Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-11] British Columbia. Supreme Court May 11, 1992

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 406  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  CORAM:  Vancouver, B.C.  May 11, 1992  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  TAGGART,  MR. RUSH  THE REGISTRAR:  Order in court.  In the Court of Appeal for  British Columbia, Monday, May the 11th, 1992.  In the  matter of Delgamuukw versus Her Majesty the Queen at  bar, my lords.  J.A.:  Yes, Mr. Rush.  As a matter of scheduling, my lords, I perhaps can  state the appellants' view with regard to the proposed  schedule, sitting schedule through to the end of the  hearing.  It's acceptable to the appellants.  TAGGART, J.A.:  That suits your convenience, does it?  MR. RUSH:  Yes, it does.  TAGGART, J.A.:  All right.  Thank you.  Mr. Williams?  MR. WILLIAMS:  Yes, my lord.  The first week, is that what —  sorry, I was --  MR. RUSH:  I was agreeing with the schedule.  MR. WILLIAMS:  The schedule that provides for the first week of  July would be preferable from our point.  J.A.:  All right.  And the timing as between the  appellants and supporting intervenors is also  acceptable?  I don't think that changed, my lord.  J.A.:  No, it didn't.  Yes, it is.  It's acceptable.  The only issue will be  with respect to Carrier-Sekani and the time to be  allotted for their oral submissions, and that is a  matter that is being discussed among the intervenors.  J.A. :  That's fine.  That's fine.  All right.  If there is nothing else of an  administrative nature -- Mr. Macaulay, I assume that  Mr. Williams is speaking for both of the respondents?  MR. MACAULAY:  He wasn't, but we agree.  TAGGART, J.A.:  All right.  One other minor administrative matter.  Last day I made reference to a map of Alfred  Joseph in respect of the Gisdaywa territory, and what  I have done is to insert after that map, the portion  of Alfred Joseph's testimony where he, in fact, took  his lordship to the territory and walked him around  the boundary by reference to the Wet'suwet'en names.  And that's been inserted at your lordships' tab 4-232.  J.A.:  What's the size of the House we are talking  about on that map?  TAGGART,  MR. RUSH  TAGGART,  MR. RUSH  TAGGART,  MR. RUSH:  HUTCHEON, 407  Submissions by Mr. Rush  1 MR. RUSH:  The territorial —  2 HUTCHEON, J.A.:  The numbers.  3 MR. RUSH:  The numbers in the House?  4 HUTCHEON, J.A.:  Yes.  Approximately.  5 MR. RUSH:  I would say that House is a small House and it runs  6 to, I think, about 30 members.  7 HUTCHEON, J.A.:  Thirty.  8 MR. RUSH:  I'll be coming to that, my lord.  I have the  9 genealogy of Gisdaywa that I'm going to direct you to,  10 and the total membership as at the date of the  11 testimony is included on that genealogy.  12 Now last day, my lords, when we broke, I was  13 making the argument that the importance of the  14 territorial boundaries to the Gitksan and Wet'suwet'en  15 could be seen through the laws of trespass.  In  16 effect, no one goes on a territory of another without  17 permission.  And by way of summary, within these  18 societies, I was arguing there were serious  19 consequences for a violation of the trespass law.  And  20 I noted social ostracism that is referred to at  21 paragraph 242, and I also note that at 243, in certain  22 circumstances, after warnings, death for violation of  23 a trespass law was meted out.  24 People were reminded of the law, according to the  25 evidence of Alfred Joseph, again at 243.  They were  26 told of the consequences of being shown -- by being  27 shown examples of what occurred to violators in the  28 past.  And the references at paragraph 243, my lords,  29 show examples both in the oral history where the  30 killing of a trespasser occurred as in the case of the  31 Tah lus history, told by the 2 witnesses, Madeline  32 Alfred and Emma Michell.  And in a more contemporary  33 history, where a person was shot for trapping on  34 another's territory as in the case of Holleets and  35 that's described in the evidence of Dr. Mills.  36 And that takes us to paragraph 244 where I would  37 pick up the submissions in the Factum.  38 Now in light of the consequences of trespass,  39 provision was made for giving those who had been  40 granted rights of access to House territory a sign or  41 symbol of the grant of that privilege.  And Mr. Art  42 Mathews Junior testified that women who wished to use  43 Tenimgyet's berry patches were given woven tumplines  44 of specific colours for their berry boxes, which  45 denoted that they had obtained permission to be on the  46 House's territory.  Similarly, men who had been given  47 permission to hunt on the House's territory were given 408  Submissions by Mr. Rush  1 a special cane, which was dyed blue with the mud of a  2 certain lake in Tenimgyet's territory.  3 Now at 245, my lords, we say that having  4 considered the law of trespass, his lordship, the  5 trial judge, found that outside of the appellants'  6 villages, there was no enforceable system of ownership  7 or trespass laws.  And in his reasons at page 384 he  8 said this:  9  10 "I have no doubt that another people, such as  11 the Nishga or Tahltan, if they wished, could  12 have settled at some location away from the  13 Gitksan or Wet'suwet'en villages and no law --"  14  15 And I emphasize these words, my lords:  16  17 "-- known to me would have required them to  18 depart."  19  20 Now I add to this, my lords, that before the  21 trial judge was evidence of laws, though he refused to  22 accept them as laws.  There was repeated evidence of  23 the law of trespass as we've endeavoured to  24 demonstrate, but by this finding, the trial judge  25 disregarded such evidence, we say, contrary to Geffen.  26 Now the laws talked about by the Indian witnesses  27 were in respects of tracts of territory outside of the  28 villages which were exclusive to family kin or to  29 Houses.  Now this evidence of the witnesses  30 corroborates, we say, the 1826 records showing  31 exclusive hunting territories which were "jealously  32 guarded", to use the language of the Hudson's Bay  33 record.  34 Now in reference to his lordship's conclusion at  35 245, we say that the Nishga and Tahltan did not  36 attempt to settle near any Gitksan and Wet'suwet'en  37 villages or, indeed, on any of their land, although  38 there was some evidence at the trial of a Nishga raid  39 against the Gitksan.  Because had they done so, we  40 say, they would have been in clear trespass of laws  41 which the present witnesses talked about and which is  42 evident in the historical record.  43 Now what we say, my lords, at 246, is that there  44 was no evidentiary basis upon which the trial judge  45 could have concluded that the law of trespass -- the  46 laws of trespass were limited to the villages.  47 Indeed, contrary to the trial judge's suggestion that 409  Submissions by Mr. Rush  1 between Gitksan and Nishga territories there was in  2 effect a legal "no man's land", evidence was given of  3 the strict enforcement of trespass laws at these  4 boundaries.  5 And two examples are given.  One in the case of  6 the evidence of Johnny David, where he talks of a  7 Wet'suwet'en having been killed as a result of  8 desecrating a marker on the Gitksan and Nishga  9 boundary, and he talks about the settlement that then  10 occurred.  And I would ask your lordships to just make  11 a note that there is an additional reference here to  12 the boundary that's referred to at Exhibit 446-C at  13 pages 167 to 168.  14 But the second example comes from the Chief  15 Tenimgyet, Art Mathews, and he testified that his  16 grandfather told him an adaawk -- that is to say, an  17 oral history -- in which a member of Tenimgyet's House  18 disappeared while on a trip into Nishga territory.  19 When members of his House went to search for him, they  20 found his body floating at the head of Sand Lake, the  21 westernmost point of the Gitksan territory where it  22 intersects with the Nishga and Tsimshian territories.  23 Now Art Mathews explained his ancestors'  24 interpretation of this event, and this is found at  25 248, my lords, where Mr. Mathews says this -- and he  26 is referring to his territory at Cedar River:  27  28 A  Yes.  And he was going to visit, and he  29 never came back.  They missed him.  And  30 the next day early in the morning they  31 were gonna send out some people to look  32 for search for him, and they found him  33 floating -- killed and was floating at  34 the head of this lake.  The Nishga had  35 killed him for trespassing.  They decided  36 and did bury the remains on the island of  37 Lax lilbax.  The chief spoke at the time  38 and says that our ancestor, the guy that  39 he killed, bones, his remains are going  40 to be buried on this Lax lilbax, and  41 these bones are going to be here to look  42 after our boundaries.  Therefore the  43 Nishgas would appreciate our boundaries  44 by killing this man and throwing him back  45 on our own side.  46 Q  This event of this killing, was it -- was  47 this told to you by your grandfather? 410  Submissions by Mr. Rush  1 A  Yes.  2 Q  And did this happen before or after the  3 arrival of the non-Indians?  4  5 And what he points out, my lords, is that -- he said:  6  7 A  This is quite recent I would say, 'cause  8 they told me that Reverend Thompson --  9  10 I think he means Tomlinson.  11  12 -- and some --I didn't gather the first  13 name, but he said Reverend Thompson and  14 another person tried to exhume the body  15 to inspect how he had died, but it was  16 too badly decomposed to get anything out  17 of it.  18  19 Now, my lords, the territory that Art Mathews is  20 talking about is the territory at Cedar River, and  21 that territory is here on the most westerly point of  22 the Gitksan claim territories.  And the point at which  23 he is talking about is here, which is this little  24 hook, where the lake, Sand Lake, is located.  25 And what I've included at this tab are  26 photographs identified by Mr. Mathews, at the end of  27 the tab, which show -- the circled photograph at the  28 top is the island that he makes reference to, it's  29 marked "L", Lax lilbax.  That island is in Sand Lake  30 where the deceased is buried.  And the lower  31 photograph indicates -- the arrow shows the boundary,  32 identified by Mr. Tenimgyet, and the point in the  33 bottom, right quadrant of the lower photograph  34 indicates where the body was found.  The point just  35 above the waterline, the snow point in the right half  36 of the photograph, indicates where the boundary line  37 ran, and that's the height of land above Sand Lake.  38 That is the point that Mr. Art Mathews referred to in  39 his testimony.  4 0 Now, my lords, I want to move to the next  41 indicia, if you will, of ownership, which is under our  42 heading "Laws of Access" at 249.  43 At 250 we say that the Gitksan and Wet'suwet'en  44 systems of land tenure, like the common law and the  45 civil law, distinguish between rights of "ownership"  46 and the grant of rights or privileges to "use"  47 property.  And this differentiation demonstrates that 411  Submissions by Mr. Rush  1 the systems recognize rights which are properly  2 identified as ownership, not merely rights which  3 extend only to use and occupation.  4 Now, members of the House have a right to the  5 beneficial enjoyment of their territories and  6 resources of the Houses subject to the direction of  7 the hereditary chief.  The hereditary chief, as  8 representative, may also grant permission to use  9 hunting and fishing territories to non-members.  10 Now what the trial judge had to say about this is  11 at 252, and in reference to this body of evidence, his  12 lordship said:  13  14 "It became obvious during the course of the  15 trial that what the Gitksan and Wet'suwet'en  16 witness describe as law is really a most  17 uncertain and highly flexible set of customs  18 which are frequently not followed by the  19 Indians themselves. ...[T]here always seem to  20 be an aboriginal exception which made almost  21 any departure from aboriginal rules  22 permissible.  ...[T]hese rules are so flexible  23 and uncertain that they cannot be classified as  24 laws."  25  26 Now, it is our submission that the evidence,  27 properly understood in the context of the appellants'  28 kinship systems, shows well defined categories of  29 access and use rights granted by House owners to House  30 Territories and to House -- to non-House members.  31 Now the first principle that I direct your  32 lordships to is found at paragraph 254, and it's the  33 principle that I first alluded to in the Facts and  34 that's called, in Gitksan, "amnigwootxw", and in  35 Wet'suwet'en, "negehdeld'es".  And the law is that  36 children have a right of access to their father's  37 territory while their father is alive.  After the  38 father has died children lose those rights unless they  39 are granted continuous access to their father's  40 territory by the head chief of the House.  And Mr.  41 Marsden explained the principle of amnigwootxw and  42 it's set out in this passage.  43 Now at 255, my lords, the Wet'suwet'en chief,  44 Alfred Joseph, also expressed the principle and I want  45 to take you to the passage at 255 in the reference  46 books.  And at line 29, Mr. Joseph was asked:  47 412  Submissions by Mr. Rush  1 Q indicated in your testimony that  2 permission could be given to other  3 Wet'suwet'en people to use the territory  4 of a Wet'suwet'en chief, is that correct?  5 A  Yes.  6 Q  Are there situations in which the sons  7 [of] a chief use the chief's territory  8 with the chief's permission?  9 A  Yes.  10 Q  . . .Is there a name that we have for this?  11 A  Yes, it's Neg'edeld'es.  12 Q  And what does Neg'edeld'es mean?  13 A  It's where the chief's family or sons use  14 his territory.  15 Q  All right.  And is this a common  16 occurrence among Wet'suwet'en people?  17 A  Yes.  18 Q  ...And what is supposed to happen upon  19 the passing on of the chief where the  20 sons are using the chief's territory?  21 A When the chief passes on, the children  22 that have used the territories move back  23 to their own territories on the mother's  24 side.  25 Q  Can the children of the chief who has  26 passed on be given permission to continue  27 to use the territory?  28 A  Yes.  29  30 Now, my lords, the references under paragraph  31 255, particularly to those of the evidence of Emma  32 Michell and Alfred Mitchell, these two references give  33 a concrete example of the sons of a chief working the  34 territory during the lifetime of the chief, and then  35 being given permission to carry on using the territory  36 after the chief's death.  37 Now, the right of access to a House territory  38 through connection to one's father does not give rise  39 to any rights of ownership; rather, it is based on the  40 underlying ownership of the father's House.  And Dan  41 Michell testified that his children may use Namox's  42 territory under negehdeld'es, "but they don't inherit  43 the territory like on the mother's side."  44 Now in support of his conclusion that the  45 appellants' "rules are so uncertain and flexible that  46 they cannot be classified as laws", the trial judge  47 set out fourteen "different versions" of what he 413  Submissions by Mr. Rush  1 called the "alleged law" of children's access rights  2 to their father's territory.  And what we say is that  3 the judge's -- the trial judge's conclusions are  4 erroneous because he misunderstood the evidence about  5 these laws.  6 And what I have done, my lords, at paragraph 258,  7 firstly is to set out the portion of his lordship's  8 reasons which are found at pages 380 and 381.  And at  9 the top of 380, he, having arrived at the conclusion  10 "these rules are so flexible and uncertain that they  11 cannot be classified as laws", he then goes on to give  12 an example of an analysis that was provided to him by  13 the Province of a number of witnesses who he said give  14 "different versions" of the law.  And the "different  15 versions", as he calls it, are then set out in the  16 next two pages.  17 Now in our Appendix F to the Factum, we have  18 compared his lordship's description of these laws as  19 against an analysis of the evidence.  And I -- the  20 next reference in this tab, my lords, is to Appendix  21 F.  I've actually lifted it from Appendix F and put it  22 in this reference book.  23 LAMBERT, J.A.:  What's that tab again?  24 MR. RUSH:  It's at — I'm at 258.  25 LAMBERT, J.A.:  Yes, thank you.  26 MR. RUSH:  And it's the second reference.  27 This is the appellants' response to his  28 lordship's delineation of these 14 statements.  And I  29 can just ask your lordships to note that at paragraph  30 2 we set out the different categories of access  31 rights, and note that at paragraph 3, these are  32 recognized in the field of anthropology.  But it's at  33 paragraph 4 on page 3 where we set his lordship's  34 reasons against our analysis.  And my lords, I will be  35 providing you with the transcript references to both  36 the reasons and the analysis, in a separate volume in  37 due course.  38 Now, as -- by way of an introduction, it's our  39 submission that the only analysis of any of the laws  40 undertaken by the trial judge was of the son's right  41 of access to his father's territory during the  42 father's lifetime.  That is to say, the law that we  43 are here discussing is amnigwootxw and negehdeld'es.  44 And the trial judge here gives 14 examples of what he  45 calls "different versions" of the law, and it is  46 suggested by him that each statement describes  47 something different.  None alone could be called a 414  Submissions by Mr. Rush  1 law.  And even if a law, the trial judge implies, the  2 variations are so many that they are denied that  3 status.  For the trial judge, the directions and  4 prohibitions talked about at length in the evidence  5 are customs and not real laws.  6 Now, my lords, what I've done here is compared  7 the two, what his lordship says and what the evidence  8 is and our analysis of these.  And at paragraph (a),  9 the statement of the law is what we say is the correct  10 statement of the law and that's set out at paragraph  11 254.  12 And what we have here is on my -- and I would ask  13 you to make these notes beside -- in the column beside  14 it; that at (a) you have the statement of the law  15 which is the correct statement of the law we say.  16 At (b) we have a different law which goes by the  17 same name.  And in this case, what Mr. Alfred is  18 describing is access not to the father's territory,  19 but access rights to the grandfather's territory by  20 the son.  21 Now at (c) we have the same law described and we  22 say correctly described.  Not the whole of the law,  23 but a portion of it.  24 At (d) we have the same law referred to, but  25 wrongly expressed.  And so (d), we say, is a wrong  26 version of the law.  27 At (e) we have the same law described by Alfred  28 Joseph and we say it's correctly described.  29 At (f) we have the same law, the same  30 description, but with an exception to extend its  31 application to the inheritance of the name by a new  32 chief.  Under the Wet'suwet'en rules of succession,  33 the new chief does not actually take the name on until  34 the passing of one year.  There are two feasts: one  35 immediately upon the death and one a year later upon  36 the raising of a headstone, and it's on the second of  37 those two feasts that the name is taken by the new  38 succeeding chief.  That is what Mr. Williams is  39 referring to.  40 Under (g) we have the same law correctly  41 described, we say, but violated.  42 Under (h) we have the same law and we say it's  43 the same description.  44 Under (i) we have the same law properly  45 described, but again, violated.  46 Under (j) we have a different law of access  47 described, this is the law of access to the spouse's 415  Submissions by Mr. Rush  1 territory.  It's called ant'imhanak.  2 And under (k) we have a similar situation where a  3 different law is described and it's the ant'imhanak  4 law.  5 Under (1) we have the same law described to  6 include an exception for caretaker privileges upon  7 payment of funeral expenses.  8 And under (m), my lords, we have the same law  9 described but we have an exception to include clan  10 members as well as House members.  11 Now in my conclusion -- in my submission, when  12 you -- when the analysis of the law is taken with the  13 enumeration of it by his lordship, the result is that  14 it is not different versions of something the  15 appellants call a law.  Rather, in the majority of  16 these cases, the same law is being talked about.  In  17 three cases there were exceptions to the rule; in two  18 cases there were violations; in two instances the law  19 was wrongly described; and in two further instances,  20 another access law was talked about.  21 Now, my lords, our submission is that the trial  22 judge misapprehended the statements of law and this  23 led him into the error about what the amnigwootxw and  24 negehdeld'es rule is about.  According to the trial  25 judge, all of the laws of the Gitksan and Wet'suwet'en  26 are to be discounted in the same way as this law was  27 to be discounted, for the reasons that he endeavoured  28 to show.  But what we say is that at best, four of  29 these examples was the law wrongly described.  They  30 were talking about something else other than  31 principle.  32 In the sense that a law is a rule, binding on  33 a -- on members of a community, we say that this law  34 of territorial access qualifies.  35 Now I pick up, my lords, again at 259.  We say  36 further in adding to the point, that the fact that  37 various statements of the law are possible does not  38 negate the existence of a law.  Few lawyers could  39 give, from the witness box, a full account, full  40 expression of the hearsay rule and its many  41 exceptions, but no one doubts that the non-Indian  42 society has a law governing the reception of hearsay  43 evidence.  44 The examples cited by the Province, and adopted  45 by the trial judge, speak as easily to a law which is  46 subtle and complex, as to one which is "uncertain and  47 flexible".  The genius of the common law is said to 416  Submissions by Mr. Rush  1 lie in its flexibility, but the trial judge appears to  2 say that rules which are flexible cannot be law.  3 Now at 261, my lords, I turn to another example  4 of the laws of access, and this is with respect to  5 access rights granted to a spouse to use his wife's or  6 her husband's territory, and this I've already  7 referred to as "ant'imhanak".  Johnny David refers to  8 the law and it's set out at paragraph 261, and I've  9 referred your lordships to this in the Statement of  10 Facts.  11 Under the references for 261, the "See also"  12 references are examples of permission being given to  13 spouses or, in some cases, to their Houses, to be  14 permitted to go on the husband's or the wife's  15 territory.  And I wish to refer you to only one of  16 these examples, and that is the example of the -- in  17 the -- carried in the evidence of Mary McKenzie.  18 Now, my lords, if you will turn to 261 in your  19 tab reference, and it's the third-to-last reference,  20 and it's the evidence of Mary McKenzie at pages 321 to  21 322.  And beginning at line 23, my lords, she says --  22 she is asked:  23  24 Q  Did your husband provide you with, you  25 said you got the berries for the feast  26 from his territory, did he provide any  27 meat for the feast of Gwamoon --  28  29 Another name of her House.  30  31 -- from his territory?  32 A  Not at that time.  33 Q  What clan is Luutkudziiwus in?  34  35 Now if I can just pause there.  Her husband, Ben  36 McKenzie, is in the House of Luutkudziiwus and carries  37 the chief's name of Luutkudziiwus.  38  39 A  The Lax See'l clan, frog clan.  40 Q  Did he attend the feast...  