Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-16] British Columbia. Supreme Court Jun 16, 1992

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 1750  Submissions by Mr. Macaulay  1 Vancouver, B.C.  2 16 June 1992  3  4  CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Tuesday, June 16, 1992.  Delgamuukw  8 versus Her Majesty the Queen at bar, my lords.  9 TAGGART, J.A.:  Yes, Mr. Macaulay.  10 MR. MACAULAY:  My lords, yesterday we were at tab 46.  I wasn't  11 right, we were at tab 44.  And I mentioned the oral  12 histories that reflect what the missionary Mr. -- the  13 Reverend Mr. Pierce recorded as having been told to  14 him presumably by somebody who recalled the events, so  15 the Legaic's last raid.  In the evidence at trial, the  16 witness, Mary Johnson, one of the Kispiox Chiefs, made  17 reference to the same kind of thing only in connection  18 with the Nishga.  The same kind of thing, a Nishga  19 raid or raids.  20 At volume 12, it's not in my book of references,  21 but the reference is to volume 12 of the transcript at  22 pages 772 and 773.  Mr. Grant was leading evidence of  23 this witness and he asked her at the bottom of page  24 772:  25  26 "Q  And was there a fort on an island in that  27 location?"  28  29 She was talking about the territory of her House.  30  31 "A  Yeah.  32 Q  And that was a fort of the Gitksan people that  33 was built by the people of Kispiox?  Was this  34 fort -- who built the fort?  35 A  No, no.  I didn't say they built the fort.  3 6 Q  Oh.  37 A  They just called it..."  38  39 And I wouldn't attempt to pronounce the huge, long  40 name, but she gave the Gitksan name for it, and then  41 she went on:  42  43 "...That's the little island that they call  44 the..."  45  4 6 And then she gives the name again:  47 1751  Submissions by Mr. Macaulay  1 "...and sometimes the white people call those  2 little island fort.  That's where the braves  3 were fighting in the olden days when the Nass  4 River people attack our village."  5  6 And then the Court asked -- she said it was a very  7 small island.  The Court asked:  8  9 "THE COURT:  Yes.  I just didn't understand whether  10 you said that the place where the warriors were  11 killed by the gentlemen from the Nass was on  12 this island or was it somewhere else?"  13  14 The witnessed answered:  15  16 "A  Yeah.  One of our brave men's name is Kalat,  17 and he was -- he was hiding on the island and  18 that's where the Nass people attack him, and  19 that's where they killed him."  20  21 It is impossible to tell whether -- what the source of  22 that evidence was, but it was admitted.  And there are  23 other references later on when Loring went to Kisgegas  24 for the first time in 1890, he observed the ruins of  25 another village nearby, two or three miles away.  He  26 was told that the village site had been moved after  27 the Nishga had come down and killed a lot of the  28 inhabitants.  The village was rebuilt then in a place  29 which was a better defensive position, although it was  30 a very windy and exposed site.  But for the most  31 part -- I should mention in connection with that also,  32 that was apparently within living memory in 1898 when  33 Vowell went up to -- Mr. Vowell went up to a lot -- a  34 reserve at Kisgegas, he was asked to include the site  35 of the old village by the second Chief of the Kisgegas  36 who told Vowell that that was their home; they hoped  37 some day to return there and that's where the bones of  38 their ancestors were buried.  Apparently that was  39 within living memory of old people in the 1890s.  But  40 apart from the brief visits by William Brown to the  41 Gitksan villages of Weep Sim and Child-o-call and  42 another village merely described as Sojack's village,  43 there is no account of the Gitksan until the 1870s.  44 We don't see them.  There are no -- in the historical  45 record we don't see them until the 1870s, and one of  46 the reasons was that the Hudson Bay Company decided  47 against establishing a fort at Hazelton, didn't do 1752  Submissions by Mr. Macaulay  1 that until the late 1860s, and they dealt with Legaic,  2 the Tsimshean Chief, the Gixpalo Chief, to be more  3 precise, a division of the Tsimshean, who had a strong  4 alliance with the Hudson's Bay Company.  His daughter  5 married Dr. Kennedy, one of the Hudson Bay officials  6 on the coast, and he provided -- indeed he provided  7 land where the fort was finally established in 1834,  8 that's the fort that survived until the 20th century.  9 And they -- it was understood the working arrangement  10 was that Legaic had the monopoly of the Skeena River;  11 hence, his many trips, and in fact he appears in  12 history, Legaic does, the last Legaic, in 1872.  He is  13 still going up and down.  There is no record of any  14 Gitksan going to the coast to trade or going to the  15 coast at all except as a captive.  16 HUTCHEON, J.A.:  I thought I saw some roots from there on that  17 1750 map.  18 MR. MACAULAY:  Well, the anthropologists say that the Gitksan,  19 who are a branch of the greater Tsimshean group of  20 peoples, came up the river.  There is some evidence of  21 that at Kitwangak where you find a different clan, the  22 Eagle clan, which is one of the major clans in  23 Tsimshean country, but is not known in any other  24 Gitksan village.  However, linguistic evidence  25 suggests that the Gitksan, rather than coming up the  26 Skeena from their origins in Tsimshean country, came  27 down from the Nass, because the Gitksan dialect of the  28 Tsimshean tongue is very close to Nishga, it's  29 something like -- they can understand easily and  30 apparently 90 or 95 percent of the words are the same.  31 As I understand Dr. Cary's evidence, that's the  32 linguist who gave evidence, and Dr. Rigsby's evidence,  33 whose report was filed, the connection between Gitksan  34 and as it's spoken today and Tsimshean is more remote.  35 So the conclusion you might draw from that is that the  36 Nishga, most of them, not all of them -- the Gitksan,  37 most of them came from the north from Nishga country  38 rather than from the coast.  But certainly there  39 are -- the Eagle clan appears to be a Tsimshean  40 organization that established itself in the western  41 most village of the Gitksan.  42 At page -- turning to paragraph 45, Edward  43 Sexsmith, he appears on the early Census rolls,  44 certainly appears in 1901, one of the very few -- at  45 that time one of the very few Gitksan who was recorded  46 as speaking English.  He was a lay missionary,  47 particularly at Kispiox, and he was -- had been taken 1753  Submissions by Mr. Macaulay  1 captive with his mother by the Nishga.  He was brought  2 up by a missionary on the Nass, and returned with that  3 missionary to Kispiox where he was very active in his  4 community and particularly in religious affairs and  5 also on political affairs to some extent during the  6 latter part of the 19th century and the early 20th,  7 which will -- helps date the -- how recent the Nishga  8 invasions were.  9 The next paragraph, 46, records the first European  10 to travel up the Skeena as far as the Forks and then  11 overland to Babine Lake in 1859.  He was commissioned  12 by the government to locate coal deposits and the  13 like.  So there is very little -- there's virtually no  14 description of the people along the river.  He talks  15 about the natural phenomena rather than the people  16 there.  He's the first one in the historical record to  17 mention Gitanmaax.  In 1833, you will recall  18 McGillvray went to the Forks and McGillvray gives a  19 very thorough description of where the houses were,  20 some of the paintings on the houses, interestingly  21 enough he didn't mention -- there weren't totem poles,  22 obviously he would have mentioned them, including the  23 painting of a Man-of-war, the house posts, carved  24 house posts.  He went to the Forks.  He describes  25 going from what's clearly Hagwilget to the Forks.  He  26 erected a monument there.  He describes the features,  27 a low lying island which is still there today.  He  28 refers to the Babine to his right hand which really  29 wasn't the Babine at all, it was just the extension of  30 the Fraser River -- of the Skeena River.  But he makes  31 no mention of any village at the Forks.  There is no  32 reference at all.  Because the description was so  33 thorough, one might reach the conclusion that  34 Gitanmaax was settled sometime after 1833 and before  35 1859.  36 The next paragraph refers to the first European  37 presence on the Skeena in the claim area other than  38 Downie's overnight visit.  That's the Collins Overland  39 Telegraph.  It was destined -- the plan was to build  40 the telegraph line to Alaska across Siberia and thence  41 to Europe, and this ambitious programme came to an end  42 at Fort Stager, which is in the Kispiox Valley, when  43 word came that the transatlantic cable had been  44 successfully laid.  The telegraph line was built up  45 from Quesnel up through the Bulkley Valley up to  46 Kispiox -- up to Hazelton, which was not then named  47 Hazelton, up to Hagwilget, across the river at 1754  Submissions by Mr. Macaulay  1 Kispiox, and then up the valley a few miles where it  2 stopped.  3 There was an incident at Kispiox.  The evidence  4 that I have included includes a -- the recording by a  5 Mr. Morison, who was the storekeeper there for the  6 telegraph company.  He records in his memoires,  7 written many years later, but he says that a shaman at  8 Kispiox told the people in the village that if a wire  9 was put across the Skeena the fish would no longer  10 swim beyond it, and other unfortunate things would  11 happen.  Then so there had to be a parlay, which there  12 was, and the work continued.  That was presumably the  13 first time the people of Kispiox dealt with Europeans.  14 There was a magistrate, by the way, with -- the  15 provincial government sent a magistrate along with the  16 telegraph company's crew to make sure that there was  17 no -- there were no problems and that was the policy  18 of the colonial government, and the provincial  19 government afterwards, whenever there was a mining  20 camp, for instance, as in Omineca a few years later, a  21 magistrate was sent there to control the people there  22 in proceedings.  It was Fitzgerald who was the  23 magistrate at Omineca, the Magistrate Fitzgerald.  24 And in the same year the Hudson's Bay Company  25 finally did develop a trading post at Hagwilget.  The  26 Hagwilget was still the centre.  And that post was  27 closed two years later because of the -- according to  28 the Hudson Bay records, the poor quality of the furs  29 that were by then being brought in.  30 But in 1870, there was a gold rush and that  31 brought a flood of miners to the Forks and, in the  32 same year, Thomas Hankin, who had been the Hudson Bay  33 man at Hagwilget, established that he was the first  34 European to live in the claim area and he established  35 his trading post right at the Forks.  And by that  36 time, we know from a map drawn by the colonial  37 government surveyor, there were six Indian houses at  38 the Forks labelled the Kitanmaax, as it was called,  39 Village, and there was also Hankin store, and a  40 mission house.  41 That brings me to volume 3 of the references.  I  42 start with tab 50.  Tab 50 deals with the -- you will  43 find that map I referred to there and it deals with  44 the laying out of the Hazelton townsite and an Indian  45 reserve by the colonial government because there was  46 expected that a lot of people would come into the  47 territory and in fact they did.  They came in through 1755  Submissions by Mr. Macaulay  1 the territory up, in connection with the gold rush,  2 farther north and also way over to the east.  3 In paragraph 51, I refer to Father Lejacq, who was  4 the first missionary -- appears to be the first  5 missionary in 1869.  There was no record of any other  6 missionary before that time, but clearly by 1871  7 Dewdney laid out the Hazelton township, townsite, when  8 there had been another missionary.  He gives a very  9 interesting account of a feast that arose in these  10 circumstances and it reminiscent of the feast that --  11 to which Brown, William Brown, the trader, was invited  12 to in 1823.  While Lejacq was there, the advance guard  13 of a party of 300 Nishga appeared, and their message  14 was:  We have come to trade or to make war.  You could  15 have your choice.  There are 300 of us and we all have  16 muskets.  The Hagwilgets chose to trade and so there  17 was a very elaborate feast to mark that agreement, and  18 it's described by Father Lejacq.  He also mentions, at  19 paragraph 52 I refer to him again, that when he  20 arrived the Wet'suwet'en were spread out the length of  21 the telegraph trail as far as lac des Francais,  22 Francais Lake, on their hunting grounds and one by one  23 or two by two, whatever it was, they were coming in.  24 And the reason he stayed for a length of time was that  25 the people he had hoped to deal with were all out on  26 their hunting grounds.  So that's the first reference.  27 Unfortunately, we haven't got William Brown's account  28 of his visit to Hagwilget.  It is part of the missing  29 portion of the Hudson Bay records.  This is the first  30 historical record of where their hunting grounds were.  31 Now, as I mentioned, the telegraph trail had already  32 been made, was that swath twenty feet wide with the  33 telegraph line in the middle and that followed the  34 Bulkley more or less.  And he mentions the telegraph  35 trail and being spread out that far down.  Father  36 Lejacq knew the territory well.  He had been all over  37 this area, and had been dealing with the Stellaquo  38 Indians in the south and other Indians around about.  39 53.  He described the arrival as he was obviously  40 told at the time of the -- every summer of Indians  41 from the seacoast to trade European goods, groceries  42 and drygoods at Hagwilget for furs.  And he mentions  43 that "Simshean", the "Atna" and the "Naaska" as he  44 called them, the Nishga, being involved in this trade.  45 He describes Hagwilget as a great Native market.  46 At 54, I start with the -- what I mentioned in my  47 opening as the beginning of the assertion of law in 1756  Submissions by Mr. Macaulay  1 that part of British Columbia.  In 1872, there was  2 perhaps one or two quite Europeans, Hankin and his  3 partner, maybe one other, in the claim area.  But the  4 beginnings started this way:  There was a fire, a  5 devastating fire, which burnt the houses and totem  6 poles and many canoes at Kitseguecla, a village, if  7 you look at the map, it's about 12 to 15 miles down  8 the Skeena from Hazelton.  At first, the Tsimshean was  9 blamed, the Tsimshean did the freighting still in  10 those days, and it was one of Legaic's men as the  11 record shows; however, that under the Gitksan system  12 of assigning responsibility, they were in the service  13 of the Europeans and the Europeans were responsible.  14 They closed the river to traffic.  15 At 55, Constable Robert Brown went up to the scene  16 of the trouble and, 55, he reports meeting men, armed  17 men, with muskets and he was forced to turn back, and  18 he reported that there was a total cessation of  19 traffic on the river.  20 56.  There is a report by a Hudson Bay officer to  21 Mr. Grahame, the chief Factor, then the chief Factor,  22 he later became a magistrate, chief Factor of the  23 coast about what was happening to the Hudson Bay's  24 freight, so he reported the blockade.  25 At 58, Hankin's partner Cunningham wrote that  26 Brown in his opinion shouldn't have retreated from  27 Kitseguecla because the problem of the blockade, he  28 says, the Kitsegueclas came to Hazelton in a body and  29 asked -- and I am quoting here:  30  31 "And asked the whites there to intercede with the  32 Government to procure some compensation".  33  34 Hankin, the trader, drew up a petition to the  35 government and the result was that, 59, the  36 Lieutenant-Governor who then occupied a position very  37 much like that of Premier today, although he was a  38 federal officer, the Lieutenant-Governor was very much  39 the leader of the government in those early times just  40 after Confederation.  He came to the mouth of the  41 Skeena in H.M.S. "Scout", and sent a message that the  42 Chiefs of Kitseguecla should meet him there.  They  43 came down and he told them, in language that we might  44 find offensive today, that what they had done was  45 against the law.  However, he'd overlook that, but in  46 future that they must remember they were not out of  47 reach of the law.  He gave them $600 by way of -- he 1757  Submissions by Mr. Macaulay  1 says he made it clear it wasn't compensation but  2 rather an ex gratia payment.  And William Duncan, who  3 we will come to, of Metlakatla was the interpreter and  4 he reported that they were -- the Ketseguecla Chiefs  5 were well satisfied with what had been done.  It  6 appears they were given a piece of paper at the time,  7 and that will come in 1888, a piece of paper  8 concerning law enforcement.  Duncan was the major  9 missionary figure in the northwest coast.  Metlakatla  10 was his -- the base of his theocratic community.  It  11 had been at an earlier time the village of the Gixp a  12 Lots of Legaic.  13 At 60, I refer to another problem, but these --  14 accumulated until 1888.  Two Indian women from  15 Hazelton had been murdered and another Indian had been  16 charged but acquitted.  The magistrate up in the  17 Omineca district at the mining camps told the nearest  18 relative, Hydagh, that he was entitled to their net  19 estate, $75, which was probably a pretty large sum at  20 that time.  