Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-04] British Columbia. Supreme Court May 4, 1992

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 Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  CORAM:  VANCOUVER, B.C.  MAY 4, 19 92  Taggart, Lambert, Hutcheon, Macfarlane, Wallace  THE REGISTRAR:  Order in court.  In the Court of Appeal of  British Columbia, Monday, May 4, 1992.  In the matter  of Delgamuukw versus Her Majesty the Queen, My Lords.  TAGGART, J.A.:  Mr. Rush, just before we begin, for the benefit  of the members of the public who are here as  interested spectators, I'm sorry the courtroom does  not permit everybody to come in and sit down.  I  understand arrangements are being made so that there  can be an interchange of interested spectators so that  you will all have an opportunity to hear the court  hearing, the proceedings, if not for the whole of the  proceedings, then at least in some degree of comfort  for part of them.  Another housekeeping matter for counsel, as  matters stand Mr. Williams and Mr. Macaulay have to be  in the Supreme Court of Canada on May 25th.  There has  been some suggestion that we might utilize that day in  a way that doesn't require their presence.  I don't  know if counsel have given consideration to that  suggestion so that we don't lose a day, but I would  ask them to do so and, if possible, let us know by the  close of proceedings tomorrow whether they think we  can schedule matters for the 25th of May.  They may be  somewhat out of sequence, but if we can schedule those  matters for the 25th of May that do not require the  attendance of Mr. Williams and Mr. Macaulay.  Mr.  Rush.  MR. RUSH:  Thank you, my lord.  I would like to introduce the  Appellants' legal team.  With me and who will be  addressing the court will be Mr. Peter Grant, Mr.  Murray Adams, Mr. Michael Jackson, and Ms. Louise  Mandell.  And at our computer, but who will not be  addressing the court, is Ms. Jean Joseph.  MR. WILLIAMS:  My Lords, for the Attorney General of British  Columbia, Bryan Williams.  And with me Joe Arvay and  Bob Taylor, and Sharon Lindgren, who is a student.  But may I have her sit at the counsel table with us,  my lord?  She'll be running the computer which is very  important.  TAGGART, J.A.:  Very well.  MR. MACAULAY:  My Lords, my name is James Macaulay.  I appear as  counsel for the Attorney General of Canada.  And my Submissions by Mr. Rush  1 colleagues are Ms. Marvin Koenigsberg, Laurel Russell  2 and Murray Wolf.  3 MR. GOUGE:  My Lords, for the intervenor Alcan Aluminum Limited  4 my name is J.E. Gouge.  With me is Ms. Cecilia Low.  5 MR. HUTCHINS:  My Lords, for the intervenor National Indian  6 Brotherhood, Assembly of First Nations, my name is  7 Peter Hutchins.  My partners Ms. Soroka and Dionne  8 will be appearing on occasion for me.  9 MR. WOODWARD:  My Lords, for the intervenor Massett, Jack  10 Woodward.  11 MS. BULLER:  My Lords, for the intervenor Union of Indian  12 Chiefs, Marion Buller.  And in argument I will be  13 assisted by Mr. Stephen Point and Ms. Rena Taylor.  14 MR. SLADE:  My Lords, Harry Slade appearing for the intervenor  15 Coast Salish Nation et al.  Tom Berger will be taking  16 argument and I will assist.  17 MR. BRAKER:  My Lords, H. Braker for the intervenor Harry Thomas  18 Dick.  19 MR. ROSENBERG:  My Lords, David Rosenberg for the intervenor NTC  20 Smokehouse.  21 TAGGART, J.A.:  Welcome back, Mr. Rosenberg.  22 MR. ROSENBERG:  Thank you, My Lords.  23 MR. WILLMS:  My Lords, C.F. Willms for Amicus.  And with me Mr.  24 P.G. Plant and Ms. T.A. Sigurdson.  25 TAGGART, J.A.:  Thank you.  Yes, Mr. Rush.  26 MR. RUSH:  My Lords, the Appellants intend to commence their  27 appeal with a brief opening, the text of which has  28 been provided to your lordships.  It is in a loose  29 stapled together set of pages that should be before  30 your lordships.  And together with this opening, My  31 Lords, the Appellants come before this court to  32 overturn a trial judgment which was profoundly wrong  33 both in its approach to the law of aboriginal rights,  34 and in its characterization of the societies of the  35 Gitksan and Wet'suwet'en peoples.  36 The Appellants must now meet the shifting  37 positions of two governments and the newly-announced  38 positions of several intervenors.  But their focus in  39 this appeal continues to be the trial judgment, and on  4 0 undoing the damage which that judgment has done to the  41 legal recognition and protection of aboriginal rights.  42 The trial judge erred, and indeed disregarded or  43 misapplied binding authority, in concluding: (a) that  44 aboriginal rights, as a matter of a priori legal  45 definition, are non-proprietary rights of occupation  46 for sustenance use; and (b) that even these limited  47 rights were wholly extinguished, without notice or 3  Submissions by Mr. Rush  1 consent, by acts of the colonial government before  2 British Columbia entered Confederation.  3 The Appellants say, to the contrary, that  4 aboriginal rights, as a matter of legal definition,  5 include both a proprietary interest in land and an  6 inherent right to self-government.  7 The Appellants say that the law requires the  8 Courts to define their sui generis rights of property  9 and self-government only after studying the  10 Appellants' particular institutions, laws and customs,  11 and determining what rights the Appellants recognized  12 among themselves upon the assertion of British  13 sovereignty.  14 The trial judge erred in erecting a new barrier to  15 the proof of even those most minimal of aboriginal  16 rights which he identified.  He said that, even absent  17 extinguishment, aboriginal communities, as a matter of  18 aboriginal right, are only permitted to carry on the  19 subsitence practices in which they engaged a long,  20 long time prior to the British assertion of  21 sovereignty.  22 The Appellants say that both aspects of this  23 test -- that is to say combining aboriginal rights to  24 "subsistence practices", and demanding proof of such  25 practices for a century or more before the British  26 even asserted sovereignty -- are wrong in law.  27 To freeze aboriginal rights into the "subsistence  28 practices" of the 18th century is to ignore the  29 Supreme Court's injunction in Sparrow to interpret  30 aboriginal rights purposively, generously, and  31 flexibly so as to permit their evolution over time.  32 To freeze aboriginal rights into "subsistence  33 practices" is to ignore the fact that the aboriginal  34 rights now recognized and confirmed in s. 35 of the  35 Constitution Act are the rights of peoples.  At a  36 minimum, the Appellants say that these rights must  37 include the wherewithal -- the land, resources, and  38 protection of their institutions -- for the Appellants  39 as peoples to preserve and develop distinct, modern  40 aboriginal societies.  41 The Appellants submit that it is of fundamental  42 importance to recognize that societies are  43 "aboriginal" because they pre-existed the assertion of  44 British sovereignty, and not because they conformed  45 (or now conform) to any particular pattern of resource  46 use.  It is a legal and factual error to equate  47 subsistence hunting, fishing and berry-picking with 4  Submissions by Mr. Rush  1 being "aboriginal".  The essential features of the  2 Appellants' societies at the assertion of British  3 sovereignty were that they were organized to own their  4 lands, manage their resources, and govern themselves.  5 It is the maintenance and development of these  6 features, and not any particular pattern of resource  7 use, which are the hallmarks of the Appellants'  8 aboriginal rights.  9 To demand, as the trial judge did, proof of  10 "indefinite, long aboriginal use of specific territory  11 before sovereignty" is directly contrary to this  12 Court's decision in Pasco that:  13  14 "[t]he date at which it must be shown that  15 there was an organized society occupying the  16 specific territory over which the Plaintiffs,  17 as descendants of the members of that society,  18 now assert aboriginal title is the date at  19 which a sovereignty was asserted by the  20 Europeans."  21  22 The trial judge erred in the way he approached the  23 study of the Appellants' societies before the  24 assertion of sovereignty, and in consequence made  25 manifest errors in characterizing those societies as  26 "primitive", acting on "survival instinct", living in  27 a "legal and jurisdictional vacuum", and lacking the  28 "badges of civilization".  These were significant (and  29 erroneous) findings of anthropological fact, but the  30 trial judge reached them in the face of expert  31 anthropological evidence, all of which he dismissed  32 out of hand as unnecessary.  33 The trial judge rejected, failed to appreciate, or  34 simply disregarded relevant and substantive evidence  35 which established that, since before the assertion of  36 British sovereignty, the Gitksan and Wet'suwet'en  37 have: (1)  owned their land; (2)  harvested, managed  38 and conserved their resources; (3)  governed  39 themselves; and (4)  engaged in an extensive commerce  40 in primary and manufactured products, both within  41 their territories, and beyond their boundaries.  42 The Appellants say that, because they belong to  43 particular organized societies which pre-existed the  44 assertion of British sovereignty, they have legal  45 aboriginal rights to maintain and develop those  46 societies, and in particular to exercise their  47 ownership of their lands and resources, and to govern 5  Submissions by Mr. Rush  1 themselves.  2 The trial judge erred in holding that even the  3 minimal rights of subsistence use, which he was  4 prepared to recognize, were entirely extinguished by  5 colonial land legislation.  6 The Appellants say, to the contrary, that the  7 Supreme Court of Canada has specifically held in  8 Sparrow, by adopting Hall J.'s test for extinguishment  9 from Calder, that the land legislation relied upon by  10 the trial judge as extinguishing aboriginal rights is  11 incapable of accomplising that end.  12 Now, the Appellants' position on the appropriate  13 remedies, My Lords, dealing with the threshold legal  14 rights.  The declaratory relief which flows from the  15 legal positions outlined above is set out in Part IV  16 of the Appellants' factum.  And the Appellants ask  17 this court to make these declarations:  18 (a)   that the Appellants have a right of  19 ownership over the territory, which extends  20 to the enjoyment and possession of the  21 territory and its resources, including the  22 right to harvest, manager and conserve the  23 land and natural resources;  24 (B)   that the Appellants have an inherent  25 aboriginal right to self-government over the  26 territory, themselves, and the members of  27 the houses represented by the Appellants, in  28 accordance with Gitksan and Wet'suwet'en  29 political, legal and social institutions;  3 0 and  31 (C)   that the appellants' ownership of and  32 jurisdiction over the territory continues to  33 exist, within the meaning of s. 35(1) of the  34 Constitution Act and has never been lawfully  35 extinguished.  36  37 The Appellants ask this court to declare these  38 threshold legal rights, and then to permit the parties  39 to negotiate the precise content of those rights on  40 the ground, and the Appellants' coexistence with the  41 province.  42 The Appellants say, My Lords, that there are two  43 possible routes to working out the details of this  44 implementation:  negotiation and litigation.  And both  45 will be guided and informed by the judgment of this  46 Court.  47 I would like to deal firstly with the negotiation. 6  Submissions by Mr. Rush  1 S. 35(3) of the Constitution Act provides that rights  2 acquired under land claims agreements are  3 automatically recognized and confirmed under s. 35(1).  4 Thus, the aboriginal peoples and the non-Indian  5 governments have constitutional authority to pour  6 content into s. 35(1) by making treaties.  7 In Sparrow, the Supreme Court described s. 35(1)  8 as "a solid constitution base upon which subsequent  9 negotiations can take place", and endorsed the view  10 that s. 35 "calls for a just settlement for aboriginal  11 peoples".  Similarly, in this Court's hearing in  12 R. v. Alphonse and Dick, Lambert, J.A. said:  13  14 "What the courts say will represent pegs in  15 those negotiations, those pegs could be moved  16 by negotiation or treaty or in any way, but we  17 [the courts] have to be very conscious that the  18 things we say will be treated as pegs around  19 which a full picture will be drawn."  20  21 The Appellants submit that it is essential for  22 this Court to rule on the threshold legal principles  23 which the Appellants seek to have declared, in order  24 to realize the Sparrow Court's characterization of s.  25 35 as a solid constitution base for negotiations.  26 The Province's new readiness to acknowledge that  27 the Appellants have some unextinguished aboriginal  28 rights, and to participate in negotiations, removes  29 what has been an inseparable practical obstacle to  30 treaty negotiations for over 100 years.  31 It is in the context of the constitutional mandate  32 for land claims negotiations created by s. 35(1) and  33 s. 35(3), and of centuries of treaty-making as the  34 appropriate vehicle for defining the relationship  35 between aboriginal peoples and the Crown, that the  36 Appellants and the Province jointly approach this  37 Court on April 29th, to attempt to defer a number of  38 issues to negotiation, and only to resolve them by  39 litigation if negotiations fail.  40 The Appellants submit that the fact that s. 35(3)  41 specifically contemplates land claims agreements which  42 will be incorporated into s. 35(1), and the fact that  43 the Sparrow Court interpreted s. 35 as calling for "a  44 just settlement for aboriginal peoples", reflects a  45 constitutional preference for negotiation over  46 litigation, at least where there are willing parties.  47 In its revised factum the Province, at tab 7, page 7  Submissions by Mr. Rush  1 46, paragraph 14 asks for declarations that there has  2 been no blanket extinguishment of the Appellants'  3 aboriginal rights, and that the Appellants have  4 existing aboriginal rights with respect to an  5 undefined portion of the territory.  6 For their part, the Appellants seek different  7 declarations which would make clear that aboriginal  8 rights include both a proprietary interest in both,  9 and an inherent right to self-government, and that the  10 Appellants' aboriginal rights are shaped by their own  11 laws and institutions.  Unless these principles are  12 settled by the Court, the Appellants fear an early  13 impasse on these issues in negotiations.  14 The Province and the Appellants are in general  15 agreement that the appropriate remedy at this stage of  16 the litigation is for this Court to make general  17 declarations as to the existence of aboriginal rights,  18 and to respect the attempt by these parties to deal  19 with the territorial boundary, coexistence between the  20 Appellants and the Province, and damages, by  21 negotiations towards a land claim agreement, pursuant  22 to s. 35(3) .  The Appellants will argue that this  23 Court has jurisdiction to defer some issues to  24 negotiation, and to adjudicate them in due course only  25 if called upon to do so by one of the parties.  26 The Appellants generally endorse the approach that  27 courts have taken in the cases cited by the Province  28 at tab 7, at the particular pages and paragraphs  29 mentioned, and in particular the argument at paragraph  30 132 that:  31  32 "declarations should be used to define general  33 constitutional principles and baseline  34 entitlements but ... they should not attempt to  35 specify in detail the consequences of such  36 principles."  37  38 Like the decision of the Sparrow Court, which  39 identified general principles for the interpretation  40 of s. 35, and for the specific allocation of  41 priorities in the fishery, this Court's declarations  42 on the threshold questions of legal right will inform  43 negotiations between the Appellants and the non-Indian  44 governments.  But they will also assist other courts  45 if negotiations are slow to bear fruit, or if they  46 fail.  47 In terms of litigation, My Lords, the Appellants Submissions by Mr. Rush  1 are confident that the Provincial and federal  2 governments will take effective steps to implement  3 this Court's declarations of the Appellants'  4 aboriginal rights.  5 But in the absence of land claims agreements, or  6 until such agreements are concluded, it may fall to  7 the courts on a case-by-case basis to adjudicate  8 claims as to the particular content of aboriginal  9 rights of property and self-government, and claims  10 that the actions of non-Indian governments (or the  11 third parties which derive their rights from these  12 governments) interfere unjustifiably with aboriginal  13 rights.  14 This approach, by which the courts, in the context  15 of deciding foundations cases such as the present  16 series of appeals, articulate broad legal principles,  17 and leave the detailed application of those principles  18 to later cases, is the one followed by the Supreme  19 Court in Sparrow.  20 At page 407 of that decision, the Court set out to  21 "sketch the framework for an interpretation of  22 'recognized and affirmed'" in s. 35.  Included in the  23 framework is a direction to the courts to "demand the  24 justification of any government regulation that  25 infringes upon or denies aboriginal rights".  26 But, far from attempting to apply its  27 justification analysis in detail to aboriginal rights  28 in general, or even to the specific circumstances of  29 the case before it, the Court said:  30  31 "We wish to emphasize the importance of context  32 and a case-by-case approach to s. 35.  Given  33 the generality of the text of the  34 constitutional provision, and especially in  35 light of the complexities of aboriginal  36 history, society and rights, the contours of a  37 justificatory standard must be defined in the  38 specific factual context of each case."  39  40 Now, in conclusion, My Lords, I go to the  41 beginning.  At the opening of the trial on May 11,  42 1987, the Appellants told the trial judge in these  43 words:  44  45 "The foundations of Gitksan and Wet'suwet'en  46 societies are firmly entrenched in their own  47 laws.  But in the face of provincial and 9  Submissions by Mr. Rush  1 federal disrespect for these laws and the  2 injustice this has brought, the Gitksan and  3 Wet'suwet'en have come to this Court to secure  4 those foundations in Canadian law, law which  5 the provincial and federal governments can be  6 compelled to respect.  Only then will the  7 Gitksan and Wet'suwet'en be able to negotiate a  8 just resolution of their relationship with  9 Canada.  This case is therefore a search for  10 the legal pathways to justice."  11  12  13 The trial judge's response in his lordship's judgment  14 was to find that the Appellants never had any laws,  15 and to rule that any aboriginal rights they ever had  16 were entirely extinguished without their knowledge or  17 consent more than a century ago.  18 The present appeal is a continuation of the  19 Appellants' search for the legal pathways to justice.  20 Now, My Lords, I will be directing your attention  21 to tab 1 of the Appellants' factum which is the  22 Statement of Facts.  And I would also like you to have  23 at your left hand the red book, which is identified as  24 R-l, which will be the first of four reference books  25 which we will make reference to in the course of our  26 submissions on the Statement of Facts.  27 In dealing with paragraph 1, and I'll explain in a  2 8 moment just how the reference book works when I come  29 to the first reference.  30 This is an appeal brought from the judgment of the  31 Honourable Chief Justice, acting as a trial judge,  32 pronounced on the 8th day of March, 1991, dismissing  33 the Appellants' claim for declaratory relief and  34 damages.  35 The Appellants are 51 hereditary chiefs, 39  36 Gitksan and 12 Wet'suwet'en.  They brought this action  37 on behalf of themselves and the members of their  38 houses and, in some cases, other named houses.  In  39 total, they represent members of 71 Houses being all  40 of the Gitksan and Wet'suwet'en people, except for the  41 people in the Houses of the Kitwancool chiefs.  The  42 Kitwancool are Gitksan people, but they are not part  43 of this action.  44 Now, My Lords, in respect of this paragraph, we  45 make two references.  And this is a pattern that has  46 followed throughout the whole of the Appellants'  47 factum.  And in respect of these paragraphs and 10  Submissions by Mr. Rush  1 references, they are referred to in what the  2 Appellants call the red books.  We will call them the  3 reference books.  And if I can tell you how the  4 reference books are organized.  The Appellants' books  5 are red.  I think you will have different colours from  6 the other parties.  Each book is separately numbered.  7 On the face of these books are R-l through R-4.  8 The reference books will then be numbered  9 throughout sequentially.  Each reference book is also  10 described by a tab and paragraph reference, so that  11 tab 1 refers to tab 1 of the factum, the facts.  12 Paragraph 2 refers to paragraph 2 of tab 1 of the  13 Appellant's factum.  14 So as the submission is made, My Lords, in the  15 factum paragraph the reference or citation given may  16 be found at the corresponding tab and paragraph tab in  17 the reference book.  The first reference, therefore,  18 at paragraph 2 is to the Statement of Claim and to the  19 appeal book tab.  This can be found at tab 1-2 of  20 volume number 1.  So on the right-hand side, if your  21 lordships just flip to 1-2 there is the Statement of  22 Claim.  If there is more than one reference per tab in  23 the paragraph, then these are separated by the brown  24 coloured divider pages within each tab reference.  25 Now, in this reference I take you to tab 1 to  26 paragraphs 1 and 2.  So I simply want to draw to your  27 lordships' attention two examples of how it was that  28 the plaintiffs initiated the case.  29 Paragraph 1 is:  The plaintiff, Delgamuukw, is the  30 hereditary chief of the House of Delgamuukw, and is  31 bringing this action on behalf of himself and the  32 members of Delgamuukw and Haaxw, two Gitksan Houses.  33 Similarly, paragraph 2 deals with the head chief  34 Gisdaywa, bringing the action on behalf of himself and  35 his house.  36 Now, the relevant passage, my lord, is for the  37 most part sidelined.  And in the perfect world this is  38 how it should appear in each and every case.  