41 A  Yes.  42 Q  Was he seated as a guest?  43 A  Yes, he was seated as a guest.  44 Q  Did your husband, was anything said about  45 your territory, that is, Gyoluugyat or  46 Gwamoon's territory at this feast...  47 417  Submissions by Mr. Rush  1 And her answer is at line 38:  2  3 A At this feasting, this is when I took the  4 name of Gwamoon, it was taken off from  5 Sam Green, then it was given to me.  6 Because I mentioned the four people, like  7 my grandmother, my mother, Luutkudziiwus  8 were there and they were the ones that  9 asked me and I accepted because I was  10 married then.  So I accepted the name.  11 So, when the name was put on me, my  12 mother spoke that being married to a  13 trapper, that he had given permission for  14 my husband to go and trap to our  15 territory.  So that's what he did in 1947  16 when he went to our territory.  17  18 And she is asked:  19  20 Q  Can you explain why your mother said at  21 the Feast that he could go on your  22 territory...  23 A  Because there are witnesses there, the  24 head chief is there to witness it and  25 another thing too, where our territory  26 is, there are other territories that  27 we -- that he has to go through to get to  28 our territory.  So this has to be  29 explained in the Feasting that the people  30 up there, my neighbours, our neighbours  31 around our territory, if they see him,  32 they know where his destination is, where  33 he is going to go and trap.  But he never  34 went in the wintertime, he only trapped  35 beavers there so he left in the late, the  36 last of April, so he would be there for  37 three weeks and then he is back again.  38 So this is why it's announced in the  39 Feasting House, and him being my husband,  4 0 and he has to support me with money which  41 I may use in another Feasting.  42  43 So this is an example of Ben McKenzie,  44 Luutkudziiwus, being given permission to access the  45 territory of the House of Gyolugyet.  4 6 And my lords, I want to show you on the map again  47 that Luutkudziiwus, his territory is here, the 418  Submissions by Mr. Rush  1 father's -- the husband's, rather, close to the  2 village of Hazelton.  Gyolugyet's territory is here,  3 north of the old village of Kuldoe, which is located  4 there.  The access that Mr. McKenzie was being granted  5 was to this territory for trapping the beaver in the  6 spring and that's what she is referring to.  So there  7 is quite a distance between the two territories.  8 I am at 2 62 now, my lords.  9 The significance of a legal regime allocating  10 ownership rights to specific Houses, but in which  11 access rights are granted to both the father's  12 children and the spouse, is that a Gitksan or  13 Wet'suwet'en person may have up to three different  14 House territories to which he or she has access.  One  15 is access to one's own House territory, that is your  16 mother's side; second, the House territory of your  17 father during his lifetime; and thirdly, the House  18 territory of one's spouse.  And in this way, a  19 scarcity of resources in one territory may be  20 alleviated by using the more abundant resources of  21 another.  22 At 263 we say that the House chief may grant  23 access rights on a temporary basis to harvest the  24 territory or fishing sites of the House.  Stanley  25 Williams testified -- reference is given -- of  26 granting such rights to others to hunt on his  27 territory, and also receiving many such grants from  28 other chiefs to hunt on their territories, in part  29 because of his prowess as a hunter.  30 Similarly with Alfred Joseph (sic), he was also  31 afforded rights of access to other House territories  32 by chiefs who wanted him to train either them or their  33 children to hunt and trap, again based upon his  34 reputation as a hunter.  35 And the references for those statements are  36 contained here, but I simply wish to add that the  37 evidence was, in respect of Alfred Mitchell, that he  38 was recognized as a skilled hunter.  He was sought  39 after to hunt for House members and to train young  40 people in the bush and for this he was given temporary  41 rights of access to various territories.  And one of  42 those territories that's discussed in evidence, my  43 lords, is the territory of Knedebeas, one of the  44 Wet'suwet'en chiefs.  I referred your lordships to the  45 territory of Gisdaywa, and the Knedebeas territory is  46 to the south of that and is located here.  And it is  47 here where Mr. Alfred Joseph, the -- excuse me, Mr. 419  Submissions by Mr. Rush  1 Alfred Mitchell hunted and trapped throughout this  2 area in this location here, on the basis of having  3 been given temporary access rights.  4 Under both Gitksan and Wet'suwet'en laws, my  5 lords, persons who are granted temporary access rights  6 to another House's territories acknowledge the  7 ownership of that House by providing payment to the  8 House chief.  Often the payment involves contribution  9 of part of the animals or fish harvested from the  10 territory and such payments are announced at a feast,  11 thereby constituting an affirmation of the ownership  12 of the House over the territory.  13 So that actual commodities are taken from the  14 hunt or from fishing and trapping, they are given to  15 the owner, and in cases -- in some cases, they are  16 distributed at the feast and their source is  17 acknowledged.  That is the evidence of Mary McKenzie,  18 which is contained as a reference under paragraph 264.  19 I would ask your lordships to note that in the  20 Mitchell, Layton and Wilson-Kenni references, these  21 are to meat, salmon and berries being distributed by  22 the temporary user of the territory to the owner of  23 the territory.  24 Now I move, my lords -- we are into the next  25 volume, Volume R-7, and I'm at paragraph 265 in our  26 Factum.  27 At 265, my lords, we say, with respect, that  28 House territories are also the subject of succession  29 and alienation.  30 At 266:  Rights of ownership and resource  31 management are transmitted through matrilineal  32 inheritance from one holder of a chiefly name to  33 another, ensuring perpetual succession.  34 The evidence establishes that under the Gitksan  35 and Wet'suwet'en law, the succession to chiefly names  36 takes place through the matriline.  Now I pause here,  37 my lords, to say that this seems to have been accepted  38 by the trial judge and I ask you to note that this is  39 found at reasons page 372.  40 But I carry on.  Alfred Joseph testified, as he  41 said:  42  43 "It was our laws that when you take a name, the  44 House Chief name that the territory goes with  45 it."  46  47 And as a synopsis, if you will, of this law, I 420  Submissions by Mr. Rush  1 direct you to 267 and the evidence of Mr. Alfred  2 Joseph at page 1516, the fuller expression of that  3 evidence.  But the next reference -- or the third  4 reference along is from the Heather Harris report, and  5 you will remember that his lordship accepted the  6 evidence of Heather Harris.  And at page 71, she says:  7  8 "When a chiefly title is inherited all property  9 owned by the House is inherited with it.  The  10 primary property owned by the house is its  11 territory or territories and its fishing  12 sites."  13  14 Now, my lords, I'm going to deviate somewhat from  15 the Factum at this point, and I want to add this  16 submission:  So far as this evidence relates to  17 territories outside of villages, the trial judge did  18 not accept the evidence, and that's at reasons at page  19 372.  20 Now, he doesn't refer to any of this evidence to  21 say why it's not accepted, except to say that these  22 were matters of faith to the appellants.  And what I  23 have done here at 267, is to -- at the end of the tab  24 reference, I've included his lordship's reasons at  25 pages 167 to 169, which bear on this question, and it  26 is, in particular, at 168.  27 WALLACE, J.A.:  Sorry, you've lost me.  Where are we now?  28 MR. RUSH:  Yes, my lord.  We are at the last reference to  29 paragraph 267.  30 WALLACE, J.A.:  267?  31 MR. RUSH:  Yes.  And I've included in addition, three further  32 pages from his lordship's reasons.  33 WALLACE, J.A.:  You referred to reasons page 372.  34 MR. RUSH:  Yes.  35 WALLACE, J.A.:  I had that before me and I didn't -- I couldn't  36 see the reference with which you made your comment.  37 MR. RUSH:  Well, I'll try to find that specifically, my lord.  I  38 don't have it right at my finger tips.  Perhaps  39 I'll --  40 WALLACE, J.A.:  Well, that's fine.  41 MR. RUSH:  If you'll allow me to find that —  42 HUTCHEON, J.A.:  My note was 272.  Am I wrong?  43 MR. RUSH:  Yes, my lord.  I suppose it runs over to 373.  44 WALLACE, J.A.:  373?  45 MR. RUSH:  Yes.  It's at the top of 373.  He says under  46 subparagraph (f):  47 421  Submissions by Mr. Rush  1 "(f)  ...The plaintiffs have indeed maintained  2 institutions but I am not persuaded all their  3 present institutions were recognized by their  4 ancestors.  The evidence in this connection [he  5 said] was quite unsatisfactory because it was  6 stated in such positive, universal terms which  7 did correspond to actual practice.  I do not  8 accept the ancestors "on the ground" behaved as  9 they did because of "institutions".  Rather I  10 find they more likely acted as they did because  11 of survival instincts which varied from village  12 to village."  13  14 Now, my lords, what I've also done is to include  15 these passages from the Reasons for Judgment at 168 to  16 169, because it reflects on the way his lordship  17 viewed the lay evidence.  And at 168 I've side-lined a  18 portion at the top, and he says:  19  20 "I believe the plaintiffs have a romantic view  21 of their history which leads them to believe  22 their remote ancestors were always in specific  23 parts of the territory, in perfect harmony with  24 natural forces, actually doing what the  25 plaintiffs remember their immediate ancestors  26 were doing in the early years of this century."  27  28 And then at the beginning of the next paragraph  29 he says:  30  31 "Indian culture also pervades the evidence  32 at this trial, for nearly every word of  33 testimony, given by expert and lay witnesses,  34 has both a factual and a cultural perspective."  35  36 And then farther down the page, the second to  37 last paragraph, he says:  38  39 "I am satisfied that the lay witnesses  40 honestly believed everything they said was true  41 and accurate.  It was obvious to me, however,  42 that very often they were recounting matters of  43 faith which have become fact to them.  If I do  44 not accept their evidence, it will seldom be  45 because I think they are untruthful, but rather  46 because I have a different view of what is fact  47 and what is belief. 422  Submissions by Mr. Rush  1 Now, my lords, in this page, in his treatment of  2 the evidence of the native witnesses, particularly as  3 it relates to territory outside of the villages, the  4 trial judge determined that they had "a romantic view  5 of their history".  Nearly every word of their  6 testimony has a factual and cultural perspective, and  7 he said where he did not accept their evidence, it was  8 "because I have a different view of what is fact and  9 what is belief".  10 Now in my submission, the trial judge makes it  11 clear that where he doesn't accept their evidence as  12 in the particular case of their ownership of specific  13 parts of the territory, their evidence is a matter of  14 belief or faith arising out of their cultural  15 perspective and it's not fact.  16 The trial judge suggests, in my submission, that  17 the appellants were either too naive or irrational  18 about their history to distinguish between fact and  19 fiction.  What they had to say about their past was a  20 matter of cultural faith and not the kind of fact  21 acceptable by the standards of the trial judge.  22 He doesn't say, my lords, that the native  23 witnesses lack the capacity to testify about matters  24 in the past.  Instead, he sets out this new test:  Is  25 it fact or is it cultural fiction?  26 In my submission, this finding amounts to a  27 blanket rejection of the native evidence of the very  28 kind that I have been directing your lordships to,  29 which is particularly evident at paragraph 267.  That  30 is, native evidence that is directly related to the  31 question of their territory, ownership of their  32 territory, and social institutions beyond the villages  33 where the essential claim is located.  34 He disregards, in our submission, great portions  35 of the appellants' evidence because to him, it is a  36 romantic fiction without evaluating their evidence,  37 according to tests of consistency, questions of  38 corroboration, credibility and general  39 trustworthiness.  40 In our submission, my lords, he never gets to the  41 point of his inquiry of asking himself how the  42 evidence of Alfred Joseph or of Emma Michell or Mary  43 McKenzie or Stanley Williams might help him to decide  44 the issues -- the essential issues about territory and  45 ownership which are central to the appellants' case.  46 LAMBERT, J.A.:  Well if I may interrupt you, I understand the  47 submission that you made about testing the evidence in 423  Submissions by Mr. Rush  1 other ways, but in the ordinary kind of case, we say  2 all the time that questions of credibility are for the  3 trial judge.  And this looks very much like a question  4 of credibility and the Chief Justice has given his  5 reasons for not accepting it as fact; rejecting it,  6 essentially, in terms of credibility.  7 Do you have to go on and say, "Well, there's  8 something -- there is some particular character to  9 this evidence that would take it out of the usual  10 rule," or are you inviting us to take it out of the  11 usual rule on the basis of principles that are well  12 established and well understood by trying to  13 re-examine trial judges' conclusions for consistency  14 of the testimony, that kind of thing?  15 MR. RUSH:  My lord, his lordship accepted the credibility of  16 these witnesses.  17 LAMBERT, J.A.:  Well, I do not understand credibility to be a  18 question of whether they are honest or dishonest or  19 whether they truly believe themselves what they are  20 saying.  I understand credibility to mean, is what  21 they say to be accepted as the facts of the case.  22 MR. RUSH:  My lords, he said, as I shall endeavour to explain,  23 "much evidence must be disregarded or discounted".  24 That is the submission I just made and the reasons for  25 it, not because the witnesses are not decent, truthful  26 persons.  27 LAMBERT, J.A.:  Yes, I understand.  28 MR. RUSH:  He found them decent, truthful persons.  29 LAMBERT, J.A.:  Yes.  30 MR. RUSH:  And although he acknowledged there may well be room  31 for flexibility in terms of the rules of the reception  32 and admissibility of evidence, he also, in my  33 submission, took a blank -- took a large body of  34 evidence and, because it was culturally fixed he  35 found, it could not be accepted by him as it pertained  36 to the territories.  37 Now, I restrict this submission to the question  38 of the issue of its application to territorial  39 ownership, because it's there, in my submission, that  40 the trial judge erred.  Because on other issues he  41 accepts their evidence as evidence of social  42 institutions and laws and the like.  43 LAMBERT, J.A.:  Yes.  My understanding of the rule, us being  44 bound, if that's the right word, in relation to the  45 findings of credibility, is it's not just whether the  46 person is credible as a witness in the sense of  47 truthful or untruthful, but whether the testimony 424  Submissions by Mr. Rush  1 given is credible testimony in the sense of  2 establishing facts which the trial judge accepts.  If  3 I've got a misunderstanding of the principles that  4 usually govern us it would certainly help me if that  5 misunderstanding were removed in due course.  But my  6 understanding is that if the trial judge concludes  7 that evidence -- that this evidence is not to be taken  8 as establishing fact for reasons that he gives which  9 may be based on an assessment of the appearance and  10 manner of the witness while giving the testimony, then  11 we wouldn't step behind that.  If it was based on  12 something that has nothing to do with anything at the  13 trial so that we would end up in as good a position as  14 him to assess it, then I would think that would be  15 different.  16 MR. RUSH:  My lords, I submit that the trial judge is not making  17 a finding of credibility of these witnesses nor, in my  18 submission, is he making a finding of credibility of  19 their testimony.  And so your lordships are in as good  20 a position to evaluate this evidence as his lordship  21 was, on this point.  Because, with respect, I say he  22 accepted their evidence and the issue should have been  23 was it generally trustworthy?  Evaluating, as you  24 must -- as he had to have done, the large body of  25 evidence and grouping it together under various  26 categories, was it generally trustworthy?  And I say  27 that he took a body of evidence and excluded it from  28 that test, which results, for example, the evaluation  29 of Alfred Joseph's testimony on territorial ownership  30 as against what the Bay traders, William Brown, had to  31 say in 1826.  32 And my lords, I say he didn't make that  33 evaluation because he didn't have to on his test.  And  34 with respect, I say that he erred and it is a  35 reviewable error and that is why, when I direct your  36 lordships to the testimony of Alfred Joseph, who says,  37 "It was our laws that when you take a name, the House  38 chief name, that territory goes with it."  That's not  39 fiction, my lords, that is not the cultural  40 perspective, that's the evidence of Mr. Joseph and  41 many of the other witnesses and it should have been  42 given due credit and evaluated for its trustworthiness  43 in terms of the historical record and in terms, I say,  44 of the post-1871 documentary record.  45 And I make that point in 269, as an example of a  46 succession to a name and territory in 1826, William  47 Brown reported: 425  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  "Ash Shaw has been Made a Chief to supply the  place of the defunct whose Lands he is to take  possession of..."  And then he gives the name, "has got the place."  And in my submission, my lord, that evidence  should have been stacked up against Alfred Joseph's  and the other evidence of the -- of the chiefs.  And  we will be making the submission that the anthropology  of the evidence as well, in order to evaluate what the  present-day chiefs who can only speak for their  lifetime, what their present-day chiefs -- the  trustworthiness of that evidence against evidence such  as that of paragraph 269.  LAMBERT, J.A.:  I am not as on top of this as perhaps I should  be, but am I right in saying that if Father Morice  made notes of practices that are -- that you would  submit are consistent with Mr. Brown's notes of 60  years earlier, and the oral evidence in this case of a  hundred years later?  MR. RUSH:  Precisely, my lords.  In fact, Morice did just that  60 years later.  And in Exhibit 953, he says, this is  Morice speaking:  "The Gitksan and Carrier have a well-organized  society composed of the hereditary nobleman who  owned the land and the common people who hunt  with them and for them."  Now in my submission, my lords, a lay  ethnographer such as Father Morice was, his evidence,  too, should have been evaluated against the evidence  of Alfred Joseph another hundred years later.  LAMBERT, J.A.:  And that's -- when you say -- when you are  attacking these conclusions of the Chief Justice  through this passage, you are saying that the thing he  didn't do in saying -- when he concluded that the  witnesses were just saying what was in their lifetimes  and their own memories, he didn't check it against the  testimony in relation to Father Morice's notes, the  testimony in relation to Mr. Brown's notes and the  anthropological evidence?  MR. RUSH:  That's —  LAMBERT, J.A.:  Is that right?  MR. RUSH:  That's precisely what I say.  In Calder, Mr. -- or Professor Duff's evidence  spoke about Dr. Garfield's evidence and Dr. Drucker's 426  Submissions by Mr. Rush  1 evidence, talked about ownership and the indicia of  2 ownership elements among Northwest Coast peoples.  3 In this case, evidence was called from Drs. Daly  4 and Mills.  That evidence was excluded.  But that  5 evidence bore directly down on anthropological  6 opinions touched on in the same area as Drs. Garfield,  7 Duff and Drucker, talking about what is the nature of  8 the land tenure and ownership system among Northwest  9 Coast people.  And yes, to respond to your lordship's  10 questions, I say that the error his lordship made here  11 was in not evaluating the evidence taken about the  12 same subject area with regard to land of the lay  13 witnesses, against the anthropological opinions,  14 against the opinions of Dr. Ray and against the  15 documentary record we have at the first moment of  16 contact.  17 LAMBERT, J.A.:  Yes.  Thank you.  18 MR. WILLIAMS:  I'm sorry, my lord, can I just rise on a point of  19 information.  I'm afraid I don't understand my friend.  20 I just want to ask, is my learned friend saying that  21 the learned trial judge ignored the whole body of  22 evidence that he has been referring to, in giving his  23 reasons for judgment; or is he saying that he did not  24 demonstrate a sufficient analysis?  I just don't quite  25 understand whether he is saying it was -- because he  26 did say, "I don't accept the evidence of certain  27 witnesses."  Is my friend saying, "Well,  28 notwithstanding the fact that he had a right to reject  29 certain witnesses, he didn't demonstrate an analysis  30 or that he ignored that evidence"?  I'm sorry, I don't  31 understand.  32 MR. RUSH:  I am saying both, my lords, and I am grateful for my  33 friend's interjection.  I say that on the two arms of  34 the Geffen principles for this court to intercede,  35 that the trial -- that his lordship both disregarded  36 relevant evidence and he failed to appreciate relevant  37 evidence, insofar as it pertains in this arm of our  38 argument, to questions of House territories and the  39 ownership of those territories by those Houses.  And  40 he did so in this form, in my submission, of a blanket  41 rejection of what he calls evidence given from a  42 cultural perspective.  43 Now I'm picking up my submission, my lords, at  44 269.  And what I had referred your lordships to was  45 the comment made by Brown in 1826.  But I take you  46 over to the reference which is contained here of the  47 two genealogies; one Gitksan, that of Antgulilbix, and 427  Submissions by Mr. Rush  1 that of Wet'suwet'en, that of Gisdaywa.  2 And the evidence in this reference, my lord,  3 after the first one, is the testimony of Alfred Joseph  4 of speaking to his -- speaking to his genealogy.  I'm  5 not going to take your lordships through it, but I ask  6 you to note that what Alfred Joseph is doing is  7 showing the line of succession of his name and his  8 inheritance from the previous holders of the name, so  9 far as he knew it.  And I have included the genealogy  10 of Antgulilbix, which is many pages long, but I ask  11 you simply to note that Mary Johnson, on the first  12 page, is shown as holding the name of Antgulilbix, and  13 I just ask your lordships to note that the genealogies  14 were produced on the basis of following the matriline,  15 so the circles are the women.  16 And on the first page in the middle of the page  17 it shows Mary Johnson.  Her mother, Alice Gawa, was  18 born in 1886.  Her grandmother, Edith Gawa, was born  19 in 1856.  And the date of the previous family shown  2 0 between Luutkudziiwus and an unnamed mother, is one  21 generation prior to that.  And I am at pages -- the  22 face page of what's marked as page one of Antgulilbix.  