He asked Hankin to write to the government  21 for the money and Hankin did that, and then when the  22 money didn't come, he accused Hankin of not giving him  23 the money and started threatening people's lives.  24 It was serious enough that the government sent Mr.  25 Brown, the constable, to talk to the tribes in the  26 Hazelton area, and Brown did that.  He told the Chiefs  27 and whoever were with the Chiefs that the provincial  28 government intended to maintain its laws in the area  29 and by armed force, if necessary, and that's what he  30 says he said.  Hydagh, who had refused to attend, when  31 he came was given the same message.  32 Brown reported that the Gitanmaax Chief, Gytem  33 Galdoo, and that's the name of the Gitanmaax Chief  34 today, explained to him, and I quote:  35  36 "Although I am recognized as the Chief I have not  37 power enough even to make the people come here to  38 listen to your message...It is no use for me to  39 make a good speech to the governor, for, as soon  40 as you are gone, the people would do as they like  41 and I will be held responsible".  42  43 In the same year, a trail was being built up to  44 the mining camp areas.  The government contractor was  45 William Humphrey.  And in the spring of 1874, Humphrey  46 hired the Chief of Kispiox to help him, and the trail  47 went up overland to Kuldoe, the northern most village. 1758  Submissions by Mr. Macaulay  1 This was still inhabited then and it was the northern  2 most Gitksan village.  It remained inhabited until the  3 early 20th century.  Humphrey reported to the  4 government that:  5  6 "The Kuldoe Indians will not allow..."  7  8 what he describes as "our Indian Packers", that would  9 be people from Kispiox, or Hazelton:  10  11 " go with us any farther, and they will not  12 pack themselves without charging exorbitant prices  13 and to have their pay in provisions which I can't  14 possibly do as our supply is very limited.  In  15 fact these Indians have ordered us to go no  16 further and we may have some trouble with them."  17  18 They didn't in the end.  The work continued.  The  19 support of the documents here include the day-to-day  20 diary, and it records that, but it also records the  21 continuing progress of the cattle trail.  22 There were apparently problems with the Kispiox  23 Indians, too.  The Reverend Tomlinson, who played a  24 very large part later, he was a very close associate  25 of Duncan's on the coast, and I will come back to him.  26 But he was up in that area in 1874 and he reported  27 that when he went -- '73, when he went up the river  28 towards Gitksan country, he brought with him a Kispiox  29 Indian who had been in prison for interfering with  30 white Packers and had just been liberated and was  31 coming home.  32 At 64, Tomlinson, who had spent several months  33 with the Gitksan in 1873, gave the following reasons  34 for the tension existing between the Hazelton Indians  35 and the whites or at Hazelton between various Indians,  36 and he said:  37  38 "Many changes have taken place here since I visited  39 this place two years ago..."  40  41 That would be 1871.  42  43 "Then there were five stores and about twenty-five  44 white men; now there are but two stores and four  45 or five white then.  This is owing to the Peace  46 River mines being deserted.  I may add here that  47 this has also affected the Indians most seriously. 1759  Submissions by Mr. Macaulay  1 Many among them who, during the gold excitement,  2 were making their hundreds of dollars by packing,  3 etc., cannot now make their tens.  The result of  4 such a sudden reaction has been to make them steal  5 from and browbeat the few white men who come into  6 their neighbourhood."  7  8 Tomlinson, at 65, refers in his narrative of his  9 trip to these conflicts in the following terms:  10  11 "Last summer the Indians levied blackmail and  12 otherwise maltreated some packers and men driving  13 cattle across country to the new gold fields at  14 the head of the Stickeen River".  15  16 And then in a letter to the Provincial Secretary  17 Tomlinson wrote "several of the ringleaders of the  18 party who molested the packers at Kispiyoux last  19 season" have been employed by the crew "engaged on the  20 trail", and he says "I have been informed by some who  21 have visited the Kispiyoux Village this year that  22 several pack trains have passed without any  23 molestation and that all was quiet in the village".  24 If I can stop here and refer you to one of the  25 exhibits.  It is the letter, not the published report.  26 It's the second exhibit.  It's addressed to Dr. Ash,  27 the then Provincial Secretary in 1875.  At the bottom  28 of the page he says this about a plan he had of  29 solving the troubles:  30  31 "At first it seemed doubtful if the plan would have  32 a fair trial.  Such a strenuous effort to prevent  33 any of the Kitiksheans from working on the trail  34 was made by a party from a tribe at the head of  35 the canoe navigation on the Nass River, headed by  36 two of their chiefs who feared that if the country  37 was opened up the Kitiksheans would not be so much  38 in their power and therefore they could not drive  39 such hard bargains with them on trade."  40  41 The Gitksan were not -- apparently not allowed  42 down the Skeena River to trade at the coast and the  43 Nishga took the same hard line with them, it seems  44 from that excerpt, on the Nass that they, the Nishga,  45 took advantage of their having access, that is by sea,  46 access by water to the fort at Fort Simpson.  47 In 66, there is a reprise of the situation that 1760  Submissions by Mr. Macaulay  1 had developed with the death of Detueil in the 1820s,  2 a servant of the Hudson Bay Company, only with  3 unfortunate results.  A man named Youmans employed a  4 Gitksan in freighting goods.  This was 1884 now.  The  5 young man was drowned in the Kitselas Canyon.  Youmans  6 made the mistake of coming up to Gitanmaax and saying  7 nothing about it.  After he was there two days, the  8 boy's father came up to Youmans and stabbed him and he  9 died.  10 The Superintendent of the B.C. Provincial Police,  11 Mr. Roycraft, accompanied by a magistrate and a police  12 officer, were sent to Hazelton to investigate this,  13 and he summoned the Gitanmaax Chief, presumably the  14 same Gytem Galdoo, and a meeting with the Indian --  15 the Hazelton Indians was arranged for which most of  16 the village attended, and Roycraft spoke and he  17 required them to surrender the man who had killed  18 Youmans.  And against the wishes of the population,  19 the man who had killed Youmans voluntarily surrendered  20 himself and a Preliminary Hearing was held and he was  21 committed for trial, and he gave a very brief  22 explanation of why he had done it.  He merely says:  23  24 "The reason I stabbed Charles Youmans was that I  25 thought Youmans had murdered my son as Mr. Youmans  26 kept his death a secret from me for three days."  27  28 The feeling among the Indians on the Skeena was  29 very supportive of Haatq, the father, who had killed  30 Youmans, and they argued that he had only followed  31 Indian law, and this is the -- where we -- this year,  32 1884, is where we first see the term used, the term  33 "law" used for this kind of thing.  But all the  34 reports were made by missionaries and in 1884,  35 Tomlinson, Duncan's follower, and we will come to the  36 reason for that later, had gone up to Hazelton and  37 told the Indians there that their law was as good as  38 the Queen's law, and that had echoes for a long time.  39 Thirteen chiefs signed a document from most of the  40 villages, addressed the Attorney General explaining  41 the laws of the Kitiksheans, the Gitksan.  And their  42 summary is -- I have transcribed there the quote -- I  43 quote the document in full, but it's in the second  44 paragraph that he --that the law -- it is now termed a  45 law, is summarized.  46  47 "If one Kiticksean A, asks another, B, either to 1761  Submissions by Mr. Macaulay  1 work for him or to go hunting or fishing and that  2 B should die from any cause while so employed,  3 then A, when he arrives back at his village at  4 once tells the relations of B and also gives the  5 relations a present to show that he, A, had no bad  6 feelings against B and that he does not want any  7 bad feelings between B's relations and himself.  8 If A does not tell about the death of B shortly  9 after his return he is then supposed to have had  10 hand in the death of B and the relations kill him  11 for as they suppose he has killed their relation."  12  13 That was described as a law.  14 Now, I will submit at the end of my account of the  15 historical record that that's not a law; it is an  16 expectation, nor is it confined to the Gitksan or to  17 the Wet'suwet'en, but it had currency throughout; it  18 applied with equal vigour in regard to the Sekanis and  19 the Carrier to the south of the claim area.  20 HUTCHEON, J.A.:  Sorry, what did you call it?  An expectation?  21 MR. MACAULAY:  An expectation.  And we will see the working out  22 of that expectation in 1888.  23 The chiefs asked that this, as I call it,  24 expectation be given legislative approval.  25 At 69, I state that Haatq was taken to Victoria  26 for trial and a missionary named Jennings wrote to Mr.  27 Robson, who I guess was then president of the council  28 or premier, at the request of friends of Haatq.  This  29 is a document purported to be signed by Gytem Galdoo  30 and he takes a slightly different position.  He says  31 in the second paragraph of that letter:  32  33 "While we do not justify the murder, we believe  34 that it was a strange way in which Mr. Youmans  35 acted that exasperated the man to do the deed."  36  37 70.  Jennings' covering letter is more revealing  38 about the Chief's true feelings and the sentiments  39 they wanted expressed to Robson.  Jennings wrote:  40  41 "They desire to mingle threats with their  42 expostulations.  Threats we positively refused to  43 write, telling them that such would prejudice  44 their case in the eyes of the Government."  45  46 And then he went on to report that the brother of the  47 murderer threatened to kill the first white man he 1762  Submissions by Mr. Macaulay  1 sees after he hears of Haatq's death.  And Jennings  2 considered the threat a very real one.  And he reports  3 also that there was a threat to close the river again,  4 if Haatq was hanged, and he was told by the Indians  5 that the Kish-pi-ax, Kish-ga-gas, Kit-wan-cool, the  6 Kit-wan-gah, the Kit-se-geu-clah were -- and the  7 tribes of the upper Nass were with them.  And Jennings  8 spoke to the Hagwilgets, that is, the Wet'suwet'en.  9 They said they were with them, too, by this time.  10 In paragraph 71, we have Robson's reply in which  11 he observes the obvious.  12  13 "It would, perhaps, have been better if Youmans had  14 acted in accordance with the Indian custom; but  15 you must understand that your law is not binding  16 on him.  It is by the Queen's law that all people,  17 Indians and Whites alike, are now governed, and  18 those who disobey the law must be punished, no  19 matter what they may have been accustom to  20 before."  21  22 In 72, that's merely an account of 36 miners, the  23 original signed by 36 men who were miners at Lome  24 Creek in the claim area.  It was the only mining  25 strike in the claim area.  Lome Creek is near  2 6 Woodcock on the map.  Woodcock was later an RCAF  27 station.  My friend tells me that Lome Creek is much  28 farther down the stream than that, and I stand  29 corrected.  Between Dorine and Richie, would that be  30 closer?  31 MR. RUSH:  Yes.  32 MR. MACAULAY:  There was also some difficulty at Lome Creek but  33 we will come to that in a minute.  By mid -- in '73.  34 By mid 1875, the animosity of the previous year at  35 Lome Creek, which the miners complained of, had  36 abated, and Allan Graham, who is the J.P. and Gold  37 Commissioner there, wrote, amongst other things, as  38 follows:  39  40 "We have a number of Indians here from various  41 tribes.  They have many trivial (and the emphasis  42 is on the original) grievances among themselves,  43 which they bring to the government 'judge', and he  44 puts 'judge' in quotation marks, to settle...The  45 Indians are all peaceable and friendly towards the  46 miners here and along Skeena River."  47 1763  Submissions by Mr. Macaulay  1 In 1886, the people in Kitwangak, Gitanmaax and  2 Kispiox were aggressively hostile, in part because of  3 the missionary Tomlinson's agitation against the  4 government, which I will deal with later and explain  5 why.  He was at all three villages from time to time.  6 And one of the reasons for the troubles was the  7 expectation that the government surveyors would come  8 to take away Indian lands.  There was an interesting  9 letter from a missionary called Stephenson who refers  10 to that, and perhaps I should turn to that because it  11 will come up again.  This is -- sorry, all I have here  12 is the covering letter from the Indian Superintendent.  13 We will come to Stephenson's letter.  But there was a  14 hunter called Turner-Turner, an eccentric Englishman  15 who was up there then, and when he landed he had  16 serious difficulties with Gytem Galdoo.  He said he --  17 and I am turning to the exhibit now, it's a -- it is a  18 book entitled Three Years Hunting and Trapping In  19 America and the Great Northwest by Mr. Turner-Turner,  20 published in 1888, not long after the events.  And he  21 is talking about 186 here.  And he arrives at the  22 Forks where he is informed, as he puts it, "with much  23 warmth that we should not be allowed to proceed but  24 must return to the coast on tomorrow".  And then he  25 had an interview with the Chief.  Said:  26  27 "On entering his lodge, where the members of that  28 all important assemblage called the council were  29 gathered together, a glance around suffice to  30 assure us that our presence was regarded with much  31 ill feeling and hostility.  Do and say what we  32 would.  We found it impossible to convince them  33 that we were not surveyors and come to deprive  34 them of their lands.  Finally, as they utterly  35 declined to allow us to proceed we decided to  36 remain one day."  37  38 And then at the bottom of the page, he describes how  39 he was allowed to leave and go on to Kispiox where he  40 was turned back, too.  41  42 "I therefore landed in order to hold a final parlay  43 with the Chief which resulted in my writing a few  44 lines on a slip of paper to the effect that I was  45 no surveyor and that I would decline to accept  46 their lands even if, in a fit of generosity, they  47 should offer them to me." 1764  Submissions by Mr. Macaulay  1  2 He went to Kispiox.  He met Reverend Tomlinson  3 there, this is 1886, who advised him to get out, it  4 wasn't safe, so he returned that winter to Hazelton  5 and spent an unpleasant winter there.  6 In 1887, the Indians heard that the Hudson's Bay  7 Company intended to use their own pack trains.  That's  8 to transport goods from Hazelton to Babine Lake where  9 the fort was.  And they -- Hazelton Indians explained  10 the exclusive right to do that work, and they said  11 they wouldn't allow the company or anyone else to have  12 a pack train, and they threatened to kill any animal  13 brought to Hazelton for that purpose, and they also  14 threatened the Hudson Bay Company's manager.  15 In the meantime, I am at 76, Haatq, that was the  16 man who had killed Youmans, had died.  His sentence  17 was commuted to imprisonment but he had died in 1887,  18 and when the news reached Hazelton, the Gitksan held a  19 meeting at which they decided to levy a fine of $50 on  20 Youman's widow and require her to leave Hazelton.  So  21 they were operating a council by this time and  22 starting to levy fines.  There was no magistrate in  23 Hazelton at that time and this was -- this is a new  24 thing.  They fined her $50, which she paid, and hoping  25 they'd allow her to stay but they didn't.  26 WALLACE, J.A.:  I am having difficulty relating this to any  27 particular issue.  I mean, what are we -- what are  28 we -- assuming this is going to demonstrate that the  29 exercise -- the form of self-government, or that  30 the -- were paid no respect to the law imposed upon  31 them, or where is it going?  32 MR. MACAULAY:  They had — from 18 84, they had got the idea, and  33 I say from the missionaries, that they -- their regime  34 was, to use modern terms, concurrent with that of the  35 government, and had some legitimacy, and that was  36 settled in 1888.  This all leads to 1888.  That was  37 settled once and for all in 1888.  If there was ever  38 an aboriginal right and if it survived 1846, which I  39 say this didn't survive --  40 WALLACE, J.A:  But an aboriginal right of self government you  41 say?  42 MR. MACAULAY:  Yes.  It was plainly and clearly extinguished in  43 1888.  But I have to show what was starting to happen.  44 WALLACE, J.A.:  Well, why couldn't we just say it briefly what  45 was going on and then lead to 1888.  4 6  MR. MACAULAY:  We are at it now.  47  WALLACE, J.A.:  I have a bit of difficulty with the chap getting 1765  Submissions by Mr. Macaulay  1 out of the canoe and so forth.  2 MR. MACAULAY:  Well, that was in 1886, '87, they were starting  3 to assert that they had laws and that those were the  4 laws that governed the territory, and it kept going  5 farther and farther.  6 WALLACE, J.A.:  And those assertions are contained in tabs 70  7 through 80 I assume.  8 MR. MACAULAY:  Yes.  9 WALLACE, J.A.:  Then I will look into that then.  10 MR. MACAULAY:  The hostility — there was another thing.  The  11 hostility towards the European population became so  12 intense in 1887, it was arranged the whites should be  13 prepared to leave and leave their homes and take  14 refuge in the Hudson Bay store which had been  15 fortified in some way.  16 Paragraph 78.  