But I'm  39 sure there will be some glitches in this, My Lords.  40 Now, in respect of tab 1-2, again using this as an  41 example of the point of how these references work, I  42 would take you to page 10, paragraph 50 of the  43 Statement of Claim which indicates that:  The  44 plaintiffs set out in those paragraphs are the  45 hereditary chiefs of the Gitksan and are descendants  46 and/or successors to the chiefs except for the  47 Kitwancool. 11  Submissions by Mr. Rush  1 Page 11:  The Gitksan Chiefs together represent  2 all of the Gitksan people except for the people in the  3 Houses of the Kitwancool Chiefs.  The Gitksan, other  4 than the people in the Houses of the Kitwancool  5 Chiefs, share a common territory.  The Gitksan  6 together share a common language, laws, spirituality,  7 culture, economy and authority.  8 My Lords, in respect of the Wet'suwet'en there are  9 parallel paragraphs.  Now, again using this particular  10 tab as a reference, I would ask you to turn to the  11 brown divider.  And this is a page taken from the  12 Chief Justice's Reasons for Judgment found in the  13 Western Weekly Reports.  And although it is not  14 sidelined here, in most other cases it will be.  The  15 first paragraph indicates that the actual plaintiffs  16 in this action are 39 hereditary chiefs and so on, as  17 I indicate in the paragraph in the factum.  18 Now, just by way of further reference, My Lords,  19 on each one of the first pages of a reference you will  20 see in the upper left-hand corner the citation or  21 description of the reference.  And that's been printed  22 in the upper left-hand side.  So it tells you the  23 source of the material.  24 In the upper right-hand corner is again the  25 reference to the facts, the first tab, the page number  26 and the paragraph number, so that in each and every  27 reference you will be able to make ready association  28 with the point in the factum to which your lordships'  29 attention is being drawn.  30 I can advise your lordships that in some cases we  31 have added additional references.  And these are not  32 cited in the factum, but your lordships' attention  33 will be drawn to them.  There are not many of those,  34 but there are some.  The type of references include  35 transcript, exhibit, pages from authorities,  36 photographs, maps, and, of course, passages from the  37 reasons for judgment.  In not every case will I be  38 taking your lordships to the particular tab and to the  39 references there.  40 Let me continue then at page 1, paragraph 3 of the  41 facts.  The Appellants were found to represent 5,500 -  42 7,000 Gitksan and Wet'suwet'en people.  And I take you  43 to tab 1-3 to the portion that is sidelined.  44  45 "The Gitksan are a Tsimshianic-speaking  46 aboriginal people who claim generally the  47 watersheds of the north and central Skeena, 12  Submissions by Mr. Rush  1 Nass and Babine Rivers and their tributaries  2 within the territory.  They number 4,000 to  3 5,000 persons, most of whom now live in the  4 territory, mainly in the village alongside the  5 Skeena."  6  7 Now, My Lords, the reference to the territory is  8 to the territory that is shown on this overlay map.  9 To site yourselves, My Lords, in the middle of it is  10 Hazelton, the Village of Hazelton.  And down river  11 from Hazelton is Smithers.  In the north the Upper  12 Skeena.  In the south White Sail and Ootsa Lakes.  To  13 the west, but outside of the territory, is Terrace  14 over here.  And to the east and south Burns Lake.  15 His Lordship made reference to this map in his map  16 5.  And for perhaps desk convenience, I draw your  17 lordships' attention to map 5 which is a rendering of  18 646-9A and 9B.  And I can tell your lordships further  19 that if you need a desk-size version of the larger  20 easel-size map, there was one version that was before  21 his lordship which is the smaller version just to the  22 left of Mr. Justice Wallace.  23 Now, back to my reference, My Lords.  24  25 "The Wet'suwet'en are an Athabaskan-speaking  26 people who claim areas mainly in the watersheds  27 of the Bulkley and parts of the Fraser-Nechako  28 River systems and their tributaries immediately  29 east and south of the Gitksan.  They number  30 about 1,500 to 2,000 persons.  Most of the  31 Wet'suwet'en live in the territory, mainly in  32 two villages alongside the Bulkley River."  33  34 And to go to the second reference there, My Lords,  35 there is a passage taken from the cross-examination of  36 Dr. Daly, sidelined, the question:  37  38 "Q   What population estimate did you have of  39 the whole society?  40 A   Oh, roughly six or seven thousand people."  41  42  43 Now, My Lords, at paragraph 4 of my factum, the  44 Appellants sought declarations in respect of their  45 aboriginal rights of ownership and jurisdiction and  46 damages against Her Majesty the Queen in right of the  47 Province of British Columbia.  And those are set out 13  Submissions by Mr. Rush  1 at that tab.  I will not take you to them.  2 The principle relief sought was a series of  3 declarations that the Appellants have rights of  4 ownership over their territory and rights of  5 jurisdiction in the form of authority in respect of  6 their land and their people.  7 The Attorney General of Canada was added as a  8 defendant by application of the Province.  No action  9 was taken and no relief was sought by the Appellants  10 against Canada.  11 The Province counter-claimed saying that the  12 Appellants claim was in damages and only against  13 Canada.  The trial judge dismissed this claim.  And  14 the reference for that, My Lords, is there at 1-7.  I  15 would ask your lordships to note that the Province has  16 abandoned the counter-claim and cross-appeal as of  17 April 30, 1992.  18 Now, I take you to the next heading, the origins  19 of the Gitksan and Wet'suwet'en people.  The  20 Appellants and their ancestors have lived on their  21 lands (the territory) for thousands of years.  I would  22 like to take you to paragraph 8 in the reference book.  23 What his Lordship said was that:  24  25 "The scientific evidence, particularily the  26 archaeological, linguistic and some historical  27 evidence, persuades me that aboriginal people  28 have probably been present in parts of the  29 territory, if not from time immemorial, at  30 least for an uncertain, long time before the  31 commencement of the historical period."  32  33 He then goes on and cites several archaeologists and  34 some of the evidence that he relied upon.  And then at  35 the bottom of the page:  36  37 "I therefore infer that the ancestors of a  38 reasonable number of the plaintiffs were  39 present in parts of the territory for a long,  40 long time prior to sovereignty."  41  42 And on the next page:  43  44 "I reach this conclusion mainly on the specific  45 evidence mentioned above which persuades me it  46 is reasonable to infer that some of the people  47 living in this territory during the last 100 14  Submissions by Mr. Rush  1 years or so, with their present culture,  2 history, known ancestry and language, are  3 probably descended from more remote aboriginals  4 who, in my view, must have been present in  5 parts of the territory well before contact with  6 European influences."  7  8 Now, My Lords, at tab 9 of the factum we note that  9 there is archaeological evidence of human habitation  10 in the territory as early as 3,000 to 6,000 years ago.  11 At Moricetown, in the territory of the Wet'suwet'en,  12 archaeological remains were carbon-dated to 5660 B.P.  13 That means to say before present.  And before present  14 is measured before 1950.  Early habitation was found  15 as early as 3,500 B.P. at Hagwilget.  And that's just  16 close to Hazelton, about two and a half miles up river  17 on the Babine -- on the Bulkley, rather.  Habitation  18 at the Gitksan Village of Gitangat, on the Skeena  19 River, at Doreen, was dated to approximately 1730 B.P.  20 Now, if I may take you to the references, My  21 Lords.  First to the reasons.  22  23 "There is archaeological evidence of human  24 habitation in the territory as long as 3,000 to  25 6,000 years ago.  This is limited to village  26 sites both at the coast of Prince Rupert  27 Harbour and at a few locations."  28  29 Now, I ask you then to go to 184, the next reference:  30  31 "More significantly, independent archaeological  32 evidence suggests the Hagwilget Canyon site, in  33 Gitksan country, has a curious history.  Dr.  34 Kenneth Ames identified three different  35 archaeological zones.  The first indicates  36 relatively intense use for the period ending  37 between 4,000 and 3,500 B.P.  The second zone  38 indicates light and sporadic use probably  39 limits to fishing which continued until 1820."  40  41 And then to the next reference, a little further down  42 the page:  43  44 "In my view, the archaeological evidence  45 establishes early human habitation at some of  46 these sites, but not necessarily occupation by  47 Gitksan or Wet'suwet'en ancestors of the 15  Submissions by Mr. Rush  1 plaintiffs."  2  3 And, My Lords, the next reference is a passage  4 taken from the archaeological opinion evidence of  5 Sylvia Albright.  And she carbon-dated a material  6 finding charcoal samples from a Moricetown excavation,  7 Moricetown being one of the Wet'suwet'en villages.  8 And she said:  9  10 "The radiocarbon dates appear to confirm of the  11 site stratigraphy and suggests that Moricetown  12 Canyon has been occupied fairly continously for  13 over 5,000 years.  There is very good  14 correspondence between the dates on charcoal  15 samples recovered within the cultural layers  16 and the changes in artifact types from those  17 same layers.  The two oldest dates of 4700 plus  18 or minus 130 B.P. and 5660 plus or minus 90  19 B.P. are from post features in the lower  20 portion of layer C2.  These suggest occupation  21 and permanent settlement at the Moricetown  22 Canyon by 5600 B.P.  This is the earliest date  23 recovered so far from the central interior of  24 British Columbia."  25  26 Now, the next reference is to Ms. Albright's  27 evidence which merely confirms in her testimony what  28 she said in her report.  And I'll pass over that.  The  29 next is to a passage from Ms. Albright's report in  30 terms of the Village of Gitanka'at.  Now, the trial  31 judge neglected to record in his findings the dating  32 of the archaeological site at Gitanka'at.  And  33 Gitanka'at is almost to the western boundary of the  34 Gitksan territory downstream on the -- downstream on  35 the Skeena River.  And this is a reference at the  36 bottom of page 3-5 to a place called Fiddler Creek.  37 And this site she describes as -- it's been given it's  38 archaeological designation site as located one  39 kilometre south of Fiddler Creek close to the bank of  40 the Skeena River.  I take you to the next page and the  41 significance of this.  And I begin halfway through the  42 lead paragraph.  43  44 "Within this layer..."  45  46 A layer she identified as having been taken from a  47 test site, she said: 16  Submissions by Mr. Rush  1  2 "...a lens of black carbon-stained silt, about  3 five centimetres thick, was found at 55 to 60  4 centimetres below the surface.  A large sample  5 of this carbon stained soil, submitted to Beta  6 Analytic..."  7  8 which is the analyzing company in Florida,  9  10 "...for radiocarbon determination, yielded a  11 date of 1730 plus or minus 60 B.P. for  12 occupation of this cultural zone.  No artifacts  13 were recovered."  14  15 Reference is then made to Ms. Albright's opinion  16 in her testimony, which is the next reference.  And I  17 don't intend to take you there.  18 Now, My Lords, continuing at paragraph 10, the  19 linguistic evidence showed that the Wet'suwet'en were  20 in their territory for at least 2,000 years.  And  21 again I take you to 1-10.  This is the evidence of Dr.  22 Kari, the Wet'suwet'en linguist whose evidence was  23 accepted by the trial judge.  And I ask you to refer  24 to his answer at line 15:  25  26 "I feel there is no other way to account for  27 the striking affinities of the Pacific Coast  28 Athabaskan language and Babine-Wet'suwet'en in  29 some non-coincidental ways and their time  30 depths down there unless you assume  31 Babine-Wet'suwet'en were in there area for say  32 2,000 years.  That's an early conservative  33 minimum date of them being in their area.  I'm  34 not saying when they got there, that's my  35 estimate that that's a good judgment of them  36 being there say for 2000 years."  37  38 And then he makes the same -- gives the same opinion  39 in his next answer:  40  41 "But I think this is a conservative judgment  42 based on language relationships to say they've  43 been there for 2000 years."  44  45 Now, I ask you to go to the next reference, My  46 Lords, in which his lordship in his reasons indicates  47 that: 17  Submissions by Mr. Rush  1  2 "Dr. Kari postulates the arrival of Athabaskans  3 in the Wet'suwet'en-Babine area 1500 to 2000  4 years ago."  5  6 And then with regard to the Gitksan, which is the  7 report again of -- a combined report of Dr. Kari and  8 here it is the evidence in report form of Dr. Rigsby.  9  10 "Within the Tsimshianic language..."  11  12 of which the Gitksan was part,  13  14 "...we believe that the split between the  15 Interior Tsimshianic (Gitksan and Nishga),  16 Coast Tsimshian and Southern Tsimshian may  17 relate to the natural boundary of the canyon of  18 the Skeena River at Kitselas."  19  20 I will direct your lordships to that point in a  21 moment.  22  23 "The time depth involved in the split between  24 the two Interior Tsimshian languages and Coast  25 Tsimshian is certainly greater than 500 years,  26 but given that there was continuing and regular  27 interaction among the speakers of the several  28 languages over time, it could be back more than  29 two millenia.  However, I hasten to say that  30 this is strictly an estimate, based on my  31 knowledge of change in other language  32 families."  33  34 My Lords, returning to paragraph 10 of the factum, the  35 trial judge accepted that "the evidence of these  36 language specialists support Gitksan and Wet'suwet'en  37 identity as distinct peoples for a long, long time."  38 And I ask you to turn to the reference, the first  39 reference to his lordship's judgment at the bottom of  40 this page, page 167.  41  42 "One cannot, however, disregard the  43 "indianness" of these people, whose culture  44 seems to pervade everthing in which they are  45 involved.  I have no doubt they are truly  46 distinctive people with many unique qualities."  47 18  Submissions by Mr. Rush  1 And then on page 200, the next reference:  2  3 "The evidence of these language specialists  4 supports Gitksan and Wet'suwet'en identity as  5 distinct peoples for a long, long time."  6  7 And in the evidence of Dr. Kari, that was a minimum of  8 2000 years, and in the evidence of Dr. Rigsby for the  9 Gitksan it was a minimum of 500 to 2000 years.  10 Now, the next item of evidence, My Lords, to which  11 his lordship the Chief Justice referred were the  12 genealogies.  And this is at my paragraph 11.  The  13 genealogies of the Gitksan and Wet'suwet'en and the  14 opinion evidence of Heather Harris linked present-day  15 Gitksan and Wet'suwet'en people to their ancestors  16 prior to contact.  And I quote here from Ms. Harris'  17 report.  Ms. Harris' evidence was accepted.  18  19 "The genealogies demonstrate the inheritance of  20 the chiefs' name of each House through as many  21 as six generations and often well back into the  22 19th century.  The possession of some other  23 names is known nearly 200 years back through  24 the genealogies."  25  26 Now, I will take you to the second reference at this  27 tab which is the comments of his lordship, a sideline.  28 And it's the third to last paragraph:  29  30 "While I generally accept the genealogical  31 evidence of Ms. Harris, it does not intrude far  32 enough back into history to establish a  33 time-depth of presence in any specific part of  34 the territory.  As there was no evidence of a  35 population dispersal since Brown's time,  36 1820's, however, it is reasonable to infer that  37 some of the kinship relations Ms. Harris has  38 identified would have extended back further in  39 time to and a long time beyond the 1820's."  40  41 And that would be the time of the first European  42 contact with the Gitksan about whom she is speaking.  43  44 "...when I find that some of the plaintiffs'  45 ancestors were present in the territories."  46  47 Now, My Lords, I take you to paragraph 12.  The 19  Submissions by Mr. Rush  1 oral histories record the Gitksan as being in their  2 territory soon after the end of the most recent ice  3 age, some 6,000 to 7,000 years ago.  4 Now, I pause here to say that in the former  5 Provincial factum prepared by Russell & DuMoulin it is  6 argued that Ms. Marsden's evidence was not accepted by  7 the trial judge on time-depth.  We agree with that.  8 We accept that finding in respect of this point.  But  9 we say that that does not mean that the statement in  10 paragraph 12 is without support.  11 And I raise this now, My Lords, because I ask you  12 to take a note of the fact that we make in our reply  13 factum, and that is to a reference to Dr. Kari's  14 evidence at transcript 179 at page 11518 through to  15 11520.  And in summary form what Dr. Kari said there  16 was that a Wet'suwet'en word -- he was asked to  17 analyze the time or the age antiquity of certain  18 Wet'suwet'en words.  And he made reference to a word  19 lotzeltey, L-O-T-Z-E-L-T-E-Y, which he said meant  20 glacier mountain trail.  And he said that that dated  21 from a time when the area had been glaciated.  And  22 this area de-glaciated 6 to 7,000 years ago.  23 Now, further, My Lords, dealing with the oral  24 history of the people at paragraph 13.  The Gitksan  25 people were proven to have been living in the  26 territory 3,500 years ago by the independent dating of  27 the Medeek oral history at Seeley Lake.  Seeley Lake  28 is located on the Skeena about two miles downstream  29 from Hazelton.  My Lords, again to reference or site  30 yourself locationally, if Hazelton is here, it's  31 approximately two miles downstream to the west,  32 southwest of Hazelton.  And outside of Hazelton is the  33 mountain called in Gitksan Stekyooden, or Roche  34 Deboule in English.  And this particular history is  35 relevant to that location.  36 The oral history of the Medeek of the grizzly bear  37 described as the "Medeek" describes a powerful and  38 destructive force, an attack by a giant grizzly bear  39 on the ancient Gitksan village of T'am Lax amit which  40 caused the blockage of Chicago Creek, which is the  41 outlet of Seeley Lake.  Now, the history as retold by  42 Mary Johnson, who is Chief Antgulilbix, is this, and I  43 have set it out here.  And it is set out in full by  44 his Lordship in the reasons of the judgment at page  45 186:  46  47 "They left the lake and the people watched 20  Submissions by Mr. Rush  1 where the noise comes from, and they've  2 seen some great trees were throwing about  3 the top of the rest of the tall trees, and  4 they just stood there wondering what  5 happened until it comes -- there is a  6 little stream that runs from the lake and  7 goes into the Skeena River and that's --  8 and this thing followed the little stream,  9 tramping down the trees.  And finally they  10 see this great huge bear, grizzly bear that  11 they have never seen before.  He is a  12 supernatural grizzly bear, they call him  13 Mediik, and whenever they are shot him with  14 an arrow, the arrow flies way up high  15 instead and fall back down again and it hit  16 the warriors and they are wounded.  And  17 this grizzly bear tramped them until they  18 were crushed to the ground and goes to the  19 village and kills a lot of people.  And  20 after that he -- he came -- he turned and  21 go into the water again, follow the stream  22 where he came from the first place...and it  23 goes into the lake, disappeared into the  24 lake."  25  26 And that's the oral history as recounted by Mary  27 Johnson.  In our first reference at tab 1-13 his  28 lordship set out Mary Johnson's testimony in this  29 regard.  And he said -- he then went on to say at the  30 bottom following the quote:  31  32 "This event, without reference to the fight  33 with the giant bear is also described in Walter  34 Wright's Men of Medeek,"  35  36 that's a publication,  37  38 "...which is a collection of oral histories."  39  40 that is to say of the Gitksan.  41  42 "In this collection is also found the adaawk of  43 Izaac Tens,"  44  45 and his Gitksan name is Nikadeen, and his Lordship  46 parenthesizes it.  47 21  Submissions by Mr. Rush  1 "...where the lake is said to rise, and he also  2 describes the slaying of the Medeek in the  3 lake."  4  5 And, My Lords, I have set out in the next reference  6 Mary Johnson's testimony.  She expands on the account  7 of the history.  I won't take you any further to that.  8 And then at the next reference I have included the  9 extract of Walter Wright's collection of oral history,  10 the Men of Medeek.  And this is described as The  11 Vengeance of Medeek.  And he describes the destructive  12 force that is part of the oral history at the bottom  13 of page 24 and over to the top of 25 and on to 26.  It  14 runs in the same account as that of Mary Johnson.  15 Now, My Lords, continuing at paragraph 14.  Expert  16 evidence called by the Appellants scientifically  17 carbon-dated a landslide at 3500 B.P., and that  18 evidence was accepted by the trial judge.  I ask you  19 to go to the reference at 1-14 at the top of page 187  20 of his lordship's judgment where he says:  21  22 "A part of this slide is scientifically dated  23 at around 3500 years ago, so the plaintiffs say  24 Gitksan persons must have been in the area at  25 that time.  26 With a view to establishing a scientific  27 explanation for this legend,"  28  29 as he calls it,  30  31 "...consistent with the ancient presence of  32 Gitksan people in the region of Temlaxam and  33 it's environs,"  34  35 Keep in minds, My Lords, that this is approximately  36 two and a half miles downstream from Hazelton,  37  38 "...the plaintiffs engage Dr. Allen Gottesfeld  39 and Dr. Rolf Mathewes.  Dr. Gottesfeld is  40 learned in geomorphology, which is the study of  41 existing land forms and the processes that  42 cause them.  Dr. Mathewes is learned in  43 palaeobotany and in particular pollen analysis  44 and environment reconstruction."  45  46 And then he goes down and describes some of what Drs.  47 Gottesfeld and Mathewes did.  And I ask you to go to 22  Submissions by Mr. Rush  1 the next page.  