23 And I provide this to your lordships simply to  24 demonstrate the line of connection back in time to a  25 time not at contact, but very close, and at a time  26 when there are no historical records which assist in  27 determining these questions, apart from the Hudson's  28 Bay record.  29 And then similarly, with the Gisdaywa genealogy,  30 which is the next reference, Exhibit 62-01, the same  31 reference, my lords, Alfred Joseph is found on the  32 right-hand side of this first page.  And Alfred  33 Joseph, his mother is Mary George, the previous  34 generation.  And Mary George's brother of the same  35 House held previously the name of Gisdaywa.  And on up  36 the genealogy to the next generation, which is on  37 the -- I'm on the first page, my lords.  38 MR. WILLIAMS:  What line?  Line 3?  39 MR. RUSH:  Yes, line 3.  We are rising up the genealogy to Felix  40 George and Cecelia.  41 LAMBERT, J.A.:  Could I just ask you to repeat the tab number?  42 MR. RUSH:  Yes.  I am at 269, I am at the last reference there,  43 my lords.  44 LAMBERT, J.A.:  Yes, thank you.  45 MR. RUSH:  This is Exhibit 62-01, this is the genealogy  46 testified to by Mr. Joseph.  47 Running up from Mary George to Felix George and 42?  Submissions by Mr. Rush  1 then two names, Lay'o and Delsan.  His grandfather,  2 Joseph Paul, being Naalogh, previously held the name  3 two generations before him, the name of Gisdaywa, and  4 he was born in 1871.  5 And I -- the genealogies were accepted by his  6 lordship as being accurate back three to four  7 generations.  8 Now -- and the other genealogies of which there  9 was one for each house, I believe, except -- yes, for  10 each house, are set out under that reference.  11 Now I'm moving on to 270, my lords.  12 The continuous succession of ownership of  13 territories, through the passage of chiefly names,  14 connects the present generation of Gitksan and  15 Wet'suwet'en legally and spiritually to their  16 ancestors.  17 The way in which present and past generations  18 feel bound together through the land was evocatively  19 captured by Mr. James Morrison, and he testified:  20  21 "You have to go out there..."  22  23 Meaning his territory.  24  25 "You have to be out there, have to be out  26 there, to be out on the rivers or lakes,  27 whenever you are going to sit yourself and feel  28 you can hear the creeks and rivers to remind  29 you what happened in the past. . .and you can  30 feel the presence of the creator... the  31 reflection of this of your territory and  32 yourself."  33  34 And similar passages, expressions of connection  35 to the land, of belonging to the land are expressed by  36 Stanley Williams and Dan Michell.  37 In terms of the spiritual connection to the land,  38 Madeline Alfred testified, at 272:  39  40 "Our ancestors who have passed on before us  41 when we are out on the territory they try to  42 communicate with us.  When you hear a whistling  43 noise from a fire, then we immediately take a  44 piece of smoked salmon or something we throw it  45 on the fire.  The whistling noise is our  46 ancestors ... trying to get our attention...."  47 429  Submissions by Mr. Rush  1 Now at 273 I note that land is not regarded as an  2 object of commerce and the alienation of property  3 inter vivos is not a usual feature.  And we say that  4 this should not be seen as inconsistent with a system  5 of ownership.  As Mr. Justice Lysyk, then Professor,  6 wrote:  7  8 "restrictions on alienation are familiar to  9 recognized interests in land at common law, for  10 example, in leases or in estates in fee tail.  11 As one writer has observed, at English common  12 law there were times when most of the land in  13 England could not be sold to anyone."  14  15 The Gitksan and Wet'suwet'en systems do provide,  16 however, for the alienation of territory as part of  17 their dispute resolution processes.  Thus compensation  18 for homicide, accidental death of a person, or  19 reparations arising from wars have involved the  20 transfer of House property as part of a settlement or  21 peace ceremony.  Such agreements are validated when  22 they have been witnessed in the feast.  23 Witnesses gave evidence regarding such transfers  24 of territory as part of compensation in peace  25 settlements.  One of those witnesses was in respect of  26 the oral history of the House of Antgulilbix and the  27 death of Yai and a piece of territory having been  28 transferred to this House.  And this oral history, my  29 lords, refers to the territory of Antgulilbix, which  30 is right here in the north at the upper end of --  31 upper Kispiox Creek.  And the portion of the territory  32 that is referred to in the oral history is this nub  33 that moves out into the Gyolugyet neighbouring  34 territory.  35 Other examples, my lords, from the oral histories  36 concerning the transfer of territory, are set out  37 under that paragraph.  38 I move now to the final sub-heading here and  39 that's the question of recording and passing of land  40 titles.  41 LAMBERT, J.A.:  Just before you move, still on the question of  42 the Chief Justice's rejection of much of this  43 evidence, as I understood the reasons to which you  44 referred us, the Chief Justice said that the witnesses  45 had lived with this case for a long time and came  46 forward and gave testimony which they believed was  47 truthful, but which might have been influenced by the 430  Submissions by Mr. Rush  1 long-standing preparation for giving the testimony,  2 and I suppose that could relate to anthropological  3 evidence, too.  But anthropologists have studied this  4 matter before this case was ever conceived.  I don't  5 remember if we've been referred to writings of  6 anthropologists which would tend to support this  7 testimony, but which was written by the  8 anthropologists before this case was ever given any  9 structure whatsoever.  I have an impression, indeed,  10 that you did refer us to that, but I wasn't thinking  11 of it in relation to whether it was something that the  12 Chief Justice ought to have considered in relation to  13 corroboration of this oral testimony he referred us  14 to.  15 MR. RUSH:  My lords, the evidence that I referred to at the  16 beginning of our submission on ownership at paragraphs  17 212 running through to 216, are references to  18 anthropological literature and the opinions of  19 professors --  20 LAMBERT, J.A.:  Yes.  21 MR. RUSH:  -- who wrote before this case.  22 LAMBERT, J.A.:  That's 212?  23 MR. RUSH:  To 216 of the Factum.  24 LAMBERT, J.A.:  And would you say in describing it, that it's  25 directly corroborative?  26 MR. RUSH:  It is.  27 LAMBERT, J.A.:  Or just touches a point of corroboration here  28 and there?  29 MR. RUSH:  No, my lords, it is directly corroborative of the  30 Gitksan and Wet'suwet'en land tenure system confirming  31 patterns of ownership of territories which are, to use  32 the words in Duff's book, "clearly defined and  33 mutually respected".  And that's at paragraph 213.  34 Dr. Garfield, at paragraph 215, said:  35  36 "It was characteristic of the Tsimshian, as of  37 other Northwest Coast Tribes, that exclusive  38 rights to exploit the resource districts were  39 claimed by kin.  Lineages of the Tsimshian were  40 the owners of rights to hunt, fish, pick  41 berries, or gather raw materials from  42 geographically defined territories."  43  44 LAMBERT, J.A.:  He is not talking of a point in 1930, for  45 example, when he says that?  Your submission is -- or  46 perhaps it would be clearer if we read more, is that  47 this is the practice that has been in existence since 431  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  before 1820?  MR. RUSH:  Yes.  That was the point of Dr. Wilson Duff's  testimony in Calder and he relied on Garfield and he  relied on Drucker.  J.A.:  Yes, thank you.  My lords, I am at --  J.A.:  It's 11:15.  You are about to get into a new  territory, are you?  Yes, I am.  Thank you.  J.A.:  We will take the morning break.  This court is adjourned for the  LAMBERT,  MR. RUSH:  TAGGART,  MR. RUSH:  TAGGART,  THE REGISTRAR:  Order in court  morning recess.  MORNING RECESS  THE REGISTRAR  TAGGART, J.A.  MR. RUSH  Order in court.  Yes, Mr. Rush.  Thank you, my lord.  I'm at 276, dealing with the  recording and passing of land titles, and we say that  territorial ownership is also recognized and  maintained in the feast system and by the display of  crests and recorded in oral histories.  And we say that the functions performed by deeds  of conveyance, wills, land and estate registries in  the property law of non-Indian societies, are  performed in the Gitksan and Wet'suwet'en systems by  crests, crest poles, and oral histories in the context  of public witnessing and validation in the feast hall.  Public ratification and verification of matters  pertaining to property is common in societies with  oral cultures.  Mr. Daly makes that point.  The Gitksan and Wet'suwet'en societies, like  other societies with oral cultures, utilize mnemonic  or memory devices, and the crests on chiefly  belongings of each House are a mnemonic text which can  be read by certain other historically and  regionally-linked chiefs, all of whom have been taught  by their elders a portion of the history of their  neighbours and of the boundaries of their territories.  The crests are like a map, and their existence on  blankets, house fronts and elsewhere call up the  history, ownership and authority of the chief and his  or her House.  And I'll just take you to the reference at 279,  comments of Alfred Joseph.  In the first reference, he  says : 432  Submissions by Mr. Rush  1 A  Yes.  There is the crests, like boundary  2 would have a marking, a carving on a  3 [pole], and then there you have the  4 totem-poles and songs and their personal  5 crests relate to the land or some --  6 whatever happened in the land, so there  7 is always some reminder of different  8 feasts that have happened.  It is too --  9 I personally know how these were kept  10 alive.  If an elder is -- two or three of  11 them are visiting and they would sing  12 these songs, and when one quits, they say  13 well -- or the other one might say, "Do  14 you remember where this came from?"  If  15 they don't, well they say -- they tell  16 them this was that feast when this chief  17 died or when this chief erected his  18 totem-pole.  And that was going on at  19 every community, discussions going on and  20 how names, songs and crests were  21 acquired.  22  23 And then the next reference deals with an extract  24 of Dr. Daly's report where he cites the evidence of  25 Mary Johnson with regard to the crests at the village  26 of Kispiox.  27 And then I've included as the last reference  28 here, my lords, a photograph that I directed your  29 attention to when you dealt with the facts, and that  30 is the crests on the Wilson Creek smokehouse of  31 Tenimgyet.  In the upper photograph is the crest of  32 the Haawaa, or the lion, and then on the left-hand  33 side are the bear and the two cubs, both crests of the  34 Tenimgyet House.  And in front of the house is Art  35 Mathews and his family.  And on the right side are his  36 mother and father on -- at the same territory.  37 I'm at 280, my lords, and I say that the crest  38 poles or totem-poles stand as a form of legitimation  39 of rights to the territory and fishing sites.  40 Properly understood, they provide both metaphorically  41 and physically the root of title to the House.  42 And I direct your attention, my lords, to the  43 reference -- second reference under tab 280, which is  44 to the evidence of Solomon Marsden.  He is asked:  45  46 Q  ...can you explain the relationship of  47 the Gitksan totem poles to the territory 433  Submissions by Mr. Rush  1 of the Gitksan chiefs?  2  3 And he goes on to explain the relationship of the  4 adaawk to the totem-pole and to the House's authority.  5 And then I direct you to the third reference,  6 which is that of Chief Hanamuxw, evidence of Joan  7 Ryan, and she is asked about her own totem-pole.  This  8 is at 5017, beginning at line 12:  9  10 Q  Whose pole was that?  11  12 She is asked and she says:  13  14 A  That was Hanamuxw's pole.  That one has  15 been in the village of Gitsegukla for  16 quite a number of years.  That pole was  17 repaired in 1945 by Jeffery Johnson and  18 was placed in front of his House in  19 Gitsegukla, then the second pole is a new  20 pole, new in the sense that it is going  21 to be new wood but it's going to contain  22 the same crests as the original pole,  23 because I am the one that is going to be  24 putting up or at least putting up that  25 pole.  My father's crest had to be down,  26 placed at the bottom, to indicate to the  27 people in the future that it was this  28 Hanamuxw that had prepared that pole.  29 Wil'na t'ahl's crest must be at the  30 bottom.  31  32 And then she is asked about the significance of  33 raising the pole, and then she carries on:  34  35 A means that what I am doing now is  36 preserving the past for the nieces and  37 nephews that we have now and the future  38 members of my family.  39  40 And she goes on to express the continuity that's  41 represented by the pole, the continuity and the  42 history of the House, preserving the history of the  43 House, the identity of the House of Hanamuxw.  And at  44 the very end of this page she said:  45  46 A  ...It's a very important evidence in the  47 Gitksan Nation, that you are what you 434  Submissions by Mr. Rush  1 are.  2  3 Now, my lords, I take you to the photograph of  4 one of the poles that she is talking about, which is  5 the pole that is standing at Gitsegukla.  It's the  6 Rainbow Man pole, which talks of the adaawk of Ska'woo  7 about which she testified.  8 That same pole is in the next reference, which is  9 the pole before Jeffrey Johnson's home, was re-raised  10 in 1945, and re-raised again by Joan Ryan more  11 recently.  And the new wood pole that she refers to in  12 her passage, my lords, is a pole that she had carved  13 recently, and there is a videotape that was exhibited,  14 Exhibit 30, showing the stripping of the wood of this  15 new pole and it is in addition to the pole that you  16 see here.  17 My lords, I just point out to you that the  18 Hanamuxw territories about which Joan Ryan is speaking  19 are located outside of the Village of Gitsegukla,  20 which is located here, and the Hanamuxw territory is  21 here and here.  22 Now, my lords, Joan Ryan goes on to explain,  23 again, the significance of the raising of the pole at  24 5026 and there is a lengthy passage there which -- in  25 which she affirms that it is confirming the Dax gyet,  26 which is the power of the house.  27 And then I have included other photographs  28 further along in this reference tab to other poles and  29 to the crests which are displayed on the poles.  In  30 the case of Exhibit 369, a photograph of the  31 totem-pole of Tenimgyet, and at the top is the lion  32 and then as you move down the pole, the bear, the  33 bear, and the ensnared bear is the pole of Tenimgyet's  34 House, which is derived from the oral history of Biis  35 Hoon.  36 The next pole is another pole of Tenimgyet also  37 standing at Gitwangak showing the various crests.  38 The third reference, my lords, again, I direct  39 your lordships' attention to this, poles of the  40 Wet'suwet'en chief, Johnny David.  On the top of the  41 right-hand side pole in front of Mr. David's house in  42 Moricetown is the crest of the otter, which is the  43 House crest of this -- of the Chief Maxlaxlex, Johnny  44 David.  45 Now my lords, I am back in the Factum at 281.  46 Paralleling the crests and crest poles, the oral  47 histories trace the origins of rights to ancient 435  Submissions by Mr. Rush  1 territories, the course of migrations to new  2 territories and any subsequent major shifts or changes  3 in the territories or fortunes of the House.  4 And I made submissions and I would ask you to  5 note that at paragraphs 48 and 49 of the Facts tab,  6 this -- these points are supported.  7 282.  We say that in any system which includes  8 rights of exclusive possession, there must be a  9 general knowledge of the persons or groups in whom  10 those rights of possession reside and of the boundries  11 of their territories.  And among the Gitksan and  12 Wet'suwet'en this announcement of rights and  13 boundaries is carried out, above all else, in the  14 feast hall.  And one of the principal responsibilities  15 of the Gitksan and Wet'suwet'en chiefs, when they are  16 invited to the feasts of other Houses and clans, is to  17 act as witnesses to, and validators of the host  18 group's claims to chiefly names and titles to  19 territories.  20 And here I ask you to note the evidence of Mary  21 McKenzie, which speaks to the necessary role of  22 witnessing to validate territorial inheritance.  And  23 that is the first reference there, my lords, and she  24 says, dealing with the expenses that are paid:  25  26 A's a sign that the Clan show of  27 their respect to these...head Chiefs, and  2 8                           when you become a head Chief you expect  29 this amount of money...  it's in the  30 rank, and it's always been that way in a  31 Feasting.  Like I said, other goods were  32 used before and now it's all cash, and it  33 has to be that way.  Gifts have to be  34 given to each Chief, and this is what the  35 money indicates, that gifts have to be  36 given to high Chiefs when you're inviting  37 a Feasting.  38  39 And then at the bottom of the page at line 42,  40 she is asked:  41  42 Q  ...Is there any reason why there must be  43 a Feast with them there, whether a burial  44 Feast or a headstone [feast]?  45 ....  46 A Well, there are witnesses, someone has to  47 be at a Feasting.  You invite the head 436  Submissions by Mr. Rush  1 Chiefs and they're the witnesses of  2 what -- you have to be very careful.  3 Like I said, as soon as you enter into a  4 Feasting House you have to watch and you  5 have to listen, and if one Chief doesn't  6 agree with what's going on in that  7 Feasting House he will let you know, so  8 each head Chief that are guests, Lax  9 See'l Lax Gibuu, they have to listen of  10 what is said by the host, the Lax Gibuu,  11 and what is -- and what has been done,  12 they have to witness that, and if  13 anything went wrong they, the guests,  14 have to say right there and then that  15 this is not right, so the Lax Gibuu will  16 have to correct that right there.  17  18 And she carries on in respect of the importance of  19 feasting.  20 And my lords, exhibited in the trial was very  21 extensive records kept of feasts which occurred over a  22 lengthy period of time running from about 1982, I  23 believe -- contemporary feasts, running from 1982 to  24 about 1987.  There, of course, were many other  25 references to feast books which were records --  26 contemporary records kept of chiefs, of feasts which  27 they attended or which they hosted, records of monies  28 that were paid out, monies that were received in,  29 names which were passed, and your attention will be  30 directed to those in due course.  31 Now at the bottom of 143, and I am at paragraph  32 283, my lords:  The trial judge summarily dismissed  33 the appellants' argument that they and their ancestors  34 "expressed their ownership of the Territory through  35 their regalia, adaawk, kungax and songs", and he  36 concluded:  37  38 "I do not find these items sufficiently site  39 specific to assist the Plaintiffs to discharge  40 their burden of proof."  41  42 And we say that this conclusion is not supported  43 by the evidence.  As demonstrated in Tab 5 and  44 Appendix C, the oral histories recounted by several of  45 the witnesses we say were sufficiently specific to  46 permit the delineation of places and territories  47 referred in them to be located on a map. 437  Submissions by Mr. Rush  1 And I've added references at this tab to the oral  2 history of the House of Tenimgyet to illustrate that  3 their specific places on his territory at Cedar River  4 are described in terms of this oral history.  5 And my lords, Mr. Grant will be making  6 submissions to you specifically on specific oral  7 histories which reference sites and places and names  8 in respect of territories which are claim territories  9 of the appellants, these names, these references  10 emerging from the oral histories.  And he will be  11 making reference to the evidence of Mr. Mathews on  12 Tenimgyet's territory.  13 At 285:  The appellants argued that they and  14 their ancestors confirmed their ownership of territory  15 through the feast system.  And about this, the trial  16 judge concluded, and I've set out his reasons at 373:  17  18 "I do not question the importance of the feast  19 system in the social organization of  20 present-day Gitksan and I have no doubt it  21 evolved from earlier practices but I have  22 considerable doubt about how important a role  23 it had in the management and allocation of  24 lands, particularly after the start of the fur  25 trade.  I think not much, for reasons which I  26 have discussed in other parts of this judgment.  27 Perhaps it will be sufficient to say that the  28 evidence about feasting is at least equivocal  29 about its role in the use or control of land  30 outside the villages."  31  32 And I ask your lordship to note, again, that his  33 lordship here is referring to the role of the feast in  34 relation to the land outside of the villages.  And in  35 our submission, the only place where it matters and  36 that's -- and as we will be submitting, my lord, it is  37 the feast institution which has as the central  38 feature, the inheritance of House territories outside  39 the villages.  40 Now we say at 287 that there is an abundance of  41 evidence demonstrating the cardinal significance of  42 the feast system in the affirmation of ownership and  43 the allocation and management of lands.  44 And my lords, I want to add here at 287, the  45 following comments:  That we say that it is difficult  46 to read the evidence of Joan Ryan and Alfred Joseph,  47 the two witnesses I have referred you to just a moment 438  Submissions by Mr. Rush  1 ago at paragraph 279 and 280, without seeing how  2 significant the feast and the feast system is with  3 regard to inheritance of territory and the control and  4 management of the land owned by the House.  And we say  5 that the only place where the role of the feast in  6 relation to the control and management of territory  7 matters is in relation to the lands outside of the  8 villages, the territories belonging to the House are  9 territories which are outside of villages.  There is  10 no wall between the villages and the territories.  If  11 the institutions and laws are capable of operating  12 within the village, as the trial judge accepts, then  13 in our submission, it makes no sense for them to  14 suddenly stop at the village perimeter.  The evidence  15 showed the feast as the institution through which the  16 Houses and the chiefs exercise their control to  17 regulate and manage the territories completely beyond  18 the village enclaves contemplated by the trial judge.  19 Now, my lords, as an example of this, extensive  2 0 evidence was given about the territory of Namox.  And  21 I want to show you where the territory of Namox is  22 located, because it's an important -- it's an  23 important point.  Again, referencing Gisdaywa's  24 territory, about whose map I directed your attention  25 to, the Namox territory is over here to the east of  26 it.  It's this territory located at this point.  And  27 the main feature there is Goosly Lake.  28 Now, about this territory, Alfred Joseph, Alfred  29 Mitchell, Emma Michell and Dan Michell all gave  30 evidence.  All discussed the ownership of this  31 territory as in the House.  The territory, however,  32 was excluded by the trial judge in his Map 5.  