Among the -- there was a measles  17 epidemic, a dreadful measles epidemic in 1887 and '88,  18 in which a huge number of Gitksan children died.  19 Pierce, who was there at the time, tells us that an  2 0 Indian woman, Hanamuq, had two sons; one of them was  21 proposed for a chiefly name.  That proposal was  22 opposed by a shaman called Neatsqu.  Both sons died  23 after the dispute between herself and Neatsqu.  She  24 came to the conclusion that that was done by  25 witchcraft, as we'd call it today.  She had a quarrel  26 with her husband and said something to the effect, you  27 sit here and fight me but you certainly don't seem  28 inclined to do the right thing.  That's the  29 expectation that she had, and it was the expectation.  30 Well, goated by that, a man named -- who is known  31 as Kitwancool Jim, he had an Indian name, picked up  32 his rifle and went out and shot the shaman.  33 Kitwancool Jim -- there was quite a row, and  34 Kitwancool Jim offered compensation to Neatsqu's, the  35 shaman's, family, Kitseguecla family, but that was not  36 accepted.  The Attorney General sent --  37 LAMBERT, J.A.:  It was not accepted by the Attorney General.  38 MR. MACAULAY:  No, it was not accepted by the family, by  39 Neatsqu's family.  Instead what he said, and this is  40 reported by Pierce who was there at the time and was  41 talking to them.  What they did instead was fish out a  42 piece of paper that they had got in 1872 when they  43 were on board H.M.S. "Scout", and presumably that was  44 interpreted, read to them by Pierce.  They sent the  45 dead man's shirt down to the Magistrate of the coast  46 together with a complaint.  The result was a warrant  47 was issued for Kitwancool Jim's arrest.  Might say 1766  Submissions by Mr. Macaulay  1 that at first when -- and Pierce gives an elaborate  2 description of this.  At first they started arming  3 themselves to form a war party to go to Kitwancool and  4 do what was expected of them.  Pierce persuaded them  5 not to do so.  He pursuaded them, he says, to turn in  6 their weapons, their muskets, and their spears, and he  7 put a sentry over them and they all calmed down.  Then  8 they decided they would lay a complaint with the  9 Magistrate on the post, so they did, and a warrant was  10 issued for Kitwancool Jim's arrest.  And it was also  11 reported that he was going to resist arrest.  He  12 had -- one or other of the missionaries had actually  13 spoken do Kitwancool Jim and gives an account of it,  14 and he was fortifying his house and so on.  The  15 account -- the Pierce account appears at tab 81, what  16 I have just said.  17 Tab 82, I -- the report of Washburn, who was  18 enlisted as a constable along with four others to take  19 Kitwancool Jim, arrived at Kitwangak, that's the  20 western-most village where Kitwancool Jim happened to  21 be.  An informer had told him that he would be down  22 there, travelled down from Kitwancool to Kitwangak.  23 He escaped from the house in which he was found.  As  24 he rounded the corner one of the constables shot him  25 and there was a great row.  26 Washburn, on returning from Kitwangak, reports a  27 relative of Kitwancool Jim tried to shoot him and the  28 Chief at Gitanmaax advises Washburn to leave town, and  29 there were reports that the Kitwancool relatives of  30 the dead man were planning their -- what was expected  31 of them.  32 Washburn also reported -- I am at 84, that the  33 Kitwancools threatened to burn Kitseguecla, and wanted  34 $1,000 and a white man as compensation.  And they  35 were -- the Kitwancools were reported to be on their  36 way to Hazelton to take the constables who had killed  37 Kitwancool Jim.  That's the point at which the Hudson  38 Bay Company felt he was fortified.  39 The government then sent Captain Fitzstubbs, who  40 was by then a Magistrate, he was appointed to serve at  41 Lome Creek, but he went straight up to Hazelton and  42 he was stopped at Kitwangak and he was told -- the  43 Kitwangak was a place closely connected with the  44 missionary Tomlinson.  He was told by some of the  45 elders that whites had interfered with the operation  46 of their laws by trying to arrest and killing  47 Kitwancool Jim.  And then in July '88, not long after 1767  Submissions by Mr. Macaulay  1 this, the two killings took place in Kitseguecla.  One  2 of them was a relative of Neatsqu, the shaman who was  3 the original victim in this affair, and Washburn  4 arrested the chief of the village, Mal-ah-lan, and  5 brought him to Hazelton.  6 The government then in these circumstances, and  7 there was something else that happened.  There was --  8 there were a couple of murders at Kisgegas as well,  9 and they dispatched Chief Constable Roycraft, who had  10 been there in 1884, and 12 constables to Hazelton, and  11 also force of a warship and a force of 84, all ranks,  12 to stay at the mouth of the river and go up if and  13 when needed.  14 Before Roycraft and his constables arrived, the  15 Gitanmaax chief told Fitzstubbs who had arrived  16 earlier that he'd do what he could to preserve order,  17 and there is a typographical error here in my text.  18 It should read "no control over his people" and he  19 recommended a force be kept at Hazelton, and that a  20 jail be put up.  That's Gytem Guldoo again.  21 And Roycraft's orders were to arrest the special  22 constable who had shot Kitwancool Jim, a man named  23 Green, and he used his discretion to take proceedings  24 regarding the other homicides.  Those are the ones at  25 Kitseguecla and Kisgegas.  And the malitia was not to  26 be used except as a last resort.  27 I am turning now to volume 4 in 1884.  Should  28 mention that all these matters were the subject of the  29 most unusual interpretations by an expert witness for  30 the Appellants and some of this material is referred  31 to by the Appellants on appeal, some of these  32 incidents leading up to 1888.  33 HUTCHEON, J.A.:  Which expert was this?  34 MR. MACAULAY:  His name was Galois.  35 HUTCHEON, J.A.:  Dalois?  36 MR. MACAULAY:  Galois, G-a-1-o-i-s.  37 HUTCHEON, J.A.:  This wasn't one of the anthropologists?  38 MR. MACAULAY:  No.  He is a historical geographer, I think it's  39 called, something like that.  40 An inquest was held into the Kitseguecla killings  41 and the Chief Kitseguecla was acquitted.  The  42 constable who had shot Kitwancool Jim was committed to  43 trial and then on August 8, 1888, the Magistrate  44 Fitzstubbs and Mr. Roycraft, the Superintendent of the  45 Provincial Police, summoned the Chiefs of the Gitksan  46 villages, excepting of course the northern ones who  47 couldn't possibly have got there in any -- in time, to 1768  Submissions by Mr. Macaulay  1 Hazelton and there were 13 chiefs from five villages.  2 The Kitwancools refused to attend.  3 I see it's 11:15, if this is --  4 TAGGART, J.A.:  All right.  Take the morning break.  5 THE REGISTRAR:  Order in court.  Court stands adjourned for a  6 short recess.  7  8 (MORNING RECESS)  9  10 THE REGISTRAR:  Order in court.  11 TAGGART, J.A.:  Yes, Mr. Macaulay.  12 MR. MACAULAY:  I have come now to tabs 91 to 101.  They all  13 refer to the proceedings at Hazelton in August of  14 1888.  The government took the precaution of having a  15 shorthand reporter and an interpreter.  The  16 interpreter was the widow -- by now widow of the  17 original settler, Hankin, Margaret Hankin.  She had  18 been there since the early 1870s.  She says in one of  19 her letters she had been there for 17 years by then,  20 and other material shows she had started the first  21 school for Indian children and knew them well.  On the  22 Crown's side, it was Magistrate Napoleon Fitzstubbs  23 and Chief -- the Superintendent of Provincial Police  24 Roycraft.  And on the Gitksan and Wet'suwet'en side  25 there were the 13 Chiefs from five villages, that's  26 Gitanmaax, Kitwangak, Kitseguecla, Kispiox, and  27 Hagwilget.  The whole document does bear reading with  28 interest.  There is not only the addresses by the  29 Crown -- officers of the Crown but also by several of  30 the Chiefs in response.  Gytem Galdoo was there of  31 course as the Chief of Gitanmaax or Hazelton.  They  32 are all identified.  And Captain Fitzstubbs lit off  33 and he made the following points.  He said:  34  35 "(a) the purpose of the meeting..."  36  37 And I am at 92 now:  38  39 "...was to inform the Chiefs of the terms on which  40 they were there to live in the future;  41 (b) the government had appointed for that purpose  42 a person who had authority to administer the  43 law;  44 (c) the law in question was British and not Indian  45 law;  46 (d) the law cannot be resisted:"  47 1769  Submissions by Mr. Macaulay  1 And he had a colourful way of phrasing that.  He  2 likened it to the Skeena River:  3  4 "(e) policemen are officers of the law and are  5 fully supported by the government;  6 (f) judges are appointed to arbitrate any disputes  7 that arise between individuals;  8 (g) it is the Chiefs' duty to submit disagreements  9 to the judge for settlement;  10 (h) the law forbids killing, violence, carrying  11 arms at improper times, threats to kill,  12 burning houses, destroying property, maiming  13 or wounding animals, injury to others, theft,  14 riotous assembly, assembly for unlawful  15 purposes, inciting to violence or other  16 unlawful acts, breaches of contracts..."  17  18 were mentioned on the civil side:  19  20 "...and extortion."  21  22 The point was made by Captain Fitzstubbs that:  23  24 "(i) every person of high or low degree is bound by  25 and protected by the law;  26 (j) the Chiefs may not settle their own disputes  27 but must submit them to judges."  28  29 Back to that.  30 Roycraft -- no.  Fitzstubbs also said -- and there  31 is a long quotation in the Appellants' factum about  32 this, and their references to the earlier material  33 that might have seemed a bit tedious.  Magistrate  34 Fitzstubbs said that to oppose the law he had spoken  35 about would mean war.  And he described the dire  36 consequences to the Indians.  37 Roycraft then reviewed recent events.  He told  38 them that after an Indian had killed another, and that  39 was the killing of Neatsqu by Kitwancool Jim, Indians  4 0 requested the government to apprehend the murderer and  41 that was the relative of Neatsqu who had applied to  42 the Magistrate on the coast.  And, in addition, he  43 mentioned the following:  44  45 "(a) the killing of Kitwancool Jim by a constable  46 and the ensuing tumult in the various  47 villages, involving armed assembly; 1770  Submissions by Mr. Macaulay  1 (b) the killing of Youmans..."  2  3 He recalled that to them:  4  5 "(c) that when the Indians demand the life of the  6 constable who had shot Kitwancool Jim, a  7 warship, soldiers and a detachment of special  8 constables had been dispatched to the Skeena  9 River;  10 (d) the death and destruction that military  11 operations would involve..."  12  13 And he mentioned the contrasted courts martial, which  14 he painted in rather unflattering terms, to the way in  15 which the civil courts administered law.  He said also  16 he had seen the notice on the Chief's house, that's  17 Gytem Galdoo's House, to the effect that the Chief  18 would deal with white men's grievances against  19 Indians, and he said he knew this Chief Gytem Galdoo  20 had held secret meetings and advised the Indians to  21 kill all the whites at this council.  22 Roycraft also spoke of white men, referring to  23 some missionaries there, who stir up Indians to oppose  24 the government and the trouble these men have caused.  25 And he said that in order to avoid future troubles the  26 Magistrate Fitzstubbs would be -- should be told of  27 agitators like that.  28 Roycraft said that in order to enable the Chiefs  29 to keep order in their villages he'd appoint them and  30 their -- or their nominees as special constables.  And  31 enjoined them to mind their own business and to leave  32 the affairs of other villages alone.  33 Roycraft asked the Chiefs to recall the time  34 before they came under British law when one tribe was  35 always in danger of being massacred by the other, and  36 that there was continual warfare.  By tribe -- the  37 expression is used there in terms of villages, that's  38 how they were.  39 Ten of the Chiefs spoke in response to all this.  40 The second Chief of Gitanmaax confirmed the secret  41 meetings that had been held at the Chief's house, that  42 is Gytem Galdoo's house.  Another Chief mentioned the  43 suspicions the Indians had entertained in the previous  44 winter's epidemic that had killed so many Indian  45 children.  The cause of the death was poisoning of the  46 food sold by white men to Indians in order to  47 exterminate them.  They all expressed their 1771  Submissions by Mr. Macaulay  1 concurrence with what had been said.  2 Roycraft at the end of the meetings brought up an  3 incident involving the Gitanmaax Chiefs, as he called  4 them-- described them, not one, but Chiefs, preventing  5 some Indian from -- and he named them, from cutting  6 wood in the forest.  And he told these Chiefs that  7 they must never do that again.  They are not to  8 regulate that.  9 The session ended with remarks by a Hazelton  10 Indian, who was not one of the Chiefs, observing that  11 the first white man that he had seen was Hankin who  12 was liked and respected by the Indians but since  13 Hankin's death other whites, particularly the Hudson's  14 Bay Company traders, had offered them violence and  15 treated them in contempt.  He added that when the  16 Indians retaliated the white men wrote to the  17 government requesting that the "wicked savages" be  18 punished.  He observed that the government must make  19 white men observe the law and he was glad that  20 Magistrate Fitzstubbs had promised to protect them  21 against the Hudson's Bay Company.  That's a summary of  22 the shorthand account of the proceedings and, in my  23 submissions, when I get through these books, I will  24 refer to that again.  25 Margaret Hankin wrote -- she was the widow of Tom  26 Hankin.  She wrote that she knew every Chief at the  27 meeting.  She confirmed the suspicions that had arisen  28 about the origin of the measle epidemic, and she  29 mentioned that Gytem Galdoo regretted the secret  30 meetings that he had held at his house.  31 Now, Roycraft and most of his constables left, but  32 Fitzstubbs and two of them stayed behind.  And on  33 August 18, ten days after this meeting, the Attorney  34 General issued further instructions.  A jail was to be  35 built, two constables were to be kept at Hazelton so  36 long as needed, and then a payment of a reward and the  37 authorization to offer a reward for the capture of the  38 Kisgegas murderers.  I mention this only because it  39 has been referred to by the Appellants in one of their  40 witness, particularly.  The Attorney General asked  41 Fitzstubbs to advise on whether it would be  42 appropriate to extend douceur, as it's described, of  43 $100 to the widow of Kitwancool Jim and Fitzstubbs  44 wrote back saying, and I am quoting here:  45  46 "As there is no evidence of her having done more  47 than any bereaved woman would have done under the 1772  Submissions by Mr. Macaulay  1 circumstances, given loose to her tongue, I placed  2 her under the protection of the Chief of her own  3 people making him accountable for her safety.  By  4 all means give her something...$100."  5  6 He also described her plight.  She had been turned out  7 of her house and village.  8 After that, Fitzstubbs was the only senior officer  9 present and he went around visiting the tribes.  I am  10 at paragraph 106 now.  He visited Kitwangak and  11 Kitseguecla and Kispiox, and he spoke to the members  12 of the village and he told in each case his audience  13 that the law must be obeyed.  That appears to have  14 been accepted at Kitwangak and Kitseguecla, but at  15 Hazelton he learned that residents of the "upper  16 villages", and that presumably means the ones who  17 hadn't attended the main meeting, these would be  18 Kuldoe and Kisgegas, had gathered and resolved that  19 they would not recognize the authority of the  2 0 government and that only Indian law should apply.  And  21 at Kispiox, villagers contended that they would  22 acknowledge their law only.  He warned the Kispiox  23 assembly that the government would enforce the law no  24 matter what their attitude was.  25 After the Kispiox meeting a special constable  26 arrested a Kisgegas Indian who was accused of one of  27 the murders committed at Kisgegas.  He had come to  28 Kispiox to attend a feast and that's where he was  29 found.  There was a violent demonstration by many  30 Kispiox residents but the special constable, Big Louie  31 was his name, he was an Indian special constable,  32 succeeded in getting away.  33 Another issue that came up then was the legality  34 of the feast.  It was a Yook as it was called.  That  35 was a kind of feast, a species of feast called a Yook,  36 a major feast.  The Kitwangak Chiefs said they  37 wouldn't accept office -- couldn't accept office as  38 constables because they weren't willing to give up  39 that practice.  And Fitzstubbs described it as the  40 basis of their social system.  At Kitseguecla,  41 Fitzstubbs agreed to let the law sleep for the winter.  42 And the Chiefs accepted them the badge of constable,  43 reserving the right to resign when the surveyors  44 arrived so that they could properly represent their  45 village's interests in that connection.  At  46 Kitseguecla, the Chiefs also spoke about their land  47 and fishing rights and they feared entrapment into 1773  Submissions by Mr. Macaulay  1 surrendering these rights.  2 Fitzstubbs continued to administer justice despite  3 missionary and other opposition.  