There was some issue raised as to the  2 point in Chicago Creek where the slide intersected  3 with the creek.  And his lordship said after  4 commenting on an exchange with Dr. Gottesfeld:  5  6 "I cannot believe such an eminent scientist  7 would have given that evidence if there was  8 such a basic flaw in his theory.  I therefore  9 conclude that the slide probably did cause the  10 level of the lake to rise as postulated."  11  12 And then he says at the bottom:  13  14 "The Medeek or supernatural portion of this  15 adaawk is a matter of belief, or faith, rather  16 than rational inference.  That portion of the  17 adaawk is not necessary for the purposes for  18 which the adaawk is tendered in evidence.  19 Assuming these adaawk describe a landslide,"  20  21 and if I haven't said so, My Lords, adaawk means in  22 Gitksan oral history,  23  24 "I believe it could be reasonable to regard  25 them as confirmatory of other evidence of  26 aboriginal presence in the area at that time."  27  28 And that time is 3500 years before present.  29 Now, the dating of the landslide corroborated the oral  30 histories which placed the Gitksan on the Skeena River  31 downstream from Hazelton at 3500 B.P.  32 And I take you to the next reference under  33 paragraph 15 at the bottom of the page.  This passage  34 I have cited I will take you to the next reference  35 which is 192, the following page where his Lordship  36 says:  37  38 "If supported by other facts, and subject to  39 the assumption just mentioned, I would not  40 exclude these adaawk as evidence confirming  41 early Gitksan and Wet'suwet'en presence in the  42 area which was, incidentally, immediately  43 adjacent to the Skeena River just a few miles  44 west or south of the forks of the Skeena and  45 Bulkley Rivers.  As it turns out, however, I am  46 able to infer Gitksan and Wet'suwet'en presence  47 in that general area for the required 23  Submissions by Mr. Rush  1 time-depth on other evidence, particularily  2 archaeology, linguistics and genealogy,"  3  4 the evidence I have already referred your lordships  5 to,  6  7 "...without having to decide whether these  8 adaawk actually describe a landslide.  9 In the result, I do not reject the possible  10 connection between the landslide and Gitksan  11 presence, but I do not find it necessary to  12 rely upon it."  13  14  15 Now, My Lords, the Gitksan took a crest called  16 Madeek'amk'gyemk.  And it is mispelled at paragraph  17 16.  There it says Madeek'amk'gyet, E-T.  It should be  18 G-Y-E-M-K, which originated from this historical  19 event.  And I take you again to the Men of Medeek  20 account of this particular oral history.  And at the  21 reference at 1-17 where Mr. Wilson said:  22  23 "There was a symbol of a tragedy similar to the  24 vengeance of Medeek.  "From this day", he  25 announced, "I take as my head-dress the head of  26 Medeek, the grizzly bear.  It is the law that  27 when men die in a great disaster those who  28 follow after them have the right to take to  29 themselves the name of the destroyer.  From  30 this day I take the name of Medeek.  It shall  31 be the crest of my totem."  32  33 Now, My Lords, I ask you to refer to the evidence of  34 Mr. Muldoe, which is next in this reference, where he  35 says that his crest, he is referring to a photograph  36 which I will refer you to next, is the crest of  37 Madeek'amk'gyemk.  And he says that this is -- and  38 beginning at 17, if you will look at the photograph:  39  40 "Q   This is a photograph of your holding a  41 blanket?  42 A   Yes.  43 Q   And is that the blanket that you referred  44 to as the blanket with the crest of  4 5                       Midig'em Gyamk?"  46  4 7 And then I ask: 24  Submissions by Mr. Rush  1  2 "Q   What is the figure in the middle of the  3 blanket, the large figure?  4 A  Midig'em Gyamk.  5 Q   What's around the outside of the circle?  6 What's on the inside?  7 A   It's a collar that Midig'em Hyamk has, that's  8 around his neck.  9 Q   What's the colour made out of?  10 A   It's the sun.  11 Q   Is the Midig'em Gyamk, is that a the bear?  12 A   Yes.  13 Q   What kind of bear is that?  14 A   It's a sun grizzly of Midig'em Gyamk."  15  16  17 Now, I will refer you to the photographs that Madeek  18 was holding.  It is a crest of the Madeek'amk'gyemk.  19 The significance of the crest I will be coming to in a  20 moment.  He is -- the crest is appliqued onto Mr.  21 Muldoe's blanket.  Mr. Muldoe is a chief of the  22 Gitksan.  23 Now, at paragraph 17, My Lords, I say the Gitksan  24 have a distinctive language associated with the  25 Tsimshian language group.  26 And at 18 the Wet'suwet'en have a language called  27 Babine-Wet'suwet'en.  That's a description that Dr.  28 Kari utilizes.  It's geographical reach was considered  29 by Dr. Kari to be:  30  31 "...encompassing the Skeena Drainage, the  32 Bulkley River, the Babine Lake and Upper Babine  33 River and the Fraser drainage and most of the  34 Francois Lake and Ootsa Lake and upland areas  35 to the west; also in the Fraser Drainage the  36 west side of Takla Lake north of the narrows as  37 well as the lower protion of the Driftwood  38 River Drainage  at the head of Takla Lake."  39  40 And, My Lords, in general terms this linguistic reach  41 coincides with the geographic claim of the  42 Wet'suwet'en.  I ask you to note the reference, the  43 description by Dr. Kari to the language group as being  44 Babine-Wet'suwet'en.  The Wet'suwet'en's close  45 neighbours to the east and northeast are the Babine.  46 And they share the same language group but are  47 themselves distinct in their society and outside of 25  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  this action.  Now, My Lords, I ask you now to turn to paragraph  19 on page 6.  TAGGART, J.A.:  If you are going to a new subject matter, would  it be convenient to take the morning break?  MR. RUSH:  Thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  (MORNING RECESS)  THE REGISTRAR  TAGGART, J.A.  MR. RUSH  TAGGART,  MR. RUSH:  Order in court.  Yes, Mr. Rush.  I am at the top of page 6 of the factum.  And I now  want to turn your lordships' attention to the  geographic character and resources of the territory  inhabited by the Appellants and before them their  ancestors.  And it is a unique territory.  The  Appellants, like their ancestors before them, live in  a territory which is favourable for human settlement.  The territory is a sufficient land base to support  extensively organized activity.  In this territory,  the people have access to the diverse resources of  three different ecological zones.  And it is significant, My Lords, that there are  these zones and the intersection of these zones.  And  I have referred your lordships to a photocopy of a  portion of Exhibit 358(2) where it shows the  intersection in the Hazelton area in the Bulkley  Skeena valleys of these three geographic  classifications.  A better version of this is what the  registrar will hand up to your lordships.  Now, there  is only one copy of it, but it is the inset on the  reverse side, my lord.  J.A.:  Okay.  Now, this inset shows that the Gitksan and  Wet'suwet'en territory is at that intersection of  three regional ecosystems.  And those ecosystems by  the evidence of Ms. Haeussler, which is in our  reference two, in her words are -- is an unique  mixture.  To use her words:  "The climate is an intermediate between all  those three areas and you have this unique  mixture of vegitation with a diversity of  species that you don't find elsewhere. 26  Submissions by Mr. Rush  1 Now, to cite yourselves, my lord, that is your third  2 reference in tab 1-19.  She is addressing the Hazelton  3 variant.  And it is at page 9586.  Now, I say further  4 in regard to tab, or at least paragraph 19, that  5 resources surplus to the immediate needs of the people  6 are harvested by the Appellants, and their ancestors  7 did the same, as evidenced by the trade and commerce  8 carried on before European contact and thereafter.  9 This is the second sentence in paragraph 19.  10 And one of the references is given to Exhibit 893,  11 which is a portion of the Historical Atlas of Canada,  12 plate 13.  It is the last reference in this tab.  And  13 I draw your lordships' attention to this because it is  14 the diagram of the reputed archaeologist,  15 anthropologist Dr. George MacDonald who shows the  16 trading routes prior to contact in the Gitksan  17 territory.  And if you refer to that at the back of  18 the tab, it is the coloured photograph of plate 13.  19 And your lordships can see in the right-hand quadrant  20 of the photograph the area marked Gitksan.  And you  21 can site yourselves by reference to the Gitksan  22 Village of Kitanmaks, which is the present-day village  23 of Hazelton at the confluence of the Bulkley and  24 Skeena Rivers.  25 And I ask your lordships to note the numbers  26 attached to the various mauve coloured lines which are  27 the trading trails that run through the territory and  28 valleys of the Gitksan and into the east to the  29 Wet'suwet'en territory.  And I will draw your  30 lordships' attention to only one of the comments made  31 by Dr. MacDonald, and that is with regard to the trade  32 goods and trade routes under number 2, which is the  33 Skeena River in the right-hand, bottom right-hand  34 corner where he refers to "Downriver Trade", the food  35 being dried soapberries, dried Saskatoon berries,  36 dried blueberries, mountain-goat fat, caribous meat,  37 goat meat.  And he refers to other raw materials,  38 manufactured items.  And then he talks about "Upriver  39 Trade", that is trade coming from the coast moving up  40 the Skeena past Kitselas Canyon and into the area  41 territory of the Gitksan as including dried seaweed,  42 shellfish, seal and sea-lion meat and so on.  43 Now, your lordships can see that the critical  44 point in this trading route map is Kitselas Canyon,  45 which is just about the middle of the map on the  46 right-hand side which is just outside of the boundary  47 of the claim territory.  And the trade routes run up 27  Submissions by Mr. Rush  1 to Hazelton and then along the Bulkley to the east and  2 north to Kispiox and Skeena River valleys.  3 And these trading trails by Dr. MacDonald's  4 treatise indicated the trade routes as of  5 approximately 1750, which is before contact with the  6 Gitksan.  7 Now, I return to my factum, My Lords.  At  8 paragraph 20, the Skeena, Kispiox and Babine Rivers  9 form the major valleys of the Gitksan territory.  And  10 the Bulkley and Morice Rivers form the valleys of the  11 Wet'suwet'en.  12 The major villages of the Gitksan and Wet'suwet'en  13 are located in those valleys.  Here, the Appellants  14 and their ancestors have access to the rich forests:  15 the birch, spruce and the important red cedar.  Red  16 cedar was used in plank house building, weaving,  17 storage containers, canoes, crest poles, weapons,  18 tools, baskets, mats and capes.  19 Now, I take your lordships to paragraph 22.  The  20 Appellants, and their ancestors before them, enjoy  21 access to the salmon and steelhead resources in the  22 Skeena-Bulkley River systems and their tributaries.  23 The evidence of the expert Mr. Morrell is in this tab,  24 and I won't take you to that.  25 The berry resources, dispersed over the territory,  26 include soapberries, saskatoons, high  27 bush-cranberries, dwarf blueberries, black  28 huckleberry, oval-leafed blueberry, alaska blueberry  29 and red huckleberry.  And these are and were used by  30 the Appellants and their ancestors for trade, feasts  31 and domestic consumption.  32 Berries were, and are, an important source of food  33 for the Gitksan and Wet'suwet'en.  The Appellants,  34 like their ancestors, pick blue huckleberries and  35 blueberries in the mountains and they take swamp  36 cranberries, saskatoons, soapberries and wild  37 crabapples in the valleys.  The berries are dried,  38 formed into cakes and stored for later consumption.  39 They are traded to the coastal people who prize them  40 highly.  41 And in respect to this reference, my lord, I am  42 only going to take you to the last reference which is  43 that of Mr. Arthur Mathewes, Chief Tenimgyet, which is  44 the last reference in the sequence of references.  And  45 he is describing berries which are taken from his  46 territories at the Cedar River and at Wilson Creek.  47 And, in particular, at 4715 he talks about the trade 28  Submissions by Mr. Rush  1 of those berries.  Beginning at line 7 he says:  2  3 "Q   Do you recognize those as the berries you  4 are talking about?"  5  6 And he is talking about map 7, which is a description  7 of the berry and a photograph.  And he says:  8  9 "A And I might add that's not only identification  10 we have.  It has its own unique taste.  It's a  11 hell of a lot sweeter than the other type of  12 berries and these are why they are so prized in  13 other villages, like the coastal people really  14 like them and the Nass because of their  15 tastiness and sugary."  16  17 And then the question is asked:  18  19 "Q    Well, do these kinds of berries grow on the  20 Nass,"  21  22 meaning in the Nishga territory?  23  24 "A    I don't think so, that's why they keep  25 trading for mesxw, "  26  27 meaning the berry,  28  29 "...and by all indications we don't have them  30 at Tasihl Gwellii, so I don't think they have."  31  32 Tasihl Gwellii is Mr. Mathewes' westerly territory.  33 Wilson Creek is his more easterly territory.  And he  34 is saying here that the territory grapes --  35 territorial berries from his Wilson Creek territory  36 are traded to the Nass, but the more westerly berries  37 grown on the Cedar River territory are not.  38 Now, at page 8, My Lords, at paragraph 25 I refer  39 to the wildlife resources.  And these are abundant in  40 the different parts of the territory.  The Appellants,  41 like their ancestors, hunt and trap large and small  42 animals for food and clothing.  43 Caribou has a long and continuous history in the  44 northwest of British Columbia.  And most ancient finds  45 of caribou remains have been associated with human  46 cultures and they have been found at Usk adjacent to  47 the territory as early as 3500 B.P.  So the territory 29  Submissions by Mr. Rush  1 supports caribou or supported caribou.  And the  2 significance of this is that it is a large animal  3 which was hunted by the people for food to supplement  4 their fish diet.  It was used for clothing.  5 And the evidence referred to under paragraph 26  6 shows that it is distributed widely in the territory.  7 Mountain goat and ground hog (hoary marmot) are found  8 in the alpine and sub-alpine terrain throughout the  9 territory and on the eastern slope of the coast range  10 within the Wet'suwet'en territory.  These species are  11 located at some distance from the villages and have  12 been resident in the territory for as long as 7,000  13 years.  14 Mr. Hatler notes that the mountain goat is unique  15 only to this part of the world.  And the vast  16 percentage of mountain goat is found in the alpine  17 regions of the territory of the Gitksan and  18 Wet'suwet'en.  And they have a history running back  19 some 7,000 years roaming throughout the alpine  20 territory north as far as Alaska.  21 In the early 1800's, the first European traders  22 recorded that the ancestors of the Appellants were  23 using marmot and mountain goat for clothing and food.  24 And this is at paragraph 1-28, My Lords.  I just ask  25 you to turn to this reference.  It's a reference to  26 the observations made by Daniel Harmon, who was the  27 first of the Europeans to come into contact with the  28 neighbours of the Gitksan and Wet'suwet'en.  He  29 encountered the Stewart Lake Carrier at Stewart Lake.  30 And there he met the early ancestors of the  31 Wet'suwet'en.  32 And the page reference I have here in his journal  33 is 150.  And he is talking at a period 19 -- or,  34 excuse me, 1812.  And he says this:  35  36 "And they also,"  37  38 And by they he means the Babine Carrier,  39  40 "And they also let me have a Blanket or Rug  41 which was manufactured by the Atenas."  42  43 And the Atenas are the Gitksan.  44  45 "...of the wool of the Sheep that are numerous  46 on the Mountains in their Country."  47 30  Submissions by Mr. Rush  1 Now, My Lords, the Europeans had never encountered  2 the mountain goat of the northwest portion of British  3 Columbia.  There are no mountain sheep in this  4 territory.  And what he was referring to was a  5 mountain goat skin and fur.  6 Similarly, My Lords, in the next page, this is an  7 extract some 10 years later from William Brown, the  8 Hudson's Bay trader who ventured farther west to the  9 Babine Lakes and encountered both the ancestors of the  10 Wet'suwet'en and of the Gitksan.  And the passage  11 sidelined in the middle of this report, and I'll read  12 it to your lordships says:  13  14 "I intended to have gone there in the month of  15 March, but upon inquiry I find the people will  16 have left the village that time to hunt  17 sifflue."  18  19 Sifflue, My Lords, is marmot or ground hog.  20  21 "And in the mountains and there having no  22 salmon this year would render it possible to  23 find subsistence for their",  24  25 and I can't make out that last word.  The reference in  26 paragraph 28 is that these early European traders  27 encountered ancestors of the present-day Gitksan and  28 Wet'suwet'en using mountain goat for clothing and  29 using or hunting marmot in their mountains.  30 At paragraph 29 of the factum, My Lords, William  31 Brown, the same Hudson's Bay Company trader, reported  32 later in 1826 seeing a sheep's wool blanket being worn  33 by Chief Quo em, that is to say Gwoimt, Gitksan chief,  34 whose successor is one of the named Appellants.  And  35 he said in part:  36  37 "[H]e made his appearance dressed out with a  38 number of trinkets, and in particular with a  39 very fine plaid or blanket of the mountain  40 sheeps wool --"  41  42 Now, as to other large animals, My Lords, at  43 paragraph 30, the mule deer and moose are common in  44 all the valley bottoms -- valley bottom lands in the  45 Gitksan and Wet'suwet'en territories, as are the black  46 bear, grizzly bear and snow shoe hare.  They are  47 abundant in large parts of the territory. 31  Submissions by Mr. Rush  1 At 31, beaver is distributed in the valleys of the  2 territory and is harvested by the Appellants and their  3 ancestors.  Beaver meat was used in the feast.  4 The Gitksan and Wet'suwet'en people, as their  5 ancestors before them, live in a territory suitable  6 for harvesting these diverse resources.  Their use of  7 the fish, large animals, berries, plant and mineral  8 resources from throughout the territory is extensive.  9 Resources are harvested, processed - as in the smoke  10 drying of salmon and the making of berry cakes - and  11 stored.  Trade and commerce in products from the land  12 is widespread.  And the territory is capable of  13 supporting a large population.  And there are  14 approximately -- there were approximately 7,000 people  15 living in the territory when the first Europeans  16 arrived.  17 Now, My Lords, I just ask you to note that in  18 these references the population indication that I have  19 given here is not referenced.  And I would just ask  20 you to add the note that it is found at Exhibit 960 at  21 page 22, which is the expert opinion report of Dr.  22 Gray, whose evidence was accepted by the trial judge.  23 Now, I would like to take you now to the nature of  24 the society and culture of the Gitksan and  25 Wet'suwet'en and to outline for your lordships what in  26 the facts show their distinctive features.  27 The Gitksan and Wet'suwet'en have been, and are,  28 organized and vibrant societies.  They are two  29 distinct societies which share many common elements in  30 their social organization and institutions.  Through  31 intermarriage, adoption, trade and the introduction of  32 each other's ideas, they have developed their own  33 distinctive confederation.  The two most important  34 units of their societies are the House and the clan.  35 Now, first the House.  The House is the basic  36 social and land-holding unit in the Gitksan and  37 Wet'suwet'en society.  The Gitksan word for House is  38 "wilp".  Wet'suwet'en word is "yex".  The House is a  39 group of matrilineally-related kin, whose members in  40 the past would live under one roof in a longhouse.  A  41 Gitksan or Wet'suwet'en is born into the House of his  42 or her mother and remains in that House until death or  43 adoption.  Each House is distinguished by being called  44 by the name of its highest ranking member.  45 Now, My Lords, I just ask you to note the evidence  46 that was given in report form by Heather Harris who  47 was the genealogist at 134.  And as I said, My Lords, 32  Submissions by Mr. Rush  1 her evidence was accepted by the trial judge.  And  2 what she said was:  3  4 "The Gitksan word for 'house', 'wilp', refers  5 to two things.  One meaning is a dwelling, a  6 building in which a group of related people  7 reside."  8  9 A physical structure, if I may add.  10  11 "The other meaning for 'wilp' is a group of  12 matrilineally related kin.  Such a group traces  13 its descent through women only.  A matrilineal  14 kin group could consist of a woman and her  15 brothers and sister's, her sister's children,  16 her sister's daughter's children and so on in  17 ascending and descending generations through  18 families.  19 When I use the word 'house' I will usually be  20 referring to the matrilineal kin group, not the  21 dwelling, because the House is the essential  22 social unit within which a Gitksan is defined."  23  24 And I would add, My Lords, that that is the way in  25 which most of the proceedings and the judgment the  26 term is used by the trial judge and the witnesses.  27 And then she goes on to say what I have indicated in  28 the paragraph reference.  And then over the page she  29 says:  30  31 "The House is the essential unit in Gitksan  32 society.  It is the land-holding unit and is  33 the focus of an economic and residential group.  34 It also is the essential unit within which a  35 person is socially defined.  His position is  36 defined within the Houses and his relation to  37 others outside of the house is defined by his  38 House and his position in it.  The House is the  39 unit an individual considers his family:  40 'family' and 'house' are often used  41 interchangeably by the Gitksan.  In the past  42 the building where a Gitksan's House was  43 located was always considered home, even if he  44 was not born there and even if he had lived  45 away for many years.  This relationship between  46 House member is still maintained today.  