It  33 wasn't even among those territories considered to be,  34 by the trial judge, as part of the sustenance rights,  35 let alone the claims advanced by the appellants.  36 According to the trial judge, not even sustenance  37 activity was going on here.  38 Now, the evidence about the Goosly Lake  39 territory, in our submission, my lords, was completely  40 disregarded in respect of his lordship's definition of  41 territories among the Wet'suwet'en needing to be a  42 certain distance from village sites or river beds.  43 Now, I ask you to note at this paragraph that the  44 fuller argument on the Goosly Lake territory is to be  45 found at tab 6, paragraph 760 to 803, pages 305 to  46 316.  47 TAGGART, J.A.:  Paragraph numbers again? 439  Submissions by Mr. Rush  1 MR. RUSH:  Yes.  760 to 803, and pages 305 to 316.  2 Now, my lords, at 288:  In order for the chiefs  3 to perform their role in this distinctive form of  4 public acknowledgement of land title, they are trained  5 by their predecessors in the boundaries of their  6 Houses and the boundaries of the territories of their  7 neighbours and those with whom they are socially  8 related by kinship and history.  At a feast,  9 particularly one at which a high chief succeeds to a  10 name and with it the territory of his or her House, it  11 is expected that one of the senior members of the  12 House will publicly announce the history of the name,  13 the crests and the boundaries of the territories of  14 the House.  This public proclamation of the  15 entitlements of the House will be emphasized by  16 distributing food to the chiefs who are there as  17 witnesses to the succession of rights, and by  18 announcing from which of the House territories the  19 food has come.  20 And I take you, my lords, to the reference at  21 288, and I ask you to note that the first of these  22 references is a very extensive description of a feast  23 in the lifetime of Stanley Williams, Gwis Gyen, who is  24 recently deceased.  But he describes the feast from  25 the time of the death of the House chief.  26 I want to take you to the second reference, and  27 this is the reference to Alfred Joseph's testimony,  28 and just to ask your lordships to note that beginning  29 at line 23, again, Alfred Joseph indicates the  30 importance of the kungax or the dramatic performance  31 of the house crests, the song, the announcement, the  32 history and the feast.  And then over to the next  33 reference at 1781, he describes how witnesses to a  34 feast are paid and the speeches which occur.  35 And then at 1782, which is the next reference, at  36 line 22 through to 33, he describes the role of the  37 witnessing chiefs and the importance that they play in  38 the process.  39 And then over to 1843, my lords, at line 15, Mr.  40 Joseph is asked regarding witnesses:  41  42 Q  And why is it important to do that at  43 those Feasts?  44 A  It is important to have witnesses at a  45 Feast.  If you are in a place where all  46 the people are of one clan, that is you  47 cannot invite that clan to come in, your 440  Submissions by Mr. Rush  1 own clan to come in as witnesses --  2  3 "It would be like," if I can add, "witnessing  4 yourself".  5  6 -- it has to be of another clan.  All the  7 guests that you have have to be of  8 another clan and that is why it is  9 important to have witnesses.  10 Q  Why could you not have witnesses from the  11 Gitdumden clan?  12  13 And he says :  14  15 A's something like to me you buy a  16 glue in the store and one is -- one --  17 just one of a kind, can't mix, so that is  18 the reason for this.  You have to have  19 witnesses from another clan to a  20 Feast.  And that's what makes -- makes  21 this stronger.  To have people there that  22 are not related to you, and those people  23 say that what happened is correct.  What  24 happened is according to our laws, and  25 that is why you have to have witnesses  26 from different clans.  27  28 And my lords, I just ask you to note that because  29 I ask you, that doesn't have the ring of testimony  30 which is unreal; it has the ring, in my submission, of  31 testimony which is the living breath of this  32 community.  33 Similarly, my lords, Mary McKenzie, which is the  34 next reference, she expresses why it's important to  35 teach the young about the role of the feast in the --  36 and the inheritance of territory, and she, on 190,  37 expresses why it is important to tell the adaawk.  38 And then I ask you, my lords, to move over to  39 289, back in the Factum, where Art Mathews testified  40 about the foods presented to the guests, affirming the  41 ownership of the House.  This is not some mere ritual.  42 He testifies:  43  44 "These territorial place names were announced  45 in various ways.  They were announced as an  4 6 adaawk and they were announced when you bring  47 in your soup, your tea, your bread, whatever, 441  Submissions by Mr. Rush  1 they are announced and this so and so this meat  2 comes from, and they specify each mountain or  3 its territory where it comes from.  Each creek  4 is mentioned.  So in our rule and laws we say  5 that if you eat and digest the words it's in  6 your very soul.  That's why they do these  7 things."  8  9 And again, my lords, I ask you to remember back  10 to the Ash Shaw feast recounted by Brown in 1826,  11 who -- Ash Shaw himself was bringing forward items,  12 mooseskin, as well as berries and meat to give out at  13 the feast.  Similarly, the evidence as given by Mr.  14 Mathews.  And there's other references to that given  15 by Stanley Williams and Antonia Mills.  16 At 290, my lords, I draw again your attention to  17 the testimony given by Johnny David where he compares  18 the public witnessing of declarations of ownership to  19 a deed.  He likens it to a deed and I drew your  20 attention to that when we went through the facts.  21 291, my lords:  Witnesses testified that  22 decisions of the House regarding access rights, while  23 made outside the feast hall, were announced there  24 formally, before witnesses.  25 That's the evidence of Dan Michell.  He is  26 talking about the territory of Namox, which I drew to  27 your lordships' reference earlier.  And he talks in  28 the first reference under 291, at page 3638, line 19:  29  30 A Well, it's an ongoing thing with all our  31 clan, and especially the ones that hold  32 the names, the chief names.  We get  33 together and we all have meetings and  34 discuss what's -- what we're gonna do.  35 Like for the use of it, and how it's  36 going to be arranged, who's gonna look  37 after each area of the territory, and how  38 it's to be used.  39 Q  And who is permitted to use the  40 territory?  41 A All of our house member, the Tsayu clan.  42 Q  And are there other people who are not  43 Tsayu house members but are given  44 permission to use it by the house?  45 A  Yes.  46  47 And then he goes on and discusses how that occurs. 442  Submissions by Mr. Rush  1 And then, my lord, what follows in these  2 references are further examples to decisions being  3 made by Houses and decisions being put into effect in  4 respect of specific territories and fishing sites,  5 including decisions to pass the territory to another  6 chief for payment of funeral and burial obligations.  7 And my lords, I just ask you to note that we are  8 talking about various territories in this evidence;  9 the Knedebeas territory, Namox, Gyolugyet and  10 Smogelgem territories.  11 Now finally, my lords, at 292:  When Basil  12 Michell was given a name in the House of Wah Tah  13 Keg'ht, together with caretaker rights to part of the  14 territory, this was announced at the feast hall  15 according to proper procedures required to pass a name  16 and a territory.  The Chiefs of the other clans were  17 invited and confirmed that Wet'suwet'en law was duly  18 observed.  And that's the testimony of Mr. Michell,  19 and he was given for his lifetime -- he's a very old  20 man now -- he was given for his lifetime the right to  21 utilize the resources on this side, that is to say,  22 the east -- the west side of the Bulkley River in Wah  23 Tah Keg'ht's territory which is located here.  24 Now the trial judge's conclusions that "the  25 evidence about feasting is at least equivocal at its  26 role in the use of control of land outside of the  27 villages", we say is contrary to this evidence.  And I  28 say, my lords, to add to 293, that the chiefs'  29 evidence, the lay evidence here cannot simply be  30 written out as a matter of mere belief.  31 Now at 294, I note the appellants placed before  32 the trial judge a body of evidence to prove that they  33 confirmed their ownership of the territory through  34 their crests and totem-poles.  35 The trial judge dismissed this evidence by  36 stating:  37  38 "There is considerable doubt about the  39 antiquity of crests and totem poles upon which  40 I find it unnecessary to express any opinion."  41  42 The trial judge erred in not considering this  43 evidence, we say, because crests and totem-poles are  44 themselves evidence of Gitksan and Wet'suwet'en  45 ownership of their territories.  The crests and poles  46 existed before the assertion of British sovereignty,  47 before contact, and indeed before any European 443  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  HUTCHEON,  12  13  14  15  16  17  18  MR. RUSH:  19  20  HUTCHEON,  21  MR. RUSH:  22  23  24  25  26  27  HUTCHEON,  28  MR. RUSH:  29  30  31  HUTCHEON,  32  MR. RUSH:  33  34  35  HUTCHEON,  36  MR. RUSH:  37  38  HUTCHEON,  39  MR. RUSH:  40  41  42  HUTCHEON,  43  MR. RUSH:  44  HUTCHEON,  45  MR. RUSH:  46  47  influence in the territory.  Whether the appellants  are correct that their aboriginal rights as of 1846  are those which existed at the assertion of  sovereignty, or the trial judge is correct that their  aboriginal rights are those which existed for a "long,  long time" prior to the assertion of sovereignty, the  antiquity and significance of the crests and poles are  matters which bear directly on the existence of the  appellants' aboriginal rights, and we say should have  been considered.  J.A.:  Mr. Rush, you earlier covered a part of your  Factum saying that the crests were indicia of  ownership.  I haven't yet seen any evidence which  would indicate that.  I may be missing something, but  neither the crests nor the totem-poles seems to be  related to ownership of land.  Am I missing something?  Let's take the crest.  Yes, my lord.  Let's -- if I can take -- I'll take  you to the crest of Hanamuxw.  J.A.:  Yes.  I'll just find it.  I can take you back, my lord, to  paragraph 280.  And -- now, my lord, at paragraph 280,  one of the references is to the testimony of Joan Ryan  and it's, I think, about the third one along -- fourth  one along.  And it's testimony that she gave about  paragraph -- on page 5017.  J.A.:  I see.  And that testimony, in fact, carries over to the  fourth paragraph along, 5026.  And in each of these  passages she is discussing the pole and the crest.  J.A.:  I remember that, I remember that.  And my lord, the significance of that is this:  If  you take the pole that is shown as the totem-pole of  her House, which is Exhibit 29-14 --  J.A.:  Yes.  -- and it should be next along in line in the  references there.  J.A.:  Yes.  It's the man with the hat, apparently -- wearing a  hat.  Does your lordship have that?  It's after Joan  Ryan's testimony on 5017.  J.A.:  29-14?  29-14.  J.A.:  Yes.  This crest at the top is -- the representation is a  material depiction of a figure in one of her oral  histories.  Her oral history relates to her territory. 444  Submissions by Mr. Rush  1 That oral history that she tells is the oral history  2 called the Ska'woo.  In the Ska'woo, there is an event  3 that occurs involving a figure called Rainbow Man.  4 The depiction of Rainbow Man is shown on the top of  5 this pole.  So the visual representation in the pole  6 carries the crest and when the crest is observed, it  7 triggers, if you will, to the observer -- the  8 knowledgeable observer within the system, the House to  9 which it refers as well as the history and the  10 territory.  11 Now, this particular crest refers to Hanamuxw's  12 territory, the two territories which I took your  13 lordships to, outside of the Village of Gitsegukla.  14 And the significance of it is apparent from Joan  15 Ryan's evidence which follows these two photographs,  16 where she is asked at line 11:  17  18 Q  ...Are there any other aspects of that  19 pole raising which you can talk about in  20 terms of the significance of that event  21 in the life of your house?  22  23 And I regret having skipped over this, my lord.  It  24 says:  25  26 A  Certainly it's a way of maintaining the  27 heritage from our grandfathers, and in  28 making sure that the pole is put up  29 again.  We have taken it down to restore  30 it, and also to put a new one with an  31 added crest to indicate that it's my pole  32 as opposed to the previous owner.  It's a  33 way of reaffirming and confirming the Dax  34 gyet --  35  36 That is to say, the authority or the power.  37  38 A  -- of Hanamuxw.  It's a way of  39 establishing that the property of  4 0 Hanamuxw has not been abandoned, nor will  41 it be in the future.  It's a way of  42 telling the other chiefs that the house  43 is as strong as it was before, and that  44 it will continue to exist because we do  45 have a fair number of people in our  46 houses who will continue with the  47 activities within the House of Hanamuxw 445  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:  who will ensure that it will continue in  the future.  It's also a way of releasing  the spirits of those who have passed on.  It's a way of giving thanks for having  had them in your house.  It's a way of  giving recognition to the contributions  that they have made to your house.  It's  a way of acknowledging to our creator too  the privilege of having had them share  their lives with you.  And so on.  Now, my lords, if I can take you to another  example after this passage, again, a standing pole in  the community of Kitwanga.  It's Exhibit 349.  It's  Tenimgyet.  Now, this is the next reference following  the passage I've just read to the photograph of the  pole of Tenimgyet standing in Gitwangak.  And my  lords, Mr. Grant will examine in more detail the oral  history which has led to the representation of the  crests mentioned there, but this crest -- these crests  are taken from the oral history of Biis Hoon, which is  in reference to Mr. Art Mathews' territory at Cedar  River.  The events talked about in that history  occurred on that territory and relate to events that  occurred there in the distant past.  And out of that  history emerged these crests and these crests were  carved and represented in this form to show the  relationship of his House, these crests, to his land.  And the territory that is -- will be dealt with  in more detail is this Tenimgyet territory here, about  which there are about four major adaawk dealing with  this territory.  J.A.:  Yes, I see.  Thank you.  Now, my lords, I am at 297:  Several Gitksan  witnesses explained that the crests -- or in Gitksan,  "ayuks" -- on the pole displayed the history of the  events, often in the distant past, whereby the crest  was first adopted.  They symbolize the House -- the  history of the House.  And in some ways I'm kind of  going over the ground that was covered by Joan Ryan,  Hanamuxw.  Each crest pole stands to legitimize  ownership of the fishing sites and the territories.  As Olive Ryan testified:  "...the pole holds everything.  They hold the  fishing site and they hold the hunting ground 446  Submissions by Mr. Rush  1 and they hold the House. ...It tells like a  2 map, when you look at the map, and you can see  3 the road and the number on that map."  4  5 Now, my lords, I pause to emphasize that it is  6 because the crests are displayed on the poles, but the  7 poles are not the only place where crests are  8 displayed.  They are displayed on regalia, on  9 blankets, they are displayed on house sides, and I  10 will take you to some other descriptions of how the  11 crest is displayed.  12 I am over to 298, where Glen Williams, one of the  13 youngest chiefs to testify, said:  14  15 "[T]he Ayuks [or the crest] clearly identifies  16 who you are, which house group you belong to.  17 It clearly defines how much land you have, how  18 much power do you have, and it defines that you  19 have ownership -- you own a particular piece of  20 land, and that you have authority over that  21 piece of land. ...The -- a lot of the Ayuks  22 ties into how house groups have attained land  23 initially, how they found land..."  24  25 And that's extracted from his testimony on pages 6671  26 to 6673, my lords, but he goes into this in greater  27 detail at that reference point.  28 Solomon Marsden explained the ancient origin of a  29 particular set of crests on a totem-pole.  And  30 perhaps, my lords, in very brief form, what Solomon  31 Marsden is here referring to is an adaawk, and he  32 says:  33  34 A  ...There is this village, this village is  35 called -- is known as Gitangasx and it  36 was situated at the head waters of the  37 Skeena.  It is clear to our people that  38 Gitangasx was the first village of the  39 Gitksan people.  This was when Sindihl  40 was still living in Gitangasx they found  41 this stone figure in the water...and they  42 had a hard time dragging the stone  43 figures out of the water, and when they  44 did finally drag it out it looked like a  45 totem pole but was made out of stone.  46 Sindihl wanted to erect this stone  47 figure, so what he did is he invited the 447  Submissions by Mr. Rush  1 surrounding villages, the villages that  2 are around his own village.  While  3 Sindihl was out inviting the surrounding  4 villages this stone figure disappeared.  5 After Sindihl came back he found out that  6 the rock had disappeared, so what he did  7 is he carved -- he remembered the figures  8 that was on the rock and he carved them  9 onto the wood before the guests arrived.  10 After this pole was carved it was  11 erected...  12  13 In the ancient times when people acquired  14 their crests they go through a hardship,  15 some of the people suffer while acquiring  16 the crest.  And...this is how they  17 acquire these crests.  18  19 The Ayuks [or crests] is always acquired  20 from the territory.  21  22 Now, what Solomon Marsden is relating here, my  23 lords, is an oral history about this event that  24 occurred in the history of his House.  25 Now I take you to the references at 299, just to  26 make a point I indicated earlier.  At 299, my lord,  27 the first reference is to Solomon Marsden and the  28 testimony I've just referred to.  And then the second  29 one is to further evidence from Mr. Marsden.  Then the  30 third one along is to the testimony of Olive Ryan,  31 Chief Gwaans, and I've set out the passage here  32 because it explains the testimony that she gave  33 concerning the crests of Hanamuxw's House.  34 Now, my lords, just, if you will, I would like  35 you to keep your thumb at transcript reference 1269  36 and then following that are the photographs to which  37 she referred.  And the first one, my lord, is to a  38 photograph of Fanny Johnson, the former Hanamuxw, and  39 this was taken in 1924.  She is shown holding a rattle  40 containing a crest.  She is shown wearing a blanket,  41 on the back of which is the crest; the crest of  42 Hanamuxw.  Her headdress is -- contains her crests.  43 This was taken when Barbeau was there.  44 Now the second photograph, my lords, is not in  45 your material, because there was only one such  46 photograph and it is the photograph of the present  47 holder of the name of Hanamuxw, Joan Ryan.  And she is 448  Submissions by Mr. Rush  1 wearing the blanket which is the blanket of the former  2 Chief Hanamuxw.  Again, simply to illustrate to your  3 lordships that a present-day holder wearing the crest  4 blanket of the House carries on in her inheritance.  5 LAMBERT, J.A.:  Is that the very blanket that's shown in the  6 1924 photograph?  7 MR. RUSH:  It is.  8 Now this is the blanket, my lord, that she took  9 on in 1966.  10 The third photograph -- and I'm moving back to  11 the reference, is -- references a crest on a rattle.  12 She gives a Gitksan name and when you look at the  13 crest, my lord, it is -- refers to a marten.  14 And then at tab 4 is yet another crest.  Now,  15 this rattle is the same rattle which Chief Hanamuxw is  16 wearing in the photograph at Exhibit 34-1.  This  17 rattle is in the museum, it's maintained and held in  18 the museum at Gitanmaax, the Ksan Museum.  The people  19 have established a museum to hold many of their  20 earlier regalia.  21 Now this rattle, my lord, is -- she describes it  22 as the miilooxs or the "throwing stones" rattle, and  23 it was used at a feast in 1945.  24 Now the next, my lords, again, this is a mask.  25 It's a mask that was used at a -- what's called a nax  26 nok or spiritual performance.  27 Photograph 34-6 is the second mask, it carries  28 the name of a man in the hill.  Again, a feast mask,  29 both used in 1945 at a feast in Gitsegukla.  30 And then I just take you along to the headdress,  31 my lords, where these are found at 34-6 -- 34-7,  32 rather, and 29-6.  And the photograph of the regalia  33 showing -- that I illustrated to your lordships when I  34 opened on the Facts.  This photograph is contained as  35 Exhibit 29-7.  It's used in a spiritual performance.  36 And then finally, the final photograph here shows  37 no crests, but the importance of it is that this is an  38 apron that belonged to the House of Hanamuxw and it  39 survived the fire that destroyed the village of  40 Gitsegukla and several totem-poles, 13 poles there, in  41 1872, and evidence was given on that.  42 Now, my lords, I just -- I want to take you  43 finally to the final photograph in this reference and  44 that is to the photograph of David Gunanoot, Chief  45 Niikyap.  And you've heard much about the evidence of  46 Mary McKenzie.  Chief Niikyap is wearing his regalia,  47 he's on the right, and Mary McKenzie is beside him. 449  Submissions by Mr. Rush  1 And Chief Niikyap, David Gunanoot, is wearing the  2 blanket that is displayed below, which is the split  3 bear and ptarmigan crest.  And the evidence, if your  4 lordships choose to make a note about the description  5 of the crest, description of the territory to which it  6 applies, is found at paragraph 185 of the Factum and  7 is referenced at transcript reference 84, pages 50 to  8 55 and following.  9 And what that testimony relates to, in  10 particular, the ptarmigan feathers which come from  11 high country, is to the territory of Niikyap at  12 Thutade Lake, which is here in the upper northeast  13 corner of the Gitksan claim territory.  14 Now, my lords, I take you to paragraph 300 and I  15 ask you to note that in Mr. Marsden's evidence, he  16 described carving tools that were used pre-contact.  17 And he said:  18  19 "In the ancient times they have their own tools  20 to use on whatever they are doing, carving  21 poles, cooking."  22  23 And on 149 he says:  24  25 "What they would do is they would sharpen a  26 rock until it was sharp like a knife and it  27 does work like a knife.  And this -- and these  28 tools are also used when they are preserving  29 their fish and their meat.  The tool that they  30 used to carve the totem pole is known as the  31 Dax Winsxw."  32  33 Now, my lords, in the archaeological evidence  34 that was called at the trial, there was evidence  35 dealing with wood-cutting tools, and I just ask you,  36 if you will, to turn to the last reference under  37 paragraph 300.  And in -- this is a portion of the  38 opinion report of Sylvia Albright, and she is talking  39 about ground -- the ground stone industry, and in  40 particular, ground stone tools as part of the  41 comparative evaluation that's necessary in looking at  42 archaeological finds.  