His officers went as  4 far as Bear Lake and Kisgegas.  And he reported that  5 the Indians viewed the ascendency of the law with  6 jealousy and dislike.  And then he described the  7 Methodists' "baleful teaching", those are his words,  8 and he says that they had objectives other than  9 religious and that they had, the missionaries,  10 appeared to "desire to fan a race antipathy into a  11 race hatred".  Fitzstubbs reported that these  12 missionaries were telling the Indians that the  13 government would deal with them unfairly and harshly  14 with regards their lands.  15 But after 1888, there was no -- there wasn't a  16 homicide involving a Gitksan or a Wet'suwet'en for 18  17 years, when the Gunanoot incident occurred or Mr.  18 Gunanoot was acquitted, so was his accomplice.  But it  19 was a first homicide for 18 years in the claim area.  20 I am turning now to another question, and I should  21 mention, because it may occur to your lordships that I  22 am going into excessive detail, but this is necessary  23 in this case.  The role that the missionaries played  24 in the -- starting in the claim area in 1884, they had  25 been there, a few of them, a very few, had been there  26 before that.  But they played a very significant role  27 in secular affairs starting in the early 1880s and we  28 have to go slightly outside the claim area to see  29 where the origins of that arose.  When I say slightly  30 outside, down to the mouth of the Skeena.  31 Tomlinson, who spent the latter part of his life  32 in the claim area from 1887 to 1913 when he died, was  33 associated, he was a lay member of the Church  34 Missionary Society, an Anglican society, and he had  35 been in various places since 1868, along the coast,  36 and in the claim area.  And he was a very close friend  37 and follower of William Duncan, the famous missionary  38 of Metlakatla.  Tomlinson was described as his then  39 bishop, Bishop Hills, as full of Irish fanaticism.  40 For sectarian reasons within the Anglican church he  41 refused to be ordained by the bishop having come down  42 from Metlakatla for that purpose.  And in this he was  43 supported by Duncan.  44 Now, in 1876 Lord Dufferin had made a famous -- he  45 visited Duncan in Metlakatla and he made a famous  46 speech in Victoria in which to the horror of the  47 provincial authorities he raised the question of 1774  Submissions by Mr. Macaulay  1 aboriginal rights and treaties.  We don't know whether  2 or not he mentioned that at Metlakatla but we know he  3 was there and there is an account of his visit.  4 Duncan had taken no interest in the subject of  5 aboriginal rights or land claims, the land question.  6 In fact, he advocated and he wrote to the government  7 on this, on more than one occasion, settling Indians  8 on very large reserves, taking no account of what he  9 called tribal divisions and his idea was that the  10 Indian agent would move to the centre of the reserve  11 and the Indians would be encouraged to establish a new  12 town where the Indian agent had settled.  And Indians  13 were not to be allowed to live at the edges of the  14 reserve, because they would be -- then they would be  15 close to Europeans and that would be a bad thing for  16 them.  That was his idea.  17 He got into a quarrel with the bishop, this is  18 another bishop, Bishop Ridley, who had been actually  19 sent up to live there, and Ridley, Bishop Ridley,  20 settled at Mission Point on the Metlakatla  21 establishment, and immediately got into a very serious  22 quarrel about ecclesiastical or liturgical matters  23 with Duncan and Tomlinson.  24 Duncan's instrument for governing his Indians, and  25 this is relevant for what happened later, was a  26 council, and the Metlakatla Council purported to make  27 laws, and whoever didn't agree with those laws was to  28 be expelled, physically expelled.  Here he had a  29 bishop on his hands who didn't agree with his -- the  30 way things were run in Metlakatla, and there followed  31 violence.  Their buildings were torn down on the  32 two-acre reserve, not an Indian reserve, but a Church  33 Missionary Society reserve which had been set up by  34 Sir James Douglas many years earlier in the early  35 1870s -- in the '60s, at Duncan's request.  36 Eventually the dispute focused on -- and I am at  37 114, on Duncan and Bishop Ridley's rival claims to  38 occupy these buildings on the two-acre Church  39 Missionary Reserve, and Duncan supporters outnumbered  40 the others ten to one and according to Duncan the  41 council, his council, must prevail.  42 And a legal argument was presented in 1883 to  43 support that idea and it was to this effect, and this  44 was brand new and it was contrary to anything Duncan  45 had written and he had written a lot before.  It was  46 to the effect that Tsimshean had title to this land  47 from time immemorial and that any government grant of 1775  Submissions by Mr. Macaulay  1 the right to occupy the missionary reserve was subject  2 to their consent.  Since the vast majority of the  3 Metlakatla Tsimshean community did not consent to the  4 occupation of the missionary reserve by Bishop Ridley,  5 he hadn't any right to stay.  The only clear  6 articulation of this argument for the Duncanites at a  7 Royal Commission called the Metlakatla Inquiry to set  8 up -- to sort out these problems was made by  9 Tomlinson, although Duncan himself gave some evidence.  10 Tomlinson had adopted, before 1884, as a  11 fundamental principle that the Indians had title  12 granted by God and they had the exclusive right to  13 occupy and use traditional hunting grounds, and he  14 drew up a petition by -- on which the Appellants rely  15 for the Chiefs of Kitwangak in October 1884 to that  16 effect.  17 Now, if I could just turn to the -- I am at 116.  18 Turn to Tomlinson's long letter in which he purports  19 to quote Chiefs speaking, the bottom page 1 actually  20 he says:  21  22 "He spoke as follows:"  23  24 This is one of the unidentified Chiefs:  25  26 "The exclusive right we claim to hunt, fish, or  27 gather fruit in any particular place is a  28 hereditary right enjoyed by us before the white  29 man came among us.  It is a right most rigorously  30 upheld by all our tribes, without exception.  Our  31 hunting and fruit-gathering are the principal  32 source of our livelihood.  Do away with them and  33 we are at the mercy of the white man.  We are  34 prepared to maintain them in our own way, or we  35 are willing for the Government to maintain them  36 for us by law, but we will not permit them to be  37 interfered with."  38  39 And then there's a reference to:  40  41 "If Mr. O'Reilly..."  42  43 That's the Indian Reserve Commissioner:  44  45 "...or anyone, comes to mark out reserves here  46 while we are absent at our fishing or hunting, we  47 will know the Government wants to wrong us; else 1776  Submissions by Mr. Macaulay  1 why not wait till we are at our village.  If he,  2 or anyone, comes while we are here, we will ask  3 him - Will the Government maintain our exclusive  4 hunting, fishing, and fruit-gathering rights?  If  5 not, we will not have any reserves marked, nor  6 will we permit any Commissioner or Agent to reside  7 among us."  8  9 And that's a quotation that Tomlinson wrote in a  10 letter he addressed to the government, but later in  11 the year, that's in early 1884, later in the year he  12 drew up a petition and that's part of the exhibit too,  13 and he says in the petition -- the petition says:  14  15 "From time immemorial the limits of the district in  16 which our hunting grounds have been well  17 defined.  This district extends from a rocky  18 point, called 'Andemane'..."  19  20 later called Andimahl:  21  22 "...some two and a half or three miles above our  23 village on the Skeena River to a creek called  24 'She-quin-khaat', which empties into the Skeena  25 about two miles below Lome Creek.  We claim the  26 ground on both sides of the river, as well as the  27 river within these limits; and as all our hunting,  28 fruit-gathering and fishing operations are carried  29 on in this district, we can truly say we are  30 occupying it."  31  32 Something further was added.  They go on to say:  33  34 "Now we bring the matter before you, and  35 respectfully call upon you to prevent the inroads  36 of any white men upon the lands within the  37 fore-named district."  38  39 And also:  40  41 "We hold these lands by the best of all titles.  We  42 have received them as the gift of the God of  43 Heaven to our forefathers, and we believe that we  44 cannot be deprived of them by anything short of  45 direct injustice."  46  47 But finally they say: 1777  Submissions by Mr. Macaulay  1  2 "Please tell us distinctly whether or not you are  3 prepared to preserve the district we claim from  4 the inroads of the whites, and will keep all white  5 men off it."  6  7 I should just add here, there had been trouble at  8 Lome Creek where there had been a mining strike in  9 1883 and quite a lot of miners were there in 1884 and  10 1885.  11 HUTCHEON, J.A.:  What do you say about this?  The trial judge, I  12 have forgotten his exact words, but he said there was  13 really no claim ever made by the Indian people for the  14 land.  And does he ever mention this petition or does  15 he cast any doubt about it?  16 MR. MACAULAY:  I will have to look at the Reasons.  I submitted  17 at trial that that was the missionary and --  18 HUTCHEON, J.A.:  That the chiefs were not speaking?  19 MR. MACAULAY:  Not the Chiefs particularly, as we will see as we  20 go along.  21 HUTCHEON, J.A.:  Okay.  22 MR. MACAULAY:  After some violence at Metlakatla there was a  23 Royal Commission and Tomlinson and one of his  24 followers, Edward Stuart, gave evidence.  In fact,  25 Tomlinson was their spokesman or counsel of the  26 Metlakatla Indians, that is, the Tsimshean.  The  27 Commissioners concluded that the land claims question  28 had originated with Lord Dufferin's speech in 1876 and  29 was given impetus by Duncan's quarrel with the bishop  30 after hearing a great deal of evidence.  31 Now, Duncan had met with the Gitksan as early as  32 1869 and Tomlinson had travelled of course to Gitksan  33 country starting in 1871 and '73, so they were well  34 known.  35 And Tomlinson had followers in Kitwangak,  36 particularly Edward Stuart, and he established a  37 little holy city there on the Metlakatla model about  38 around six miles away.  The same year Duncan took all  39 his followers to Alaska, withdrew and took all his  40 followers to Alaska where they still are.  41 At the inquiry C.W.D. Clifford gave evidence that  42 Tomlinson and others had organized resistance to  43 reserve allocation, and that he had told the Indians  44 that they owned all the land; that white men were  45 coming among to rob them of the land; that in the rest  4 6 of Canada the government bought the land from the  47 Indians, where the Gitksan country the government paid 1778  Submissions by Mr. Macaulay  1 nothing and the government was a thief.  2 Tomlinson -- Clifford said Tomlinson had also --  3 also had gone to Hazelton at the time of the Youmans  4 incident and told the Indians there that the killing  5 of Youmans was justified under Indian law; the law of  6 the white men -- that the white men should respect  7 that law, and that the Indians had the right to arrest  8 white men who disobeyed Indian wishes or laws, but he  9 had sympathy with those Indians who wanted to drive  10 white men out of the country.  11 Now, Tomlinson was there when that evidence was  12 given and he gave evidence himself.  And he quarrelled  13 with some evidence of Clifford's about another issue  14 but not that issue, those matters, so they can be  15 taken as being true.  16 And now we come to the Kitwangak thing, my lords.  17 Graham, who was the Justice of the Peace at Lome  18 Creek near enough to Kitwangak, wrote to the  19 Provincial Secretary and he reported this:  The  20 Kitwangak Chief, Caulk, Caulk was the -- then the  21 principal or head Chief of Kitwangak, told me that it  22 was Mr. Tomlinson and Mr. Duncan that were making  23 trouble among them.  A letter that had come from  24 Metlakatla stating that the Government wanted to take  25 their lands from them and the bishop was the same as  2 6 the government.  27 In fact, I am at 125, and we will come back to  28 what Caulk had to say.  In fact, the letter read -- of  29 course the Chiefs couldn't read it.  The relevant  30 portion of the letter in question that was delivered  31 around to the various villages by Tomlinson's  32 teachers, as I think he called them, he said:  33  34 "Though I cannot see you this autumn I am working  35 for you with the government not to let white men  36 take your hunting and berry grounds."  37  38 He was then making representations to the dominion  39 government about the protection of Indian land rights  40 with particular reference to Lome Creek, and the  41 danger of an Indian war if that weren't properly  42 handled.  43 Tomlinson told Edward Stuart, that is of  44 Kitwangak, not to allow white men to land at the  45 village and that if they stuck to their rights and  46 prevented surveys the government would yield, and took  47 the position that the land he settled on belonged to 1779  Submissions by Mr. Macaulay  1 the Indians and that he would pay them, not the  2 government.  3 Now, I refer in that connection to a letter from a  4 missionary named Stephenson.  Stephenson was a Church  5 Missionary Society member.  He was not disaffected; he  6 was not a Duncanite, and when he arrived at Kitwangak  7 he had some trouble.  Now, he described the procedure  8 adopted by the Duncanites that repeats a lot of the  9 features of the Metlakatla campaign.  There was a  10 council, the exclusion of non-conforming people, the  11 threats of violence, extreme hostility to the bishop,  12 the Church Missionary Society, to the government and  13 to surveyors, and all that is rehearsed in  14 Stephenson's letter to Dr. Vowell who was then the  15 Indian Superintendent for the dominion government.  At  16 page 2 of his letter he makes an interesting comment.  17 He says:  18  19 "At any rate he said things..."  20  21 that's Edward Stuart:  22  23 "...which he affirmed to Messrs. Duncan and  24 Tomlinson had told him which had he known I  25 understood all he had said I am sure it would not  26 have been uttered in my hearing."  27  28 There was one confirming what I showed you in a letter  29 in Victoria.  30  31 "Mr. Tomlinson had told him on no account to let a  32 C.M.S. man to land, let alone stay in Kitwangak,  33 and if white men came, to prevent them from  34 landing."  35  36 In his letter to the Provincial Government in  37 February 1884, I have already read how he articulated  38 the, in effect, the Metlakatla formula and applied it  39 to the Gitksan.  That's his letter, the portion  40 starting with the words "from time immemorial".  In  41 that letter, Tomlinson cites the legal decisions and  42 earlier government policy concerning the application  43 of Indian law and he contrasted that with an opinion  44 given by O'Reilly, the Indian Reserve Commissioner, in  45 1882, but the government would not acknowledge any  46 right to the exclusive use of land as a hunting  47 ground.  And obviously Tomlinson was of a legalistic 1780  Submissions by Mr. Macaulay  1 or legal term of mind, to have legal interest.  2 I have already quoted what I refer to in paragraph  3 129, the verbatim speech of a Kitwangak Chief.  And  4 it's quite evident from the text of the letters and  5 petition that he attended meetings in Kitwangak of  6 some Kitwangak people prior to the date the letters  7 bear.  8 At 131, I refer to the petition again.  Andimane,  9 Andimahl to Chig-in-Kaht.  10 But at 132, in his representations to the Federal  11 Government in 1885, he had stopped dealing with the  12 Provincial Government, about Lome Creek.  Tomlinson  13 explained some aspects of the situation in Gitksan  14 country which don't quite dove-tail what he was saying  15 in his petition and his earlier letters.  In this  16 letter, he says:  17  18 "The Indians maintained their old tribal and family  19 rights and regulations.  By these rules, while  2 0                much of the country was open for anyone to hunt  21 or fish upon at will without distinction of  22 tribe or family, every family held a distinct  23 right to a particular tract of land with well  24 defined limits.  The right in these lands was  25 hereditary and any trespass upon it even members  26 of the same tribe is resented and resisted.  These  27 tracts were held, some for hunting, some for the  28 wild berries of which great quantities are  29 prepared for winter use, besides those consumed  30 during the season, and some for fishing stations."  31  32 Now, that describes something very different from  33 what they -- what is described in his petition, the  34 Kitwangak petition of October 1884, and what is  35 described by the Appellants today.  And what he  36 describes there is a reflection of what we saw in the  37 Hudson Bay records; that is, individual hunting  38 grounds owned by particular families here and there in  39 their general areas.  And Tomlinson, of all people,  40 would be extremely -- would be the least inclined to  41 soft pedal or minimize the Indians' claims.  42 But late events, which we will come to in a  43 minute, before the Indian Reserve Commissioner in 1891  44 does not surprisingly echo -- more than echo  45 Tomlinson's formulation of claims.  By this time,  46 there are a very large number of missionaries in the  47 villages.  It wasn't only Tomlinson, the former Church 1781  Submissions by Mr. Macaulay  1 Missionary Society man, but also the Methodist  2 missionaries of which there were a considerable number  3 in the late 1880s, who were saying some extremely  4 sharp things about the government and the law, some of  5 which is reported.  