House  47 members continue to utilize their territories 33  Submissions by Mr. Rush  1 together for fishing, hunting, berry picking,  2 trapping and so on."  3  4 Now, My Lords, the next reference is to the passage  5 from the report of Antonio Mills.  And this is Exhibit  6 906.  And I would just like to pause here and advise  7 your lordships that both the expert opinion evidence  8 of Dr. Mills and the expert opinion evidence of Dr.  9 Daly were rejected as unnecessary by the trial judge.  10 There is controversy about this, and it will be  11 addressed in the evidence.  But in respect -- in  12 argument we will focus on the reasons given by the  13 trial judge and how we say they run contrary to law.  14 But here in Exhibit 906 Dr. Mills is referring to  15 the evidence of Henry Alfred, who is a Wet'suwet'en  16 chief, and so happens to be in court today.  And Henry  17 Alfred testified and was examined at trial.  I mention  18 that only to say that the indented portion is what Mr.  19 Henry Alfred gave as a matter of data to Dr. Mills and  20 parallels the expert opinion report given about the  21 Gitksan that Ms. Harris referred to in the previous  22 reference.  And I just ask you to make note of the  23 fact that Mr. Alfred identifies himself as being a  24 chief in a particular House, the House here is the  25 House on Top of The Flat Rock.  And he goes on to  26 indicate his kinship relations run through the  27 matlineal side.  28 Now, in the next reference Dr. Mills then goes on  29 to explain the Wet'suwet'en Houses, picking up on what  30 Mr. Alfred has said.  I don't intend to take you to  31 that.  32 At paragraph 35 then of my factum, continuing with  33 another reference to Ms. Harris' evidence, she  34 described how the Gitksan people function as House  35 members.  And this passage I've already referred you  36 to in the original report.  37 The Gitksan and Wet'suwet'en distinguish their kin  38 according to the matriline.  Membership in the House  39 and clan is determined by matrilineal descent; in  40 other words, one is born into the House and clan to  41 which his/her mother belongs.  In this system, My  42 Lords, all people are in Houses and clans.  And that  43 is noted by his lordship in that reference.  44 And now I turn to clans.  The broadest grouping of  45 social organization for both the Gitksan and  46 Wet'suwet'en is the clan.  It is a group of several  47 related Houses.  People must marry outside their 34  Submissions by Mr. Rush  1 clan - there being a law against marriage of people  2 belonging to the same clan.  And that's indicated in  3 both the passage from Ms. Harris' report and in the  4 reasons.  5 Dr. Mills said that for the Wet'suwet'en, the  6 clan, rather than the House, was and is the most  7 frequently used marker of Wet'suwet'en identity.  So  8 among the Wet'suwet'en there is greater emphasis on  9 clan.  And I just pause to say, My Lords, that the  10 clan of Gitdumden, which you can see at paragraph 40  11 which is the Wolf Clan, is made up of three Houses,  12 the House of Gisdaywa, Medeek and Waas.  And those  13 three houses relate to the Gitdumden as their clan  14 marker.  15 This was because, continuing at paragraph 30, the  16 clan orientation of the Wet'suwet'en towards their  17 territories, the short amount of time spent in the  18 summer houses, and the fact that all the houses of one  19 clan act together to host a feast.  And the references  20 are there given to that.  21 My Lords, in 39 the four Gitksan clans are set  22 out.  The Frog, the Wolf, the Fireweed and the Eagle  23 Clans.  24 There are five Wet'suwet'en clans.  The Small  25 Frog, the Frog, the Wolf and the Fireweed.  There is  26 also the clan the Tsayu or the Beaver Clan.  And that  27 was one clan not noted by his Lordship.  28 Now, amonst the Gitksan, My Lords, and I am here  29 at 41, there is another level of social level of  30 social organization.  And this is a level of social  31 organization within the clan refers to closely related  32 Houses.  And it is called in Gitksan the "wilnadahl".  33 And I have that spelling at paragraph 41 at the end of  34 the line.  35 Now, these closely-related Houses act together as  36 a group to make important decisions such as succession  37 to names of high chiefs and territory, when the House  38 is unable to agree, or where there are disputes within  39 the House.  What determines the wilnadahl group is the  40 village of ancient origin, such as Gitangaskw.  And  41 Gitangaskw is a village that is mentioned in the oral  42 histories.  It is located on the Upper Skeena.  43 House migration to the same village, for example,  44 the houses of the Gitludahl and Wiigyet in relation to  45 Kispiox; or, in the past, membership in one House  46 which is now sub-divided because of the increase in  47 the membership of that House. 35  Submissions by Mr. Rush  1 Now, Ms. Harris at tab 1-41, which I can now tell  2 your lordships is in volume 2.  And you would please  3 place before you the second of the two reference  4 volumes for tab 1.  Ms. Harris explained at page 26  5 the nature of the relatedness of the wilnadahl houses.  6 And she sets it out there on page 26.  7 Most importantly, My Lords, for this level of  8 social organization she notes at the end of that  9 paragraph that:  10  11 "The precise meaning of the word 'wilnadaahl'  12 is taken from the context in which it is used."  13  14 And she helps us understand the various types of  15 contexts in the reference.  And she sets out here a  16 table dealing with the House of Xhliiyemlaxha.  And in  17 the 1, 2, 3, 4, 5 types of situations she notes that 1  18 is the house alone.  2 it is the house together with  19 houses which divided away from that house in the  20 recent past.  And these would be houses, My Lords,  21 where when the Xhliiyemlaxha house got to be too big  22 it divided and created two houses.  But it still had  23 its origin with the original house.  So that's the  24 second level.  25 The third level is the house, again the  26 Xhliiyemlaxha house which divided from the original  27 house in the recent past, plus houses which once  28 joined in the ancient past, that is to say houses that  29 are part of the Xhliiyemlaxha history.  30 Fourthly are those houses whose members are  31 located in the village of Kispiox.  32 And, fifthly, the entire Gitksan Wolf Clan.  33 So I raise this to point out the various types of  34 contexts in which the wilnadahl social organization  35 would be described or considered depending on the type  36 of relationship of the closely related Houses as being  37 referred to in the particular context.  38 Now, at paragraph 42, My Lords, I indicate that  39 Houses are organized internally with a head chief and  40 sub chiefs.  And the sub chiefs are called "wings of a  41 chief".  In Gitksan, the head chief is call  42 "simoighet" and in Wet'suwet'en "diniizee".  They are  43 hereditary chiefs of the House.  For example, the  44 first plaintiff in the action is Delgamuukw.  The  45 present holder of that name is Mr. Earl Muldoe.  He is  46 a head chief of the House of Delgamuukw.  Alfred  47 Joseph is Gisdaywa, head chief of the House of 36  Submissions by Mr. Rush  1 Gisdaywa.  He is Wet'suwet'en.  The head chief has the  2 primary responsibility for, and authority in the  3 House.  The chiefs' power flows from the House and  4 decisions of the House are made collectively.  The  5 head chief speaks for the House.  6 Now, at paragraph 43, My Lords, chiefs begin  7 training their successors from a young age.  Names are  8 given to children which indicate they are under  9 consideration for a chief's name.  Successors are  10 educated in the oral histories, house songs, crests,  11 territorial boundaries, and the feast system.  12 Now, if I can just pause here, I will be coming to  13 this in a moment, but the crest as I've referred at  14 least one photograph to your lordships' attention, the  15 crest is a visual depiction of the House's history.  16 The crest tells about the House's origins and they  17 define kinship relations.  And I'll be showing you  18 some crests that relate specifically to houses in just  19 a moment.  20 But in terms of training, My Lords, I ask you to  21 turn to the reference at 1-43.  And this is the young  22 Chief Mr. Glen Williams who is talking here.  And in  23 the middle of the page at line 31:  24  25 "Q   Would you describe either of those stories  26 in either of those ways?  27 A   Yes.  It's Adaawk.  2 8 Q   Who taught you this adaawk?  2 9 A  My grandmother."  30  31 And then on the next page he is referring to his uncle  32 Stanley Williams.  At line 22:  33  34 "Q   And Stanley Williams, Gwis gyen, was your  35 uncle?  36 A   Yes.  37 Q   And your dad's brother."  38  39 And his statement is:  40  41 "A   He would speak about his own Adaawk, about  42 T'amlaxamit.  That story, the adaawk there,  43 he'd speak about the Adaawk, about the  44 starvation, and how they first acquired their  45 territory in the Gitsegukla area.  About the  46 laws.  You know, about the feasts.  Teach me  47 who the different other chiefs are, how to run 37  Submissions by Mr. Rush  1 a feast.  The laws about using the fishing  2 holes, laws about the territory, what I should  3 do, and if I want to go hunting on some of  4 these territory I ask permission, and if I do  5 get something there I have to give part of it  6 to the chief of the house.  All those different  7 laws.  There is a lot of them."  8  9 And then he goes on and discusses more -- discusses  10 further ways in which he is taught about those.  11 Now, I will just ask your lordships to move ahead  12 to the next paragraph, the other references are of a  13 similar nature.  14 In paragraph 44, the responsibility of succeeding  15 to a chief's name is reflected again by Mr. Williams  16 in which he says:  17  18 "[I] also have to be responsible for making  19 sure that a lot of planning takes place if ...  20 we're going to have a feast for our own  21 particular house ... And we have to think about  22 the land itself, the land that we have seeing  23 whose using it, whose logging on there,  24 planning out some things that we want to do on  25 the land."  26  27 So those paragraphs refer to the training of a young  28 person to take on a chief and the name of a chief.  29 Now, dealing with the succession to names at 45,  30 names and crests are two important features of the  31 House.  Like territories and oral histories, they are  32 House property.  A House member becomes a chief by  33 virtue of succeeding to the name held by the previous  34 holder of it.  Chiefly names carry the power of the  35 House, called, in Gitksan, "daxgyet".  And that's also  36 referred to as authority.  These names can be traced  37 back over the centuries and in themselves represent  38 the peoples' history.  39 I am at 1-45, My Lords.  What she says -- what is  40 said here by Ms. Harris on inheritance.  She points  41 out that:  42  43 "Gitksan inheritance of House property is  44 through the matriline again."  45  46 And at the bottom of that passage she says:  47 38  Submissions by Mr. Rush  1 "Only House members inherit the chief's name  2 except in the case of a House which is  3 virtually extinct."  4  5 In that situation they can go out of the House.  6 And Dr. Mills indicates at the next reference that:  7  8 The highest hereditary title among the  9 Wet'suwet'en are the twelve House chiefs.  And  10 these twelve chiefs own both fishing sites at  11 the summer village and distinct tracts of  12 territory."  13  14 Now, if you turn over to 121 of this reference, My  15 Lords, Dr. Mills sets out the clan, the House, the  16 House chief and the House chief by Wet'suwet'en,  17 rather, and by English name and the sub-chiefs under  18 that House.  And she sets them out through the  19 successive clans and Houses.  She made one mistake,  20 however, and that is at 122 Namox is a separate house  21 and not a sub-chief of that clan.  22 Now, My Lords, I want to take you to the next  23 reference, which is the reference of Alfred Joseph,  24 the Chief Gisdaywa of the Wet'suwet'en, who is also in  25 court today.  And at line 12 of the next reference the  26 question is asked of him:  27  28 "Q   Can you tell us in that situation what has  29 been said in past feasts where you have  30 attended where the name of a head chief is  31 passed to a new holder?  32 A   Yes.  When there is -- a head chief's name  33 passed, and the person that takes the name  34 is told of where that chief's territory is,  35 and he's told that he is responsible for  36 that territory.  He is told that he is  37 responsible for the House that he's the  38 head of, and he's told of the boundaries  39 and what area the territory is.  And it is  40 repeated by all the head chiefs, the  41 sub-chiefs of that clan are giving their  42 support to this -- to a new chief, and  43 they're asking the guests at that time to  44 speak what happened."  45  46 And, My Lords, I just point out that I ask you to note  47 is that the guests are there invited to witness this 39  Submissions by Mr. Rush  1 succession.  And I will be coming to that in the fax  2 in one moment.  3 He continues at line 31:  4  5 "Q   What was said in the case of the chiefs or  6 the sub-chiefs who took the name at that  7 time?"  8  9 Reference to the feast at October 1986.  10  11 "A   They are told that they are now taking the  12 first step into taking a higher name in the  13 future, that they should conduct themselves  14 the way a -- the chief -- the high chiefs,  15 and that they are -- in the future will be  16 depended upon by the people, and that is  17 always -- that's always -- advice always  18 given at a Feast."  19  20 My lords, I just ask you to take -- I would just ask  21 you to go to the last or second to last reference  22 here, which I ask you to note that Mr. Solomen  23 Marsden, and this is a reference not in the factum,  24 but is added to this tab, indicates at the bottom of  25 page 5939 at line 35, he says:  26  27 "A   The head chief has the daxgyet,  28 authority to regulate."  29  30 And that should be delegate.  And that's cleared up  31 subsequently in the evidence.  32  33 "A   The head chief has the daxgyet, authority  34 to delegate the territory to the other  35 chiefs and in giving them to the other  36 chiefs they in turn delegate to the house  37 members.  38 Q   When you say other chiefs, do you mean  39 other chiefs in the same house?  4 0                   A   Yes."  41  42 And then, My Lords, a similar explanation to the term  43 daxgyet is given by Mr. Williams in the next passage,  44 which I won't take you to.  45 At paragraph 46, My Lords, the head chiefs and the  46 wing chiefs, as holders of the names, are responsible  47 for the territories of the houses.  On the death of a 40  Submissions by Mr. Rush  1 head chief, a new chief is chosen and, with the  2 succession of the new chief to the name, the crest,  3 territory and authority is passed on.  The chief  4 succeeds to a range of responsibilities in relation to  5 the House territory, including the allocation and  6 disposition of rights to use the territory among House  7 and non-House members.  8 Now, dealing with crests.  Houses also own  9 specific crests which are linked to ownership of  10 territories and to chieftainship.  Houses are  11 identified by their crests, which I indicated earlier,  12 My Lords, are a visual image and record of major  13 historical events from the House's history.  The  14 acquisition of crests is one of the main subjects of  15 the oral histories, as I indicated with reference to  16 the Medeek adaawk.  Crests commemorate the House's  17 origins, migrations or the defeat of neighbouring  18 peoples who threatened the security.  The crest  19 depicts the oral history of the house.  Key crest  20 images in the oral histories are evoked by song.  21 Crests are materially represented on totem poles,  22 parts of dwellings and regalia.  Again, Glen Williams,  23 the young chief from the Village of Gitwangak  24 expressed the importance of the crest.  And he says:  25  26 "The ayuks [crest) clearly identifies who you  27 are, which House group you long to.  It clearly  28 defines how much land you have, how much power  29 do you have, and it defines that you have  30 ownership -- you own a particular piece of  31 land, and that you have authority over that  32 piece of land. ...  Ours [crest] -- our house  33 is the grizzly bear with the two baby bear cubs  34 on the ears.  That identifies who I am."  35  36 And the reference for that, My Lords, is the  37 transcript, the first reference under 1-47 beginning  38 at the top of the page down to line 21.  Now, My  39 Lords, what I have included are a number of  40 photographs to give you a sense of the depiction that  41 is represented by the crest.  42 And the first is Exhibit 369.  This is a  43 photograph of the totem pole of Tenimgyet.  It is at  44 Gitwangak, west of Hazelton downriver on the Skeena.  45 This pole is standing close to the river.  And you can  46 see by the names given to the various figures  47 represented on the pole that these are figures that 41  Submissions by Mr. Rush  1 are spoken of in the history of Tenimgyet.  The top is  2 the lion and behind it, which you can't see, is the  3 wolf, followed by the bear and then further down the  4 pole the wolf and the bear.  And this was addressed in  5 the evidence.  Mr. Tenimgyet, Mr. Art Mathews, Jr.  6 talked about this pole in relation to his adaawk  7 called Bii hoon.  8 Now, similarly, my lord, is another pole of  9 Tenimgyet carrying the same crests.  At the top of  10 this particular pole is the wolf.  Now, the third  11 reference contains three poles.  The pole to the left  12 is Exhibit 369.  This is an earlier photograph taken  13 of these poles at Gitwangak.  They were removed from  14 this point and placed down by the riverside later in  15 the century.  This was taken in the early part of the  16 century, probably in the 1920's.  The pole on the far  17 left is Exhibit 369.  The pole in the middle is  18 Exhibit 370.  19 Now, his Lordship in the next reference under this  20 paragraph stated at page 152 of his judgment:  21  22 "Each House has some physical and tangible  23 indicators of their association with their  24 territories."  25  26 Just the poles and their crests to which I have made  27 reference.  28  29 "For example, some houses have totem poles on  30 which are carved the crests of their Houses,  31 while others have distinctive regalia.  Most if  32 not all Gitksan Houses have oral histories an  33 'adaawk', which is an collection of sacred oral  34 reminiscences about their ancestors, their  35 histories and their territories."  36  37 Now, My Lords, moving along to paragraph 49, the oral  38 histories are taught within the House and are told  39 publicly at the feast on important occasions.  The  40 formal telling of the oral histories along with the  41 display of crests and the performance of songs at the  42 feast, is evidence of the House's ownership to  43 territory and legitimacy of its authority.  44 At the first reference here, My Lords, I have  45 drawn your attention to the comments made by again Mr.  46 Glen Williams in relation to the adaawk of his house.  47 And that's at line 23.  But, My Lords, I have moved 42  Submissions by Mr. Rush  1 farther ahead than I had intended.  I wanted to show  2 you some other references to the crests which happen  3 to be in the paragraph 1-47 in that tab.  And it  4 follows along from the passage referring to Mary  5 McKenzie and her account of an adaawk.  I wanted to  6 direct your attention to the photograph of Hanamuxw's  7 pole standing at Gitsegukla.  And at the top is the  8 crest of the Rainbow Man, the rest of the House of  9 Hanamuxw.  And this is referred to in adaawk called  10 the Ska'woo adaawk.  11 This pole is again shown in the next photograph.  12 It was -- it had fallen.  And that pole has been  13 raised twice since this photograph, re-raised twice.  14 Regalia is shown in the next photograph, My Lords.  15 This is a head piece.  And the evidence indicated that  16 this survived the fire at Gitsegukla in 1872 and is  17 still in the possession of Hanamuxw, the holder, the  18 current holder of that name being Joan Ryan, who is in  19 court today.  On this regalia, my lord, are bear claws  20 holding the piece together and ermine skin.  21 The next photograph is photographs of totem poles  22 at Hagwilget.  These poles have fallen since this  23 photograph was taken.  It was taken by Marius Barbeau  24 in 1920.  And the pole on the left is the Kela's pole.  25 The next photograph is a photograph of Johnny  26 David, who is also in court today, who is 96 years  27 old.  He gives his probable birth date as somewhere  28 between 1892 and 1896.  He's not sure.  Johnny David  29 is standing there in front of his house, and in front  30 of the two poles in front of his house in Moricetown.  31 And this photograph was taken in 1985.  Those poles  32 are still there.  33 On the right-hand pole is the crest of Mr. David's  34 House which is the Otter.  It is difficult to see, My  35 Lords, but it is facing downward running down the  36 pole.  On the left-hand side is another pole of  37 Kela's.  Kela is in the same house as Mr. Johnny  38 David.  And the notable crest there that's visible are  39 the two figures, human figures partway up the pole and  40 that represents the House of Many Eyes, a crest of  41 that pole and house.  42 The next photographs, My Lords, again showing the  43 representation of a crest on regalia.  This is a  44 drawing done in the -- probably in the 1920's of Bill  45 Nye who held the name of Medeek.  And he is wearing  46 what is called a head-dress or amylite showing the  47 crest of his family, or of his House which is the 43  Submissions by Mr. Rush  1 bear.  2 Again, My Lords, another photograph next, a  3 coloured photograph of Mr. Pete Muldoe holding the  4 name of Gitludah, Gitksan.  He is showing that two  5 up -- excuse me, the four upright figures represent in  6 Gitksan who is called Milkst or crabapple.  And that  7 is called the crabapple crest showing the grouse in  8 between.  Again, this is on a button blanket of a  9 House that Mr. Muldoe was previously a member.  Or not  10 previously a member, that held a different name in  11 that house.  12 And finally, My Lords, a photograph of houses and  13 poles in Kispiox, an early photograph showing on the  14 left-hand side the most visible crest, that of the  15 Small Eagle of the House of Hawaaw, which is the Wolf  16 crest.  17 Now, My Lords, I moved into the subject area of  18 the oral histories.  And I read to you from our  19 paragraph at paragraph 48.  2 0 I want to move along now to 49.  And there  21 indicate that the oral histories are taught within the  22 house and are told publicly at the feast on important  23 occasions.  