get a  15 flavour that it is not just necessarily my  16 interpretation, although it is hard to get a flavour  17 from the transcripts.  Dr. Daly himself was shocked  18 that he had not seen that report, even though he could  19 think of qualifications on its appropriateness.  And  20 there are lots of qualifications --  21 LAMBERT, J.A.:  Were any of the people asked to explain?  Were  22 there also witnesses asked to explain why they didn't  23 mention it to Dr. Daly?  24 MS. KOENIGSBERG:  It was late in the day.  All of the persons  25 who would have had anything to do with it were long  26 gone.  So, no, they weren't.  And he had no  27 explanation.  28 LAMBERT, J.A.:  He had no explanation.  He was asked if there  29 might be an explanation into -- in relation to the  30 nature of the anthropological examinations that would  31 explain it.  But he was asked that kind of thing and  32 he said:  No, no, there is --  33 MS. KOENIGSBERG:  Well, he wasn't asked that.  He was — and I  34 should look it up and just give you the references.  I  35 will say that the transcript shows that he was  36 surprised, that he was upset that he hadn't been shown  37 it, and that he acknowledged its relevance.  38 Subsequently having a chance to look at it and discuss  39 it with counsel, as was appropriate, he said:  Well,  40 there were many qualifications one could put on its  41 value, and that was true.  Every questionnaire is  42 subject to -- every polling is subject to great  43 caution.  44 And in my submission, the trial judge dealt with  45 it properly.  He didn't find that it was something he  46 should have, or should have necessarily affected him,  47 but that it was part and parcel of the problem that 1874  Submissions by Ms. Koenigsberg  1 Dr. Daly confronted.  And, in fact, much of the  2 material that was put before the trial judge was  3 consistent with many of the results that came out in  4 evidence out of that survey.  5 LAMBERT, J.A.:  And the survey itself is in evidence?  6 MS. KOENIGSBERG:  Oh, yes.  It is large and nearly  7 incomprehensible.  8 Lastly on this summary, this Respondent admits  9 that anthropologists can assist the court with an  10 opinion upon or explanation of objectively observable  11 facts where the Appellants' own evidence on their  12 culture and history is not available.  For instance,  13 if anthropological work had been done among the  14 Gitksan or Wet'suwet'en of an earlier generation, for  15 instance, the informants were no longer available to  16 give evidence, or at the very least it is untainted by  17 the lawsuit, then such work would be both the "best  18 evidence" and untainted.  19 Now, in our submission, there was such work  20 available.  It is in evidence.  It was -- it was not  21 comprehensive, but it -- and it was the work of John  22 Adams.  And it was the subject --  23 HUTCHEON, J.A.:  There was work that Brody talks about and Daly  24 talks about and Dr. Mills talks about, studies in the  25 late 18 -- in the early 1900s and that.  26 MS. KOENIGSBERG:  I am not sure which ones, your Lordship.  Are  27 you thinking of Jenness and that kind of work?  28 HUTCHEON, J.A.:  There is a whole series of them.  I don't have  2 9 all the names.  30 LAMBERT, J.A.:  There is Marius Barbeau and William Duff.  31 MS. KOENIGSBERG:  Oh, yes.  But you have to remember they are  32 not directly, although some of the oral histories are  33 directly those of the Gitksan.  34 LAMBERT, J.A.:  Yes.  35 MS. KOENIGSBERG:  And Jenness, not Barbeau or Duff, deal with  36 the oral histories, if you will, the kungax of the  37 Wet'suwet'en.  And that was in evidence.  And that was  38 evaluated by all of the witnesses.  And the Chief  39 Justice certainly was aware of it, evaluated it.  4 0 And you will find a very helpful, in my  41 submission, summary in schedule 4.  It was not  42 disregarded.  And the -- now, the use that one makes  43 of such work, oral histories, was an active subject  44 before the trial judge.  All the witnesses were  45 cross-examined on it.  And all of the competing views  46 in the academic community were canvassed.  And the  47 Chief Justice came to a view of that.  And, in my 1875  Submissions by Ms. Koenigsberg  1 submission, amply supported.  2 I see it is 4 o'clock.  3 TAGGART, J.A.:  All right.  4 MS. KOENIGSBERG:  I haven't gotten very far.  5 TAGGART, J.A.:  10 o'clock tomorrow.  6 THE REGISTRAR:  Order in court.  This court stands adjourned.  7 (PROCEEDINGS ADJOURNED AT 4 O'CLOCK)  8  9  10 I hereby certify the foregoing to  11 be a true and accurate transcript  12 of the proceedings transcribed to  13 the best of my skill and ability.  14  15  16  17  18  19 Lisa Reid,  20 Official Reporter,  21 UNITED REPORTING SERVICE LTD.  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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