And she says at the end of the  43 first paragraph:  44  45 "Most of these are related to wood working and  46 other tool manufacturing activities."  47 450  Submissions by Mr. Rush  1 And then she describes two adzes she was given:  "A  2 large grooved splitting adze was collected by [a  3 farmer] Louis Parent", and she was given this when she  4 did her own field work at Hagwilget Canyon.  And she  5 describes it and then she says that she was given "a  6 large straight adze blade made of nephrite", which was  7 also collected from the site at Hagwilget Canyon.  8 And then she gives a -- the next page shows the  9 tools, the ground and polished grooved adzes and the  10 ground and polished straight adze blade, the  11 photograph of these.  Now I'm just going to ask the  12 Registrar if he will pass up these two tools to  13 demonstrate to your lordships the nature of the  14 wood-cutting tools that were found at a site at  15 Hagwilget.  16 And what Ms. Albright says, that notable in these  17 tools is the groove in the large adze which she says  18 was to facilitate hafting it to a wooden handle.  The  19 groove in the -- and then with respect to the thin  20 biface, she says:  21  22 "This adze has a thin, bifacially tapered bit,  23 with tiny flake scars indicative of hafting and  24 use."  25  26 And then she goes on to indicate that ground stone  27 adzes were also recovered from Tse Kya and Hagwilget.  28 Now, my lords, these tools were found on the  29 surface by Mr. Parent who was a farmer, and so in the  30 course of his farming activity he dug these up.  It's  31 not -- I should say by way of explanation, it's not  32 possible to date these tools, except by the shape and  33 comparison to other tools, and nor is it possible to  34 say that these were Gitksan or Wet'suwet'en tools  35 necessarily.  But there is, I say, an inference by the  36 place of their finding of the source of the maker.  37 And I say further that these tools were obviously  38 tools from the pre-history of the area.  39 Now, my lords, I carry on at 301, the testimony  40 of Alfred Joseph.  The significance of the crests for  41 the Wet'suwet'en was exemplified by the description of  42 the crests and their connection to the territory by  43 Alfred Joseph.  And I've set out the passage there for  44 your lordships.  45 The other references here, Johnny David talks of  46 the importance and the danger of the otter, and that's  47 why it's the otter crest for his House. 451  Submissions by Mr. Rush  Joan Ryan and Solomon Marsden express -- refer to  previous testimony that we've referred to in these  paragraphs, expressing the importance of the crests.  Now at 302, I note that archaeologists have found  objects inscribed with crests along the Skeena system,  dating back at least 2500 years ago.  Fladmark  reported that:  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  "Northwest Coast peoples of the historic period  decorated and embellished almost everything  they made in order to display the crests and  status symbols of noble families and to  illustrate personal spirit power.  The  prevalence of art and ornaments suggests that  they were well established in the prehistoric  cultures 3500-2500 years ago."  Now the history of Wet'suwet'en poles provided  through the kungax, demonstrated that poles were  recorded as existing among the Wet'suwet'en from the  earliest times.  And Dr. Mills' expression of that is  set out, but I should add, my lords, that Dr. Mills is  describing what she learned from the work of Diamond  Jenness, who recorded in the years 1924 to 1925, many  of the early oral histories.  He calls them myths.  The people, the Wet'suwet'en people call them oral  histories.  And this is set out and I give you this  reference number, my lords, it's Exhibit 907, pages  147 to 146.  Now just to complete -- I'm in your lordships'  hands here, my lords, but --  J.A.:  Well, would it be convenient to conclude here?  Perhaps I can break after the comments of Mr. Daly,  my lord, and certainly at 305 we go to another point.  I'll just close off this section.  J.A.:  All right.  Just the point that's made here, there is controversy  about the antiquity of the poles and Dr. Daly's  evidence was that crest poles existed before contact.  And he says:  "Totem poles have, whether they're free  standing or housefront poles --"  And I just want your lordships to note that the issue  is about free standing poles, not that there weren't  housefront poles. 452  Submissions by Mr. Rush  1 "-- or mortuary poles that are put up over the  2 pit where the bones and ashes were ultimately  3 placed in the second feast, that is the feast  4 that follows the funeral feast, it's hard to  5 tell from the record the extent to which  6 free-standing poles were a feature of  7 precontact society, but there are quite --  8 there's quite a lot of evidence that there were  9 poles that were attached to the front of  10 houses, that there were mortuary markers  11 with -- some of them had the boxes containing  12 the bones of the deceased on them.  And then  13 you also had your family crest, history crests  14 within the house on the main-floor posts that  15 held up the structure."  16  17 In a moment, my lords, I will be referring your  18 lordships to the conclusions of Wilson Duff on this  19 very point about the pre-contact existence of mortuary  20 and house poles.  21 Perhaps that would be a convenient time to break.  22 Thank you.  23 TAGGART, J.A.:  Thank you.  24 THE REGISTRAR:  Order in court.  This court stands adjourned  25 until 2:00 p.m.  26  27 NOON RECESS  28  29 I hereby certify the foregoing to  30 be a true and accurate transcript  31 of the proceedings transcribed to  32 the best of my skill and ability.  33  34  35  36  37  38 Toni Kerekes,  39 Official Reporter,  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47 453  Submissions by Mr.  Rush  01  02  03 THE REGISTRAR  04 TAGGART, J.A.  05 MR. RUSH  06  PROCEEDINGS RESUMED AT 2:00 P.M.  Order in court.  Yes.  Thank you, my lord.  I was going to move on to  paragraph 305, simply to draw to your lordships'  07 attention that in 1872, among the items and habitations  08 that were destroyed were 13 poles and that is noted in  09 the correspondence of the day.  10 At 306 I draw your lordships' attention to the  11 fact that the testimony of Olive Ryan was that an  12 amhalayt and an apron had survived their house from the  13 Kitsegukla fire in 1872, a fact I drew to your  14 lordships' attention earlier.  And then at 307 I note  15 that two ethnologists, Philip Drucker and Wilson Duff,  16 analyzed the evidence and concluded that a suggestion  17 made by Barbeau that totem poles were a post-contact  18 phenomenon was mistaken, and particularly I draw your  19 lordships' attention to the comments of Wilson Duff,  20 which are found at tabs 306 and 307.  I have included  21 the extract, which is repeated in the factum, that Mr.  22 or Dr. Duff's conclusion was that his appraisal of the  23 evidence agrees with Drucker's that frontal poles,  24 mortuary poles and memorial poles were present in the  25 Haida villages of the time and that totem poles were  26 therefore a well established feature of the pre-contact  27 culture of the northwest coast.  28 Our conclusion, my lords, is at 308, where we say  29 that the evidence, much of which the trial judge either  30 rejected or found unnecessary to consider, is that  31 Gitksan and Wet'suwet'en houses have owned territories  32 and represented that ownership on crests and crest  33 poles since before contact with Europeans.  34 My lords, the next section dealing with ownership  35 and institutionalized authority -- namely, harvesting,  36 managing and conservation of resources -- is one that I  37 will be passing over and it will be picked up in the  38 submissions on jurisdiction by Mr. Grant.  We'll be  39 coming to this later this afternoon, but for my  40 purposes I will ask you to pass over it now to page 162  41 to paragraph 334, which deals with the post-contact  42 documents.  I have several points to make.  I will not  43 be taking you through each of these paragraphs  44 seriatim, but I will be making --  45 TAGGART, J.A.:   The page number again?  4 6 MR. RUSH:   162.  47 TAGGART, J.A.:   162. 454  Submissions by Mr. Rush  01 MR. RUSH:   It's section 5, "Ownership on Post-contact  02 Documents".  I begin at 334.  03 It's our submission, my lords, that the  04 post-contact documents demonstrate that after contact  05 the central features of the Gitksan and Wet'suwet'en  06 societies continued in the face of the government's  07 legal and political interference, police actions,  08 threats, disease, dispossession and self-conscious  09 attempts at assimilation.  The Gitksan and Wet'suwet'en  10 remain distinct peoples with widespread territories,  11 political authority in the hands of hereditary chiefs  12 and the feast as their central political, economic and  13 legal institution.  14 Now, the trial judge said that after Britain  15 asserted sovereignty the appellants and their ancestors  16 neither possessed any part of their territory outside  17 of their village sites in a way which amounted to  18 ownership nor conducted themselves as if they believed  19 they owned such vast areas.  That's his finding at  20 Reasons, page 383.  I should advise your lordships that  21 we are now into the next volume, which is R-8 of the  22 reference authorities, and if I can ask you to make  23 reference to that, this particular finding of his  24 lordship is found at tab 335.  25 Now, his finding at 383 I'd like to take your  26 lordships to.  It is side-lined at tab 335, and I wish  27 to start a little bit before the side-lining.  His  28 lordship said:  29  30 "Apart from village sites, and political  31 statements which have frequently been repeated  32 by Indians, I cannot infer from the evidence  33 that the Indians possessed or controlled any  34 part of the territory, other than for village  35 sites and for aboriginal use in a way that  36 would justify a declaration of ownership.  37 Further, I find that, except for  38 occasional political statements, the plaintiffs  39 in the post-sovereignty period seldom conducted  40 themselves as if they believed they were owners  41 of vast areas."  42  43 It is with that statement that the appellants take  44 issue.  At 336 we say that the historical documentary  45 evidence demonstrates that in the post-contact period  46 the appellants both owned territory outside their  47 villages and conducted themselves as if they believed 455  Submissions by Mr. Rush  01 they owned it.  In considering this evidence, the  02 appellants submit that the trial judge erred in  03 accepting virtually everything recorded by government  04 officials as disinterested and reliable but dismissing  05 more than a century of declarations of continuing  06 Gitksan and Wet'suwet'en rights as mere political  07 statements.  08 My lords, these are statements that are reflected  09 in the documentary record, some made and some not made  10 by Gitksan and Wet'suwet'en peoples -- I'll take you to  11 some of these in just a moment -- from contact  12 onwards.  And, your lordships, although we are using  13 the point contact here, to be accurate, from 1826  14 onwards when William Brown left the territory, the  15 plaintiffs and their ancestors asserted their property  16 rights and political authorities by speech and action  17 by writing petitions, by participating in political  18 organizations, by resisting provincial laws and by  19 continuing to operate their own legal, political and  20 economic system.  We make the point that one is left  21 wondering how real owners would have behaved in similar  22 circumstances.  23 Now, my lords, at 338 we make the point that after  24 Brown left, the historical record or events according  25 to the historical record are not clear in the sense  26 that that record, in effect, peters out and it begins  27 again in 1860.  And there is perhaps one notable  28 exception of MacGillivray and another of Ogden.  But in  29 terms of the documentary record which develops in  30 respect of the Gitksan and Wet'suwet'en people, we see  31 the next major documentary encounter to be that in  32 respect of the Collins Overland Telegraph, which  33 occurred in 1866.  And we make the point in paragraph  34 339 that the historian Dr. Galois characterized the  35 response of the Gitksan as one of welcome, coupled with  36 an attempt to control the terms of entry into their  37 territory.  In his opinion, the central Gitksan concern  38 was over the terms of access to their territories,  39 expressed as a fear as to the telegrah's impact on  40 their vital resources.  This he found was successfully  41 resolved through negotiation and payment.  42 Then at 340, the construction party was strictly  43 enjoined from interfering with the Indian people and  44 there was general adherence to that injunction.  45 Shortly after the overland telegraph made its way to  46 Kispiox the line was abandoned, and that was the end of  47 that project.  In 1870, like Brown almost 50 years 456  Submissions by Mr. Rush  01 earlier, Chismore was made aware on his first contact  02 with the appellants' ancestors of the Indians'  03 territories and boundaries.  04 Now, my lords, this is Chismore in 1870 writing,  05 and I ask you to note the bolded portion where he  06 says:  07  08 "Each tribe is exceedingly jealous of its  09 privileges, and it is only on rare occasions  10 that a member of one is allowed to pass through  11 the territory of another."  12  13 Then at 342, this theme was repeated in 1874, when the  14 Gitksan repeatedly blocked the Cassiar Trail near  15 Kispiox, demanding pay for passing through their  16 country, and also asserted their ownership of the land  17 occupied by settlers at the village of Hazelton.  Dr.  18 Galois recorded these events on the trail as:  19  20 "... an example of the Gitksan attempting to  21 control the terms under which white people  22 entered into and passed through their  23 territory, particularly concerning conditions  24 where use of trade routes was concerned."  25  26 He concluded that there was a:  27  28 "... strong probability that the pack trains  29 and the white packers infringed upon Gitksan  30 customary law ... by not securing permission  31 and/or authorizing payment to secure passage  32 through territory or cross rivers ..."  33  34 Then the next document we refer your lordships to is a  35 statement of the attorney general of the province in  36 1877, where he expressly recognized the existence of  37 Indian territories and trespass laws in the Skeena  38 River District and instructed a justice of the peace to  39 apply it, and the document is set out in the material,  40 repeated here:  41  42 "Until the Dominion and Provincial Governments  43 have settled the Indian land question it would  44 be well to uphold the Indian law in the Skeena  45 River District, which regulates the tribal  46 rights of Indians to certain hunting grounds. 47  Submissions by Mr. Rush  0457  01 Then, my lords, at 345, October the 10th, 1884, the  02 Kitwanga chiefs wrote to the Provincial Secretary to  03 protest the presence of the gold miners at Lome Creek.  04 There is a lengthy statement of the chiefs from  05 Kitwanga and I ask you you to note the bolded portions  06 in particular, where they state:  07  08 "From time immemorial the limits of the  09 district in which our hunting grounds have been  10 well defined ..."  11  12 And then he describes where they are.  Then they go on  13 to say:  14  15 "We claim the ground on both sides of the  16 river, as well as the river within these  17 limits, and as all our hunting, fruit-gathering  18 and fishing operations are carried on in this  19 district, we can truly say we are occupying  20 it.  The district is not held unitedly by all  21 the members of the tribe, but is apportioned  22 out among the several families, and no family  23 has a right to trespass on another's grounds."  24  25 And they go on and express the petition, my lord, but  26 the area that is being talked about -- here is Kitwanga  27 located at this point and here's -- this is the course  28 of the Skeena River running west out towards Terrace,  29 which is located here.  These are all the Kitwanga  30 territories.  What the petition describes is an area  31 beginning just east of Kitwanga at Andimaul, running  32 the full length of the river down to an area just past  33 Lome Creek, and they mention a fishing point here,  34 Shequin-khaat.  It's sometimes referred to as "Xsu Guin  35 K'aat".  It's referred to just at the edge of that  36 boundary of that territory.  37 Now, my lords, the trial judge quotes this passage  38 but says nothing about its significance in relation to  39 house territoriality except the statements that I have  40 referred your lordships to at page 383 describing this  41 as a political statement.  At 346 I note that the 1884  42 Kitwanga petition establishes the continued existence  43 and assertion of the appellant's territorial ownership,  44 and about this document Dr. Galois said:  45  46 "It describes a system of ownership of  47 territory and control of access to resources 458  Submissions by Mr. Rush  01 ... and indicates the importance of this issue  02 to the Chiefs."  03  04 And at 347 I ask your lordships to note the  05 continuities between the 1820s and the 1880s, when we  06 recall what Professor Ray had to say, that:  07  08 "The observations of the Hudson's Bay traders  09 clearly indicate that access to resources was  10 regulated by a land tenure system in which  11 tracts of land were managed by 'men of  12 property', the lineage (house) heads."  13  14 I carry on by noting that an English big game hunter by  15 the name of Turner-Turner in 1886 pointed out that at  16 Gitanmaax, Kitwanga and Kisgegas, Gitksan chiefs  17 "refused to pack for me or to sanction my hunting in  18 their country" until through parley and presents he won  19 over the chief, the most important of the tribe.  And I  20 note that the Gitksan thus asserted ownership of their  21 country and demonstrated both the authority of their  22 chiefs over it and the importance of negotiation,  23 permission and compensation in the exercise of that  24 authority.  25 I take you down next to the statement made by  26 Magistrate Fitztubbs during the time of the Skeena  27 uprising.  My lords, the Skeena uprising will be dealt  28 with in greater detail and it's set out in greater  29 detail at paragraphs 460 to 466.  But Magistrate  30 Fitztubbs, when he was reporting on this event in July  31 1888, noted the following, and I ask you to look at the  32 bolded portion in the second paragraph.  He said:  33  34 "... but as things are now, the consent of the  35 Indians would be necessary to peaceable  36 occupation -- "  37  38 And he's referring to the Bulkley River valley,  39  40 "-- which will not be given until they are  41 disabused of the correctness of the belief  42 almost an insisting in respect of their  43 possessory rights in the land: and this I think  44 may require force."  45  46 And then over on to page 168, Fitztubbs further  47 reports: 459  Submissions by Mr. Rush  01  02 "Conceding this to Tsimpcheans below, they  03 claim full jurisdiction above, the village  04 named ..."  05  06 referring to the Gitksan.  07 Now, my lords, I ask you to note that Magistrate  08 Fitztubbs surely had no reason to be making a political  09 statement on behalf of the Gitksan and Wet'suwet'en.  I  10 think he is there accurately setting out what is  11 reported to him as the claims to territoriality by  12 those chiefs.  13 Now, at 350, my lords, I note that in October of  14 1889 the Gitanmaax chief Gyetmgaldo asserted his  15 aboriginal ownership of the land at the Skeena/Bulkley  16 forks.  He says:  17  18 "There is land belonging to me and my tribe on  19 the lower delta near the confluence of the  20 Skeena and the Hoguel-get [Bulkley] Rivers.  21 This land mentioned belonged to us to times  22 back as far as can be remembered.  This land in  23 question is part of our hunting, trapping,  24 snaring and especially fishing grounds."  25  26 Perhaps that is a political statement, my lords, but in  27 my submission it is clearly a statement of a claim made  28 by Chief Gyetmgaldo in 1889 and it should not be  29 disregarded as a political statement.  30 When reserve commissioner O'Reilly arrived in  31 Kispiox in 1891, Margaret Loring, the new Indian  32 Agent's wife, reported:  33  34 "We found the Indians in a state of great  35 excitement declaring they would not have the  36 land surveyed, that it belonged to them, and  37 therefore it could not be given to them."  38  39 By O'Reilly's own account, the only reserve the Indians  40 at Kispiox wanted was:  41  42 "... a tract of land thirty-five miles in  43 length following the course of the river, and  44 including the mountain ranges on either side."  45  46 So what is being asked of O'Reilly, when he asks  47 the people of Kispiox what it is that they want set 460  Submissions by Mr. Rush  01 aside as a reserve, they tell him.  And they tell him  02 that they want from the Village of Kispiox, located  03 here, 35 miles north, which would take you to the upper  04 Kispiox River, with the mountains on both sides,  05 including all of this territory running up the Kispiox  06 River.  07 In 1891 and when he returned in 1893, O'Reilly was  08 repeatedly told that the only acceptable reserve at  09 Kitwanga would be the entire 35 miles of the river, a  10 large country from Chig in kaht to An di maul, my  11 lords, the very same area that was raised in the  12 petition advanced by the Kitwanga chiefs in 1884.  13 I pass along, my lords, to 354.  Indian Agent  14 Loring attempted, long after the fact, to excuse  15 O'Reilly's earlier failure to reserve many of the  16 Wet'suwet'en "holdings and homes" in 1891.  He said:  17  18 "I am impelled to state that, originally, the  19 Indians had holdings and homes exclusive of the  20 present reserves in a sort of prescriptive  21 right.  They were held in succession from the  22 time beyond all remembrance.  In justice to the  23 Commissioner, the late P. O'Reilly, it here  24 must be explained that these holdings were, in  25 1891, that many in numbers and so remotely  26 situated, at all dispersions of the compass, to  27 be dealt with."  28  29 Now, this is not, my lords, one of the chiefs  30 speaking.  This is Agent Loring reporting on O'Reilly's  31 allotments.  I ask you to note the statement made by  32 the surveyor Poudrier in 1891.  I'll ask you to pass  33 along to the Loring comment of 1906, where he regretted  34 his:  35  36 "... most painful duty to drive off land, in  37 the Bulkley valley, Indians with cabins,  38 corrals and gardens on ground supposed to have  39 been held by hundreds of years by hereditary  4 0 right."  41  42 Now, in June of 1909 armed Gitksan at Kitwanga  43 stopped two parties "prospecting for land" in the  44 Kitwanga Valley.  The Indians at Kitwanga invited  45 Constable Dean from Hazelton to a meeting a few days  46 later at which, he reports: 47  Submissions by Mr. Rush  0461  01 "Chief Limadeeks — "  02  03 Or Simadeeks, who is one of the chiefs of the Eagle  04 clan,  05  06 " -- welcomed me to the meeting; said they did  07 not want trouble but the land was theirs and  08 did not belong to the government, as the white  09 people had never conquered his people, nor did  10 they buy it from them, and they would not let  11 any white man stake that land."  12  13 I have referred your lordships to the Stewart and  14 Vowell commissioners' investigation of July 1909.  15 Commissioners were sent into the territory to inquire  16 into the grievance of the local Indians arising out of  17 the settlement by white settlers of Crown lands outside  18 of the Indian reserves, which the Indians had been  19 using for themselves for generations.  