And I have drawn those points to your  24 lordships' attention.  25 I now take you to the top of 17, paragraph 50.  26 The Gitksan Chief Tenimgyet, Art Mathews, Jr., during  27 the course of his evidence told four Gitksan adaawk  28 belonging to his House.  Each related to his House  29 territory and had been recounted in the feast.  These  30 adaawk told of the important locations and places on  31 the Cedar River territory owned by his House.  32 And I make reference to this at the top 1-50, My  33 Lords.  And the first reference here is to Arthur  34 Mathews indicating the adaawk to which he is speaking.  35 And then he goes in the second reference to describe  36 what occurred in that adaawk an event that occurred in  37 the ancient past where he -- where one of his  38 predecessors, along with his brother, hunted and  39 killed a caribou.  40 And the last reference, my lord, I guess the  41 second last reference, is to show you a map which  42 indicates a trail running to the Tsihl Gwelii, that is  43 the Cedar River territory, from Wilson Creek.  Now,  44 Wilson Creek is on the right-hand side of the map and  45 it's at Xsi Gwitikstaat.  And, My Lords, it is on the  46 right-hand side, right-hand half of this map.  The  47 trail runs through to the left-hand side to where it 44  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  says Tsihl Gwelii, which is at the westerly most point  of the Gitksan territories and describes an event  which occurred above Gitsum Geelum Lake, which is the  dark black lake in the bottom left-hand quadrant.  And just above that, difficult to see, but there  written in and described by Mr. Mathewes are the words  "Tsim Aakiigan Gokhl".  And that is the point, the  place where the event described in his adaawk  occurred.  And he made reference to this in the course  of his testimony.  Now, My Lords, I want to move to the next  paragraph which deals with the father's House.  To  this point, My Lords, we've been dealing with the  matlineal line running through relevant House, the  clan, the wilnadahl.  There is also an important place  for the father's side or the father's House.  In the  Gitksan and Wet'suwet'en matrilineal system the father  is by law in a different House and clan from his  children.  The father's House is called "wiltsiwitsxw"  in Gitksan, and "haldzaa" in Wet'suwet'en.  The  father's House place an important role in the social  organization, which is particularily manifested at the  time of the death of a chief.  The House, the father's  House, may be consulted in the choice of a successor  to a high chief's name.  And, My Lords, that's pointed out by Ms. Mary  McKenzie, Chief Gyolugyet, in the first reference.  I  would ask you to go to the last reference, which is a  passage from the judgment in which his Lordship makes  note of the evidence which I have just referred to.  Now, in relation to the father's --  TAGGART, J.A.:  I think this would be an appropriate place to  break for lunch.  MR. RUSH:  Thank you, my lord.  TAGGART, J.A.:  2 o'clock.  THE REGISTRAR:  Order in court.  Court stands adjourned until 2  o'clock.  (PROCEEDINGS ADJOURNED FOR LUNCHEON ADJOURNMENT) 45  Submissions by Mr. Rush  1  2  3  4  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 Lisa Reid,  15 Official Reporter,  16 UNITED REPORTING SERVICE LTD.  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 46  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  NOON RECESS  THE REGISTRAR  TAGGART, J.A.  MR. RUSH  Order in court.  Yes, Mr. Rush.  Thank you, my lord.  I was concluding our submissions in respect of  the importance of the father's House in the systems  and I was directing your lordships' attention to  paragraph 52, and the statement of fact that is stated  there is that children have certain privileged rights  of access to, as well as obligations in respect of,  their father's territory.  Therefore, each member of a  House has access to at least two territories: those of  his own House, and that is on his mother's side, and  those of his father's House, on the father's side.  His lordship makes note of that in the reasons,  which are referred to under paragraph 51 at page 149.  Now I will move to the feast, about which  reference has been made throughout the earlier  submissions on the facts.  And my lords, the feast in  the Gitksan and Wet'suwet'en societies is the central  institution.  In Gitksan, the succession feast is  called "liligit", and in Wet'suwet'en, "Denii Biits".  It is at the core of their systems.  The feast is the  legal forum for the public witnessing of the  succession of chiefs' names, changes in legal status  (such as adoption, marriage and divorce), validation  of changes in the ownership of territories and of  decisions regarding territories (such as access  rights) and the ratification of dispute resolutions.  Now, my lords, I've added at 1-53 a new reference  which is to a passage of Dr. Daly's report, but Dr.  Daly here is citing from a -- the anthropological work  of the noted Westcoast scholar Philip Drucker, and I  would like to take you to that because, in a synoptic  form, it deals with the feast:  "These features of  which the Gitksan and  is couched are exempli  institution of the fea  anthropological litera  to by the term "potlat  word meaning "giving",  generally accepted def  of the feast is that g  of the northwest coast  the social system in  the Wet'suwet'en economy  fied more clearly in the  st, which in  ture is usually referred  ch", from the Chinook  One of the most  initions or descriptions  iven by the noted scholar  culture area, Philip 47  Submissions by Mr. Rush  1 Drucker:  2  3 'A potlatch was a ceremonial given by a  4 chief and his group, as hosts, to guests  5 composed of another chief or chiefs with  6 their respective groups, at which the  7 guests were given wealth goods.  Essential  8 to a potlatch was the guest-host relation,  9 although the exact composition of the  10 groups might vary.  Properly, the local  11 group was the basic unit, both as host  12 group and guest group, but sometimes larger  13 units were involved....'"  14  15 And then Dr. Daly continues:  16  17 "The feast is a public forum and a public  18 registry.  All serious local kinship group  19 matters which affect relations with the local  20 community - with other members of other House  21 groups are dealt with in the course of  22 feasting.  Decisions, at least in the past,  23 were remembered by all the attending chiefs.  24 There were no written records, and the visiting  25 chiefs had the responsibility to report back to  26 their members about formal status changes  27 announced by the hosts of the feast, and about  28 who had rights to use parts of the host's land  29 and fishing sites."  30  31 And then he quotes further from Drucker:  32  33 "'The overt purpose of both feast and  34 potlatch was the announcement of an event  35 of social significance: marriage of an  36 important person, birth of a potential heir  37 to one of the group's titles, crests and  38 high statuses, inheritance and formal  39 assumption of one of these titles or crests  40 and its corresponding position, and rescue  41 of ransom and restoration to free status of  42 a war captive.  These announcements were  43 not made perfunctorily.  When a title was  44 concerned, the announcement included an  45 account of its origin, how it had been  46 acquired by an ancestor, whether [it was]  47 bestowed by a supernatural being or 48  Submissions by Mr. Rush  1 captured in warfare, how it had been  2 transmitted down the family line to the  3 person on whom it was being bestowed. . . . '  4  5 "Gifts are given to visiting chiefs.  These are  6 payments made by the host group to the leaders  7 of other, like groups for having witnessed and  8 validated the decisions of the host:  9  10 'Then the gifts —'"  11  12 Again, quoting from Drucker:  13  14 "'Then the gifts were distributed in the  15 name of the recipient of the title or  16 crest.  The first and largest gift went to  17 the highest ranking guest, the second and  18 next largest to the second in precedence,  19 and so on down the line.  Recital of the  20 history of the privilege and the  21 distribution of wealth served to validate  22 its use.  The guests were witnesses to the  23 fact that the privilege was rightfully  24 owned and rightfully transmitted to its new  25 bearer.  This sanction was the essence of  26 the potlatch and the prime purpose of the  27 wealth.  The effect of the procedure may be  28 compared to that of notarizing a document  29 or of registering a deed.  30  31 "'....The myriad of rights in North  32 Pacific Coast culture had to be validated  33 in this manner.  The rights included those  34 to names and titles, not only names of  35 persons but traditionally owned names for  36 houses and other property, the right to use  37 specific masks and symbols and rituals, the  38 right to perform the rituals themselves, to  39 use carvings, feast dishes, and the  40 ownership of places of economic and ritual  41 importance....It was usual to announce to  42 guests, for example, that they were invited  43 to eat sockeye salmon from such and such a  44 stream, which had been discovered, given  45 to, or captured in war by an ancestor and  46 transmitted to the incumbent head of the  47 group.  The public announcement and tacit 49  Submissions by Mr. Rush  1 recognition of the fact by the guest group,  2 so to speak, legalized the claim.'"  3  4 And my lords, in the references which follow, are  5 references to the evidence of many of the chiefs in  6 terms of what occurs at a feast.  In the case of  7 Madeline Alfred, which is the next reference, she  8 discusses the feast at which her son, Henry Alfred,  9 succeeded to the name -- the Wet'suwet'en name of Wah  10 Tah K'eght and that their -- the territory -- her  11 territory and her son's territory was discussed.  12 The next reference is again to Madeline Alfred,  13 who, in the side line portion at line 14, indicates  14 the chiefs who were present during the feasts and who  15 spoke at that feast.  16 I'll pass over the next reference to Mr. Joseph.  17 The fourth reference to Alfred Joseph's  18 testimony, at 1772, talks about the requirement of  19 witnessing and he says at line 12:  20  21 A When a person receives a name at a Feast,  22 the House chief would say that this  23 person has now the privilege of using  24 this territory, and that person can make  25 use -- make use of this territory or this  26 berry patch or a fishing site.  27  28 The next reference, my lords, is to evidence of  29 Mary McKenzie who discusses a shame feast, where when  30 a chief has been shamed by some act or another, that a  31 feast is put on to wipe away the shame.  And that's  32 the character of her evidence there.  33 The next reference, again, to Ms. -- or to Mrs.  34 McKenzie, deals with the witnessing of access rights.  35 Access rights in this case which were given or granted  36 to her husband, Ben McKenzie, to use her territory was  37 also witnessed at the feast.  38 And the next reference, in turn, is the evidence  39 of Alfred Joseph, and he was asked at line 10 at 2126:  40  41 Q  ....Who must be present for that  42 description?  43  44 Meaning the description of a particular House  45 territory.  And he says:  46  47 A All the chiefs from the other clans have 50  Submissions by Mr. Rush  1 to be present.  2 Q  Is there any special relationship that  3 the father's clan has at such an  4 occasion?  5  6 And he says :  7  8 A  The father's clan have a right to go to  9 these territories, and the children also  10 can go with the -- go to the father's  11 territory.  12  13 And then it goes down, line 27:  14  15 A  They are always in contact with each  16 other through their spouses and there is  17 also, if they are on father's clan, their  18 obligation to the chief that has  19 departed, and they also -- is always an  20 investment on both sides, and you have to  21 be present to accept any compensation  22 that happens.  And today it's still  23 happening, is always you -- there is  24 always a feast that's coming up and you  25 are told when it is going to be at --  26 they announce it at every feast, that  27 they -- if it's the business of a House  28 chief, there will be people coming around  29 inviting you, and the feast would be at  30 this time.  And if it's a younger person,  31 they are told at the feast where and when  32 the feast is going to be.  33  34 Now, my lords, I just ask you to -- I'll pass  35 along to the end of the reference, but to advise you  36 that these references refer to instances of a divorce  37 feast; adoption, where the adopting House has the  38 adopting person witnessed and presented to the other  39 clans; and the last reference to the evidence of Mrs.  40 Ryan's evidence of a pole-raising feast which occurred  41 at her house.  42 At tab 1-54, in reference to my Factum at 54, the  43 Wet'suwet'en chief Johnny David likened the process of  44 receiving his name at a feast to receiving a deed to  45 land.  And that, my lords, is in the reference,  46 particularly at lines 28 and 29.  47 At 55:  The feast is an event which is at one and 51  Submissions by Mr. Rush  1 the same time political, legal, economic and  2 ceremonial.  It is hosted by a House, and other Houses  3 of the same clan assist.  Chiefs of Houses in other  4 clans and villages are formally invited by House  5 messengers sent by the hosting House and required to  6 attend and to act as witnesses.  And I give a number  7 of references there and I won't take you to those at  8 this point.  9 In 56, my lord, guests are seated according to a  10 specific order.  Seating is important at a feast and  11 this order shows the rank and clan of the House chief  12 and the relationship of that House to other Houses.  13 And again at 1-56, I've included here, the -- an  14 extract from Mrs. McKenzie's evidence, Antgulilbix,  15 who talks about the importance of seating.  16 In order to visually portray this, my lords, I'll  17 ask you to move along to the second-to-last reference  18 which is a chart showing the seating of one of the  19 Gitksan Houses and it is a chart showing a table and  20 it's indicated as "Modern Seating".  And I show  21 this -- I make reference to this only to show that the  22 head chief in this case, Mary McKenzie, Gyolugyet, is  23 arranged at the head of the table with, on her left  24 side, the descending order of sub-chiefs running down  25 the side of her table.  And on her right side, Chief  26 Luus, head chief of another house, and his sub-chiefs  27 running down that side of the house.  And in a feast,  28 there are strict laws according to -- determining the  29 seating of the chiefs and sub-chiefs of the Houses and  30 clans.  31 Now during the feast, my lords, the House  32 performs the dramatic performances of the House's  33 crests or history, and these are called "nax nox" in  34 the case of the Gitksan, and in the case of the  35 Wet'suwet'en, the "kungax".  Crests of the House are  36 displayed on regalia and through these ceremonial  37 performances to show the House's connection and  38 ownership to the territory.  Alfred Joseph explained  39 it in this way:  40  41 "After you have shown your kungax [or the  42 ceremonial performance] it is announced there  43 why it's done, to display your crest, to  44 display the song and that has been used, sung  45 at the time, the history of the song, when it  4 6 was created and by whom it was created.  And  47 the land, the land of Gisdaywa is also 52  Submissions by Mr. Rush  1 announced, any history that goes along with  2 it."  3  4 Now, my lords, one of the crests that was shown  5 at the trial and was exhibited -- Exhibit 34, is a  6 crest of this -- is this crest.  This is the crest of  7 Hanamuxw and is used by her in her performance of a  8 nax nox.  For her house, it is called the Two-Sided  9 Mouth and it is activated by -- it's worn around her  10 neck during the performance and she pulls on this to  11 make these two mouths work.  Yes, I have the crest  12 side and on this side is the actual carved and painted  13 portion of the crest which she wears during the  14 performance.  A photograph of that crest is at 34,  15 Exhibit 34.  16 Now food, my lords, including food from the  17 territories - moose, bear, beaver, salmon and  18 berries - is served to the guests.  The chief and  19 House which host the feast contribute goods and money  20 as do the other Houses of the same clan.  The hosting  21 House conducts the business for which the feast was  22 called which, at a succession feast, includes the  23 presentation of the House's choice of successor to the  24 name of the deceased chief.  The House territory is  25 also described and referred to at succession,  26 headstone, pole-raising and dispute resolution feasts.  27 The witnesses are paid, partly in goods and partly in  28 money, by the host House for participating and  29 witnessing.  At a pole-raising or headstone feast, the  30 oral history of the House is told and the relationship  31 of the House crest to the territory is described.  At  32 the conclusion of any feast, the witnessing chiefs, on  33 behalf of their Houses, may ratify and validate the  34 decisions of the host House, such as the selection of  35 a successor, or the boundary of the House territory.  36 If a guest chief disagrees with the decision, it will  37 be raised at this time and there will be a subsequent  38 feast to settle the dispute.  39 Now, my lords, at 59, the trial judge said this,  40 and I take you to the reference at 1-59:  41  42 "I do not question the importance of the feast  43 system in the social organization of  44 present-day Gitksan and I have no doubt it  45 evolved from earlier practices but I have  46 considerable doubt about how important a role  47 it had in the management and allocation of 53  Submissions by Mr. Rush  1 lands, particularly after the start of the fur  2 trade.  I think not much, for reasons which I  3 have discussed in other parts of this judgment.  4 Perhaps it will be sufficient to say that the  5 evidence about feasting is at least equivocal  6 about its role in the use or control of land  7 outside the villages."  8  9 The oral histories relating to territories are  10 told at the feast.  In so doing, the ownership of the  11 territories and the authority over those territories  12 is affirmed.  13 And I ask your lordships to make particular  14 reference to Mr. Art Mathews, the reference of Mr. Art  15 Mathews, which is the last reference in this tab.  And  16 in particular, I ask you to look at page 4561.  17 Decisions about access rights to land were, and  18 are, formally announced and confirmed in a feast.  19 Holding a feast allows a House to settle its  20 affairs, repay its debts and publicly present its  21 history, land boundaries and succession to title for  22 ratification by its peers.  23 The first Europeans to meet the appellants'  24 ancestors recorded some of the main features of a  25 feast.  And I take you to tab 1-63.  26 In 1826, William Brown gave a detailed account in  27 his journal of a crest and spiritual dance  28 performance, what we may call a nax nox.  The account  29 records dances, songs and regalia with crests on them,  30 all elements of a feast.  31 And I ask your lordships to go to 1-63, and here  32 is a difficult to read account in hand by Mr. William  33 Brown.  But behind it, behind the brown divider, is a  34 transcription, and I would ask you to look at the  35 bottom of that page, the side line portion where,  36 again, referring to the Gitksan chief Quo em.  He  37 said:  38  39 "He made a long harangue to us of his poverty  40 however sometime after he went out and called  41 his young men into another lodge where I  42 understood he was going to dance - after an  43 hour had been expended in dressing himself and  44 the rest of the party he made his appearance  45 dressed out with a number of trinkets, and in  46 particular with a very fine plaid or blanket  47 made of the mountain sheeps wool - the colours 54  Submissions by Mr. Rush  1 of it were good and the figures similar to  2 those on some of the Chin nock hats with a  3 fringe of about 8 inches drop of fine wool very  4 neatly plaited.  His head was covered with a  5 most enormous load of hair with different  6 colours - and his lower parts with a very  7 fantastic B —"  8  9 It's unexplained.  10  11 "-- and pair of leggins -- He was accompanied  12 by several others one of whom had a plaid  13 nearly the same as his own in size and colour,  14 but was made of cotton instead of wool.  15 Another had a sort of blue great coat with a  16 brace of pistols stuck in his belt -- But none  17 of the party danced except Quo Em himself - in  18 the course of his evolutions he produced a  19 false face and a head of a monstrous appearance  20 which he managed so dextrously by bending his  21 neck and hiding his head with his plaid and  22 hassock[?] of hair and placing this false head  23 in its stead that a person unacquainted with a  24 thing of the kind would be apt to conclude that  25 it really was his own head."  26  27 Now, my lords, those were the recordings of Mr.  28 William Brown in 1826, similar, I say, to the type of  29 performance having aspects of the type of spiritual  30 performances of a present-day Gitksan nax nox.  31 Now I'll move to consideration of the laws of the  32 Gitksan and Wet'suwet'en.  33 There is a body of Gitksan and Wet'suwet'en law  34 governing social relations and ownership of territory.  35 These laws govern trespass and rights of access and  36 use of territory, violation of clan exogamy, adoption  37 through naming at feasts, succession of chiefly names  38 and prohibitions against wasting game.  The trial  39 judge characterized these as "a most uncertain and  40 highly flexible set of customs" and as "rules [which]  41 are so flexible and uncertain that they cannot be  42 classified as laws."  The appellants challenge this  43 finding.  44 Stanley Williams, Gwis Gyen, testified about the  45 laws, and he said, and this is at 164:  46  47 "When we have a feast and we sit on the seat of 55  Submissions by Mr. Rush  1 our grandfathers, it's a knife  2 being stuck in and not ever moved.  This is how  3 our law is.  It's just like a thick  4 steel...It's just also like an ancient tree  5 that's been standing there and the roots have  6 been embedded deeper and deeper into the  7 ground, and this is how it is.  And the  8 branches are just like the prince and princess,  9 and the acorn...from the tree are the babies  10 that are just being born, and this is how it is  11 with our laws.  