What they were saying was  6 collected by Fitzstubbs.  I mentioned that Fitzstubbs  7 had reported baleful teaching, and he describes it  8 this way:  9  10 "By baleful teaching I mean the lessons of this  11 loyalty and discontent inculcated by the Methodist  12 teachers chiefly native on the river who seem to  13 furnish a mission other than religious and a  14 desire to fan a race antipathy into a race  15 hatred."  16  17 He provided the government with statements by  18 people who attended some of these meetings, which  19 includes some pretty ferocious attacks on -- well, on  2 0 the European population and on the government.  And  21 there at that tab, and also at tab 135.  22 The Indians were urged to have nothing to do with  23 the white population and Native constables were told  24 they should resign their positions.  The villagers  25 were told to expect very hard treatment from the  26 government in connection with their lands.  And that's  27 in the -- before Mr. O'Reilly arrived, the Indian Land  28 Claim -- Indian Reserve Commissioner.  29 I am turning to tab 5 now, my lords.  Before I  30 turn to tab 5, I will find the citation at the  31 adjournment but Chief Caulk of Kitwangak told -- and I  32 believe it was Magistrate Graham that two out of three  33 Indians of Kitwangak had never heard of the petition.  34 HUTCHEON, J.A. :  Never heard of what?  35 MR. MACAULAY:  Of the petition, the Kitwanga petition.  36 HUTCHEON, J.A.:  Oh, I see.  37 MR. MACAULAY:  And it was clear from what the Chief was saying  38 that he hadn't heard of it.  No, two out of three  39 people.  I will find the reference.  It's in the tabs,  4 0 my lords.  41 And those were the circumstances in which the  42 Indian reserves were allocated.  Loring -- and we will  43 come back to Loring in a series of reports, but he was  44 the Indian agent all through the whole reserve  45 creation process.  46 In 1890, when he went to Kisgegas for the first  47 time, he reported that -- and I will use his words: 1782  Submissions by Mr. Macaulay  1  2 "Rumours have been spread broadcast, through all  3 the villages so far visited by me, that a  4 Govmt. Official is to arrive soon, to have a look  5 over their land and that the most desirable  6 portion of it, is to be staked off and taken from  7 them."  8  9 And he said he took opportunities to try to straighten  10 that out.  And then he says:  11  12 "As I was reported to be a collaborator to the  13 supposed scheme, I heard of nothing but  14 obstructions as to my getting to Kiss-ge-gaas,  15 even as to the use of the suspension bridge across  16 the Babine River."  17  18 In reaching Kisgegas you had to go over one of these  19 amazing bridges the Indians had built across the  20 various rivers.  Cantilever bridges without nails  21 and --  22 LAMBERT, J.A. :  Cantilever or suspension?  23 MR. MACAULAY:  Well, they are described at several places.  They  24 weren't suspended from anything.  25 LAMBERT, J.A.:  No.  I see they were built up underneath, that's  26 all.  27 MR. MACAULAY:  And considerable distances too.  Now, they — in  28 the later versions of them abandoned telegraph wire  29 was used, but in the earlier ones, they had managed to  30 balance logs over a very wide span, something like 60  31 feet.  32 LAMBERT, J.A.:  One that the missionary —  33 MR. MACAULAY:  Lejacq.  34 LAMBERT, J.A.:  -- crossed over, he describes it as a suspension  35 bridge, I believe.  36 MR. MACAULAY:  That's the word he uses, but I don't think  37 that -- I think they were even more -- they were --  38 they weren't supported or anything.  There were no  39 piers and there was obviously no -- nothing -- there  40 was no sky hook to suspend them from.  But in the  41 historical records, there are some accurate  42 descriptions of the purely aboriginal ones where they  43 didn't have telegraph wire, and they were projected  44 from both sides out over the interval and met, and  45 apparently they also swayed dangerously -- well, not  46 dangerously but from side to side.  I don't know why  47 that was. 1783  Submissions by Mr. Macaulay  1 LAMBERT, J.A.:  That makes them sound like suspension, rather  2 than cantilever.  3 MR. MACAULAY:  Yes, but what were they suspended from?  4 LAMBERT, J.A.:  Well, I presume the banks weren't continually  5 going up over the place where they built the bridge.  6 MACFARLANE, J.A.:  So they hung down from each side.  7 MR. MACAULAY:  It is described as an engineering feat of the  8 first order.  Perhaps I should read my text again and  9 see whether they were suspension or cantilever.  10 LAMBERT, J.A.:  In either case, I am sure it demonstrates an  11 organized society.  12 MR. MACAULAY:  Oh, yes.  Yes.  And varying from place to place.  13 They had very strong village-based societies.  Some of  14 them not so strong as others.  15 LAMBERT, J.A.:  These are for travel, though, quite long  16 distances; not in and around the village.  17 MR. MACAULAY:  These were all near or at a village.  The one I  18 speak of is immediately south of Kisgegas.  There was  19 another one at Hagwilget which Lejacq refers to.  20 There was another one at Hottsett or Moricetown.  21 Those are the three that I recall and there may have  22 been others, I don't know, of a bridge away from a  23 village.  24 At any rate, in 1891, Mr. O'Reilly, who by then  25 was the sole joint Indian Reserve Commissioner.  By  26 joint, I mean he was the officer of both the Federal  27 and Provincial Governments or with commissions from  28 both governments.  He allotted reserves for most of  29 the villages, not the northern ones.  It was thought  30 then and rightly thought then that no danger of any  31 settlement, Kuldoe and Kisgegas and there never has  32 been, that I know of.  The reception he had is phrased  33 by him in this way:  34  35 "I was well received by the Indians with the  36 exception of one band, expressed their  37 satisfaction at the prospect of having lands  38 defined for them; stimulated by the report of the  39 probability of a railway being constructed down  40 the valley of the Skeena, they urged me to have  41 their lands surveyed without delay.  This I  42 promised should be done."  43  44 In fact, it wasn't until 1910 or '11 that construction  45 began in the railway.  46 I see it's 12:30.  47 TAGGART, J.A.:  All right.  We will adjourn now until two. 1784  Submissions by Mr. Macaulay  1  2  THE REGISTRAR:  Order in court.  Court stands adjourned.  3  4 (NOON RECESS)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings transcribed to  9 the best of my skill and ability.  10  11  12  13  14  15 Tannis DeFoe,  16 Official Reporter,  17 UNITED REPORTING SERVICE LTD.  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 1785  Submissions by Mr. Macaulay  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 TAGGART, J.A.:  Yes, Mr. Macaulay.  4  5 SUBMISSIONS BY MR. MACAULAY:  6  7 MR. MACAULAY:  My lords, I have to refer back to tab 124 because  8 of something I said that wasn't quite accurate, and I  9 should correct it.  10 TAGGART, J.A.:  Number four?  11 MR. MACAULAY:  Volume four, tab 124.  It won't take very long  12 but I think you ought to have the letter itself, the  13 magistrate's letter, in front of you.  It's a letter  14 from Allan Graham, they call him the magistrate, the  15 Justice of the Peace and Gold Commissioner at Lome  16 Creek, to the provincial secretary.  17 TAGGART, J.A.:  The date of it?  18 MR. MACAULAY:  11th of February, 1886.  19 TAGGART, J.A.:  That's the first one in from —  20 MR. MACAULAY:  Yes.  There is only one, what I have done is I  21 have interleaved the transcriptions with each page of  22 the letter.  23 The letter is not that very hard to read but it's  24 easier reading the transcripts.  I drew your  25 lordships' attention to the bottom of page one, and  26 read out the report that "the Kitwingack chief,  27 'Caulk' told me that..."  that's Mr. Graham, "...that  28 it was Mr. Tomlinson and Mr. Duncan that were making  2 9 trouble among them, a letter that had come from  30 Metlakahtla stating that the government wanted to take  31 their lands from them and that the bishop was the same  32 as the government."  33 And then I went on to refer, without looking  34 closely at it, to another part of the letter, and said  35 that Chief Caulk was involved in the second statement,  36 which he wasn't, he is not mentioned.  The author of  37 the letter, at page 2 of his letter, goes on, after  38 that first excerpt I read to you, he goes and to say  39 he wanted to see this letter from Tomlinson, that had  40 been distributed around the villages, and he went up  41 to Kispiox and finally saw it, and realized what the  42 letter itself said, which was not the inflammatory  43 sort of statement that was being attributed to that  44 letter.  Then he returns to the subject of Lome  45 Creek, which is near enough to Kitwangak.  And then he  46 says, on the third page of the letter, he says, apart  47 from reporting on the weather, ice, snow, he says: 1786  Submissions by Mr. Macaulay  1  2 "The Indians are peaceable and kindly disposed  3 to the white men - many of their disputes and  4 quarrels they refer to the government to  5 settle - I have seen a copy of a letter written  6 by Mr. Tomlinson and stated to be the desire of  7 the Kitwingack people, but two or three of the  8 Kitwingack people know anything about it."  9  10 He clearly means there's only two or three of the  11 Kitwingack people know anything about it.  12  13 "I would suggest that when anything is sent to  14 the government from the Skeena District to  15 refer the parties to the resident agent where  16 the matter can be investigated."  17  18 What he was saying is, I have seen a letter about  19 Kitwangak purporting to be on behalf of the Kitwangak  20 people, by Tomlinson, but nobody here, except two or  21 three, knows anything about it.  And it's not Chief  22 Caulk who is saying that, this is -- he is there and  23 he is talking presumably to many people, and that's  24 what he is being told.  So it wasn't Chief Caulk, we  25 don't know if Chief Caulk was one of the two or three  26 who knew about the letter or not.  And the letter --  27 in fact, there are two letters, and they are at tab  28 127, along with the famous petition.  The first letter  29 is February, 1884, and I read you portions from that,  30 the bottom of the first page.  31 WALLACE, J.A.:  What tab?  32 MR. MACAULAY:  This is 127.  33 WALLACE, J.A.:  127.  All right.  34 MR. MACAULAY:  This is where the full Metlakatla formula was  35 adopted.  And he writes in February, and he purports  36 to quote a chief unnamed, quoting verbatim.  Then in  37 October, if you will turn in the same exhibit, October  38 20th he writes another letter, and this time he  39 encloses the petition and it's one of those two  40 letters, clearly, that Graham is talking about saying,  41 there are only two or three people here who know  42 anything about it.  43 Now, my lord Mr. Justice Hutcheon asked me if the  44 Chief Justice had ever referred to that petition in  45 the judgment.  And it's referred, not only referred to  46 but quoted at page 307 of the judgment.  47 HUTCHEON, J.A.:  Thank you. 1787  Submissions by Mr. Macaulay  1 MR. MACAULAY:  And you know that passage I read from time  2 immemorial the limits of the district, et cetera, he  3 quotes that passage.  4 WALLACE, J.A.:  I am sorry, page?  5 MR. MACAULAY:  Of the petition.  6 WALLACE, J.A.:  307 of the reasons?  7 MR. MACAULAY:  Of the reasons.  What Graham is saying is this is  8 Tomlinson, not the Kitwankgak.  9 I am turning back now, my lords, to the 5th volume,  10 that volume covers paragraphs 136 to 171.  And it had  11 to do with the Indian reserves.  I had dealt with -- I  12 had come up to tab -- I was at tab 138, that is  13 paragraph 138.  This is a letter to Vankoughnet, who  14 was a senior official in the Indian Affairs Department  15 in Victoria, and he -- O'Reilly is writing to him  16 about the Gitksan-Wet'suwet'en reaction in general to  17 the allotment of the reserves.  It's after he has  18 finished his 1891 work.  And he sums it up by saying:  19  20 "While a few of the Indians objected to reserves  21 being made at all on the ground that the whole  22 country was virtually theirs, by far the  23 greatest number appear glad that the land  24 question was about to be finally settled and  25 expressed themselves well satisfied with the  26 extent of the reserves I defined for them."  27  28  29 The one band, at 139 I deal with the one band that  30 certainly didn't express any satisfaction.  The whole  31 report is transcribed, the whole report.  The main  32 part of the report, the part dealing with Kispiox is  33 transcribed.  And he points out that the demand was a  34 tract of land 35 miles long following the Kispiox  35 River and including the mountain ranges on either  36 side.  He reports the Chief Kail, that is to say Geel,  37 the ancestor -- the predecessor, I should say, of  38 Chief Geel, one of the plaintiffs, appellants, he  39 reports Chief Kail would have been satisfied but that  40 the -- when he set out to do his work he was met by a  41 large congregation of the residents of Kispiox, who as  42 he said protested in an excited manner, they didn't  43 wish to have any reserves made for them, that the  44 country was theirs, that no one could give them what  45 already belonged to them, that -- and I am using his  46 words now, "And a great deal more to the same effect  47 using for the most part the arguments that have so 1788  Submissions by Mr. Macaulay  1 frequently been put forward at Metlakatla and other  2 places on the coast."  3 At paragraph 140 I refer to -- specifically to what  4 went on the Gitwangak, this is in 1891, and he,  5 O'Reilly that is, says he regrets very few of the  6 Indians were present, that he held a meeting of the  7 few who remained and that Sha nauts identified himself  8 as a deputy of the chiefs to speak for them, and they  9 wanted a place from Andemaul, in effect from Andemaul  10 to Chig in kaht.  Chig in kaht isn't mentioned but the  11 point 30 miles below you would reach Chig in kaht.  12 And that's the -- that conforms with the statement of  13 Tomlinson's in 1884.  14 In paragraph 141, I set out the notes of the  15 meeting.  What the commissioner was in the habit of  16 doing is making quick and sometimes illegible notes of  17 the actual meetings, identifying the speaker where --  18 in most cases, and Sha nauts is recorded as saying:  19  20 "I must tell you I am a man of many years and  21 this village has been forming laws all along.  22 These are the words the chiefs left with me,  23 they want a place Andamaul about five miles  24 from here up the river.  It is only enough for  25 half a man ever since the beginning of the  26 tribe we have got our fish, timber and potatoes  27 from the land owned by Kawk.  There is a large  28 fishery below Lome Creek, about 30 miles away.  29 We shall be a happy tribe of people if we can  30 get all between these two points.  We want to  31 know why missionaries come to live among us.  32 We suppose it was to do us good.  We cannot see  33 why our reserve commissioner should also come  34 to do us good."  35  36 In the case of the potatoes, it may be doubted  37 whether they were grown there from the beginning of  38 time.  Harmon claims the honour of having planted the  39 first potatoes west of the Cascades in 1811.  40 On the next page, a woman says, amongst other  41 things, and that's the middle paragraph of the page,  42 says:  43  44 "I wish the chief had left us discretion to act  45 in case you could not give us all we asked for.  46 But they did not.  So we cannot alter their  47 decision.  I would like to show you our 1789  Submissions by Mr. Macaulay  1 fishery..."  2 And she names the place,  3  4 "...but I have a growing child and cannot go.  5 We have also a hunting ground below Lome Creek  6 on a large creek.  The reason the people seem  7 so unreasonable is that rumours have been  8 spread that the Indians will only be allowed to  9 remain on the reserve for a few years and they  10 will then be driven off and the land taken by a  11 white."  12  13 And the woman says that:  14  15 "Further, we have always been told by the coast  16 Indians that the reserves were only given  17 temporarily."  18  19 And when asked where this information came from,  2 0 the woman replies:  21  22 "I cannot say who told me, but I heard it at  23 Metlakatla where we had a council during Mr.  2 4 Duncan time."  25  26 Those are the only portions of his extensive notes  27 which I wanted to draw to your attention about that  28 meeting.  29 At 142 I mention something that happened two years  30 later, Edward Stuart, you will recall he was the man  31 who Reverend Stevenson had to deal with, who was not  32 allowed to land at Kitwanga, and Lome wrote him  33 saying:  34  35 "I am putting to you a direct question whether  36 you were the means of circulating the following  37 misrepresentation or not, to wit:  It has been  38 reported to me and in two cases substantiated  39 by two men of Kit-wan-gah, that you have been  40 circulating and preaching to the people of the  41 village named, that in getting their land as a  42 reserve is merely a means by the government to  43 mislead, rob and cheat them when convenient.  44 Also that you compared the getting of a reserve  45 by the government as like a loan, and to a coat  46 loaned by one man to another, subject to return  4 7 on demand." 1790  Submissions by Mr. Macaulay  1  2 Stuart was the resident then of minskinisht, which  3 was Tomlinson's holy city.  4 At paragraph 143 he, O'Reilly deals with the  5 Gitanmaax, and he asserts that the band expressed the  6 utmost satisfaction at the prospect of having their  7 lands defined and they were reasonable in their  8 demands.  