Clearly what's  20 happening here is the tension between the claim of  21 white settlers to lands considered by the Gitksan to be  22 theirs for generations.  23 The next passage is an extract of an account of  24 one of meetings conducted by Stewart and Vowell, where  25 the Gitksan and Wet'suwet'en:  26  27 "... basing their contention on the assumption  28 that all the land belonged to them to be  29 hereditary and that whites had taken it without  30 conquest or remuneration, they practically  31 asked that the whole country be surrendered to  32 them.  This would involve dispensing with the  33 present system of reserves, the establishment  34 of their ancient tribal laws and customs for  35 the government of the territory and the  36 forfeiture of all rights, claims and interests  37 of the whites, etc., practically the  38 establishing of the conditions existing before  39 the white man came among them."  40  41 My lords, the trial judge made reference to this  42 exhibit and he does so, for your record, at page 323,  43 but as an example of a continued claim.  And I can  44 only -- I submit that it is one of those political  45 statements that he is referring to on 383.  46 Now, in November of 1909, Indians at Kispiox  47 ordered a construction crew building a road up the 462  Submissions by Mr. Rush  01 Kispiox valley to stop work and seized their tools and  02 supplies.  You can see from the passage that they claim  03 the whole of the Kispiox valley as their forefathers'  04 land.  Again, my lords, these are non-Indian white  05 accounts of events within the territory expressing the  06 claims by the Gitksan here, in the case of the Kispiox  07 Gitksan, to their inherited land.  08 Now, at 361 we make reference to the report of  09 Reverend McDougall.  I have noted, my lords, that --  10 I've asked you to take account of this in the  11 recitation of the facts, but at 362 I make note of the  12 rough map which shows what is described as "the  13 original holdings of the Indians" from Hazelton in the  14 north to Ootsa Lake in the south.  15 At 363 there is an extensive passage reported  16 about the statements made by the Gitksan Kispiox -- the  17 Kispiox Gitksan, rather, to McDougall.  The passage  18 that I referred to your lordships when I dealt with  19 this in the facts is at 364, in which they told  20 McDougall that the Indian people of British Columbia --  21 excuse me, that McDougall reported of what he was told,  22 that:  23  24 "The Indian people of British Columbia have now  25 fully awakened to the knowledge that their  26 vested right to the ownership and long  27 centuries of occupancy of the greater portion  28 of the province of British Columbia have never  29 been dealt with by either the British or  30 Canadian governments.  That by British,  31 Sovereign, Royal, Proclamation and by Canadian  32 government precedent, action, such ownership  33 and title has been conceded and respected and  34 many treaties have been made by these  35 governments with Indian peoples like themselves  36 whereby the Indian title ... was relinquished  37 on their side and thus righteously required on  38 the part of the governments."  39  40 My lords, I would like to pause here and direct your  41 attention to the references at 364.  These references  42 are located now in Volume, reference book 9, which is  43 the next one.  44 My lords, at 364 — the letter should be at tab  45 363, if your lordships will just pass back to 363.  At  46 363 is the map to which I directed your lordships'  47 attention, which is the map attached to McDougall's 463  Submissions by Mr.  Rush  01  02  03  04  05 WALLACE,  0 6 MR. RUSH:  07  0 8 LAMBERT,  0 9 MR. RUSH:  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  report.  And here, responding to a question your  lordships, Mr. Justice Hutcheon, asked of me concerning  the Wet'suwet'en villages, and in particular the  village sites on the territory of Alfred Joseph --  J.A.:   Did you say there is a map at 363?  I'm sorry, at 362, just prior to 363.  Well, my  lords, Mr. Grant tells me it's at 363.  J.A.:   I've got it at both places.  It's in both.  Well, thank you.  Now, my point here is simply to direct your  lordships' attention to the fact that the map indicates  places at which there are villages and cabin locations,  as told to Reverend McDougall by the Wet'suwet'en  people.  And as you move through, if you start at the  top -- and again I remind your lordships that the  original was in reverse, Hazelton was at the bottom and  Dr. Galois cited Hazelton at the north where it's  located -- you see the square points being where there  are places of habitation.  And the square boxes -- for  example, you see Moricetown, a square box covering the  river, cabins located to the left of that.  And as you  move down there are indications of old camping and  burial grounds, points along the dotted line as you  move south along the river where there are old Indian  settlements, hunting camps and the like.  And some of  these are indicated as "IR", or "Indian reserves",  because presumably by the time this map was drawn,  Indian reserves had been set aside for the  Wet'suwet'en.  My point is simply to demonstrate that the  Wet'suwet'en people had winter villages outside of the  two principal villages that are known today as  Hagwilget and Moricetown.  These particular points  indicating where the village sites are located  demonstrate the dispersal of the Wet'suwet'en people to  their winter villages.  In this tab at 363 there is a portion of Mr.  Brody's opinion report and, as well, a portion of Tonia  Mills' opinion report noting the dispersal of the  Wet'suwet'en into their winter hunting grounds and that  Moricetown and Hagwilget were considered until recently  to be summer villages for fishing.  I've just asked  your lordships to turn, in the case of Mr. Brody's  report, to page 6-3 following along the map.  And he  says in the middle of the page that:  "The Wet'suwet'en homeland, then, is a set of 464  Submissions by Mr.  Rush  01  02  03  04  05  06  07  08  09  10  11  12  13  14 TAGGART,  15 MR. RUSH:  16 TAGGART,  17 MR. RUSH:  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  territories that spread to the south of  Hagwilget and Moricetown.  This land is divided  between the clans and was always a network of  villages, cabins and camp sites, these  connected by trails here within no more than a  few days' walking distance from the summer  fishing and gathering sites at the two villages  on the Bulkley River.  Each summer at these  villages the clans feasted thus effecting their  actual ownership and authority over the various  territories."  A similar observation was drawn by Dr. Mills.  J.A.:   Whose report is this?  This is Mr. Hugh Brody's, my lord.  J.A.:   Brody's.  Yes.  I would just ask your lordships to note that on  pages 5 and 6 of the Mills report there is a similar  explanation of the winter villages.  Now, my lords, I'm back in the factum at page 172,  and 365 is the paragraph reference.  I ask your  lordships to note the 1910 petition sent by five  Gitksan villages to Prime Minister Laurier in which  they state:  "Certain tracts of land which while not being  on a 'reserve' have for generations been used  by our fathers as hunting grounds, and for  getting lumber, have now been taken away from  us on the pretence that the tracts were not  part of the reserve."  And then I ask you to note similar comments of claim to  the whole of their territory made by the surveyor  Ashdown Green in 1910 and 1912.  In 1911 Green wrote:  "... their claim that the whole country  belonged to them and that they would not accept  anything less, was a repetition of the argument  advanced by the Indians at Andimaul last year."  And again, my lords, Green notes in his report that:  "The Indians tell me there were many hunting  lodges from 70 to 100 miles up the Kispaiax  River. 465  Submissions by Mr. Rush  01 And this is a repetition of the claim that was made  02 earlier, again by the Kispiox chiefs, running that  03 distance fully up to the north reaches of the Kispiox  04 River, which runs up to here.  05 My lords, similar comments made by Mr. Green in  06 his report appear at the top of page 174.  He said:  07  08 "On my return to Kispaiax village I met the  09 Indians.  They all reiterated their demands  10 that the whole country be handed back to them."  11  12 And in 1914 we have the comments of an American big  13 game hunter, Mr. Mitchell, who was told that the  14 Indians were much opposed to white men crossing the  15 river and hunting in their territory.  Then the  16 statements or testimony given at the McKenna-McBride  17 Royal Commission, first by Father Godfrey, are reported  18 in 371, and then statements at 372 by the Gitksan chief  19 Charles Wesley, and I ask your lordships to note this.  20 He says:  21  22 "I wish to tell you that this reserve that you  23 have just spoken about is something that we  24 don't wish for, for this reason; We don't want  25 a reserve.  This country originally belonged to  26 our ancestors -- we were placed here originally  27 by God, and it is only quite recently that the  28 government sent men out here to measure this  29 land immediately around us, and we were not  30 notified of it when they did it.  Then the  31 Provincial Government came in and sold the  32 remaining land immediately around us.  All the  33 old camps up the Kispaiox river, where we used  34 to gather our salmon, and our hunting camps and  35 where we used to pick berries, and what we most  36 strenuously object to is that you insist upon  37 us having this reserve. ... The land marked off  38 for our ancestors was from mountain to  39 mountain, and this is what the Government has  40 picked up into small pieces -- This is where  41 our inheritance came from and where they were  42 handed down from generation to generation, but  43 now these have all been sold; therefore we ask  44 that these be returned. ... This is what the  45 people of the village wish to say -- We don't  46 wish for a reserve."  47 466  Submissions by Mr. Rush  01 Now, my lords, like O'Reilly asking the people:  02 "What is it you claim to be yours and what do you want  03 set aside as reserves?" in 1915 again they are asked,  04 and the language of Charles Wesley is not, I submit,  05 the language of a political statement.  This is the  06 language of a claim of what the Kispiox people consider  07 to be rightfully theirs based on their territorial  08 system.  09 I ask your lordships to note the statements made  10 by August Pete, who held the Wet'suwet'en name of  11 Kweese and this particular territory at Alwyn Lake is  12 the Kweese territory claimed in this action.  In 1924  13 the Kispiox chiefs again sent a petition to Prime  14 Minister Mackenzie King saying that they were the  15 proper inheritors of the land.  And, my lords, I ask  16 you to take note at paragraph 375 that in 1924 the  17 Gitksan representatives met with King at Prince Rupert  18 and they supported a Nishga petition on behalf of the  19 Allied Tribes that:  20  21 "... we stand by our claim that we have a  22 beneficial tribal ownership of our  23 territory ..."  24  25 When George Pragnell was endeavouring to set up the  26 trapline registration system in 1923 and '24, he  27 recommended a system of registration and said this:  28  29 "I should suggest that this be done by  30 registration through the Indian agents of each  31 band's trapping grounds.  It is probable that  32 there could be fairly easily ascertained and  33 geographical boundaries fixed, as each band has  34 from ancient customs, used a certain area, the  35 individual family or territory having its set  36 line within that area."  37  38 I say, my lords, that this runs at odds with the trial  39 judge's conclusions regarding the absence of  40 territorial ownership outside of the villages.  And Mr.  41 Brody comments on Mr. Pragnall's proposal where he  42 says:  43  44 "At the beginning of the trapline registration  45 conflict, here on the Department of Indian  46 Affairs side, is a man with real experience  47 advancing a scheme which recognizes the Indian 467  Submissions by Mr. Grant  01 system of authority and land use."  02  03 And finally, in the concluding paragraphs of this  04 section, my lords, I draw your attention again to Mr.  05 Brody's comment that this Indian system of authority  06 and ownership was still being followed in 1932, when a  07 Mr. Perry, the Indian Commissioner for British  08 Columbia, wrote:  09  10 "I'm afraid it will take several years to break  11 down the resistance of the Northern Indians to  12 the statutes and regulations which challenge  13 their own vaunted claims to right of possession  14 and ownership of the country and resources."  15  16 Now, it's our conclusion here that the historical  17 documents that we have referred to in the post-Brown  18 period show that from the first moment there were  19 non-Indians in the territory to hear and write down  20 their ancestors' words, that they repeatedly and  21 clearly communicated by word and deed that the  22 appellants had land laws governing the ownership,  23 boundaries, trespass, access and inheritance.  The  24 trial judge dismissed this record, covering more than  25 60 years from the arrival of the Collins Overland  26 Telegraph to the time when the present chiefs were  27 young, as "political statements".  In this he  28 demonstrated, we say, the "lack of appreciation of  29 relevant evidence and more particularly the complete  30 disregard of such evidence" which the Supreme Court  31 said requires intercession by this court.  32 Now, that concludes my submissions, my lords, on  33 the section of our argument dealing with ownership and  34 the claim to an interest in land best characterized as  35 ownership, and I will now ask Mr. Grant to make the  36 submissions in respect of the argument on  37 jurisdiction.  38 MR. GRANT:   My lords, I will be starting my submissions at page  39 152 of the factum and the reference book that you will  40 need to commence that should be -- is reference book  41 8.  42 Now, my lords, I will be starting by referring the  43 court back to what Mr. Rush referred to this morning at  44 page 168, but I'd like to say that in considering the  45 argument you heard on Friday afternoon and this morning  46 from Mr. Rush and my submissions on the evidence, I  47 submit that the features -- that the question raised 468  Submissions by Mr. Grant  01 this morning by Mr. Justice Lambert is quite  02 appropriate.  I take you back to -- or have you note  03 the test in Geffen that, where the record, and this is  04 at page 109 of the factum, paragraph 166 at the  05 beginning of tab 4, the question for this court is  06 whether the trial court has properly directed itself to  07 all of the evidence bearing on the relevant issues  08 where the record, including the reasons for judgment,  09 discloses a lack of appreciation of relevant evidence  10 and, more particularly, the complete disregard of such  11 evidence than it falls upon the reviewing tribunal to  12 intercede.  We are not asking you to do anything other  13 than that.  14 Let us look at what was before The Chief Justice,  15 the trial judge here.  Really, he had to assess  16 something that courts in this country have not had to  17 assess.  We had to look at a completely different  18 civilization in order to determine what the rights  19 were, and it is in that context I say that was a hard  20 task, and any of the comments I make from here in are,  21 with all due respect, to the difficulty of that task.  22 It is in that context that I say he swept aside, with  23 his comments at pages 168 and 169 of his reasons, a  24 whole body of the evidence.  25 If I could go to my speaking notes, I will refer  26 to these and then go straight into the issue of  27 jurisdiction.  As I say in paragraph 1, you have  28 already heard from Mr. Jackson last week that the  29 appellants' arguments on the foundations of the  30 specific aboriginal rights are based on the nature of  31 the particular society.  Here we are referring, of  32 course, to the principles established in Amodu Tijani  33 and other cases referred to by Mr. Jackson.  34 The learned trial judge with respect to  35 jurisdiction made these findings, and this is  36 particularly on harvest management and conservation of  37 resources, which goes to, I believe, an area that Mr.  38 Justice Macfarlane alluded to last week in questions to  39 Mr. Jackson; that is, the jurisdiction or the  40 self-government over the resources and the land.  41 He said, at page 372 of his judgment:  42  43 "While there is no doubt the Indians harvested  44 their subsistence requirements from parts of  45 the territory, it is impossible to conclude  46 from the evidence that these three activities,  47 to the extent they were practised, were 469  Submissions by Mr. Grant  01 anything more than common sense subsistence  02 practices, and are entirely compatible with  03 bare occupation for the purposes of  04 subsistence.  The evidence does not establish  05 either a policy for management of the territory  06 or concerted communal conservation."  07  08 With the greatest of respect, I submit when you  09 look at what the evidence was and you are in the same  10 position as he is -- it's nothing about looking at a  11 witness, it is what is the evidence -- I submit that he  12 was wrong.  13 He went on to state, and this is at pages 372 and  14 373, that he was not persuaded that the Gitksan and  15 Wet'suwet'en ancestors practised universal or even  16 uniform customs relating to land outside the villages.  17 He was "... not persuaded all their present  18 institutions were recognized by their ancestors", and  19 here the main institution which was alluded to was the  20 feast.  He believed the ancestors "... acted as they  21 did because of survival instincts which varied from  22 village to village."  He found "... that the evidence  23 about feasting is at least equivocal about its role in  24 the use or control of land outside the villages."  25 Some of these features Mr. Rush has already  26 alluded to, the evidence that establishes, in our  27 submission, that he could not have taken it into  28 account in coming to these conclusions.  29 As with the evidence relating to the nature of the  30 appellants' rights to the territory being rights of  31 ownership, I submit that the record, including the  32 reasons for judgment, discloses a lack of appreciation  33 of relevant evidence and, more particularly, the  34 complete disregard of that evidence.  The trial court  35 failed to properly direct itself to all of the evidence  36 bearing on the relevant issues.  This is apparent from  37 an examination of the court's findings in the context  38 of the appellant's evidence of the laws by which they  39 governed themselves and managed the territory and the  40 resources thereon, and the institutions through which  41 they made decisions.  42 Here I refer to pages 168 and 169 and I have just  43 highlighted certain parts of it.  The trial judge did  44 not base his findings on the credibility of the  45 witnesses.  He stated:  46  47 "Indian culture also pervades the evidence at 470  Submissions by Mr. Grant  01 this trial, for nearly every word of testimony,  02 given by expert and lay witnesses, has both a  03 factual and a cultural perspective."  04  05 He says:  06  07 "When I come to consider events long past, I am  08 driven to conclude, on all the evidence, that  09 much of the plaintiffs' historical evidence is  10 not literally true."  11  12 "If I do not accept [the lay witnesses']  13 evidence, it will seldom be because I think  14 they are untruthful, but rather because I have  15 a different view of what is fact and what is  16 belief."  17  18 "I do not find it necessary to reflect in any  19 way upon the bona fides of the plaintiffs."  20  21 "This does not mean that I accept all of their  22 evidence.  As I shall endeavour to explain,  23 much evidence must be discarded or discounted,  24 not because the witnesses are not decent,  25 truthful persons but because their evidence  26 fails to meet certain standards prescribed by  27 law."  28  29 I say the trial judge failed to appreciate the relevant  30 evidence.  This is apparent in comments he made  31 distinguishing between what is fact and what is  32 belief.  What I am going to ask your lordships, when I  33 refer you to the evidence and when I have given you  34 these opening remarks, is to look at some of this  35 evidence and say:  Is this a fact or is it a belief?  36 And you assess that, because I submit that he threw out  37 facts as well as beliefs in his consideration.  38 This overarching rejection of the Gitksan and  39 Wet'suwet'en evidence precluded a proper regard for the  40 extensive evidence of the nature of the Gitksan and  41 Wet'suwet'en institutions of self-government and their  42 laws, including the appellants' regulation of control  43 over the land and resources as demonstrated by their  44 harvest management and conservation of the resources of  45 the territories since before contact.  46 Prior to analyzing the institutions of  47 self-government and the proper basis to consider the 471  Submissions by Mr. Grant  01 evidence of the appellants' laws, I shall review the  02 appellants' evidence of jurisdiction over the land and  03 resources as demonstrated by their methods of control  04 over the harvest management and conservation of those  05 resources.  06 We submit that the evidence shall demonstrate that  07 at the time of the assertion of sovereignty, 1846,  08 there were the following elements of jurisdiction over  09 the territory and resources.  The chiefs controlled the  10 territory and access to its resources.  There were  11 tracts of territory controlled by specific chiefs.  12 There was a system of laws.  13 The system of laws with respect to the management,  14 harvest and conservation of resources is based on the  15 aboriginal society, in this case the Gitksan and  16 Wet'suwet'en, and is unique to it.  Here the trial  17 judge stated:  18  19 "... the fact that the plaintiffs' claim has  20 been so much discussed for so many years, and  21 the further fact that so much of the evidence  22 was assembled communally in anticipation of  23 litigation, or even during this litigation, is  24 a fact which must be taken into account."  25  26 Well, I'm going to ask your lordships, when I review  27 some of the evidence of the management and conservation  28 of the resources:  What difference does it make whether  29 they had been talking about the prospective claim from  30 1980 or, as Mr. Rush just reviewed with you, from the  31 time of the first white man to the fact of what they  32 were doing?  This is the evidence which will show how  33 they did manage the resources, and I submit it is  34 compelling evidence and it cannot be swept aside as  35 beliefs.  36 Now, if this is the basis, this comment here, for  37 the trial judge's -- the basis for his conclusions on  38 these facts was unclear, but this is one of the --  39 this is the place where he clearly talks about the  40 witnesses' evidence, one of the few places.  If this is  41 the basis for concluding that the appellants' ancestors  42 had no system of laws outside the villages, that they  43 acted as they did because of survival instincts which  44 varied from village to village or that their harvest,  45 management and conservation of the resources were  46 anything more than common sense subsistence practices,  47 the trial judge erred in disregarding relevant evidence 472  Submissions by Mr. Grant  01 for the wrong reason.  02 If, on the other hand, he came to those  03 conclusions because of his different view of what is  04 fact and what is belief, he has erred in failing to  05 accept the Indian evidence because of a complete  06 disregard of such evidence as belief based on the  07 cultural perspective of the appellants.  