It's stronger, it's embedded,  12 the roots are embedded deeper into the ground  13 and now the government has come and tried to  14 uplift this, tried to heave it up."  15  16 In terms of the laws regarding feast  17 responsibilities upon the death of a high chief,  18 Stanley Williams also told the court that:  19  20 "The law is very important in the House of the  21 Simoogit [or the chief in Gitksan].  It is not  22 only the Simoogit that uses the law, it is the  23 law of our people.  All the Gitksan people use  24 this law.  We all have one common law amongst  25 our people."  26  27 Now at this tab, my lords, from where this  28 passage was taken, he was asked about what happens  29 when a chief dies and what then -- what procedure then  30 follows.  And following on this passage, Mr. Williams  31 goes on to explain what occurs.  32 Now, my lords, there was no controversy about the  33 centrality of the feast.  Alfred Joseph said -- and I  34 would like to take you to 1-67, when he was asked  35 about the importance of witnessing:  36  37 A  It is important to have witnesses at a  38 Feast.  If you are in a place where all  39 the people are of one clan, that is you  40 cannot invite that clan to come in, your  41 own clan to come in as witnesses, it has  42 to be of another clan.  All the guests  43 that you have have to be of another clan  44 and that is why it is important to have  45 witnesses.  46 Q  Why could you not have witnesses from the  47 Gitdumden clan? 56  Submissions by Mr. Rush  1  2 That's his own clan.  3  4 A  It is -- it's something like to me you  5 buy a glue in the store and one is --  6 one -- just one of a kind, can't mix, so  7 that is the reason for this.  You have to  8 have witnesses from another clan to be --  9 due to -- to be in a Feast.  And that's  10 what makes -- makes this stronger.  To  11 have people there that are not related to  12 you, and those people say that what  13 happened is correct.  What happened is  14 according to our laws, and that is why  15 you have to have witnesses from different  16 clans.  17  18 In terms of the laws of succession, in the  19 evidence, there was no uncertainty.  Several witnesses  20 described this law.  According to Solomon Marsden:  21  22 "When the decision has been made for the  23 successor of the former chief, then the name  24 has to be put on this new chief, and the power  25 and the put on this chief to  26 make decisions on territories and the House  27 plans."  28  29 There was no uncertainty about the laws relating  30 to House ownership of crests, oral history and the  31 territory.  Mrs. McKenzie spoke of the laws of the  32 House.  She said:  33  34 "...the importance of a chief's House is that  35 it holds the adaawk, that's the legend or the  36 history, and it holds the songs, the naxnok,  37 and the names and the territory."  38  39 The trial judge accepted the opinion evidence of  40 Heather Harris, and that's referenced.  She explained  41 that "the primary rule of inheritance is that titles  42 are inherited with the House", and she said:  43  44 "When a chiefly title is inherited, all  45 property owned by the House is inherited with  46 it.  The primary property owned by the House is  47 its territory or territories and its fishing 57  Submissions by Mr. Rush  1 sites.  As well, the new successor to a chief's  2 title inherits his predecessor's blanket and  3 other regalia.  For House members who are not  4 chiefs, House membership gives an inherited  5 right to access to House territories and  6 fishing sites and the right to use the House  7 crest."  8  9 Now there are Gitksan and Wet'suwet'en laws  10 relating to dispute resolution and settlement.  The  11 trial judge neglected to comment on these.  There are  12 laws of settlement involving the transfer of territory  13 and the payment of compensation for a wrong.  Martha  14 Brown, formally Chief Kliiyemlaxha, related the oral  15 history of a settlement feast with the northern  16 neighbours of the Gitksan, the Stikine, arising out of  17 the killing of one of her ancestors.  And that's set  18 out, my lords, at 1-71, and that takes us to the third  19 volume in this tab.  20 At the time of her testimony, Mrs. Brown was 85.  21 She was commissioned, and at 39 at this tab, the  22 question was asked:  23  24 Q  Do you know how Xhliimlaxha obtained this  25 territory at the -- up near the  26 headwaters of the Skeena?  27  28 And over the page, her answer:  29  30 A  Xsiisxw is a word significant to a  31 settlement by the Stikine.  32  33 Xsiisxw means settlement.  I'm adding that, my lords.  34  35 A  Stikine, who killed Xhliimlaxha --  36 ....  37 A  Just a minute, let me start over again.  38 Xsiisxw is a settlement to Xhliimlaxha  39 from way back.  She doesn't know even who  40 he was or what he looked like but his  41 sister was killed by Stikine.  42 ....  43 A And the settlement for killing that  44 sister, that territory was given to him.  45  46 And then what follows is the description of what  47 occurred during that settlement. 58  Submissions by Mr. Rush  1 In the next reference, Mr. Morrison describes the  2 account of Mr. David Gunanoot's crest in relation to  3 his territory.  4 But the third reference is in relation to the  5 xsiisxw, and here Dr. Daly said:  6  7 "A second set of circumstances under which  8 land may be transferred revolve around peace  9 settlements.  Compensation for homicide or the  10 accidental death of a person while on the land  11 of another House, or reparations arising from  12 wars and feuds have to be paid to the offended  13 group so as to avoid, or end hostilities.  14 These peace settlements frequently involve the  15 transfer of property and/or House members, as  16 well as a peace ceremony that include the  17 spreading of eagle or swan's down, which  18 signifies the binding law of peace.  Xsiisxw  19 agreements are legally validated when they have  20 been witnessed in the feast house."  21  22 Now what follows, my lords, is testimony by Mrs.  23 Ryan, Chief Gwans of such a settlement at line 14 in  24 the next reference.  And then following that is  25 evidence of Mary Johnson, Chief Antgulilbix, at lines  26 25 to 30, which, again, explains another example of  27 that.  28 Now I'm returning to paragraph 72.  29 There are Gitksan and Wet'suwet'en laws relating  30 to access and use rights to the House territory.  And  31 Johnny David described access rights of spouses, and  32 he testified:  33  34 "My wife's uncle, Francis Lake John said that I  35 could use my wife's hunting territory which is  36 called Nanika.  This was done at a feast that  37 was held here.  Francis Lake John got up and  38 announced it at a feast.  . . .  39  40 "This is how it is been done in the past and it  41 is still happening today where the man can hunt  42 on his wife's territory.  When I use my wife's  43 territory any game that I shoot or any money  44 that I make from the furs is all spent at a  45 feast that my wife would put up.  ..."  46  47 Now other examples, my lords, of what Mr. David 59  Submissions by Mr. Rush  1 said is contained under the references "See also".  I  2 also ask you to note that Solomon Marsden at paragraph  3 74 gave evidence to the same effect.  4 But at 73, Mr. Marsden also testified about the  5 principle which in Gitksan is known as "amnagwootxw",  6 and this is to demonstrate that there are access  7 rights of children as well as spouses.  And he said:  8  9 "...when the son travels with his father on the  10 territory, he will be with his father until his  11 father dies.  But after his father dies he does  12 not say he owns this territory.  He leaves and  13 if he wants to go back there he has to get  14 permission from the Head chief of that  15 territory."  16  17 Mr. Marsden was talking about the principle in  18 the -- among the Gitksan.  Mr. Alfred Joseph under  19 that reference talks about the parallel law of  20 Neg'edeld'es with the Wet'suwet'en.  21 I ask you to move along to paragraph 75, and I  22 will now refer to the geographic territory of the  23 appellants.  24 There are 133 individual territories claimed by  25 the Gitksan and Wet'suwet'en Houses.  Together, these  26 territories comprise the total area of the Gitksan and  27 Wet'suwet'en people.  Within the territory, there is a  28 distinct Gitksan territory and a distinct Wet'suwet'en  29 territory.  This territory was mapped and is shown in  30 maps, Exhibits 646-9A and 9B.  The trial judge shows  31 these in his maps 3 and 4.  32 Now, my lords, if we look again at the easel, the  33 Wet'suwet'en territories are in the south below this  34 line, in this territory -- in this area here, and  35 above this line are the Gitksan territories to the  36 north up here to Bowser Lake in the far northwest.  37 This is the line between the two.  38 The evidence showed a system of land ownership  39 based on House ownership and that system was found on  4 0 five elements:  41 (a)  The House owns the territory;  42 (b)  House territories have defined boundaries,  43 protected by laws of trespass;  44 (c)  The House chiefs regulate access to  45 territories in accordance with Gitksan and  46 Wet'suwet'en law;  47 (d)  House territories are the subject of 60  Submissions by Mr. Rush  1 succession and alienation; and,  2 (e)  House ownership is recognized and maintained  3 in the feast system and by the display of  4 crests, and recorded in oral histories.  5  6 Now the hereditary chief of the House represents  7 the House's rights of ownership as caretaker of the  8 land, on behalf of House members.  9 Alfred Joseph expressed it in these words:  10  11 "When they talk of their land they also put in  12 the word —"  13  14 And he gives the Wet'suwet'en word:  15  16 "-- Wa Ts'ad'egh which means 'everything that  17 came from that territory'."  18  19 House territories are defined by boundaries with  20 specific reference to named geographical, physical and  21 historical features.  Alfred Joseph talked about these  22 and he said:  23  24 "You look for a ridge or a small hill and those  25 features; a small hill or mountain is: kess."  26  27 That is the Wet'suwet'en word.  28 The evidence of Madeline Alfred, Chief Dzeeh of  29 the Wet'suwet'en, described the boundary of her House:  30  31 "A long time ago our ancestors had places,  32 names, mountains, creeks, which they used for  33 boundary lines.  There was no such thing as  34 lines.  They used these place names for  35 boundary lines."  36  37 Olive Ryan in her testimony said that the Gitksan  38 word for boundary is "anlaytix", which means marker.  39 House ownership of territories is enforced by  40 Gitksan and Wet'suwet'en laws of trespass.  Mary  41 McKenzie, Chief Gyolugyet, said:  42  43 "It's Gitksan law that no one goes on anyone's  44 territory without getting permission from the  45 head chief of the House of the territory, even  46 if it's your husband, your wife or your  47 children. 61  Submissions by Mr. Rush  1  2 Now, my lords, I ask you to look at tab 1-82,  3 because here in the second to last reference, Alfred  4 Joseph testified about a law against trespass.  And  5 beginning at line 13 of the reference, page 1572 of  6 his testimony, he was asked if this -- at 16 he was  7 asked if this is "an important law in the Wet'suwet'en  8 society?"  He answered, "Yes," and he was asked, "And  9 are there words in Wet'suwet'en for trespass?"  He  10 says, "Yes", and what he then did was to set out eight  11 such words following in his testimony, beginning at  12 line 38 with the first one of them, describing the  13 Wet'suwet'en word and its English translation.  My  14 lords, that runs over to the next page, to line 33.  15 The head chiefs regulate access to territories in  16 accordance with established categories of access and  17 use rights in which access is granted to non-House  18 members.  The access rights of the father's children  19 and spouses have been referred to above.  20 Rights of ownership are transmitted by  21 inheritance from one holder of a chiefly name to  22 another, resulting in perpetual succession.  The  23 ownership of the territory is confirmed by the leading  24 chiefs of the clans during the succession and  25 pole-raising feasts.  The chiefs speak of the  26 territory and the name that goes with it.  27 And I've given several references there and  28 that's, in some senses, a repetition of what  29 references we've given earlier.  30 At 85, territorial ownership is recognized and  31 maintained in the feast system and by the display of  32 crests and recorded in oral histories.  Territorial  33 ownership is publicly proclaimed at a feast before  34 witnesses.  Ownership is confirmed in the public  35 display of the House crest which symbolizes the  36 history of the House.  37 Now in respect of the House's jurisdiction, my  38 lords, Gitksan and Wet'suwet'en societies exercise  39 their jurisdiction through institutions of self-  40 government.  As pointed out above, the feast system  41 has a central place in the social, political, economic  42 and legal decision-making of the Gitksan and  43 Wet'suwet'en.  This jurisdiction is exercised in the  44 determination of House membership, maintenance of the  45 House system, the regulation of family relations,  46 education, harvesting, management and conservation of  47 House territories and their resources, dispute 62  Submissions by Mr. Rush  1 resolution and relations with others.  2 At tab 1-86, my lords, Mary McKenzie -- and I've  3 added this reference.  Her testimony goes to the  4 history of Gyolugyet's House, and the reference begins  5 at page 198 at line 28 and runs down through the next  6 page where Mrs. McKenzie is describing the genealogy  7 of her particular House, and explains the chiefs of  8 her House through -- running over to page 200, line 2.  9 The next reference, again of Mary McKenzie, where  10 she discusses the rule against marrying from someone  11 from your own clan, and she says at line 14:  12  13 A  In Gitksan law we strictly can't marry  14 into our own clan.  15  16 And the question is:  17  18 Q  In other words, Lax Gibuu --  19  20 Which is the Gitksan Clan Wolf.  21  22 -- cannot marry Lax Gibuu?  23  24 And her answer is, "No."  25 And at line 3 -- excuse me.  At line 43, pages  26 380 and 381, she discusses an incident in which two  27 young people from her Gitksan village were both of the  28 same clan and the pressure that was brought to bear by  29 the chiefs to have them wed outside of the clans.  30 I ask you to go to the report of Dr. Daly, which  31 is the next reference, in which he refers to Alfred  32 Joseph's testimony.  At the top of the page:  33  34 "The elders are stressing the adherence to the  35 long-standing rules of succession and the  36 attendant system of exclusive ownership rights  37 embodied in the matrilineal House group.  As  38 Alfred Joseph has testified the elders stress  39 this fact in the present-day feasts.  Through  40 public education in the feasts, they strive to  41 undo the confusion which patrilineal  42 inheritance of traplines has caused."  43  44 Similarly, my lords, Alfred Joseph in the next  45 reference discusses the -- the way in which the chiefs  46 deal with a son who continues to stay on the territory  47 of his father, once the father has passed on. 63  Submissions by Mr. Rush  1 Now I would like to take you, my lords, to the  2 final reference in this tab, which is the evidence of  3 Joan Ryan who is Hanamuxw, and she is discussing, in a  4 contemporary form, her role in the Native Indian  5 Teachers Education Programme.  And of particular note  6 is what she has to say at page 5001.  It's the second-  7 to-last page of this particular reference and she is  8 asked the question:  9  10 Q  Could you explain to the court how you  11 see your continuing work with the NITEP  12 program, and the work in fact you've  13 outlined for the court over the years,  14 how do you see that related to your role,  15 your authority as Hanamuxw?  16  17 And her answer is this:  18  19 A  One of the requirements of a chief is  20 that you are expected to take care of  21 your people and to improve their lot in  22 life, whatever that may be.  And  23 certainly in my decision to be a part of  24 this advisory committee was based on this  25 idea that I am expected as Hanamuxw to  26 help develop the skills of my people.  27 There's -- one of the things that we  28 strongly believe in is that the mind, the  29 spirit, and the body must be one, and  30 they have to be aligned at all times.  If  31 your education was segmented then you  32 don't achieve that.  We feel that the  33 whole person has to be developed.  That  34 you don't deal just with the mind alone  35 in isolation.  You also have to take into  36 consideration other needs of the  37 individual, and that you try and develop  38 them totally as best you can.  And I feel  39 that in doing this work I'm also  40 fulfilling one of the historical  41 precedents started by my grandparents  42 that whenever we try to solve problems,  43 and I'm going to have to take you back to  44 the time when the four Houses was  45 Gisk'aast [that is Fireweed] were  46 established in Gitsegukla [that is the  47 village of Kitsegukla].  The four houses 64  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  of the Gisk'aast are, Xsgogimlax ha, Gwis  gyen, Hanamuxw and Wiigyet.  And she carried on, my lords:  A When those four houses met a long time  ago when they were conducting their  businesses of directing the activities of  the people it was always Hanamuxw who had  to make the announcements for the people,  who had to take the messages to the  neighbouring tribes.  And based on that  role of being the spokesperson for  Gisk'aast at my village I looked upon my  involvement with NITEP as fulfilling that  responsibility of being the spokesperson  not just for the Gitksan people, but for  the Indian people of British Columbia,  because when we conducted meetings with  B.C. NITEP we found that many of the  Indian people in British Columbia had  similar needs, had similar problems that  need to be taken care of.  And so  basically that was my motivation in  saying that I will work as hard as I can  to see that this programme is established  not just for a short period of time, but  for as long as our people --  And unfortunately I don't have the last page, but I  will get it.  Now, my lords, at 87, the Gitksan and  Wet'suwet'en people, like their ancestors --  HUTCHEON, J.A.:  Can I ask you, Mr. Rush, was there any finding  by the trial judge about the family relations?  You've  taken us through some evidence that marrying within  the clan was not permitted by the law of the people,  was there any finding by the trial judge on that  feature of it?  MR. RUSH:  He notes the existence of that law.  HUTCHEON, J.A.:  Yes?  MR. RUSH:  But my recollection is that he makes no particular  finding in respect of that.  HUTCHEON, J.A.:  I see.  MR. RUSH:  There was some evidence that that law had been  violated, but Heather Harris' evidence was that -- I  think it was 60 -- 70 percent -- of the cases that she 65  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. RUSH:  HUTCHEON,  MR. RUSH:  examined, 70 percent of those cases conformed with the  law.  Now that is my recollection of the evidence.  J.A.:  Yes.  But he, as far as I recall, made no finding in that  respect.  J.A.:  Thank you.  Now I'm at the bottom of 28, my lords, paragraph 87.  Their harvesting is based on a management system and  rules of conservation.  The head chief has the  authority to make decisions about allocation,  preservation, access and use of the resources of the  territory.  There was controlled burning to stimulate  berry growth.  Hunting and trapping activity was  rotated from valley to valley or among mountain ridges  depending on the time of the year and the scarcity of  the animals.  Now, my lords, I just ask you to turn to tab  1-87, and I don't intend to read through this passage,  but I ask you to note that again, Glen Williams is  addressing his authority as he has been taught, when  he is describing the role of a young chief.  And here  he describes at 11 -- line 11, the Dax gyet, or the  authority.  And he goes on to say at line 29:  A  The authority is within that particular  house group, that is, the main host of  that feast, and is mainly the hereditary  chief of that house is the major  decision-maker along with his house  members.  They are the ones that are in  main control of the feast.  And he goes on to describe how that authority is  manifested.  Now the next reference has to do with the  stimulation of berry growth by controlled burnings.  And perhaps it might be better if I simply took you to  the next paragraph where Martha Brown testified in  these words about the use of controlled burns as a way  of stimulating berry growth.  She says:  "I remember when my Grandfather burned the area  at Luuminx saansegit."  Now that's an area on her territory just north of  Kispiox, the village of Kispiox, between the Kispiox  and Skeena Rivers. 66  Submissions by Mr. Rush  1  2 "Pretty well burned the area every two years  3 because this is their livelihood where they  4 picked their berry crop.  The berries is used  5 for feast, that is why they take care of the  6 patch."  7  8 The territory is managed by the House, my lords,  9 to sustain House members materially and spiritually  10 and to support the obligations of the House at the  11 feast.  Witnesses also testified about conservation  12 techniques and resource-use based on sustained yield  13 principles.  14 Now I would like to refer you to tab 1-89, and in  15 particular, the evidence of Alfred Joseph at the first  16 reference at line four, where he says:  17  18 A  The head chiefs, when he take a name,  19 like I said, the territory goes with it,  20 and you have to see that the rest of the  21 sub-chiefs and others -- see that all the  22 clan members are using the territory,  23 have a place to go to, and the more  24 people that go out to use the territory,  25 that means the head of each House has  26 more power and wealth to distribute or  27 pay for anything, that is, any services  28 that have been performed by other clans,  29 especially on the father's side.  30  31 Now I would ask you to just move over one  32 reference, my lords, to the evidence of Arthur Mathews  33 Junior, and he's talking about his hunting laws.  This  34 is at 4668, the side line beginning at line 21.  35 MR. WILLIAMS:  What tab?  36 MR. RUSH:  This is the same tab but the third reference along.  37 We are at tab 1-89:  38  3 9 A And we hunt goats here.  And we have to,  40 when we hunt, we are reminded of specific  41 hunting laws we have to go through, and  42 the reminder comes from my dad, that we  43 should go through these laws or rules of  44 hunting, you might say, the laws of the  45 goat hunt.  46 Q  Were you taught this by anyone besides  47 your father? 