But Kitseguecla, Moricetown and Hagwilget  9 bands, O'Reilly reports no objections, and there is no  10 evidence that these bands opposed the alottment of  11 reserves, and the implication that non-reserved land  12 would be alienated to whites.  13 O'Reilly does record that he told the Kitsequecla,  14 and he told the other bands too, that "you will not be  15 confined to the reserves, that you can hunt, fish and  16 gather berries where you will as heretofore."  I  17 believe that was said to every band and that was one  18 of the bases, or the basis on which the Chief Justice  19 got into the matter of obligation, a fiduciary  20 obligation, that he found in favour of the appellants.  21 LAMBERT, J.A.:  Whose words are those, "...and the concomitant  22 implication that the non-reserved lands would be  23 alienated to whites"?  24 MR. MACAULAY:  Those are mine.  25 LAMBERT, J.A.:  Those are yours.  26 MR. MACAULAY:  Well, when he went around he said from place to  27 place, and I can go back and find the references, we  28 are here to reserve you land in advance of white  29 settlement, and that that's the purpose of the  30 exercise.  I will see if I can find that.  31 Going back to paragraph 141 as an example, where  32 he says at Kitwangak, he says in the first paragraph  33 that I have transcribed, "Until the reserves are laid  34 out the government has refused to grant pre-emptions  35 to..."  36 LAMBERT, J.A.:  I am sorry, I am at tab 141, can you direct me  37 from there to where?  38 MR. MACAULAY:  The very first paragraph of O'Reilly's  39 handwritten notes.  40 LAMBERT, J.A.:  You didn't start at the beginning.  I lost you.  41 MR. MACAULAY:  No.  42 LAMBERT, J.A.:  "After reserves are made the lands outside will  43 be thrown open to settlers."  44 MR. MACAULAY:  I started reading the previous sentence, "until  45 the reserves are laid out the government has refused  46 to grant pre-emptions to white men.  After the  47 reserves are made the land outside will be thrown open 1791  Submissions by Mr. Macaulay  1 to settlers."  And the same thing appears at Kispiox,  2 we know that, the same statement.  3 LAMBERT, J.A.:  So it's not an implication, as you suggest, a  4 concomitant implication, not in that case, O'Reilly  5 says in his handwritten notes that he expressed this  6 to the Indians.  7 MR. MACAULAY:  Yes.  At Kispiox, 139, there is the transcription  8 of his account of what he said at Kispiox.  At the  9 bottom of the first page he says:  10  11 "At the request of the chief I proceeded to lay  12 out the village reserve, and while doing so,  13 some of the most turbulent attempted to snatch  14 from Mr. Green..."  15  16 That was his surveyor,  17  18 "...his pencil, notebook and compass, and in  19 other ways obstruct him while in the execution  20 of the duty.  At this time, the excitement  21 reached its height, and as I had obtained  22 sufficient information to enable me to define  23 the reserve, I decided to leave, particularly  24 as the chief feared that some serious trouble  25 might result.  Before doing so, however, I  26 explained to the Indians that if any lands  27 other than those defined by me were taken  28 possession of by white men, they would have no  29 one to blame but themselves."  30  31 He was saying the same thing but in a different  32 context.  33 MR. RUSH:  Well, in the preceding paragraph Mr. O'Reilly also  34 sets out another purpose for his task, the one prior  35 to the one my friend read.  36 MR. MACAULAY:  Yes.  Now, at tab 144, the same thing is adverted  37 to, this time at Kitseguecla.  The meeting was  38 actually held at New Kitseguecla.  For a time the  39 Kitseguecla people moved downriver a few miles to New  40 Kitseguecla and the meeting was held there.  41 In the second paragraph, he is -- this is his  42 notes, you know one of these notes where he identifies  43 one speaker or another.  As you go through that  44 particular exhibit, Exhibit 1040-107, and in the  45 second paragraph on the first page he says:  46  47 "Hitherto the provincial government have not 1792  Submissions by Mr. Macaulay  1 allowed pre-empts to be taken in the  2 neighbourhood of village thus it should  3 interfere with the right of the Indian, but  4 when the reserves are defined the prohibition  5 will no longer exist."  6  7 So he is saying that at Kitseguecla.  8 WALLACE, J.A.:  He does it in the first — tab 145 as well,  9 after the first yellow marker.  10 MR. MACAULAY:  At Gitwangak.  11 WALLACE, J.A.:  "The Indians must have land of their own, their  12 villages, fisheries, so that no one can trespass on  13 without their consent.  The laying out of reserves  14 does not interfere with your liberties."  15 MR. MACAULAY:  That's when he comes back.  We hadn't got to  16 that.  He comes back to Kitwangar, as you remember  17 hardly anyone showed up at Kitwangar in 1891.  He is  18 back there in 1893 and by this time he has the first,  19 second and third chiefs.  I think I described Kawk as  20 the Chief of Kitwangar.  He appears here as the third  21 chief behind Kin a wa and Lach neets.  22 And there was a more -- there was then -- they  23 still say, somebody identified as John Wallace said,  24 "...long ago we claimed the country between Andi maul  25 and Chig in kaht.  I am a poor speaker.  The reason we  26 want a large place is that otherwise someone would  27 have to settle outside and we are all as one family.  2 8 We want all the land between Andi maul and Chig in  2 9 kaht."  30 So they hadn't given up on that.  But after having  31 said that, they got down to business and reserves were  32 alloted.  But Kawk, at the last page of these notes,  33 repeats the request that the Indian reserve  34 commissioner place a post, one post at Andi maul and  35 the other at Chig in kaht.  36 At 146 the people of Kispiox had apparently  37 changed their minds.  They write requesting that a  38 reserve be set up.  It's signed the Chiefs of Kispiox,  39 the document itself.  There are three signatures, Kael  40 or Geel, Kloumlagha, and another name that I -- that  41 looks like Kqoinga.  They not only wrote to the deputy  42 superintendent-general of Indian Affairs, but they  43 also wrote, as the exhibits show under that heading,  44 the second one, they also wrote to Mr. Vowell, who was  45 the superintendent.  And whoever wrote for them seems  46 to have had a typewriter, which is not common on the  47 Skeena at that time.  The Indian agent didn't have 1793  Submissions by Mr. Macaulay  1 one.  2 And that second letter is also Kael, Kleumlagha  3 and Kqoinga, the chiefs of Kispiox Village.  As a  4 matter of fact, they changed their minds before 1896.  5 Oddly enough, in 1893, we will come to that, in 1893,  6 they asked Lome to come up to their winter village.  7 Mr. Grant, as I understood it, asserted there were no  8 winter villages.  Well, the evidence clearly shows  9 that there were.  And they invited -- and they are  10 well described, exactly where they were, their names  11 and what the people did there.  At this winter  12 village, called Andilghan, up the Kispiox River, about  13 30 miles up the Kispiox River, in 1893 the whole  14 village was up there and invited Lome to come up and  15 set aside a reserve and reserve their winter village.  16 There were, the last of the original reserve  17 allotments was in 1898, the gold rush caused it, and  18 in paragraph 147 I set out the general circumstances.  19 Vowell was O'Reilly's successor and he went up to  20 Kisgegas and Kuldoe to allot reserves for them.  21 At 148 Vowell reports that the allotments at  22 Kuldoe and Kisgegas and also the Kispiox, they got  23 around to dealing with Kispiox, satisfactory, the  24 proceeding was satisfactory, and there was no  25 difficulty, even at Kispiox.  26 In paragraph 149 I say that referring to the  27 Kuldoe Band, the northernmost, he reports:  "After an  28 interview with Shim-gwe-na-uk, the chief, and most of  29 his people, I defined a reserve of 455 acres with  30 which they expressed themselves as being satisfied."  31 And judging from the report, I say it seems that  32 the Kisgagas meeting went on well.  We have the rough  33 notes and -- of the Kisgagas meeting, the first  34 exhibit in tab 149.  And I mentioned earlier something  35 the second chief Way-get had to say.  He tells the  36 commissioner, Vowell, that "this is only a temporary  37 home", that is the Kisgagas, "...a new village", their  38 real home was at "Aly go sum dagh, where the bones of  39 our ancestors lie and our old homes are and we hope to  40 go back there soon, and we are glad you are going to  41 reserve it."  And the configuration of the Kisgagas  42 reserve shows it moves to and across the Skeena and  43 that would include the site of the old village that  44 had been abandoned as a result of the Nisga'a  45 depredations.  46 So it was remembered by Way-get at that time, and  47 the incident he talks about obviously took place 1794  Submissions by Mr. Macaulay  1 earlier in the 19th century, but in his lifetime.  2 I am at paragraph 150, Vowell wrote to Skinner, the  3 surveyor Skinner, in 1900 about a further adjustment  4 to the Gitwangak reserves, a piece of timberland.  Now  5 we come to the other -- the second major series of  6 reports of -- the first what I call the major series  7 was the Hudson Bay Company reports.  This is the  8 Loring series of reports.  It covers the period from  9 October of 1889 to December, 1920.  Starting in the  10 time when local government was first established in  11 the claim area, and during which the modern methods of  12 communication, first the steamboats and then roads and  13 railroads opened the Gitksan and Wet'suwet'en country  14 for settlement and the economic development.  15 There are nearly a thousand of these reports in  16 evidence.  I will only refer to a tiny fraction of  17 them.  18 WALLACE, J.A.:  Good.  19 MR. MACAULAY:  The Chief Justice, as I said, made a — many  20 references to those reports, and he drew some  21 important conclusions that are fiercely contested by  22 the appellants.  And that is why I have to refer to  23 them.  I might say that he drew conclusions on the  24 Hudson Bay reports that I felt I had to deal with for  25 the same reason.  26 Loring was appointed as a result of the events of  27 1888, I say that at paragraph 152.  And there was a  28 submission made by the provincial government to the  2 9 federal government recommending Loring, who had been  30 one of the constables on the Skeena River during the  31 earlier troubles.  He had been up there briefly.  32 Loring got to Hazelton in September, 1889 --  I am  33 now at 153 -- and he made his first report on October  34 1st.  The first meeting he had was with the Gitanmaax  35 tribe, he was using the old terminology still,  36 describing the inhabitants of the village as a tribe.  37 And the subject was the potlatch.  And he had another  38 meeting at Kispiox on the same topic.  39 The potlatch had been made unlawful, and Loring  40 doesn't appear to have been at all keen to be too  41 rigorous in interpreting that prohibition.  And in  42 that connection you should -- perhaps we should look  43 at his letter of October 12th, 1889.  That's under  44 this tab, the second of the exhibits.  If you look at  45 the original you will see why they have to be  46 transcribed.  And he has an odd syntax, Loring was  47 born in Leipzig, and carried a good deal of Leipzig to 1795  Submissions by Mr. Macaulay  1 the north with him, and the sentence structure is  2 sometimes eccentric.  But it's easy to follow his  3 meaning.  He reports first that the Gitanmaax Tribe  4 made no objection to the laws concerning the potlatch,  5 but Kispiox did.  So he went up there and he says at  6 the bottom of page one:  7  8 "I a stem believed the tribe in council, was  9 eagerly listened to, as the presence of my  10                   wife..."  11  12 He had married Margaret Loring by this time, and  13 she served as his interpreter until she died in 1910.  14  15 " the presence of my wife inspired them  16 with confidence, despite the alarm given.  They  17 consented to send their children to school,  18 stop eating dogs and everything else mentioned,  19 but to give up the potlatch they could not, as  20 they were advised by Capt. Fitzstubbs  21 Constable..."  22  23 That's Big Louis,  24  25 "...that the law had no power to punish it as an  26 offence and they could go on as they had been  27 doing.  This same Constable is kept on under  28 pay even after Capt. Fitzstubbs' departure from  29 here to the coast.  30 The Indians asked me to write to the  31 governnment to be allowed to retain the custom  32 of potlatching for a year or so more and I  33 promised to do so.  I ask for the privilege to  34 use discretion if this matter as to enforce the  35 law would cause trouble and expense.  I hope  36 the department will coincide in my views and be  37 lenient yet for the present, as the custom has  38 the tendency to die out in the course of two or  39 three years."  40  41 It shows that Loring was no zealot when it came to  42 enforcing something which he didn't think was of  43 particular importance.  By the way, dog eating isn't  44 literally eating dogs.  Only the Hudson's Bay  45 employees actually ate dogs as part of their diet.  46 This was a ceremony that was the subject of a lot of  47 misunderstanding by the Europeans at the time.  And it 1796  Submissions by Mr. Macaulay  1 was not an essential part of the feast, it was a  2 ceremony conducted by what was called a secret society  3 in the course of some feasts.  And it offended the  4 then sensibilities of our Victorian ancestors and was  5 much frowned on, for no really good reason that I can  6 see, but it was a matter that the missionaries in  7 particular had a horror of.  8 At paragraph 154 there is an important matter that  9 was dealt with that was reported.  In November, '89,  10 Loring reports that he made arrangements for  11 "distribution of relief to the most helpless and  12 destitute."  Those are his words.  He mentioned that  13 there were many disputes to settle, including disputes  14 about fisheries.  And in November of 1889 he visited  15 Kitseguecla and Kitwangak.  He noted destitution was  16 prevalent in all the villages that he had visited.  17 Paragraph 155, he visits Hagwilget and found the  18 population in their winter quarters, at a place called  19 Ziz-Zallagh, in a sheltered location, as was the  20 custom.  21 Paragraph 156, he visited Kisgegas and found the  22 inhabitants had moved into the shelter of the woods a  23 few miles away, and that's the letter in which he  24 reports that the exposed site of the village had been  25 chosen for defensive purposes following a massacre of  26 the villagers by the Nisga'a.  He mentions the bridge  27 in that letter.  28 In March, '90, he reports that the Indian supply of  29 salmon had run out and they would have starved if it  30 hadn't been for their cache of potatoes, which was  31 something relatively new.  He reports on his first  32 visit to Kuldoe and he had been asked to visit Lach al  33 sop to settle complaints that more fortunate Indians  34 who had fishing stations in the canyon, wouldn't allow  35 the less fortunate ones to fish there.  Lach al sop  36 was the name up to 1896 of Moricetown.  He is talking  37 about Moricetown Canyon.  38 I am at paragraph 158.  His first annual report,  39 he made an annual report as well as monthly reports.  40 In 1890 he shows the populations at that time.  In  41 1890 there had been a significant decrease in the  42 population following the epidemic of 1887, and these  43 were the figures and the numbers of dwellings.  He  44 gives the occupations, the general occupations of the  45 various villages.  46 At 159 he reports that the population of Hazelton  47 was growing as Indians from other bands were coming to 1797  Submissions by Mr. Macaulay  1 the big town for employment.  And he says Indians of  2 the remotest part of his agency are to be met there.  3 Paragraph 160, by 1891 there was a Gitanmaax  4 population of 237 and 62 dwellings.  In 1871 there had  5 been seven Indian dwellings near Thomas Hankin's  6 store.  So there was an enormous increase from the  7 tiny settlement to what was then the second largest  8 village in the Gitksan country.  9 At 161 he reports that the whole village of  10 Moricetown, then called Lach al sop, appeared to plan  11 to move as a body to Hazelton.  And he made a visit to  12 Lach al sop to stop that.  13 Paragraph 162, Loring records his first visit to  14 the Moricetown winter hunting camp at Dam Olp in  15 January, 1891, to settle disputes over hunting  16 grounds.  And that camp was about 35 miles east of  17 Hazelton.  He is there again in March, 1895, the end  18 of the season, he found 65 Wet'suwet'en drying and  19 smoking 23 caribou.  A third visit was made because,  20 to use his words, "many complications concerning  21 hunting and trapping grounds."  And in December, 1898  22 he made another trip to settle hunting and trapping  23 ground disputes.  On this last occasion Loring talks  24 about two camps five miles apart and he reported that  25 there were 58 Indians there and that six caribou had  26 been taken.  27 There is no mention -- the appellants have appendix  28 H of their factum, have a very large number, huge  2 9 number of Indian names, place names.  You won't find  30 Dam Olp amongst them, and there is no evidence of any  31 plaintiff concerning Dam Olp.  32 163, Loring went to Ilie-sam-dagh, which was now a  33 fishery, by now a fishery, presumably the fishery  34 attached to Illie-go-sam-dagh, the original Kisgagas.  35 And he says it's 50 miles up the Skeena and he found  36 19 fishing stations and 11 smokehouses, a considerable  37 fishery, 23 families fished there.  