That is the  08 conundrum.  On that test of what is fact and what is  09 belief, the very aboriginal nature of the evidence  10 precludes its acceptance as proof of the necessary  11 facts.  What aboriginal nation could pass this test of  12 evidentiary proof?   I submit that he was wrong in law  13 on that point.  14 I'd like to now turn to page 152 and commence the  15 review of the evidence of ownership and  16 institutionalized authority.  17 The appellants submit that the evidence proves  18 that the Gitksan and Wet'suwet'en have harvested the  19 resources of their territories for food, clothing,  20 feasting, manufactured products, medicine and trade and  21 have managed and conserved those resources in  22 accordance with a well-articulated management regime in  23 which conservation is paramount.  24 I have then quoted the conclusion of the trial  25 judge at page 372, which sets out his response to the  26 evidence of harvest management and conservation.  He  27 reviews the key components of the appellants' claim.  28 Under (b) on page 372 he deals with harvest management  29 and conservation and I have quoted it there and I have  30 quoted it in my notes.  31 As set out here, common sense -- in paragraph 311,  32 another group of people thrown into the territory with  33 an abundance of "common sense" but none of the  34 training, technology or social organization of the  35 appellants and their ancestors would perish.  Common  36 sense alone would not tell members of the group what  37 resources were available, how to find, process,  38 preserve and use them, or how to manage and conserve  39 them.  40 Now, my lords, this is not a factor that was  41 commented on by the trial judge, but in fact there was  42 another group that came into the territory and  43 presumably they had common sense.  This is William  44 Brown.  William Brown was there for five or six years,  45 the 1820-1826 period.  He depended, over and over again  46 on his journals, on getting the salmon from the Indian  47 people -- not only salmon for immediate consumption 473  Submissions by Mr. Grant  01 but, of course, for over the winter to dry, to preserve  02 all of these foodstuffs.  He could not survive without  03 that and he survived because of the Indian people.  04 This is something that, in the evidence of the  05 witnesses such as Martha Brown, who was born in 1901,  06 was repeated in the 1930s in the Kispiox valley, when  07 once again the economy of the province and the country  08 went down, the monetary economy, it was Indian  09 exchange.  And Mrs. Brown testifies to that in her  10 evidence, about exchange and barter with the Indian  11 people and the people in the valley.  12 I'm at paragraph 312.  I'm not certain, my lords,  13 if you wish to take the break now.  14 TAGGART, J.A.:   I guess it would be appropriate to take five  15 minutes now.  16 THE REGISTRAR:  Order in court.  Court stands adjourned for a  17 five-minute recess.  18  19 AFTERNOON RECESS  20  21 TAGGART, J.A.:   Yes, Mr. Grant.  22 MR. GRANT:  As Mr. Rush, when he was dealing with the issue of  23 ownership, I will commence with the early contact  24 records.  I stated before paragraph 312, the one  25 submission I make is that the jurisdiction or authority  26 of the chiefs was quickly recognized by William Brown.  27 And that jurisdiction, as the evidence will establish,  28 is still apparent today.  I'd like to take you to tab  29 312 of R-8.  The first reference is to Dr. Ray's  30 report.  31 Now, Dr. Ray, as I believe Mr. Rush indicated  32 earlier, his evidence was accepted -- that is, his  33 evidence was generally accepted by the trial judge --  34 but of course the trial judge then made findings that  35 appeared to contradict that.  36 But Dr. Ray states -- at the middle there is the  37 reference to Brown, Mr. Adams is questioning him, and  38 he's quoting from Brown's report.  I have taken you to  39 this as it's easier to read than some of Brown's own  40 reports.  41  42 "I have had various accounts of the number of  43 Indians who reside here -- "  44  45 Starting at line 21:  46  47 " -- judging from which I believe the following 474  Submissions by Mr. Grant  01 will be nearly the truth -- from one hundred  02 and forty to one hundred and fifty married men,  03 an equal number of  married women, and from one  04 hundred and sixty to two hundred young men --  05 women, sorry -- young men, young women, widows,  06 widowers and children.  Of these there are  07 twenty chiefs of different gradations and  08 sixty-seven married men whom they denominate  09 respectable as being heads of families and  10 possessors of lands.  The following is a list  11 of chiefs according to their rank and as they  12 are placed at the feast -- at their feasts."  13  14 Here he's writing in the early 1820s.  If you turn over  15 to the second reference, again it's in the examination  16 of Dr. Ray, and here's a reference to Dr. Ray's own  17 report.  18 TAGGART, J.A.:   Excuse me.  Am I correct that this is Brown  19 writing and Ray picking up what Brown has written?  20 MR. GRANT:   At page 13422.  21 TAGGART, J.A.:   Yes.  22 MR. GRANT:   The quote I have just read is Brown, yes.  23 At page 13428 after the separation sheet is Ray's  24 own report, and Mr. Adams is asking him about his  25 report where Ray himself says:  26  27 "Of major importance, the observations of the  28 Hudson's Bay Company traders discussed above  29 clearly indicates that access to resources was  30 regulated by a land tenure system in which  31 tracts of land were managed by 'men of  32 property', the lineage (house) heads.  These  33 men also controlled access to trails that  34 traversed their house's territory."  35  36 Once again I say this is consistent with the  37 contemporary evidence, the evidence of today.  Then on  38 the next page, Mr. Adams asked:  39  40 "... I want to ask you first from whose point  41 of view are those features of the socioeconomic  42 system fundamental?"  43  44 And this was the question of gifts, trade and  45 gambling.  Ray answers:  46  47 "Fundamental to the native people.  I mean it's 475  Submissions by Mr. Grant  01 so clear that everything in the economy was  02 revolving around this system.  And as I've said  03 before, I think this is the reason we get so  04 much information about it in such a short time  05 by Brown.  It was clearly the key to running  06 the fur trade in that area.  So in that sense I  07 guess you could say it was equally to the  08 Hudson's Bay Company since they're trying to do  09 business with these people."  10  11 He meant they are equally fundamental.  Brown is  12 trying to break into the new area, and of course the  13 trade and everything that affects trade is what's key  14 to what Brown's concerns are.  15 And then Mr. Adams asked Dr. Ray:  16  17 "Now, you draw a parallel in the passage that  18 I've read between Babine and Wet'suwet'en and  19 Gitksan, and I want to ask you is that passage  20 that you quote the only thing that you rely on  21 to draw the parallel?"  22  23 The answer was:  24  25 "Well, there are several other remarks.  For  26 example, we went over yesterday, I believe, the  27 -- his trip down the Babine River.  He makes  28 reference to chief's territories.  At least two  29 or three chiefs spoke about their lands.  And  30 in his district report of 1826 he goes into the  31 differences between the -- he talks more about  32 the similarities and differences between the  33 Carrier and the Gitksan in greater detail.  34 This remark is -- is the summary remark on that  35 journey that he makes, his second journey, but  36 then he elaborates on that subsequently in his  37 district report."  38  39 He'd been referred to that and extracts from that  40 report are in this same tab.  If you go to -- yes, the  41 third reference in the same tab, Dr. Ray again is being  42 asked to remark on Ack Koo Shaw.  43 WALLACE, J.A.:   What page is this?  44 MR. GRANT:   It's in the same tab, 13382.  45 WALLACE, J.A.:   Thank you.  46 MR. GRANT:   He refers to Ack Koo Shaw having no independent band  4 7 of his own. 476  Submissions by Mr. Grant  01  02 "His lands are very extensive and are the best  03 stocked with beaver of any in the vicinity of  04 the lake, of which he is particularly careful  05 neither killing too many himself, nor allowing  06 any others to do so -- "  07  08 WALLACE, J.A.:  That's, again, Brown's report?  09 MR. GRANT:   This is Brown speaking, yes.  10  11 " -- he generally gives into the fort from 20  12 to 30 skins in the course of the season."  13  14 This is Dr. Ray quoting Brown, and then he says:  15  16 "Now, it's an interesting remark, because he  17 indicates that he's related to Ack Koo Shaw,  18 who's the head chief of the lake -- "  19  20 That doesn't mean he's a blood relation, of course, but  21 he's connected to him.  22  23 " -- but he's a lesser chief in that he has no  24 independent band of his own, which suggests to  25 me a social organization which goes beyond the  26 family, because elsewhere in these records it  27 indicates that all of these men we're talking  28 about now were also men of property and heads  29 of family, so that clearly indicates an  30 organization that extends beyond these extended  31 families of which they are heads."  32  33 Then he's asked about men of property.  34  35 "They were -- well, as he himself says, they're  36 heads of families who control territories of  37 those families and regulate the use of those  38 lands, hence the term 'Men of property'.  Now,  39 he -- "  40  41 And he's talking about Brown:  42  43 " -- is looking at that of course from a  44 European perspective, and one of the things  45 that strikes you about the Brown record when  46 you read it is that his very first district  47 report, for example, focuses very heavily on 477  Submissions by Mr. Grant  01 the system, and going back to what I said this  02 morning, the company is trying to increase the  03 fur returns in this area, and they run into a  04 system that precludes that because the output  05 of the territory are controlled by these  06 chiefs.  And he says elsewhere in here, and you  07 can probably find the reference faster than me,  08 that some men cannot hunt because they have no  09 property and they are barred from trapping  10 beaver particularly.  So the point is that  11 there is -- there is clearly, if you go through  12 these records and you look at the fact that the  13 chiefs are ranked, all the men of property --  14 all the heads of family are men of property,  15 and the men of property regulate access to  16 those properties, and that, I would argue in  17 the context of these reports, explains why we  18 get so much about this in the Brown material."  19  20  21 What he is there explaining in part is why would Brown  22 write so much about it?  It's because it's the area of  23 Brown's interest.  He's got to get access to these  24 resources through these chiefs.  25 Now, there is an extract from Dr. Ray's report.  26 If you go two tabs over you see a transcription from  27 the New Caledonia Journal of 1823 and the actual  28 journal is behind it, which explains why I've  29 transcribed it.  It's quite hard to read.  On Friday,  30 the 28th, Brown says:  31  32 "... The Indians of this place, like the other  33 Carriers of New Caledonia, have certain tracts  34 of country, which they claim an exclusive right  35 to -- and will not allow any other person to  36 hunt upon them -- this though for excellent  37 regulation for preserving the beaver, is very  38 detrimental to the trade, as many Indians who  39 would hunt have no lands to hunt upon ..."  40  41 There is control and regulation of their very own  42 members.  I go on to juxtapose what Dr. Ray has said  43 about William Brown and what William Brown himself has  44 said about the evidence, at paragraph 313, of  45 contemporary witnesses.  46 I submit that the appellants and their ancestors  47 conducted their harvesting activities based on the 478  Submissions by Mr. Grant  01 maintenance of relationships among many species,  02 involving both selective harvesting and the rotation of  03 harvesting areas.  Evidence of selective harvesting was  04 given in relation to the fishery resource, mountain  05 goats, bears, moose and fur bearing animals.  And I go  06 back to -- the first reference is to Hanamuxw, Joan  07 Ryan at tab 313, my lords, at the top; line 5 of page  08 5006 she is asked:  09  10 "Chief Hanamuxw, referring you back to that  11 picture of November the 1st, 1966 -- "  12  13 That's the picture you were shown this morning by Mr.  14 Rush,  15  16 "When you took the name Hanamuxw what did you  17 understand was passed to you under Gitksan  18 law?"  19  20 There was some exchange, and if you go down to the  21 bottom at line 43, she gives the statement in Gitksan.  22  23 "That means the land that your forefathers had,  24 that includes the regalia, that includes the  25 adaawk, that includes the pole, that includes  26 the resources on the land, that includes the  27 name Hanamuxw, and the right to use that name  28 within the Gitksan territory.  That means the  29 right to use the authority of the chief.  That  30 includes providing leadership for the people,  31 the Gisk'aast — "  32  33 That is the Fireweed clan, of which she is a member, or  34 her house belongs to.  35  36 " -- as well as the other clans in Gitsegukla."  37  38 That's her village.  39  40 "It means preserving the history of the house.  41 It means taking care of the present, and always  42 with the idea that you link it with the future.  43 It means having the right to assist not just  44 the people in your own house, but everyone in  45 your community if they need help.  It means  46 going to other levels of authority whenever you  47 need to negotiate with them to take care of the 479  Submissions by Mr. Grant  01 needs of the people, or it may mean going to  02 neighbouring nations and negotiating with them  03 issues that deal with the Indian problems, or  04 it may mean offering suggestions as to how  05 these can be solved, how the problems can be  06 solved."  07  08 Then she goes on at the bottom of that page in the  09 answer at line 28.  I just ask if you would note it or  10 mark it, my lords, because it refers to specific  11 management practices and I'm going to come back to  12 those practices.  But I'd like you to highlight that  13 here because it's relevant to the point.  14 Similarly, if you go to the next tab, and I'm just  15 going to highlight this, Mr. Joseph talks about the  16 mountain goat.  17 I would just like to take you into the territory  18 as early as I can.  I have given you a reduced map  19 atlas, which is Exhibit 358, and it's reduced, I hope  20 not to the point of uselessness, but I've been advised  21 by our assistant that these, which I have put in them,  22 are of some help to see.  I'd like to take you to map  23 12, which will be at tab 12.  Apparently -- I've never  24 used these myself before, my lords, but if you keep it  25 about four inches away from the map apparently it's  26 quite useful.  I have only one other one and I will  27 lend it to Mr. Williams.  He can share it with all the  28 other parties.  I'd like to take you to map 12.  You  29 may want to look at the original, but basically here --  30 you probably don't need it for this particular map and  31 the point I'm making.  32 This is the mountain goat.  Its Gitksan name and  33 Wet'suwet'en name are shown.  If you look at the dark  34 red on that map you see the areas in which it's  35 located.  You can see that mountain goat is not  36 something that's throughout the territory, unlike some  37 species.  The little legend map symbols are common and  38 present.  Unfortunately in the photo reproduction it's  39 not as easy to see the colouring variation, but where  40 it's dark red is where you have mountain goat and where  41 those little more yellowed spots are, you have some,  42 but it's present but rare.  And in all the rest of the  43 map and the territory, which as you can see is the  44 valley bottoms, you have no mountain goat.  The dark  45 outline is the approximate boundary, not the actual  46 boundary but the approximate boundary of the territory.  47 The point of that is that these people, the 480  Submissions by Mr. Grant  01 Wet'suwet'en and Gitksan, who Brown talks about as  02 seeing them as having mountain goat or mountain,  03 "sheep" he refers to it as, I can advise your lordships  04 that the biological evidence and the historical  05 evidence is that mountain goat -- when the first  06 Europeans arrived they didn't know what mountain goat  07 were and they were referred to as mountain sheep, and  08 that's in the evidence, I believe, of Dr. Hatler and in  09 some of the historical material.  In Dr. Hatler's  10 evidence, the largest world population of mountain goat  11 is within this territory.  12 Now, if you'd go to page 1732, which is after the  13 first tab of 313, or after the first brown sheet, you  14 have Alfred Joseph describing the hunting potential  15 within one part of the territory and he's asked, at  16 line 36:  17  18 "Q   What was hunted there?  19 A  Mountain goat.  20 Q   And what was unique about that particular  21 area?  22 A   That allowed for the hunting of mountain  23 goat.  The hunters, they separated to -- it  24 has a very flat top on the -- this  25 Debencher Peak ... And the hunters stay on  26 top, most of the hunters, and one or two  27 hunters go down around below the cliffs and  28 they then scare the goats from down below  2 9 there and that's when the goats run up the  30 cliff and as they come over the -- from  31 down below, the hunters up there are  32 waiting for them and that's where they  33 shoot them and that's why the name is Hanee  34 C'et gghexw, meaning coming -- something  35 coming from down below and over the top."  36  37 In light of that map that I've shown you, map 12,  38 I'd just like you to keep in mind he's talking here  39 about the Wet'suwet'en, why that's important.  As Mr.  40 Rush indicated to you, this dark line here is the --  41 south of here is Wet'suwet'en.  When you look at that  42 map you will see that there are very few Wet'suwet'en  43 hunting areas for mountain goat, so it would be very  44 important and significant for the Wet'suwet'en,  45 whereas when you come up in here you've got more  46 Gitksan areas on that map.  47 I'm just going to take you over through to Ms. 481  Submissions by Mr. Grant  01 Wilson-Kenni.  Ms. Wilson-Kenni, Chief in the house of  02 Spookw, gave evidence.  She was present in court last  03 week and is present in court today.  At page 4170 she  04 talks about the mountain goat hunting and she is  05 talking about when she was small, when she was a child.  06 This would have been in the 1940s and early '50s.  07 She's talking about going up the mountain to get  08 mountain goats and she describes, on page 4170, line 1  09 down to line 20, the method of getting the mountain  10 goats.  11 If you turn over you have Bazil Michell.  Bazil  12 Michell is quite elderly.  He's the person that Mr.  13 Rush is referring to as given the western half of that  14 territory, the west side of the Bulkley River.  Mr.  15 Rush referred to him this morning.  He is talking at  16 page 100 about maintenance of his territory and the  17 beaver control.  He says:  18  19 "Q   Did you have any restrictions which you  20 placed on yourself if you were hunting  21 beaver, for example?  Where there were many  22 beaver in a particular place?  23 A   For the beavers, wherever there were a good  24 number of them, we would only shoot two or  25 three and then move to a different area so  26 they would continue to flourish."  27  28 Then he refers at the bottom of that page to the  2 9 management of moose.  30 I'd like to take you to Alfred Mitchell at page  31 3176.  Now, Mr. Mitchell was describing how their  32 ancestors ambushed the goats.  I highlighted and bolded  33 for you lines 14 to 26.  Now, he's talking about using  34 methods pre-gun, before there were guns, and he's  35 talking about the method of chasing them up.  As your  36 lordships may appreciate, and it is evidence in the  37 Hatler report -- actually it's evidence of the  38 Wet'suwet'en and Gitksan chiefs -- goats' defence,  39 their principal defence, is to go up.  So it's always  40 important to be above the goat, which, given how goats  41 climb, is not an easy task.  So what he's describing is  42 how their ancestors hunted goats.  43 Now, at page 3177 Ms. Mandell asked him:  44  45 "... were you shown how the Wet'suwet'en would  46 trap beaver before the white people's trapping  47 methods were used? 482  Submissions by Mr. Grant  01  02 I'm at line 18 of page 3177.  03  04 "Before the white man introduced the traps,  05 they had -- they used snares and deadfalls.  06 Also, in the winter when the lakes or creeks  07 froze over, they would make snares with cedar  08 bark rope, which they would lower in the water  09 and they knew when they caught a beaver.  They  10 would pull it up and hit the beaver on the head  11 to kill it.  That's some of the methods that  12 they used before the traps were introduced."  13  14 This is not evidence one would expect to hear from  15 somebody who was talking about the importance of beaver  16 after contact.  You may recall from the evidence of Mr.  17 Rush when he reviewed the facts and from the Brown  18 reports, Brown said that there were restrictions on  19 access to beaver.  This was a problem for the Bay.  Why  20 were there those restrictions?  What Brown has said --  21 and I believe Mr. Rush referred to it in the facts and  22 it's in the factum under the ownership section -- is  23 that beaver was important for the feast.  So it was a  24 prime species for those purposes.  So he's talking here  25 about a pre-contact method of trapping beaver.  Then he  26 talks about post-contact methods.  27 Then Dan Michell, at page 3652, again talks about  28 management conservation decisions in respect of  29 trapping beaver.  Line 7:  30  31 "Well, we look after it by experience that's  32 been handed down to us by our grandfathers and  33 our father.  And I spoke on it before, like I  34 refer to it as money in the bank.  We know by  35 the size of the beaver house.  And if there is  36 a smaller house then we know there is maybe  37 four beaver in there.  And the way we are  38 taught to trap them is that we have to set  39 traps further away normally, and the beaver dam  40 below the house is -- that's where you catch  41 the bigger ones.  If you set it too close to  42 the beaver house you normally catch the small  43 one, that's what they say, so we don't do  44 that."  45  46 My lords, the point of these references, and it's only  47 a small extract of many, many, of course, references of 483  Submissions by Mr. Grant  01 evidence, is:  Why would there be these technologies  02 developed if it happened after contact?  They are  03 consistent and corroborative of what Brown has said,  04 what he found.  They were using these resources and  05 they used technologies that were pre-contact  06 technologies to harvest and manage these resources.  07 The rotation of harvesting was also important.  I  08 just refer you at paragraph 314 to Mr. Morrison:  09  10 "... we trapped in some areas and we moved back  11 and forth in the areas, especially a large area  12 where we are, and the same with the others.  We  13 have to trap in one area and move to the other  14 area to thin the animals there, whatever you  15 can get out of that.  And that's one of the  16 things, the method of trapping or hunting, you  17 don't stay in one place to hunt, in one corner  18 of your territory, you got to move around."  19  20 I'm going to refer to the map, my lords -- I'm not sure  21 if Mr. Justice Hutcheon and Mr. Justice Wallace wish to  22 refer to a smaller map which is over there, which was  23 the trial judge's map.  