67  Submissions by Mr. Rush  1 A  Yes, by my three grandfathers, like I  2 already said, Geoffrey, Jack and Wallace.  3 Q  Morgan?  4 A Morgan.  More so Jack, Jack Morgan, was  5 always -- we call him the camp cook  6 because he always been with us on every  7 hunt until he died.  8  9 Now at line 35:  10  11 A  The first one is we -- depending on the  12 hunting group, we know we have to decide,  13 and then we don't over kill.  14 Q  Uh-huh.  15 A  The second one is the real dressing that  16 has to be done.  The raven was always  17 there, as I pointed out through the  18 adaawk, Biis hoon.  So the second step is  19 never forget to feed the raven that are  2 0 always around.  21 Q  Are the ravens always there when you get  22 a kill?  23 A  Yes.  The other one is -- these are real  24 top one.  The next one I would say is  25 never kill a mother sheep with young  26 ones.  27 Q  Uh-huh.  28 A  The next one is that we, after field  29 dressing, the cuts, the hide, whatever  30 that we do not need has to be burned.  So  31 our system that it is -- this is a must.  32 We have to burn all these lefts, for our  33 belief in reincarnation.  This is Biis  34 hoon, like I said in the adaawk, Biis  35 hoon.  36 ....  37 A  The fifth one would be the actual  38 roasting of the head of this -- the goat.  39 And it would be pointed at directions  40 within our territory to show thanks or  41 appreciation.  42  43 And then Art Mathews goes on to express in that  44 same reference at page 462, how the material taken  45 from a hunt is shared among members of the family and  46 the father's side in the village.  47 The next reference is to a passage from Dr. 68  Submissions by Mr. Rush  1 Daly's report in which, again, Art Mathews, Tenimgyet,  2 is quoted in respect of control and management of the  3 territorial resources, and that begins at the first  4 full paragraph.  5 Now, my lords, I continue at my paragraph 90 at  6 the bottom of 29.  7 Many witnesses told how the resources which were  8 taken from the House territory were directed towards  9 fulfilling the House obligations in the feast.  10 The Hudson's Bay records tell that hunting was  11 organized by House ("family") in specific territories  12 and the resources, in one case, a beaver, was held up  13 at a feast to show the place where it came from.  14 Perhaps I should just take you to tab 1-91, which  15 is an extract from the New Caledonia Reports of  16 William Brown in 1826, and behind the brown divider is  17 the transcription of it.  And I ask you to look at the  18 side line portion where Mr. Brown notes in his journal  19 in relation to, as you can see, under the parenthetic  20 "[page 141]":  21  22 "In hunting their animals they [the  23 Carriers, Siccanies and Athahs] --"  24  25 Athahs being the Gitksan.  26  27 "...  The country being parcelled amongst  28 Certain families to whom it descends by  29 inheritance, and the portions of many it may be  30 supposed being but poorly stocked with Beaver  31 they can therefore Kill but few -- and a number  32 who have no land stake and are not permitted to  33 Hunt that animal on those belonging to others."  34  35 And at the bottom of the page he says:  36  37 "...they will always endeavour --"  38  39 Perhaps I should start a little earlier:  40  41 "Beaver, independent of the benefit they claim  42 from the skin, they will always endeavour to  43 Kill, it being a favourite article of food and  44 in places, where large animals cannot be found,  45 are indispensable for the purpose of  46 celebrating their feasts in commemoration of  47 their departed Friends -- ... 69  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  So from the early Hudson's Bay record, there was  indication of beaver hunting in specific territorial  areas.  Now at 92, my lords, the evidence of management  and conservation was presented by the appellants but  was not accepted by the trial judge.  On this he said  it was:  "...[not] anything more than common sense  subsistence practices,...entirely compatible  with bare occupation for the purposes of  subsistence.  The evidence does not establish  either a policy for management of the territory  or concerted communal conservation."  The appellants challenge this conclusion.  Now, my lords, the land that is subject to the  appellants' rights, this land is contained within the  external boundary set out on the map, Map 5,  determined by his lordship, and it was proved by four  types of evidence.  There was also a wealth of  documentary evidence supporting the appellants'  assertions of ownership.  And once again, my lords, I can direct your  attention to the easel map and for desk convenience,  to the map of his lordship as contained in his  original Reasons for Judgment.  TAGGART, J.A.:  Mr. Rush, would it be appropriate to pause for  about five minutes at this point and stretch your  legs?  MR. RUSH:  Yes, my lord.  THE REGISTRAR:  Order in court.  Court stands adjourned for five  minutes.  AFTERNOON RECESS  THE REGISTRAR:  Order in court.  MR. RUSH:  At paragraph 94, perhaps I'll just pick up again  there and state that the land subject to the  aboriginal rights of the appellants and contained  within the external boundary of Map 5 was proved by  four types of evidence.  In addition, there was a  wealth of documentary evidence supporting the  appellants' assertions of ownership.  Now the first of these types of evidence was  places and topographic features in the House 70  Submissions by Mr. Rush  1 territories are identified by Gitksan and Wet'suwet'en  2 names.  There are over 2,000 such names.  An example  3 of the nature and number of place names is found in  4 the evidence of Robert Jackson Sr., the Gitksan chief  5 of the House of Miluulak, and I've exhibited his  6 territorial affidavit.  7 In respect of each of the territories, there was  8 affidavit evidence -- perhaps I should rephrase that.  9 In respect of most of the territories, there was  10 affidavit evidence.  There was direct oral evidence in  11 respect of some of the territories.  But in the  12 territory of Miluulak, Mr. Robert Jackson at 1-95,  13 gave a territorial affidavit, and I would like you to  14 turn to that affidavit at page 3, to give you a sense  15 of the types of names that were referred to in the  16 evidence.  17 For example, at paragraph 7, the lakes:  Wii Tax,  18 the Gitksan name for Gunanoot Lake.  The second lake,  19 Dam Sta Loobit, Hanawald Lake, and then Dam Nageeda,  2 0 it's unnamed.  And in respect of many of the  21 topographic features, many of the landmarks and the  22 territories, there were no English equivalents and yet  23 the Gitksan or the Wet'suwet'en had named that  24 feature.  25 Under "Rivers and Creeks", you see Xsugwin  26 Liginsxw, which is the name for Babine River.  At  27 three, Xsaga Gyo'ot, it's Shelagyote River.  And if  28 your lordships -- both the sound and the name in  29 Gitksan, of course, carries that name into the  30 English, the Shelagyote River.  31 Similarly, on the next page, An Skeexs, an  32 unnamed mountain.  Lip Skanisit in this particular  33 territory refers to the -- a notable land feature,  34 Kotsine Mountain, in that territory.  And Siiyuun,  35 Shelagyote Peak.  And that gives your lordships a  36 sense of the type of Gitksan -- or in the case of  37 Wet'suwet'en -- Wet'suwet'en names for the landmarks  38 and features contained within the territorial area  39 contained by the boundary on map 646-9A and B.  40 Now, I've provided seven other territorial  41 affidavits of the Gitksan and the Wet'suwet'en in this  42 tab reference, which I will not take your lordships  43 to, but they all demonstrate the same point of the  44 vast numbers of names in the language of the Gitksan  45 and the Wet'suwet'en for topographic and geographic  46 features of the territory.  47 And that runs through to the end of this 71  Submissions by Mr. Rush  1 reference volume, my lords, and that takes me to  2 Volume 4.  3 I'm at paragraph 96:  The place names were  4 depicted on maps of the Gitksan and Wet'suwet'en  5 territories.  And what's given here are composite  6 draft working maps from which the expert cartographer,  7 Marvin George, assembled the territorial map which is  8 646-9A and B, and 1007, 09 and 1011 are originals and  9 only within your lordships' collection of exhibits.  10 1008 shows a numbering system which is -- which  11 corresponds to lists of names that had been gathered  12 from hereditary chiefs of territorial locations and  13 geographic points.  14 Many of these name places were also shown in  15 photographs, and I take you to 1-97.  I'll refer you  16 to the set of photographs that is contained here, and  17 this can be read in this way:  The photographs  18 starting in the upper left-hand corner going  19 clock-wise, one, two, three, four, and photocopies of  20 those photographs are contained below the photograph  21 page, and on these photocopies are the names of  22 certain topographic features.  23 I'll take you to one example and that is that in  24 the upper left-hand corner of the Exhibit 377, Volume  25 1 book of photographs, the named feature that Robert  26 Jackson gave in his affidavit of Taam Wiidax, which is  27 Gunanoot Lake, is shown in the background as the light  28 coloured body of water.  And that lake is there shown  29 to be in that -- in the Miluulak territory about which  30 he spoke.  31 Below that photograph, my lords, the reference on  32 the photocopy is to a feature called Lax an Hak.  It  33 is the lighter coloured ridge in the background, not  34 the mountains in the far background, but in the  35 intermediate background is a ridge which is a mountain  36 ridge outside of the village of Kisgagas and that's  37 called in Gitksan, Lax an Hak, and that's shown in the  38 photograph.  39 And I won't take you to the other photographs, my  40 lord.  They illustrate the same point.  41 The second type of evidence, my lords -- and I am  42 at paragraph 98 -- was the territory and fishing sites  43 of the appellants and their ancestors which are shown  44 by the activity and the presence of the chiefs and  45 their House members on the land.  Emma Michell, Chief  46 Liiloos of the Wet'suwet'en House of Namox testified  47 that: 72  Submissions by Mr. Rush  1  2 "[We] travelled throughout the territory, went  3 to different places during trapping season.  4 Sometimes we'd spend the winter in the  5 Kilwoneetz country, also the Telkwa River area,  6 and sometimes at Sam Goosley Lake, which is my  7 mother's territory."  8  9 The people utilized their territories for  10 obtaining clothing, food and medicine.  There was  11 direct evidence of caribou snares and pre-European  12 hunting.  There was trade internally and between the  13 Gitksan and Wet'suwet'en and their neighbours.  14 And I would ask you to go to 1-99, the evidence  15 of James Morrison who, at the first reference at line  16 30, testified about one of the territories, Ant Gilek,  17 the northern Waiget territory, and this is what he  18 said at line 33:  19  20 A Well, the purpose of that trapping is to  21 conservation, and for the fur that they  22 caught, and not only the profit but also  23 the other things that you taken off the  24 territory which is to make your clothing,  25 and also make your boots.  Anything you  26 can make on the fur of any animals that  27 you tooken out of the territory.  It's  28 just not the profit of trapping that you  2 9 can make money with.  You can make other  30 things in your territory.  That's why the  31 territory divided between the Indian  32 people earlier, thousands of years ago.  33 That's how it's been divided, uses for  34 clothing.  Now it's used for trapping.  35 Only few years now start for using for  36 trapping.  Before that the territory used  37 for the food, also used for the berries,  38 used for anything, used for medicine,  39 used for other things where you have to  40 be looking on to the territory.  41  42 And he is asked about specific clothing items and he  43 says:  44  45 A My father makes boots.  They make  46 sleeping bag, and also make a mattress  47 out of these goat skin, bear skin and the 73  Submissions by Mr. Rush  1 ground hog.  The Ghilixw, also make  2 something out of that.  3  4 And the Ghilixw is the hoary marmot.  5 Now, my lords, at paragraph 100 of the factum:  6 A map drawn in 1910 by the Wet'suwet'en chiefs  7 and given to John McDougall, Special Representative of  8 the Department of Indian Affairs, showed the area of  9 the Wet'suwet'en territories, their hunting places and  10 trails.  This matches with the territory claimed by  11 the Wet'suwet'en in this action.  12 And I just ask you to turn to paragraph 100, and  13 the memorandum is the -- it is the memorandum of  14 Reverend McDougall and the map that is attached to  15 that, it's a difficult map to read, difficult because  16 it's almost indecipherable but also because north is  17 at the bottom of his map.  But the historian called as  18 an expert by the appellants, Dr. Galois, did a tracing  19 of this map and that tracing is found not at the next  20 reference but the one beyond the next reference.  21 Now if your lordships can turn to that, Dr.  22 Galois put Hazelton in its proper place, which is at  23 the north end of this map, and what he did was to  24 situate the various points that are described by the  25 1910 memorandum on his tracing, showing Hazelton at  26 the top, which is the northerly-most point of the  27 residence of the Hagwilget people, and he shows  28 Moricetown, running down the Bulkley system, and the  29 Bulkley system is shown as a north/south stem.  And  30 about half-way down is Morice River, and Houston,  31 which is at the confluence of the Morice and the  32 Bulkley, is not even shown on this map.  The Morice  33 River then winds out in a swing to the upper left to  34 Atna Lake and to Morice Lake and that group of lakes  35 there, and then runs down to the south end to Burns  36 Lake.  And in the lower left-hand corner is Ootsa  37 Lake.  And this is, of course, not to scale, but it  38 demonstrates that in 1910, what the geographical --  39 geographic extent was as portrayed in the  40 representations made by the Wet'suwet'en people to  41 Reverend McDougall at that time.  42 The parenthetic -- wherever the parenthetic name  43 is attached, is what is added by Dr. Galois.  And the  44 tran -- the portion of the transcript that precedes  45 this map is the evidence of Marvin George, who, as a  46 cartographer knowing the territory, related the  47 particular geographic points and lakes that are shown 74  Submissions by Mr. Rush  1 in this diagram to the named features on the NTS, or  2 National Topographic Series.  3 Now I move along, my lords, to paragraph 101.  4 The third type of evidence was the oral histories,  5 which record habitation in territories, boundaries and  6 place names throughout the territories.  And the  7 reference that we've given there is the evidence of  8 Arthur Mathews in his telling of the Tenimgyet adaawk.  9 And then at paragraph 102, the fourth type of  10 evidence is that over 50 chiefs testified that they  11 know from oral statements their ancestors own this  12 land.  And the evidence of oral declarations of  13 ownership was given viva voce and through affidavits.  14 Now the chiefs' ancestors expressed these  15 assertions of ownership in the 1800s and in the early  16 part of the century.  17 On October the 10th, 1884 — and I am here at  18 paragraph 104 -- the Gitwangak chiefs -- and the  19 Gitwangak village is the most westerly of the Gitksan  20 villages -- claimed the land from Andemane, which is  21 the -- a small point called Andimaul, "some  22 two-and-a-half to three miles above our village," that  23 is to say, Gitwangak, "on the Skeena River to a creek  24 called Skequin-khaat, which empties into the Skeena  25 about two miles below Lome Creek.  And what was said  26 in 1884 was that:  27  28 "We claim the ground on both sides of the  29 river, as well as the river within these  30 limits, and as all our hunting, fruit gathering  31 and fishing operations are carried on in this  32 district, we can truly say we are occupying  33 it."  34  35 In 1924, the Kispiox chiefs, supported by other  36 Gitksan chiefs, sent a petition to Prime Minister  37 Mackenzie King, demanding on behalf of the Kispiox and  38 Glen Vowell people clear title to:  39  40 "...a strip of land watered by the Kispiox and  41 Skeena Rivers; said strip of land to extend  42 from the Kispiox Sawmill  -- approximately  43 eighty miles north -- [and embracing] the  44 territory fifteen miles to the east and fifteen  45 miles to the west of the Kispiox River, thus  46 including the mountain ranges on both sides of  47 the Kispiox Valley. 75  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. RUSH  TAGGART,  MR. RUSH  TAGGART,  MR. RUSH  And what the petition there was claiming, my  lords, was the whole of the Kispiox Valley, running  from the village of Kispiox located here, 80 miles  north, which is up to about here, all through that  valley system.  The Upper Kispiox is up here.  The  Gitwangak chiefs claimed from their village in 1884,  from their village Gitwangak, which is here, to this  point here, all along the Skeena River that runs like  this on both sides of the Skeena River.  These are the  territories claimed by the Gitwangak chiefs.  The trial judge -- and I'm at 106 -- found that  the evidence of ownership in the -- of ownership in  the territorial affidavits --  J.A.:  Excuse me, Mr. Rush, that map that they prepared  and sent forward to -- I take it to Ottawa Indian  Affairs by Reverend McDougall?  Yes.  J.A.:  How does it correspond in terms -- in general  terms to this?  It corresponds very well, my lord.  Again, although  not to scale, but in general description, it started  here at Hazelton at the Hagwilget village of Hazelton.  Moricetown is located here, and it ran to and included  Burns Lake, which is here.  Ootsa Lake is this lake  here, which is at the southern most end, and again,  although not to scale, it shows Morice Lake which is  here.  And those are the main lake features.  It  includes other lakes, it makes reference to Atnah,  which is up here, and to various other lakes which are  contained here, including Owen Lake, which is the  lake -- it's the territory of Gisdaywa.  J.A.:  Was that -- is it fair to say that that sketch,  the early sketch, was concerned more with Wet'suwet'en  territory than with the Gitksan?  Yes.  It was only concerned with the Wet'suwet'en.  Now at 106, my lords.  The trial judge found that  the evidence of ownership in the territorial  affidavits and given orally at trial was the best  evidence available to the appellants, but did not  establish "the kind of reputation the law requires as  proof of this ingredient of their case."  And I should add, my lord, there is a second  reference there.  I've given reasons at page 443.  You  should also include 438.  There are two quotes there.  The trial judge also found that there were "far  too many inconsistencies in the Plaintiffs' evidence 76  Submissions by Mr. Rush  1 to permit me to conclude that individual chiefs or  2 Houses have discrete aboriginal rights or interests in  3 the various territories defined by the internal  4 boundaries."  The frailties of memory, poor  5 communications and imperfections of description went  6 to the internal boundaries and their description.  7 The appellants do not raise the proof of the  8 internal boundaries of the territories as an issue in  9 this appeal.  Such proof is not necessary to the  10 appellants' case.  The inconsistencies noted by the  11 trial judge relate to which House owns a particular  12 piece of land, not to whether all the land is owned by  13 either the Gitksan or the Wet'suwet'en.  On that point  14 there were no inconsistencies.  15 The authority of the House over the territory is  16 spoken of and portrayed at feasts.  The description of  17 territory and naming of places during a succession  18 feast establishes that the territory is subject to the  19 ownership rights of the appellants.  At a feast, the  20 new head chief and other chiefs of the House tell  21 where the territory is located and name some of the  22 prominent geographical features on the land.  These  23 declarations are made publicly and are witnessed by  24 the guests from the other clans, who acknowledge and  25 validate the territory to which the succeeding chief  26 is entitled.  27 And I would ask you to take special note of the  28 evidence of Mr. Morrison, which is at this tab.  I  29 won't take you to that, but I would ask you to note  30 that there are similar references in the evidence by  31 the other -- in the other exhibits and transcript.  32 At 110, my lords.  No evidence was called by the  33 respondents or elicited in the evidence to prove that  34 any other aboriginal group had aboriginal rights in  35 the territory.  36 Now I want to turn briefly to the white record of  37 the Gitksan and Wet'suwet'en societies.  And we make  38 special reference to this evidence because it is the  39 first recorded eyesight view of these societies.  40 At 111:  Daniel Harmon, a Hudson's Bay Company  41 trader, was the first non-Indian to encounter the  42 neighbours of the ancestors of the Wet'suwet'en.  In  43 1810, Harmon met the Babine Lake people on their first  44 visit to the Hudson's Bay Post at Stuart Lake close to  45 present-day Fort St. James.  46 In 1812, Harmon travelled to five Babine villages  47 on Babine Lake.  In his journals recording the event, 77  Submissions by Mr. Rush  1 he identified the Babine as a linguistically distinct  2 tribe or nation.  3 The trial judge found that the Babine Lake  4 people, though outside the territory, provide the  5 first direct evidence of what was happening in the  6 Wet'suwet'en territory.  7 In 1826, William Brown, the Hudson's Bay Company  8 trader, recorded the first direct contact with the  9 Wet'suwet'en people at Moricetown, and he called it  10 Hotset.  He described the village as:  11  12 "The most populous of all the Babine villages,  13 it being the principal resort of all the  14 Indians of that quarter."  15  16 In his journal of 1826, Brown recorded a "voyage  17 to the country of the Atnahs," meaning the Gitksan,  18 identifying them as a nation and identifying the  19 names, chiefs, size and location of more than eight  20 Gitksan villages.  21 Although William Brown did not travel to the  22 forks of the Skeena and Bulkley Rivers, he identified,  23 in his journals, a village at the forks and three more  24 on the Skeena River downstream of the forks.  25 Now I would like to take you to what he had to  26 say, which is 116.  My lords, I have a transcript of  27 this and I will pass it up to you in due course.  But  28 this begins at the bottom of page 9 where he says:  29  30 "There are an Ahtna village there, a four days  31 march up this river."  