And he went there  38 then in 1890 because of "a friction of factions of two  39 crests sprung up as to possession of a fishery after  40 the death of Nee-ast, a chief of Gal-Doe."  It's one  41 of his references to crests, to crest disputes that  42 arose, and in this case, after Nee-ast had died. He  43 says he settled the dispute by calling for a vote, and  44 another visit to the same fishery in 1896 was made  45 because, as he put it, "of late years many contentions  46 have arisen after heads of families dying as to  47 hereditary rights to fishing stations, smoking or 1798  Submissions by Mr. Macaulay  1 curing houses, implements, et cetera."  2 164 he goes to Lach an dagh, that's another fishing  3 settlement, as he calls it, about 34 miles up the  4 Skeena River, where there are a number of smokehouses.  5 He was there again in 1893 to settle a dispute between  6 two families that had threatened each other regarding  7 the exclusive right to a fishery and a smokehouse.  8 And the third time he was there was to settle what he  9 called "various complaints and disputes pertaining to  10 contentions about fishing stations and smokehouses."  11 At 165, paragraph 165, he records going to a  12 fishery at Gough-lax in 1891 to deal with a feud  13 between several families about the possession of a  14 fishery.  15 In paragraph 166, here is the Kispiox winter camp,  16 winter village is a better way of expressing it.  He  17 goes there first in 1892.  He describes it as on the  18 Kispiox River about 30 miles from Hazelton, and he  19 went there again in 1893 to meet with, as he calls it,  20 "the assembled Kispiox villagers about the allocation  21 of..." this place " a reserve."  And to settle  22 fishing disputes.  23 In 1897, he comments on its ideal situation for  24 hunting and trapping and he referred to its  25 desirability as a winter fishery.  And in his report  26 in that report, he gives a detailed account of the  27 technique they were employing in fishing under the  28 ice.  He made a hasty visit to there or the environs  29 in 1815.  30 WALLACE, J.A.:  Is this all directed to showing the exercise of  31 sovereignty by the Europeans or what is it directed  32 to?  33 MR. MACAULAY:  These particular ones show two things —  34 WALLACE, J.A.:  All the things that Loring did?  35 MR. MACAULAY:  He was the person that was settling the disputes  36 between the chiefs and families.  He had assumed that  37 authority.  And that refers back, of course, to what  38 had happened in 1888 and to the authority he had as  39 Indian agent.  It goes to another issue:  the -- it's  40 an evidentiary issue.  Most of these places were never  41 mentioned by any of the appellants in their evidence.  42 WALLACE, J.A.:  So what do we draw from that?  43 MR. MACAULAY:  Well, the appellants rely very heavily on  44 reputation evidence.  And they say that they  45 maintained not only occupation, but control, and  46 management and jurisdiction over all these areas, from  47 time immemorial, up to now.  The point I make is they 1799  Submissions by Mr. Macaulay  1 can't even remember places that must have been used by  2 their immediate -- their parents or grandparents.  3 They are not there now and they don't need to be there  4 now.  Counsel for the appellants asserts before your  5 lordships that there was no such thing as a winter  6 village.  So the accuracy of the evidence, and it's  7 commented -- one of the things we are doing, the thing  8 we are doing is supporting the Chief Justice's  9 judgment, the findings of fact in the judgment, and  10 that is relevant to his findings of fact.  11 WALLACE, J.A.:  Are you saying that this is evidence which  12 supports his conclusions of fact?  13 MR. MACAULAY:  Yes.  14 WALLACE, J.A.:  From which he draws those inferences?  15 MR. MACAULAY:  And ones that are, in this case, the dispute  16 resolution.  One of the conclusions he drew was that  17 the -- whatever function the feast had in dispute  18 resolution, or the native organization, had gone, no  19 longer survived, and that's vigorously attacked.  And  20 this is an example of just that kind of thing.  Won't  21 take that much longer.  22 WALLACE, J.A.:  No, I just wanted to know —  23 MR. MACAULAY:  It relates directly to a finding of fact, this  24 one and the ones like it, to findings of fact by the  25 Chief Justice.  26 WALLACE, J.A.:  I see.  It's primarily directed to that then?  27 MR. MACAULAY:  It's also directed to the — their pleadings,  28 they plead that they occupied, owned and governed the  29 whole territory, have done since time immemorial and  30 they do it now.  31 WALLACE, J.A.:  You're saying this demonstrates that, indeed,  32 the Europeans had exercised sovereignty and were  33 actually implementing that exercise by resolving  34 disputes and doing whatever -- these other things. I  35 see.  3 6 MR. MACAULAY:  Yes.  37 WALLACE, J.A.:  Thank you.  38 MR. MACAULAY:  I see it's 3 o'clock.  39 TAGGART, J.A.:  Yes.  Five minutes.  40  41 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  42  43 TAGGART, J.A.:  Yes, Mr. Macaulay.  4 4 MR. MACAULAY:  I am at paragraph 167, my lords.  45 Get-sop was a Kuldoe winter camp about 50 miles  46 northeast of Kispiox along the Skeena River.  And he  47 was asked by the people of Kuldoe to visit them there 1800  Submissions by Mr. Macaulay  1 in November of 1892.  The reason for the visit isn't  2 given.  But there is another winter camp.  3 168 deals with Tsis-lee-tin, a fishing village on  4 the Skeena, 39 miles north of Hazelton.  And he went  5 there in November, 1890 and again in 1895, to settle  6 what he calls "little difficulties existing."  He  7 describes it as a village, fishing village with many  8 smokehouses.  Camp, rather than a village.  9 At paragraph 169, after the turn of the century the  10 only fishing stations and winter camps mentioned in  11 Loring's reports, with one exception, and the  12 exception of Ksun, which I will come to, were the  13 Wet'suwet'en ones, which is maybe a commentary on the  14 degree which, by that date, the Gitksan were doing  15 other things.  These winter camps were Anghaik,  16 Lachanax, Kwansoots and Bear River.  17 At 170 we come now to the great, great Ksun  18 fishery.  There wasn't a word in evidence about the  19 great Ksun fishery, and it was used -- well, Loring  20 first went there in 1894 and he last went there in  21 1919, I think it was.  And it was still being used.  22 Mr. Morrell, who was one of the -- who was the  23 fisheries expert for the appellants, gave evidence  24 that he went round to all the elders among the Gitksan  25 and Wet'suwet'en and asked them to show him where  26 their fishing, hereditary fishing places were or had  27 been.  The Ksun fishery doesn't appear on Mr.  28 Morrell's map that he drew as a result.  It was not  29 only a fishing camp but people lived there.  It  30 started 23 miles north of Hazelton, which is just  31 above the place identified as Woolp, W-o-o-l-p, both  32 in Loring's records and in the map, Morrell map I was  33 talking about.  And it stretched for about seven miles  34 northwards.  There is a very steep canyon.  He  35 describes more than once in his reports the very  36 unusual character of the fishery, almost unique  37 character of the fishery.  There were extremely high  38 banks to this canyon.  The fishermen were lowered on  39 platforms to the point where they could gaff fish and  40 then women and children carried the fish up these  41 almost perpendicular banks on a stairway consisting of  42 posts driven into the bank.  And he remarks how they  43 used to be able to do this without anyone being  44 injured, much to his amazement.  45 The first visit was to settle disputes, after the  46 death of several, what he calls prominent Indians, in  47 the previous year, in 1893.  He is back in 1895 and he 1801  Submissions by Mr. Macaulay  1 describes it as the congregation centre for fishing  2 from Gitanmaax and Kispiox.  And he says that many  3 disputes arose.  4 In 1897 he describes Ksun, this is where he  5 describes where the lodges were.  There were nine at  6 Ksun, that's at the southern end, and 12 lodges at the  7 top end.  And he says of the total number half were  8 used as winter dwellings.  The purpose of the 1897  9 visit was to settle disputes.  And he makes very  10 frequent mention of disputes over fishery stations,  11 smokehouses, and three times he mentions contentions  12 between crests over these.  13 I turn to 171, again on the subject of the Ksun  14 canyon fisheries.  Fisheries are variously described  15 in his reports as "the principal fishing centre" or  16 "the principal stock of fish" for winter supply, and  17 he says "upon these fisheries the people of several  18 villages depend for their winter supplies."  And in  19 his last report he notes that fishermen by this time  20 are mostly older people and that the quantity of fish  21 caught and cured is now down, he says, by 80 percent,  22 due to a change in diet.  23 I am turning now my lords, to book six, paragraphs  24 172 to 82.  In 1897, Loring predicted that the Gitksan  25 who lived at the Ksun Canyon were abandoning those  26 dwellings.  There is no report on the abandonment but  27 Loring's winter visits end in 1910.  He used to go  28 winter and summer.  After 1910 it was only in the  29 summer and perhaps that's when people stopped actually  30 living there.  The residents are mentioned in 1897.  31 In a couple of his reports he describes Ksun, that's  32 the lower of the two settlements, as a Kispiox fishing  33 village.  That's in October, 1899 and -- September  34 1898 and October, 1899.  35 Turning to paragraph 173, Loring described the  36 older or aboriginal Gitksan and Wet'suwet'en societies  37 generally in the context of change.  That's what he  38 was interested in, and made particular notice of the  39 the plank houses or longhouses, he described as  40 rookeries or shacks in his reports.  And he says they  41 were inhabited by the older Indians or to be  42 uninhabited.  43 Paragraph 174, the Gitksan chiefs were identified  44 as hereditary village chiefs in order of seniority and  45 importance.  The Wet'suwet'en chiefs were said to be  46 those appointed by the church.  That's, if I could  47 turn to the exhibit itself, May 9th, 1895.  Attached 1802  Submissions by Mr. Macaulay  1 to that letter, in response to an inquiry from head  2 office, he attaches the names of the bands, of the  3 chiefs, he translates the names for us, and then gives  4 the ages and the remarks.  The first one, of course,  5 is Get-en-gal-dogh.  He translates that as "the man  6 from the far interior."  He is aged 68 and says he is  7 tenacious of old customs, et cetera.  And the others  8 are described.  Kit-wan-gah, he has the order reversed  9 again.  He has Gaagh, who must have been the earlier  10 Kawk, as the first chief; See-ma-deeks is the second.  11 He is in the same position as O'Reilly placed him, and  12 in the third place, Kill-a-was, who was the first  13 chief according to O'Reilly.  The last one has the  14 name "the invited", and he was aged 45 and he was  15 intelligent, influential, and well meaning.  16 Unlike any other, unlike the Hudson Bay reports, he  17 had to deal with, solely, with the Indians and the  18 chiefs of the Indians, and had to get to know a good  19 deal about them and what they were like for obvious  20 reasons.  21 At paragraph 175 I say that the perils of raids by  22 neighbouring people are referred to only twice.  One  23 is a border dispute with the Nisga'a, the other is  24 the -- of course, the comment about what had happened  25 to the people of Kiss-ge-gaas.  The problem of  26 matrilineal inheritance, problems of that matrilineal  27 inheritance are noted.  Medicine men or shamans are  28 hardly mentioned, and about the oolichan fishery, he  29 reported it first to be dying and then dead, that is  30 people weren't going up to the oolichan fishery any  31 more by 1912.  32 In 1901, these are -- these exhibits are in  33 consecutive order, I hope, that is chronological  34 order.  Maybe they are not.  No, they are in  35 chronological order but by subject.  36 It's the February 28th, 1901 that I want to draw  37 your attention to.  It's the last document,  38 fortunately, easy enough to find.  And page 2 of the  39 last document, paragraph 2 on page 2, where he says:  40  41 "A matter worthy of mention is, that such of the  42 lesser of the objectionable customs formerly  43 existing among the Indians are almost effaced  44 and the change they have undergone in that  45 respect alone is surprising.  Of the once  46 tribal usages the most cruel was to deprive the  47 widow and children of the deceased Indian of 1803  Submissions by Mr. Macaulay  1 all they possessed by the uncle of the children  2 on the mother's side.  And only in a very few  3 instances am I now yet called upon to  4 intercede."  5  6 He is reporting apparently there that the  7 matrilineal system had come to an end.  I will come  8 back to that again in connection with the Indian Act.  9 But it was one of his duties to attend to that.  10 LAMBERT, J.A.:  I don't understand a report that says "the  11 tribal usages most cruel was to deprive the widow and  12 children of the deceased Indian of all they possessed  13 by the uncle of the children on the mother's side" to  14 be equivalent to saying the matrilineal society has  15 come to an end.  16 MR. MACAULAY:  The matrilineal inheritance system.  17 LAMBERT, J.A.:  I don't understand that either.  18 MR. MACAULAY:  Well, under the Gitksan and the Wet'suwet'en  19 system, when a man died -- no, when a person died, the  20 property descended not to the children, who would be  21 heirs at law under our system, not to the children but  22 to a relative on the matrilineal side, on the mother's  23 side.  It can be a male relative, so the uncle on the  24 female side.  It could be an aunt.  25 LAMBERT, J.A.:  Maybe I don't understand it well enough, but  26 this looks to me like an example of a matrilineal  27 succession and not necessarily the entire concept of  28 matrilineal succession, but I could be wrong.  I mean,  29 this could be a description of the entire concept.  30 MR. MACAULAY:  Well, I take it to be his way of describing the  31 matrilineal system of devolution of property.  32 We will be addressing that towards the end, at the  33 end of today or early tomorrow.  34 LAMBERT, J.A.:  All right.  35 MR. MACAULAY:  It was one of his duties to, amongst other  36 things, to enforce the Indian Act, the provisions of  37 the Indian Act, which I will refer to, that provide  38 for succession, as we understand it, the term heir, to  39 the heirs, as we understand that term at common law.  40 There is a statutory provision which first appeared in  41 1884, and he is -- that's one of his duties is to  42 enforce that.  And he makes the comment, that he is  43 not having much trouble any more.  The trouble revived  44 and it was addressed again in 1945, in the particular  45 context of traplines.  46 Now, at 176 -- I am not going to leave this  47 subject, but if I could I would like to leave it to 1804  Submissions by Mr. Macaulay  1 another tab where I can deal with it in statutory  2 context.  3 LAMBERT, J.A.:  Please, I just was surprised at the  4 interpretation that you put on those words but now  5 that you have explained it to me it's no longer a  6 surprise. And by all means amplify it later when you  7 come to it.  8 MR. MACAULAY:  It was a law or custom of the Gitksan that was  9 displaced by the statute.  10 Now, the habit of villages retiring to winter  11 shelter in the woods is often referred to in many,  12 many cases, but usually in the context of a custom  13 that is less and less resorted to.  It was still going  14 on in 1917, which is the last occasion in which that  15 was -- the older people and children, sometimes  16 children, would retire to the woods, to the shelter of  17 the woods, and in a place where there was a good  18 supply of firewood, that is retire from their regular  19 places of habitation.  It's not something that was  20 mentioned by any of the appellants, but it was still  21 going on, pretty well all through Loring's time.  22 At 177, the old seasonal round was still maintained  23 in the northern villages, the Kisgegas and Kuldoe,  24 until the advent of the railway, which was started in  25 1908 and completed in 1914.  And the same seasonal  26 round was followed by the Wet'suwet'en, although as  27 early 1901, Loring's annual report shows some  28 Hagwilgets packing and mining.  So there were some  29 Wet'suwet'en who were turning to the occupations that  30 were by then common to most of the Gitksan.  31 At 178, I deal with fishing and other disputes  32 relating to traditional matters, were also brought to  33 Loring's notice at Hazelton.  People would come in, he  34 did not only have to go out to settle these things but  35 he would have to come in -- they would come in to  36 Hazelton.  And he dealt with these disputes during his  37 visits to various villages and to various un-  38 identified fishing camps in addition to the ones that  39 were mentioned.  The reports that are attached show  40 his visits to Kitseguecla, Kitwangak, Ilie-sam-dakh  41 and an un-identified Skeena fishing camp.  There was a  42 dispute over fishing platforms at Moricetown, then  43 called Lach-al-sop in March of '93, and a dispute  44 about the bridge at Moricetown in December of '93 and  45 again in July of '96.  46 What he has to say in 1893 about the bridge is  47 this.  He goes to Lach-al-sop, also known as 1805  Submissions by Mr. Macaulay  1 Moricetown or later known as Moricetown, and he says:  2  3 "There has been trouble at Lach-al-sop  4 concerning a bridge spanning the canyon there.  5 One faction of the Indians there claiming the  6 sole right to same and tore up the bridge  7 forbiding to replace it by another at that  8 point."  