Maybe the clerk can put it  24 closer to you so you can see.  25 The reason I want to refer you to this is you  26 recall that Mr. Rush, in both the facts and the  27 opinions, talked about the marriage and that connected  28 to territory.  Now, what James Morrison here is talking  29 about is two territories.  Just to place you, this is  30 the Hazelton area here; this is Kisgegas about 50 miles  31 up the Skeena River.  It's a territory we get right in  32 here.  There is another territory we get which you see  33 quite far up.  34 Now, James Morrison's father was in the Wiigyet  35 house so he had access to these territories in that  36 manner through his father, as you heard this morning.  37 He actually, himself, his mother was a Kitwancool chief  38 and his name was Too-ook and their territory was over  39 here.  In this example that he's talking about here,  40 he's actually talking about using territory here and  41 this territory here, so he had access -- and this is  42 outside the claim area.  It's a Kitwancool territory.  43 But he had access to these two territories.  44 The significance of that, my lords, in terms of a  45 management regime, is that you end up with a person, a  46 hunter or a person using the resources, who has access  47 to multiple territories, not only of his house group 484  Submissions by Mr. Grant  01 but of that of his father and that of his spouse.  02 In this case Mr. Morrison is talking about how he  03 managed and how he was taught by his grandfathers to  04 manage the territories going back.  I refer you, out of  05 these references, only to the first, of Pete Muldoe,  06 and he holds the name Gitludahl, and it's at page 6310,  07 the second reference in at tab 314.  He was talking  08 about when he took that name over and he's asked what  09 authority he has about the territory, does it include  10 making decisions?  11  12 "A   Yes.  It is -- this all includes the  13 hunting, or trapping, or fishing, whatever  14 Gitludahl had rights to give out.  It's my  15 responsibility to do it.  16 Q   ... And in terms of your responsibility, do  17 you take care to conserve the resources on  18 the territory?  19 A   Yes.  2 0 Q   What do you do?  21 A  Well, we -- trapping, if I give anyone  22 permission or they come to me and ask me if  23 they want to go there, I will be showing  24 them where to go and where to trap or where  25 to hunt beaver or anything like that.  We  26 don't always go into the same place at the  27 same year, we always move onto different  28 territories."  29  30 Then he's asked why and it's marked in the margin.  I  31 won't read the rest of it, but again he's reflecting  32 this harvesting and moving around.  This is something  33 that echoes what William Brown found when he first came  34 into the territory.  35 Now, I'd like to get more specific here for a  36 moment and talk about a particular method of  37 management.  This is what is known as controlled burns.  38 I submit that this is a prime example of the harvest  39 and management techniques and that the trial judge  40 ignored this in his characterization of the appellants'  41 activities outside the villages.  This was the burning  42 of areas to ensure prolonged berry yields.  Martha  43 Brown, who was born in 1901, testified that she  44 remembered her grandfather burning the area at  45 Luuminxsa'ansegit, a mountain across the Skeena  46 upstream from Kispiox.  47 Again, I'll refer you to this.  It's further up 485  Submissions by Mr. Grant  01 the Kispiox.  Here is Kispiox here; here is the  02 Xhliimlaxha territory.  It's between the Skeena and  03 Kispiox Rivers.  It's fairly pronounced.  It's between  04 this area and this area here she's talking about.  05 The other significant point I wanted to make about  06 this -- and Mr. Rush alluded to or referred you to  07 genealogies -- I'd like you to refer to the second  08 insert at page 315 just so you can see who she's  09 talking about here.  This is the genealogy of  10 Xhliimlaxha, Exhibit 853-43.  All of the genealogy  11 exhibits, my lord, are referred to in paragraph 270,  12 both the Gitksan and the Wet'suwet'en.  Every house  13 that was a party had a genealogy filed.  Exhibit 853 is  14 actually a very large binder with, I think, about 45 or  15 44 genealogies in it.  So this is no. 43.  16 If you could just bear with me and go over four  17 pages from the beginning, and these stretch out and the  18 lines go from one page to the other, and Mr. Rush has  19 explained to you it's matrilineal so it follows the  20 mother's line.  You will see on the fourth page, and  21 it's the one that has at the very top "Paul  22 Xhliimlaxha".  23 Paul Xhliimlaxha was born in 1820 and died in  24 1921.  In this genealogy, unlike some of them, the date  25 of ascendency to the head chief's name is noted.  26 That's why I wanted to take you to it.  If you look  27 right below him, you will see that his nephew; that is,  28 his sister's son -- the circle above is his sister --  29 Edward Sexsmith took the name in 1921.   Mr. Sexsmith  30 was born in 1861 and he died in 1932.  You go down two  31 lines on that page and you see Maggie Sexsmith.  She  32 took the name in 1932, Xhliimlaxha.  You flip back one  33 page, and she died in 1944.  If you go back one page  34 you'll see Frank Harris -- I'm sorry, mine's  35 highlighted; I may be going too fast and I realize  36 yours are not.  Frank Harris on that second line,  37 Xhliimlaxha, he took the name in 1945 and he died in  38 1972.  You can go back over to the page we're looking  39 at and you'll see that Maggie Sexsmith's daughter,  40 Martha Brown, born in 1901, took the name in 1972 and  41 she died in 1987.  She died after she gave commission  42 evidence in this case and the subsequent evidence that  43 was led, because the trial was still proceeding, was  44 that Eva Samson, her daughter, who is underneath there,  45 took the name.  46 What you have here is you have --  and Mrs. Samson  47 was present last week as one of the chiefs that came 486  Submissions by Mr. Grant  01 down.  02 LAMBERT, J.A.:   Did she give up the name that's underneath  03 there?  04 MR. GRANT:   Yes.  Usually they will — not necessarily at the  05 same time, but usually at the same time she would give  06 that name to some other member of the house, and in  07 that case she did.  08 So what you have in this genealogy is you have a  09 continuity of the chief's name, Xhliimlaxha, from  10 sometime, obviously, after 1820 but certainly sometime  11 well in the last century right up to today.  And the  12 person that was talking to Martha Brown, her  13 grandfather, about the controlled burn at that area was  14 her grandfather Paul Xhliimlaxha, who was born in 1820.  15 If I could take you to page 16 of Mrs. Brown's  16 evidence, just ahead of the genealogy you can see she  17 says, at line 22 -- or line 15, I'm sorry, she's asked:  18  19 "Q   Do you remember your grandfather burning the  20 territory so that berries would grow, in  21 your lifetime?  22 A   I remember when my grandfather burned the  23 area at Luuminxsa'anseegit."  24  25 That's the area I've referred you to.  26  27 "... Pretty well burned the area every two  28 years because this is their livelihood where  29 they pick their berry crop.  The berries is  30 used for feasts, that is why they take care of  31 the patch."  32  33 Now, Art Mathews also testified to this.  A much  34 younger chief, he was -- I think he was 49 or 50 when  35 when he testified in 1988; 49, I believe.  At page  36 4718, he says --  it's following the genealogies, my  37 lords, at page 4718.  38 Here he's talking about the control of his  39 grandmother, his grandmother's control where she gave  40 control or permission over the area.  What she did  41 was -- he took her to the campsites on his territory.  42 And there were markings at these territories where they  43 had control.  Her mother -- his mother and grandmother  44 had control or gave permission to work these  45 territories to other women.  If you go over the page  46 at the bottom:  47 487  Submissions by Mr. Grant  01 "A   These berry patches, I said that the  02 berries only grow where it was burnt, so  03 what they did was every time there was a  04 growth, like every about six to seven  05 years, they would burn these over again  06 so -- so that they maintain the taste  07 because if you would leave it too long  08 these berries would begin to lose their  09 taste and sweetness.  10 Q   And who would decide when it was time to  11 burn?  12 A   These were the women that do the actual job  13 and they know the very taste they want and  14 the texture, and as soon as that begin to  15 lose the taste, they would then tell the  16 men that it is time to re-burn the area.  17 Q   Does burning of the berry grounds still go  18 on today?  19 A   No.  20 Q   Why not?  21 A   If you burn something like that you would  22 have to go to jail.  That's one of the  23 problems we're having is the resistance --  24 the resistance of the provincial that we no  25 longer have to burn such an area like that.  2 6                   Q   You mean the provincial government?  27 A   Yes."  28  29 Then he goes on and talks about access to the  30 area and refers to that.  31 If I could take you to the -- I'll come to it in  32 the next paragraph.  I'll refer to Dr. Daly.  This is  33 still on the burning.  34 I should just show you where this is because I'd  35 like you to keep in mind, my lords, that we are talking  36 here about areas beyond the villages.  This is key to  37 what the trial judge found.  38 Again here we have Kitwanga in this area that Mr.  39 Rush showed you.  And the area, Tenimgyet, that Art  40 Mathews was talking about was this small area here, so  41 it's downstream from there.  He's not at this point  42 talking about this larger area, but it's still quite  43 far beyond the village.  44 Now, Dr. Daly related the Gitksan and Wet'suwet'en  45 practice of burning to a larger planned, purposive  46 system of management engaged in by hunting peoples.  He  47 refers there to: 488  Submissions by Mr. Grant  01  02 "The aboriginal hunters of Australia, for  03 example, are said to have created the  04 Australian outback landscape over the past  05 several thousand years during which they  06 practised controlled burning..."  07  08 I'm in my factum, my lords, at paragraph 316.  09  10 "The natural vegetation and ecology found by  11 Europeans upon their arrival in Australia is  12 now considered by scholars to have been the  13 result of planned, purposive human  14 intervention."  15  16 Then he talks about:  17  18 "The Gitksan and Wet'suwet'en frequently  19 discuss how important burning was for ensuring  20 prolonged good berry yields."  21  22 And he sets out what was said in evidence.  And then  23 I'd like to refer you, at paragraph 316 to Sybille  24 Haeussler, a botanist who gave evidence in this case,  25 to her report.  And that report is -- Dr. Daly's  26 reference is the first and then there is her evidence.  27 If you go to the third brown sheet at tab 316, it's  28 Exhibit 802 at page 28.  That's Ms. Haeussler, a  29 botanist who gave evidence in this case.  It's at page  30 28, her report.  It just says "Exhibit 802" on the top;  31 that's Sybille Haeussler's report.  32  33 "Indians throughout North America are known to  34 have set grass, brush, and forest fires for a  35 variety of reasons, includng management of  36 plant communities and wildlife populations.  37 Aboriginal burning is considered in most fire  38 ecology studies as an integral part of the  39 "natural" pre-settlement fire regime.  Today  40 this practise is greatly inhibited by land use  41 patterns and fire-suppression policies.  There  42 are no parts of the study region where fires  43 can not be deliberately set given suitable  44 weather and fuel conditions."  45  46 She was talking about the study region here in this  47 case, which encompassed the territory. 489  Submissions by Mr. Grant  01  02 "Wet coastal forests and sparse alpine tundra  03 will of course be more difficult to burn than  04 dry Interior forests and brushfields.  The  05 extent of Indian burning prior to European  06 settlement is almost impossible to determine  07 today, but I suspect that the pattern (if not  08 the magnitude) of burning was not much  09 different from what exists today:  burning was  10 concentrated in heavily populated areas, and  11 the number and size of burns was much greater  12 in Fire Zone D than in other parts of the study  13 region.  Compared with lightening fires, which  14 tend to be stand-destroying crown fires,  15 prescribed burns carried out by native people  16 were more likely to have been small surface  17 fires."  18  19 Now, if you just go back to the factum, Art Mathews  20 Jr. explained the principle of sustained yield and this  21 is what he said:  22  23 "We have always limited our hunting to the fall  24 and winter, when the young are no longer  25 dependent on their mothers.  We guarded the  26 spawning beds, we burned the berry patches to  27 keep them healthy and productive.  We even used  28 controlled burning to get rid of the insects  29 which kill off the trees -- it was more  30 effective than insecticides -- at least we did  31 until 1936 when they started charging us with  32 being arsonists on our own land."  33  34 Still staying in the same tab, that's tab 316, I'd like  35 to take you to the last extract, which is Exhibit  36 1125-A, which is an extract from the 1932 Prince Rupert  37 Forest District Annual Report.  If you go to the second  38 page of that, this is in tab 316, you'll see under  39 "Payrolls":  40  41 "Transients and Indians seem to understand our  42 policy and probably not more than four fires  43 were lighted to create payrolls.  These seemed  44 to be test cases to see if we would actually  45 let fires run.  46  47 "Indian-caused fires have decreased during the 490  Submissions by Mr. Grant  01 past two years.  As early as possible in the  02 Spring all Indian settlements were visited and  03 our policy explained in plain words.  Notices  04 were written out and posted at Indian trading  05 posts which seemed to get results.  Three fires  06 were started in what we call Siawash country.  07 Two of these were extinguished by the Indians  08 before we arrived.  The other one was being  09 fought by Indians and settlers when our patrol  10 arrived on the scene.  The assistance of the  11 patrolman was required to control this fire.  12 It appeared to be of incendiary origin."  13  14 That was in 1932.  One year later in 1933 the  15 Prince Rupert Forest District Report which covers the  16 area we are talking about said, on page 3:  17  18 "The Indians are very hard up due to poor fur  19 catches —"  20  21 It's right following, my lords.  22  23 "-- low prices and to the increasing use of  24 aeroplanes in prospecting, which cuts down  25 their usual employment as guides, packers and  26 freighters, but our propaganda suggesting that  27 no men will be put on fire payrolls appears to  28 have put a stop to the usual large number of  29 fires in Siawash country."  30  31 Then he refers -- the author -- I'm sorry, maybe in the  32 earlier one there was a -- then under "Suggestions and  33 Remarks" you see there:  34  35 "The Provisions of the Criminal Code regarding  36 penalties for setting out or attempting to set  37 out fires ..."  38  39 are to be posted on posters on manila paper.  40 What Mr. Mathews Jr. is describing from his own  41 family and house group's experience that there was a  42 prohibition and restriction on fire burning was  43 confirmed by the government's own reports at the time,  44 albeit the government reports imply, from their  45 perspective of the forester, that the reasons that the  46 Indians started the fires was to get on the payroll for  47 firefighting. 491  Submissions by Mr. Grant  01 Well, the evidence -- and undisputed evidence --  02 of many of the witnesses was that it was for controlled  03 fire burns.  Contemporary botanists, biologists such as  04 Ms. Haeussler, anthropologists such as Dr. Daly and Mr.  05 Gamble, who studied the Aborigines of Australia, now  06 appreciate that controlled burns were part of land  07 management.  08 But I say, my lords, this is not a belief.  This  09 was evidence of fact of what actually was done by the  10 Gitksan and Wet'suwet'en, confirmed in government's own  11 reports of the time.  12 Now, I take you, in paragraph 318 to -- within the  13 framework of a sustained yield policy the Gitksan and  14 Wet'suwet'en developed specific hunting laws.  The  15 trial judge's view that the evidence did not establish  16 concerted communal conservation but merely common sense  17 subsistence practices and survival instincts is utterly  18 inconsistent with the evidence of Art Mathews and  19 Stanley Williams, Gitksan chiefs from two generations  20 but who share reputations as successful and  21 knowledgeable hunters.  Art Mathews Jr., as I say, was  22 born in 1939, Stanley Williams in 1907.  23 Art Matthews Jr. provided the following account of  24 the laws relating to hunting of goats which had been  25 taught to him by his father and by his grandfathers.  26 He's setting out the rules here in his evidence:  27  28 "The first one is we ... don't over kill.  ...  29 The second one is the field dressing that has  30 to be done.  The raven was always there, as I  31 pointed out through the adaawk, Biis hoon."  32  33 Now, Mr. Mathews, just so that you'll appreciate,  34 the oral histories that he explained also were  35 important lessons for a house group.  His house group  36 is prime hunters and they were trained through the Biis  37 hoon, adaawk.  38 So the second rule was never to forget to feed the  39 raven.  The next one is:  Never kill a mother sheep  4 0 with young ones.  41  42 "The next one is that we, after field dressing,  43 the cuts, the hide, whatever that we do not  44 need has to be burned.  So our system that --  45 this is a must.  We have to burn all these  46 lefts, for our belief in reincarnation."  47 492  Submissions by Mr. Grant  01 He clearly sets out this is their practice, is the  02 burning.  The belief is the reincarnation.  03  04 "And it would be pointed at directions within  05 our territory to show thanks or appreciation  06 ... Like if you're holding your mountain here,  07 it would be pointed at the directions of the  08 mountains that provided this goat.  And this is  09 carried on from there ... We take the bones out  10 because it's not necessary to carry them for a  11 great distance, to de-bone all the meat.  An  12 art on its own how to do these.  And that's how  13 the goat hunt is carried out. ... After we get  14 back to the village of Gitwingax, we would then  15 share it with the elders that cannot get  16 around, that stays home, that have no access.  17 Then the sharing would take place.  ... what we  18 call in our language sharing, 'naa hlimoot'.  19 And that all that means is sharing, helping  20 each other, helping.  That's the very rule, the  21 very existence of Gitksans, are helping each  22 other. ... Whether it be a hunt, whether it be  23 decision making or whether it be in a role of  24 -- like I already said, wilksiwitxw  25 [father's side], we play that role, so our  26 sharing makes us Gitksan and Wet'suwet'en.  27  28 One could say maybe this is a description of a belief.  29 Maybe it's a description of an ideal.  But one thing  30 for sure, it is a description of a system that is based  31 on sharing.  And it's not just out of altruism that  32 that happens, my lords.  It's out of the kinship  33 system.  They have to share.  It has to work that way,  34 because if you end up in this kind of society without  35 give and take, you end up with feuding and fighting,  36 and that's what the anthropologists describe as to why  37 it's so central.  I think it's Mass, a writer, who  38 talked about the concept of sharing based on northwest  39 coast tribal societies, a French philosopher, and  40 that's referred to by Dr. Daly in his evidence; it was  41 refer to by the trial judge.  42 I would like to take you to Stanley Williams'  43 evidence at paragraph 320.  First of all I would like  44 to take you to the reference at page 319, which is a  45 reference to the trial judgment, because there is  46 something more I would like to refer you to there.  47 This is what the trial judge said about this aspect of 493  Submissions by Mr. Grant  01 the system at page 269, the second paragraph:  02  03 "Being of a culture where everyone looked  04 after himself or perished, the Indians knew how  05 to survive (in most years).  But they were not  06 as industrious in the new economic climate as  07 was thought to be necessary by the newcomers in  08 the colony.  In addition, the Indians were a  09 greatly weakened people by reason of foreign  10 diseases, which took a fearful toll, and by the  11 ravages of alcohol.  They became a conquered  12 people, not by force of arms, for that was not  13 necessary, but by an invading culture and a  14 relentless energy with which they would not, or  15 could not, compete."  16  17 As I referred to you, and I did not cite the citation  18 in here of what was done in the thirties which Martha  19 Brown described when she was younger:  Where does that  20 fit in with that description?  I submit, with respect,  21 that it's a disregard of the evidence and it's a  22 disregard of the evidence I will refer you to here,  23 which is the evidence of Stanley Williams where he  24 refers to the reciprocity between human beings and  25 animals:  26  27 "If I was to kill a bear, what I would do first  28 I would stand there and I would sing the song  29 of the bear.  I would pick up this bear and  30 then I would put it on my shoulder and I would  31 walk toward the village.  As I get closer to  32 the village, I would start singing the song of  33 the bear again and the people in the village  34 will know that I have killed this bear because  35 they -- they've heard the song of the bear  36 being sung.  37  38 After the bear has been cleaned nothing is  39 wasted.  What they do is they even use the --  40 the intestines of the bear.  They clean the  41 intestines and then they twist it and dry it  42 and this was used for your bow and arrows."  43  44 He's clearly talking here about pre-contact times.  45  46 "After they've -- they've cooked the meat and  47 eaten it and the bones are left, what they do 494  Submissions by Mr. Grant  01 they return the bones in the fire and they --  02 they pray.  They burn these bones in the fire  03 and they -- and they would ask if -- if this  04 bear would be returned or they would get  05 another bear like the one that the bones that  06 they throw into the fire.  They -- they do this  07 to all the different animals that they caught.  08 It's not only the bear, it's all the different  09 animals that they caught that they don't just  10 leave the bones lying or the insides lying  11 around, they always make sure and burn these."  12  13 Now this is the testimony of a witness who also  14 described how he faced down a grizzly bear and how he  15 was trained how to catch a grizzly bear by his  16 grandfather.  As I say, Stanley Williams took his name  17 in 1922, is when we held the name, until his death in  18 1989.  He's a person that was one of the most prominent  19 hunters, even the trial judge noted that.  2 0 I note the time my lord.  21 TAGGART, J.A.:   Would it be appropriate to adjourn at this time?  22 MR. GRANT:   Certainly.  23 THE REGISTRAR:  Order in court.  Court stands adjourned to ten  24 o'clock tomorrow.  25  2 6 PROCEEDINGS ADJOURNED AT 4:00 P.M.  27  28 I hereby certify the foregoing to  29 be a true and accurate transcript  30 of the proceedings herein, to  31 the best of my skill and ability.  32  33  34  35  36 Dianne Olsen,  37 Official Reporter,  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47


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