32  33 And then on the next page he says:  34  35 "From Gwoimt's village to the one below it is a  36 march of two days and from there to the forks  37 is a march of two days more.  There are three  38 other villages of Atnahs below the forks, which  39 are two days march asunder each.  From the  40 upper of these villages, there is a trail over  41 land to a large river, where the Nation --"  42  43 And then he describes the Nation.  44  45 -- resides"  46  47 And that nation, by his description, must mean the 78  Submissions by Mr. Rush  1 Nishga Nation.  2 Now I have a transcription of that, my lords, and  3 I will provide you with that in due course.  4 Now, my lords, I'll just take you to the reasons  5 of his lordship at the next reference.  Bottom of page  6 141, the Chief Justice said:  7  8 "In 1826 trader Brown visited the Gitksan  9 people along the Babine River but he did not,  10 apparently, proceed as far as the forks of the  11 Babine and Skeena, nor did he ever visit the  12 Hazelton area, or the other Skeena villages in  13 the territory.  Brown found some of the Atna,  14 as he called them, wearing some European  15 clothing, indicating that they had access to  16 some European trade goods."  17  18 And of course, as we have indicated, they were also  19 wearing clothing that was taken from animals in the  20 territory.  21 My lords, just site myself on this map, the  22 territory that Brown was referring to as the territory  23 of Gwoimt was referred by him when he was at this  24 point.  This is the present reserve of Kisgagas, it is  25 the village of Kisgagas, and it is probably the most  26 westerly point that Williams Brown reached.  And what  27 he was describing from this point were the villages  28 down river on the Babine, which cuts from Lake Babine  2 9 to the Skeena and running down the Skeena and then out  30 this way where the additional five villages of the  31 Gitksan were located in, and what he was informed  32 about by the chiefs at Kisgagas.  33 At 117, the trial judge found that Brown's  34 reports in the 1820's "...hardly mention the feast,  35 particularly as a legislative body".  The appellants  36 never suggested that the feast was a legislative body;  37 no parallel of this kind was drawn.  The appellants  38 made this clear in their opening in May of 1987:  39 "Yet, you will not hear evidence locating the power to  40 legislate in any Gitksan legislature".  The issue  41 which the learned trial judge ought to have addressed  42 was whether the feast was an institution for the  43 validation and ratification of chiefly names and  44 territorial ownership and for the affirmation of  45 Gitksan and Wet'suwet'en laws.  46 Brown's journals and diaries are replete with  47 recordings of feasts among the Wet'suwet'en (the 79  Submissions by Mr. Rush  1 Simpson's (Bulkley) River) people and the Gitksan.  2 For example, in 1825, he reports:  3  4 "[I]t appears that Ackooshaw's Band made a  5 feast lately, and gave considerable Presents to  6 the principal of Casepin's people, which has in  7 some measure restored tranquillity amongst  8 them, and they are now applying themselves to  9 the working of the salmon."  10  11 Again, in 1826, Brown identified two Gitksan  12 villages on the Babine River as places "where they  13 assembled to make their feasts, and perform all  14 ceremonies of a general nature."  15 The first written accounts of Gitksan and  16 Wet'suwet'en society and territoriality by Harmon and  17 Brown record that the ancestors of the appellants had  18 territories, boundaries and laws of trespass.  Harmon,  19 among other things, observed:  20  21 "The people of every --"  22  23 And here he is referring to the Babine.  24  25 "-- village have a certain extent of country,  26 which they consider their own, and in which  27 they may hunt and fish; ..."  28  29 Later, in 1823, Brown wrote that the New  30 Caledonia Carriers (including the Wet'suwet'en) "have  31 certain tracts of country which they claim an  32 exclusive right to and will not allow any other person  33 to hunt upon them."  34 In Brown's 1826 report, he wrote:  35  36 "-- They reckon twenty chiefs of different  37 gradations and 67 married men whom [they]  38 denominate respectable, as being heads of  39 families and possessors of lands."  40  41 Now, Professor Arthur Ray, whose opinions were  42 accepted by the trial judge, said:  43  44 "Of major importance, the observations of the  45 Hudson's Bay traders discussed above, clearly  46 indicated that access to resources was  47 regulated by a land tenure system in which 80  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  tracts of land were managed by 'men of  property', the lineage (House) heads.  These  men also controlled access to trails that  traversed their House's territory."  And he said further:  "In these fundamental ways it appears that the  socio-economic system of the Babine and  Wet'suwet'en was much like that reported at a  later period for the Gitksan."  The trial judge said of this territorial  evidence:  "It is true that trader Brown referred to some  Indians as men of property and other similar  terms, but that is equivocal."  WALLACE, J.A.:  Did the trial judge accept Professor Ray's  opinion that was expressed in paragraph 123, or was it  other opinions that he accepted?  MR. RUSH:  He accepted other opinions --  WALLACE, J.A.:  But not this one?  MR. RUSH:  — of Dr. Ray's.  I think that the language that the  trial judge used, "but that is equivocal", leads to  the conclusion that he did not accept that.  WALLACE, J.A.:  Yes.  MR. RUSH:  And that, of course, is contested by the appellants.  WALLACE, J.A.:  Yes.  MR. RUSH:  Turning to the evidence of trade at contact, the  trial judge agreed that there would undoubtedly be  "some bartering but that would be in sustenance  products."  The trial judge found, and I quote:  "Aboriginal practices of the Plaintiffs'  ancestors were, first, residence, and secondly,  subsistence -- the gathering of the products of  the lands and waters of the territory for that  purpose and also for ceremonial purposes.  These both predated the historic period for a  long, long time, and continued into the  historic period (with new techniques) up to the  time of sovereignty and since that time, but  with decreasing frequency. 81  Submissions by Mr. Rush  1 The trial judge found that European influence in  2 the territory probably began to be felt "around or  3 after the turn of the [19th] century.  There may have  4 been isolated intrusions of trade goods from unknown  5 directions at a slightly earlier period, but not in  6 any significant quantity."  7 Both Harmon, in 1810, and Brown, in 1826,  8 recorded examples of trade in skins, blankets, shell  9 beads, feathers, and mountain sheep blankets, as well  10 as salmon and other products of the land.  The trade  11 was widespread.  12 And I would just take you to what Harmon saw, and  13 that's at 1-128.  He said this, my lords, at the side  14 lining:  15  16 "The women, particularly those who are young,  17 run a wooden pin through their noses, upon each  18 end of which they fix a kind of shell bead,  19 which is about an inch and a half long, and  20 nearly the size of the stem of a common clay  21 pipe.  These beads, they obtain from their  22 neighbours, the At-e-nas, who purchase them  23 from another tribe, that is said to take them  24 on the sea shore, where they are reported to be  25 found in plenty.  26 All the Indians in this part of the  27 country, are remarkably fond of these beads;  28 and in their dealings with each other, they  29 constitute a kind of circulating medium like  30 the money of civilized countries."  31  32 At 129, my lords, I cite the passage which I've  33 just cited in the original of Harmon's notebook.  34 About this, at 130, the opinion of Professor Ray  35 was:  36  37 "The various villages were linked into a  38 regional exchange network.  Indigenous  39 commodities and European trade goods circulated  40 within and between villages by feasting,  41 trading and gambling activities.  42  43 "...The trade with the coast in the historical  44 period that we see was not a phenomena that  45 only occurred in the historical period, but  46 there is good evidence that the trade pre-dates  47 European presence either in the area of New 82  Submissions by Mr. Rush  1 Caledonia or on the coast."  2  3 Of course the area of New Caledonia is the area  4 where the Hudson's Bay Company was trading and was the  5 westerly extent to which William Brown reached at  6 Kisgagas.  7 Another point of contrast with the trial judge's  8 findings that trade amounted to bartering and only in  9 sustenance products is that in the larger regional  10 context historians and archaeologists describe a  11 pattern of trade throughout the Northwest.  12 And I make a number of references there and of  13 course I've drawn your lordship's attention already to  14 plate 13 which contain Dr. George McDonald's map of  15 the trading trails throughout the northwest.  16 Now at 132 I say this:  It is for this court to  17 determine whether this earlier evidence is fairly  18 characterized as amounting to subsistence.  The trial  19 judge found subsistence to be hunting, fishing and  20 berry-picking.  He ignored the evidence of harvesting,  21 processing and trade in resources.  22 "Commercial" trapping, the trial judge found,  23 started in "1805 or 1806 and probably a few years  24 later than that time."  As a result, he found, "some  25 of the ancestors of the Plaintiff found it  26 advantageous to spread out from their villages and to  27 distant territories for the purpose of commercial  28 trapping."  29 Now the Upper Skeena region remained of marginal  30 commercial importance to the Hudson's Bay Company  31 after 1826 because their traders were unable to  32 overturn the existing native tenure and resource  33 management systems or to reorient native exchange  34 networks.  The Bay itself became integrated into an  35 older indigenous trading system when it displaced  36 eastern native groups as the principal supplier of  37 scarce moose skins for the Gitksan and Wet'suwet'en.  38 And about this, his lordship made no comment, but it  39 is the opinion of Dr. Ray and it is contained in Dr.  40 Ray's opinion report which is found at 1-134.  41 About the effect of the fur trade, Dr. Ray  42 testified:  43  44 "I doubt very much sufficient time had lapsed  45 for the whole elaborate social-political  46 territorial feasting system that we have seen  47 in place to have been put in place in such a 83  Submissions by Mr. Rush  1 short period of time."  2  3 The trial judge's findings that commercial  4 trapping caused the appellants' ancestors to spread  5 out to the distant territories will have to be  6 reviewed by this Court in light of evidence he  7 accepted.  The Court will be asked whether the trial  8 judge's findings can stand in the face of Dr. Ray's  9 evidence.  10 Now we turn to the next subject area in terms of  11 the facts, my lords, and that is the history of  12 Indian/Crown relations.  And I have to say that this  13 is considerably abbreviated.  14 The most critical facts -- and I think I must say  15 that some of the most critical facts dealing with the  16 relations of Native people and the Crown prior to the  17 assertion of sovereignty and after the colonial period  18 in British Columbia will now be referred to.  19 The historical record in the period 1609-1763  20 shows that treaty-making constituted the basis for the  21 Indian-Crown relationships and for the acquisition of  22 land required for colonial settlement.  Colonial  23 practice in the original British American colonies  24 prior to 1763 demonstrated the requirement for, and  25 the process of, securing Indian consent as well as the  26 protectorate obligations assumed by the Crown.  The  27 history of treaty-making continued in the post-  28 Proclamation period up to the modern land claim  29 agreements negotiated after 1975.  30 In 1763, King George III issued a Royal  31 Proclamation.  In Part IV of that Proclamation, the  32 principles of Indian consent expressed through a  33 treaty-making process were recognized and affirmed as  34 necessary for the acquisition of Indian lands.  35 The trial judge characterized the purpose of the  36 Proclamation as being the British desire to keep peace  37 on the frontier and other mercantile reasons.  It is  38 implicit in his findings that the Proclamation was  39 expedient.  The Court will be asked to review the  40 trial judge's conclusions in light of the judicial  41 authorities which view the Proclamation as a Charter  42 of Indian rights.  The Court will be asked to  43 determine the true nature of the Proclamation.  44 British sovereignty to what is now British  45 Columbia was conclusively settled by the Treaty of  46 Washington of 1846.  47 In 1849, the Imperial Crown established the 84  Submissions by Mr. Rush  1 Colony of Vancouver Island.  The Hudson's Bay Company  2 was given a revocable grant to the land of Vancouver  3 Island, subject to the proviso:  4  5 "...that in parting with the land of the  6 Island, Her Majesty parts only with her own  7 right therein and that whatever measures she  8 was bound to take in order to extinguish the  9 Indian title are equally obligatory on the  10 Company."  11  12 Now I want to take your lordships to 1-141 and  13 his lordship's reasons -- 1-142.  And here I have set  14 out the chart -- the Charter in respect to the grant  15 to Vancouver's Island, and I would ask you to turn to  16 the last reference.  17 In respect of the quote that I have cited here,  18 his lordship said at page 236 after citing this quote,  19 he says:  20  21 "The meaning of this is difficult to  22 discern because of a lack of precision in the  23 language which is of crucial importance in this  24 case.  It could mean either that the Indians  25 had a claim of ownership to, or some lesser  26 interest, in the entire island, or only with  27 respect to the parts actually used by them."  28  29 And then he goes on to say that it is an incomplete  30 document.  That document will be, of course, referred  31 to in the argument.  32 Between 1850 and 1854, fourteen land cession  33 treaties were entered into with the Native peoples of  34 Vancouver Island - eleven before James Douglas, then  35 Chief Factor, became Governor of Vancouver Island, and  36 the remainder thereafter.  37 And these treaties are set out at 1-143.  38 The Government of the Colony of British Columbia  39 was established on August the 2nd, 1858, by an Act of  4 0 the Imperial Parliament.  James Douglas was made  41 Governor of the new colony and remained at the same  42 time Governor of Vancouver Island.  43 In the Commission accompanying his appointment,  44 Douglas' powers of law-making were formally made  45 subject to Imperial Instructions.  In these  46 Instructions, Douglas was expressly prohibited from  47 making general laws which would prejudice the rights 85  Submissions by Mr. Rush  1 and property of subjects residing in the colony and he  2 was directed to the Crown's policy of treaty-making.  3 I ask you, in particular, to note, but I will not  4 take you there, the first exhibit, 1142-1, and the  5 third, 1039-40.  6 The settlement of the mainland colony was an  7 important objective in the Imperial and colonial  8 policies prior to union with Canada in 1871.  It is  9 also well known that land laws applicable to the  10 mainland colony (referred to as "Colonial Instruments"  11 in this Factum) were issued and passed in the colonial  12 period for this purpose.  While some of these laws  13 contained provisions reserving Government lands and  14 Indian village and settlement lands from settler  15 preemption, none mentioned aboriginal rights or title  16 and none provided for the extinguishment of those  17 rights.  18 Throughout the colonial period, colonial  19 officials and the colonial and British governments  20 recognized aboriginal title and the need to extinguish  21 such title by treaty.  22 Judge Matthew Begbie, who drafted two of the  23 Colonial Instruments, including the Proclamation of  24 January 4, 1860, Colonial Instrument III -- thought by  25 the trial judge to be the most important of the  26 colonial land laws -- said in a Report to Governor  27 Douglas in April, 1860, about the Proclamation:  28  29 "...I may also observe that the aboriginal  30 title [parenthetically referring to the land of  31 the mainland colony] is by no means  32 extinguished.  Separate provision must be made  33 for it..."  34  35 Appropriations Acts were passed by the  36 Legislative Assembly on Vancouver Island in 1863 and  37 1864 recognizing the aboriginal title of aboriginal  38 people on Vancouver Island.  And although I don't have  39 a reference to that indicated here, my lords, it's in  40 the Alphonse and Dick series A-30 tab 94.  41 Union with Canada occurred in 1871 and was given  42 force by the Terms of Union.  Article 13 was silent on  43 aboriginal rights and title.  44 At paragraph 151:  There were no alienations,  45 letters patent, or pre-emptions for any land in the  46 territory of the appellants' ancestors prior to union  47 in 1871.  No treaties were entered into with the Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  WALLACE,  MR. RUSH  Gitksan and the Wet'suwet'en in respect of their title  and rights.  The first major interaction between the chiefs of  the Gitksan and the Provincial Government after union  resulted from the burning of the Gitksan village of  Kitsegukla in 1872 and the subsequent compensation  sought from and paid by the Provincial Government.  The first reserves were created in the territory  in 1891.  I take you to 1-153, the bottom of the page.  His lordship says in the third to last line, referring  to Vowell:  " 1890, but he did not actually create any  reserves.  In the following year, however,  O'Reilly established reserves at many of the  Skeena villages amid some hostility..."  Now these reserves were laid out on existing  village sites, fishing stations and timber lands but  did not include them all.  Mary Johnson, Antgulilbix,  summed up the effect of the reserves:  "So the way I feel about it is we are fenced  in, the Indians, they just put a fence around  us like they did to the pigs or animals.  And  we can't -- we can't go out on our territory  and do some farming or anything on the  outside."  The trial judge found that the establishment of  Indian Reserves and use of them by the appellants did  not address aboriginal title outside the reserves much  less extinguish it.  In 1898, Treaty No. 8 was entered into between  Canada and the Beaver and Cree peoples of the  northeastern portion of the province.  By the express  terms of the Treaty, aboriginal title to a large area  of northeastern British Columbia was extinguished.  The Treaty provided, inter alia, for payments of  annuities to the Indians, the reservation of large  tracts of land, based on family size and the  protection of harvesting rights.  And at Exhibit 1040-96, my lord, if you could  make a reference to pages A-ll, -12.  J.A.:  Where is that?  Exhibit 1040-96, paragraph 155, A-ll, -12.  By federal Order-in-Council, P.C. 2749, the 87  Submissions by Mr. Rush  1 British Columbia Government was asked to acquiesce in  2 the Treaty.  It did so.  The tracts of land set aside  3 under the treaty were allocated by the Province as  4 required by its terms.  The last allocation was made  5 in 1961 and that's shown at 1040-96, P8-3, and the  6 accompanying Exhibit 1256-3-76.  7 Now, my lords, the first farmers settled in the  8 Skeena/Bulkley River area around 1900.  I would just  9 like to take you to his lordship's comment at 146, at  10 tab 1-157.  11  12 "The first farmers moved into the area  13 around 1900 and there was much resentment,  14 which continues to this day, about pre-emption  15 of land occupied by Indians and over the issue  16 of land script for veterans of the Boer War.  17 This script was used to dispossess some  18 individual Indians from land which they had  19 been occupying, especially in the Bulkley  20 Valley."  21  22 And then over to his next reference at page 269:  23  24 "The first settlers did not enter the territory  25 until about 1900, by which time serious  26 hardship had already been identified, and they  27 were already starting to congregate in the  28 Skeena and Bulkley River villages."  29  30 Now, my lords, settlement led to the  31 dispossession of the Wet'suwet'en from their lands.  32 This is set out at page 1-158, and the first exhibit  33 is 1035-239 and I'll go to the second page, 169, where  34 James Yami says, middle of the page:  35  36 "The Bulkley River is our river and we get our  37 living therefrom.  On the lakes are located  38 some of our houses.  They are small and crude  39 of pattern, but we cannot do without them.  In  40 those houses we have many articles such of  41 hunting, trapping and fishing implements.  A  42 white man comes along and sets fire to the  43 houses, and on remonstration we are told by the  44 settler:-'You get away from here, I bought this  45 land and if I catch you here again I will have  46 you j ailed' .  47 "We are glad that you chiefs have come to Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  listen to our grievances."  And he's talking to the Commissioners of the Royal  Commission that toured throughout the territory of the  Wet'suwet'en in 1813.  He goes on to say:  "If we want to cut a little fire-wood we are  stopped at once by threats.  If we were  educated people we would make more complaints.  We always give way to the law-less white rather  than offend him."  Now, my lord, the second of these references is  taken from Mr. Brody's report, who testified at trial,  and I take you to the reference of his evidence at  15363.  And the included passage here, my lords, draws  reference to the fact of the dispossession which  occurred and the effect that had on the Wet'suwet'en  people where he states at the bottom of this passage:  "Wet'suwet'en hunters, trappers and fishermen  returned to their homes at the end of summer or  in early winter, having completed their  season's fishing at Moricetown or Hagwilget, to  find white settlers in possession and able to  summon the police to enforce their new supposed  right to these Indian lands."  TAGGART, J.A.:  We've gone past four o'clock by a couple of  minutes, Mr. Rush.  Would it be convenient to adjourn  now?  MR. RUSH:  Yes, thank you.  THE REGISTRAR:  Order in court.  This court stands adjourned  until ten o'clock tomorrow morning.  (PROCEEDINGS ADJOURNED AT 4:03 P.M.)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Toni Kerekes, O.R.  UNITED REPORTING SERVICE LTD.


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