9  10 And he says:  11  12 "I arranged matters satisfactorily and am  13 assured no further trouble will arise on the  14 subject."  15  16 Well, he was wrong there. In July of 1896 he is  17 back at what's now called Moricetown, and he said:  18  19 "I adjusted many difficulties as to claims to  20 rights to fisheries, et cetera, and also the  21 contention as to attempted charging tolls by a  22 faction of Indians having rebuilt a good bridge  23 spanning the Hagwilget River at the canyon  24 there, by those having on account of absence,  25 given no aid in its reconstruction, I brought  26 the population to a mutual understanding to  27 render voluntary assistance in any repairs  28 needed from time to time in the future,  29 avoiding any differences as to special claims  30 to arise . "  31  32 There were also disputes over fishing rights at  33 Moricetown in 1895 and '96.  34 Paragraph 179.  There are many reports concerning  35 the building of single family dwellings, and that's  36 not a contentious  matter, away from the old village  37 sites, and that continued for the next 25 years.  38 It's not a contentious matter but it meant the  39 removal from the house, as the appellants use the  40 term, of its inhabitants into single family dwellings.  41 At paragraph 180, I say that as a result of the  42 move out of the traditional longhouses described in  43 Loring's reports of July 31st, 1896 and November 30th,  44 1896, these are just descriptions by him in his  45 earlier -- some earlier reports of the types of lodges  46 or ranches that they had.  The older people couldn't  47 rely on the, what he describes as, the extended family 1806  Submissions by Mr. Macaulay  1 for support.  And he refers to that in November 1903  2 as one of the consequences of this removal from the  3 longhouse to the single family dwellings.  4 Relief, at 181, had been started, as was seen in  5 1889, and the details of relief distributions are  6 recorded from 1893 to 1913.  If nothing else, he was  7 thorough, giving every detail and the cost, which of  8 course he had to account for.  By 1911 he reported  9 that the Gitksan had little need for relief, and  10 generally it was the elderly, widows and cripples who  11 were given that kind of support.  In addition, in his  12 later reports he mentions field matrons were employed  13 to assist the elderly and the infirm, an early  14 expansion of DIA to its present size.  15 At 182, the -- he gives an account of one -- in one  16 of the Gitksan village chiefs named in Loring's 1895  17 list, which we have seen, the list of the first,  18 second and third chief of each village, and the  19 successor of another of those names is in need of  20 relief.  And I -- a Hagwilget clan chief, who is also  21 the chief of a house, but of a clan, Knedebeas, was  22 also provided with relief, and other chiefly names  23 appear on the relief lists.  And that speaks to the  24 system that the appellants say is still in place, a  25 system of houses and clans.  26 There is one, if I could go back to paragraph 178,  27 there is one oddity reported there.  A couple.  In  28 January, 1897 —  29 TAGGART, J.A.:  Which tab is this again?  30 MR. MACAULAY:  I am back to tab 178 and to a particular exhibit  31 there.  January, 1897, it's two-thirds of the way  32 through, I guess.  It's near the end.  Yes.  The  33 second last exhibit or yellow sheet from the end,  34 third last exhibit from the end.  35 TAGGART, J.A.:  What's the date again?  36 MR. MACAULAY:  It's January 30th, 1897.  It's the monthly  37 report.  The second page he says this, at the bottom,  38 the last substantial paragraph on the second page.  He  39 is reporting on a visit to Kispiox:  40  41 "Many cases demanded official attention, and  42 especial concerning the settling on separate  43 holdings."  44  45 That has to do with reserve allocations, which is  46 not really relevant to this action.  47 1807  Submissions by Mr. Macaulay  1 "Also the attempted assuming in part of the  2 chieftanship by Big Louis over Ghail, his  3 uncle.  The former conceived the idea that he  4 should be ahead of the Heathens, left, whilst  5 the latter, after becoming a Christian, ought  6 to confine himself to the party of the latter,  7 only."  8  9 It's the only case on record in all these reports  10 where he has some -- appears to have some part to play  11 in the question of chieftianship.  Big Louis was, to  12 use the term of those days, a heathen, and his uncle,  13 the chief, was a Christian.  And Big Louis was  14 proposing to divide the forces along those lines and  15 Big Louis would then become the chief of the heathens.  16 There were also occasionally disputes between  17 villages, and the next exhibit shows that the  18 neighbouring villages of Kitwangak and Kitseguekla and  19 the problem there was about -- there were steamers on  20 the river by then and the Indians along the route,  21 particularly at Kitwangak and Kitsegukla, cut a great  22 deal of wood for the steamers, cord wood.  Their  23 village areas met at Andemaul.  North of Andemaul  24 was -- or east of Andemaul, was Kitseguecla and on the  25 other side was Kitwangak, and he says:  26  27 "In the spring of every year, since the Steamer  28 Caledonia has been plying on the Skeena, the  29 people of the respective villages named are  30 arrayed in opposition to each other, and indeed  31 those of one and the same community bitterly  32 contend, even to threaten violence, for  33 locations thereon to cut cord wood.  Some of  34 the latter are more favoured with the advantage  35 for the steamer's landing, and facilities, in  36 general, for handling the wood than others,  37 such as having hillsides sloping towards the  38 river for chuting, et cetera.  39 The temporary absence of the worker from a  40 favourable locality seems to be the main  41 incentives for jumping each others ground."  42  43 And he says he went about six miles below  44 Kitseguekla with the interested parties arranging  45 matters satisfactorily in that direction in return,  46 which is a new wrinkle to some of the disputes, this  47 is an inter-village one. 1808  Submissions by Mr. Macaulay  1 That finishes volume six.  Maybe we can get through  2 most of volume seven.  3 A great many of Loring's reports have to do with  4 the local economy and the way in which the Gitksan and  5 Wet'suwet'en fitted into the economy.  At an early  6 date the Gitksan acquired new skills, and there was a  7 variety of jobs available at Hazelton, at Gitanmaax by  8 1891.  Mining provided employment in the 1890s, that  9 was mining outside the area, Omineca and the other  10 gold fields.  11 WALLACE, J.A.:  What does this go to, the employability of the  12 natives?  13 MR. MACAULAY:  Well, the appellants have referred to their  14 anthropological evidence, and they have referred to it  15 in a way that would lead you to believe -- the  16 evidence of witnesses would lead one to believe that  17 nothing had changed, that the annual round still  18 continued.  And that's why --  19 WALLACE, J.A.:  The annual round?  I am sorry.  20 MR. MACAULAY:  Well, fishing in the summer and trapping in the  21 winter and the like.  22 WALLACE, J.A.:  Right.  23 MR. MACAULAY:  And this goes to show that 100 years ago that  2 4 wasn't so.  25 WALLACE, J.A.:  All right.  26 MR. MACAULAY:  It casts a doubt.  The Chief Justice at one point  27 made the comment that after hearing the witness, I  28 think that was Dr. Daly, that he wouldn't have thought  29 that the automobile had been invented, or some such  30 expression as that.  And that was the character of the  31 anthropological evidence.  And the Chief Justice  32 rightly discounted that anthropological evidence as  33 being so far removed from any kind of reality that has  34 ever been recorded, that it was of no assistance to  35 him.  The appellants seek to revive and rely on that  36 evidence, and a great deal, great chunks of it.  And  37 that's what I am dealing with here.  38 WALLACE, J.A.:  I see.  Thank you.  39 MR. MACAULAY:  I am not going to refer to much — many  40 individual reports, they are there and there is lots  41 of them.  42 WALLACE, J.A.:  I just wanted to get the thrust of it.  43 LAMBERT, J.A.:  I don't remember that remark about the  44 automobile never having been invented.  That doesn't  45 appear in the reasons, does it?  46 MR. MACAULAY:  I don't know if it appears in the reasons but it  47 certainly appeared at trial. 1809  Submissions by Mr. Macaulay  1 LAMBERT, J.A.:  That's what he said?  2 MR. MACAULAY:  Yes.  3 LAMBERT, J.A.:  What was it he said?  4 MR. MACAULAY:  On hearing this witness describe what he found  5 after studying the Gitksan, I think it was in that  6 case, that one would not have thought that the  7 automobile had been -- I thought it was -- he deals  8 with it —  9 LAMBERT, J.A.:  Is this the principal judgment you're talking  10 about?  11 MR. MACAULAY:  Pardon?  12 LAMBERT, J.A.:  Is this the principal judgment you're talking  13 about?  14 MR. MACAULAY:  Yes.  Page 170, the first full paragraph:  15  16 "Honestly held biases were not uncommon with  17 many of the professional witnesses, which is  18 not unusual in litigation.  I do not think it  19 is necessary to analyze the evidence of all the  20 witnesses, and I shall not even mention some of  21 them.  As Dr. Daly was an important witness,  22 however, I am constrained to say, with respect,  23 that I have considerable difficulty with his  24 evidence for a number of reasons.  Throughout  25 his long report, 691 pages, about which he gave  26 evidence for about ten days, he seems to be  27 describing a society I do not recognize from  28 the evidence of the lay witnesses.  In fact, I  29 felt constrained to comment during his evidence  30 that one would almost think the motor vehicle  31 had not been invented.  Many of his  32 propositions are based on facts not proven in  33 evidence."  34  35 And then he goes to say:  36  37 "First he placed far more weight on continuing  38 aboriginal activities than I would from the  39 evidence, although he recognized the  40 substantial participation of Indians in the  41 cash economy."  42  43  44 LAMBERT, J.A.:  Well, as far as many of his propositions are  45 based on facts not proven in evidence, his evidence is  46 not weakened by that, but the facts are not proved by  47 his evidence.  That's my understanding of the law. 1810  Submissions by Mr. Macaulay  1 That is, as he states his proposition, based on those  2 facts, his evidence not proved of those facts.  But  3 his evidence stands for itself as a professional  4 conclusion.  So I am not sure I understand what --  5 MR. MACAULAY:  The Chief Justice is saying, in a very polite  6 way, his evidence was sheer nonsense, and that's  7 certainly how it strikes one.  8 LAMBERT, J.A.:  It strikes me as remarkable, as Mr. Justice  9 Hutcheon has said earlier, that all three of the  10 principal anthropological witnesses on behalf of the  11 appellants were treated in the same way, all of their  12 evidence was thought to be entirely worthless by the  13 Chief Justice.  And it's important, it seems to me, to  14 be very sure of the reasons underlying the Chief  15 Justice's conclusion in that respect, and that's why I  16 asked you about this passage.  That is, all I am  17 observing is that I don't understand what the Chief  18 Justice means by "many of his propositions are based  19 on facts not proven in evidence."  I don't understand  20 that to be a flaw in expert evidence.  21 MR. MACAULAY:  We will deal with that in a little more detail  22 in -- at some point.  But he mentions, the Chief goes  23 on to mention the kind of evidence, some bits of  24 evidence that he was listening to in the next  25 paragraph:  26  27 "First he placed far more weight on continuing  28 aboriginal activity...."  29  30 That's very charitable.  31  32 "...than I would from the evidence, although he  33 recognized the substantial participation of the  34 Indians in the cash economy."  35  36  37 He was cross-examined for a long time and he  38 admitted that he had.  For example, at page 95 he  39 mentioned that Gitksan and Wet'suwet'en persons  40 regarded their land "as their food box and their  41 treasury and young persons going hunting often say 'we  42 are going to the Indian supermarket to our land.'  Yet  43 many witnesses said the young people are not  44 interested in aboriginal activities."  45 At page 118 he recognized this as -- reserved this  46 as country food may not at all times be a major source  47 of food for all families.  And the Chief Justice's 1811  Submissions by Mr. Macaulay  1 comment was, "I find it was seldom a major source."  2 And he goes on to deal with his evidence.  3 But the evidence of Dr. Daly supposed a state of  4 affairs that, I submit, and Loring makes out what I am  5 saying, in his time, that that state of affairs hasn't  6 existed for the most part for nearly a century.  And  7 yet these people who said they lived among the Gitksan  8 for a couple of years in this case, padenta vita, came  9 and gave that extraordinary evidence.  And it's for  10 the trial judge to decide, for the trial judge to  11 decide who is credible and who isn't, particularly  12 when you have a massive amount of evidence like that.  13 Ten days of it and a 691 page report.  I don't think  14 that this court will want to tackle that.  15 HUTCHEON, J.A.:  I think we must.  That's my view.  16 LAMBERT, J.A.:  I share that view.  17 MR. MACAULAY:  Well, we will deal with it then.  There are a  18 couple of things that are quite outside this topic in  19 paragraph 183, in the annual report, the very first of  20 the exhibits is an annual report of 1895, where there  21 is a note on the enforcement of the provisions of the  22 Indian Act regarding devolution of property under the  23 general heading remarks, where he says he has broken  24 up the old system of an uncle or next of kin to the  25 children on the mother's side unconditionally seizing  26 everything belonging to a deceased Indian.  27 There is another note that's of interest and in a  28 very different connection.  He had to report by this  29 time on the Sikanees and Na-anees, and further along  30 in the report, the last page of the printed report,  31 under heading Sikanees he says --  32 TAGGART, J.A.:  Just a moment.  You have lost me here for a  33 moment.  34 MR. MACAULAY:  The last page, this annual report of 1895.  35 TAGGART, J.A.:  This is under tab 183?  3 6 MR. MACAULAY:  183, yes.  37 HUTCHEON, J.A.:  Page 158.  38 TAGGART, J.A.:  All right.  Now I have it.  39 MR. MACAULAY:  There is a heading Sikanees and then another  40 heading Na-anees.  He reports that the Lake Connelly  41 band of Sikanees, amongst other bands, have their --  42 are nomadic, and they are living in and about the  43 localities named, that is McLeod Lake, Fort Graham and  44 Lake Connelly.  Lake Connelly is Bear Lake.  And the  45 Na-anees are ordered as roaming around the country  46 north of Lake Connelly, which is Bear Lake.  A later  47 report gives their numbers, and by comparison with the 1812  Submissions by Mr. Macaulay  1 Gitksan numbers they are very considerable, the  2 Sikanees and Na-anees.  Sikanees we find today in the  3 Carrier-Sekani.  I don't know who represents the  4 Na-anees, if anybody.  Perhaps the Kaskahanee.  They  5 are in the claim area, living there, on the land in  6 there, and they are nomads.  7 The claim here is being made as against them and  8 all other neighbouring Indians.  9 TAGGART, J.A.:  Mr. Macaulay would this be an appropriate time  10 to terminate?  One of our members has an appointment  11 that has to be kept.  12 LAMBERT, J.A.:  I would like to mention two things:  I feel a  13 little at a loss about the overlapping areas which is  14 the point you just mentioned, the other claimants to  15 the same area, and you told us that the overlapping  16 map was the one that wasn't in as an exhibit, and I  17 wonder if the parties are agreed that we can have it  18 and the --  19 MR. MACAULAY:  This is the overlay.  20 LAMBERT, J.A.:  Yes, and the basis upon which we could have it.  21 Maybe you could explore that.  The other thing I would  22 like to say now is that Mr. Justice Hutcheon and I  23 have both said that we -- speaking for myself, as I  24 see it at the moment I would have to read the reports,  25 the written reports of all the anthropologists.  But I  26 believe also that I will have to read all the  27 testimony of all the anthropologists, because they  28 were entirely rejected by the Chief Justice, and I  29 believe that we will be required to evaluate that  30 rejection.  And the -- I would regard it as helpful if  31 counsel can tell me how to get at the oral  32 anthropological testimony.  I understand that it  33 hasn't all been printed and so I will have to make  34 arrangements for it to be printed.  I am not entirely  35 sure.  36 MR. MACAULAY:  Well, there are trial transcripts that are —  37 they weren't bound but they are there.  It's easy to  38 make copies.  39 LAMBERT, J.A.:  Well, if you can tell me how to —  40 TAGGART, J.A.:  Can you give us the references to the page  41 references and volume numbers?  That's all we need.  42 It's all on disc and we can print it off.  43 All we need is the access.  4 4 MR. MACAULAY:  I will have that tomorrow morning.  45 LAMBERT, J.A.:  There is no hurry.  I am not going to be reading  46 it overnight.  47 MR. MACAULAY:  I don't think so.  No.  Long summer. 1813  Submissions by Mr. Macaulay  1  2  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein to the best of my  8 skill and ability.  9  10  11  12  13 Wilf Roy  14 Official Reporter  15 United Reporting Service Ltd.  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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