Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-24] British Columbia. Supreme Court Jun 24, 1992

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 2199  Submissions by Mr. Wiilms  1 June 24, 1992.  2  3  CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, JJA.  4  5 THE REGISTRAR:  In the Court of Appeal for British Columbia,  6 Wednesday, June 24th, 1992, Delgamuukw versus Her  7 Majesty the Queen at bar, my lords.  8 TAGGART, J.A.:  Yes, Mr. Willms?  9 MR. WILLMS:  Thank you, my lord.  10 My lord, in accordance with the reasons of this  11 court of April 29th, the submissions of the amicus  12 will relate to two issues:  The first issue is support  13 for the trial judgment and those aspects formerly  14 supported by the province but no longer supported; the  15 second aspect will be submissions relating to the  16 issue of this court's power to grant the remedies that  17 have been proposed by the province and the appellants.  18 Arguments in the support of the judgment will be  19 advanced in two parts.  I will today deal with the  20 Chief Justice's conclusions on beaver trapping  21 territoriality and the village-based society of the  22 Gitksan and the Wet'suwet'en.  And I will also today,  23 time permitting, make brief reference to the Chief  24 Justice's conclusions that the American authorities  25 are not particularly helpful in deciding this case.  26 Tomorrow Mr. Plant will address the question of  27 extinguishment, and that will take, I think, the whole  28 day, and he will also make reference to the judgment  29 of the Australian high court in Mabo.  And on Friday I  30 will address the question of remedies.  31 I will be advancing arguments this morning from  32 tab 7 of the R&D factum, volume one, and you should  33 all have three volumes of references that say R&D  34 one, two and three.  I will be starting with the  35 volume entitled R & D 1 on the spine and the factum.  36 So if my lords could have those two, there should be a  37 document that just says factum of Russell & DuMoulin,  38 amicus curiae, that's the factum I will be advancing  39 argument from this morning, and I will also be asking  40 your lordships to turn to the references that say  41 R & D-l on the spine.  42 If I could ask the court to turn to tab 7 of the  43 factum.  Tab 7 should say at the start that the  44 learned trial judge did not err in holding that beaver  45 trapping territories arose as a result of the fur  46 trade.  That's where I will start my submission.  The  47 importance of this point is this:  The territorial 2200  Submissions by Mr. Willms  1 claim advanced by the appellants at trial bore a  2 remarkable similarity to the traplines of the  3 appellants.  In other words, the traplines in the area  4 held by the appellants was, except for some minor  5 changes here and there, very, very close to the  6 territorial claim advanced on behalf of the houses by  7 the appellants.  And, my lords, you may wish to make a  8 note beside paragraph one in your factum that the  9 Chief Justice deals with this remarkable concordance  10 at pages 434 to 435 of his judgment.  11 WALLACE, J.A.:  434 to 435?  12 MR. WILLMS:  434 to 435.  13 The factual background for the issue that the Chief  14 Justice had to decide is set out in his judgment, and  15 I have quoted from it starting in paragraph 2, where  16 the Chief Justice said:  17  18 "While none of the wildlife evidence is  19 unequivocal, I understood Dr. Ray to say that  20 early historic records that 'game was really  21 never very plentiful' in the territory and that  22 fishing was the mainstay of the economy.  He  23 also said that the exploitation of animals was  24 pretty minimal 'in terms of food' and trader  25 Brown of the Hudson's Bay Company reported in  26 the 1820s that is Atnahs (any non-Carrier)  27 regarding beaver as unclean.  Also, according  28 to Dr. Hatler, moose and deer came into the  29 territory relatively recently, replacing  30 caribou which, in response to a warming trend  31 which commenced about 1850, moved away from the  32 territory into other areas which they found  33 more hospitable."  34  35 I point out in my factum that these findings  36 of fact were based on the appellants' own evidence.  I  37 say that at the top of page 2, after quoting from the  38 Chief Justice.  39 HUTCHEON, J.A.:  The statement that the beaver were regarded as  40 unclean is contrary to some reading I did of a feast  41 in 1810, I think it was, where beaver was the food.  42 MR. WILLMS:  That was Harmon, my lord and that was the Carrier.  43 Harmon was among the Carrier and there was no question  44 that among the Carrier, beaver was eaten.  But Brown  45 observed when he came into the area that the Atnahs,  46 who we now know were the Gitksan, regarded the beaver  47 as unclean.  And that's from Brown's records.  And 2201  Submissions by Mr. Willms  1 that's why Dr. Ray pointed that out in his opinion  2 report.  3 I would like to carry on at paragraph 3.  Again, at  4 a different part of his judgment the Chief Justice  5 repeats his finding about fishing and game and then  6 says this, and I am at line 24 of my factum at page 2:  7  8 "First, moose and deer came into the claim area  9 relatively recently.  10 Secondly, there are references in the  11 journals and reports of Brown that suggests the  12 Chief's control of territories was not  13 exclusive but was limited in some cases to  14 beaver exploitation which was used for  15 ceremonial purposes by the Carrier, but was not  16 really so well regarded by the Gitksan in whose  17 country that animal was not nearly so  18 plentiful.  In fact, Stuart, writing in the New  19 Caledonia in the early 1800s, said that the  20 Carriers did not eat meat in nine out of ten  21 years, except at feasts for the dead."  22  23 Then Dr. Ray said this at his -- page 24 of his  24 report:  25  26 "'In contrast to beaver, some other resources  27 were not as carefully husbanded and the nobles  28 do not appear to have had first claim on them.  2 9 For example, men who did not have what Brown  30 referred to as a "land stake" were allowed to  31 trap marten, the other fur that was in strong  32 demand in the area by Europeans.  No mention Is  33 made about prohibitions concerning the hunting  34 of large game or the taking of fish."  35  36 Again, as I say if my factum, this is based on the  37 appellants' own evidence.  What there was at the time  38 of Brown was some territoriality in respect of beaver,  39 but in respect of other animals there appeared to be  40 none.  And especially marten, which was another  41 important part of the fur trade.  Beaver and marten  42 were both very important but it did not appear there  43 was any territoriality whatsoever with respect to  44 marten.  45 Carrying on at page four -- sorry, paragraph 4 of  4 6 my factum.  47 2202  Submissions by Mr. Willms  1 "In my judgment, what happened on the ground  2 before British sovereignty was equally  3 consistent with many forms of occupation or  4 possession for aboriginal use as for ownership.  5 It is true that trader Brown referred to some  6 Indians as men of property and other similar  7 terms but that is equivocal.  He also suggested  8 the exclusive use of some undefined land was  9 restricted to trapping for beaver."  10  11 And then finally, reading from paragraph five:  12  13 "Apart from Kitseguecla, where fishing seems to  14 be good, the other villages are strategically  15 located at canyons where fishing is easiest, or  16 at important river forks.  There seem to be  17 good reason for villages to be situated at  18 these locations.  19 I am constrained to conclude that there  20 probably were villages at most of these sites  21 for a long, long time before the arrival of  22 European influences in the territory but I wish  23 to make a few comments.  First, I do not find  24 it necessary to review the conflicting evidence  25 about Hazelton.  It is so close to the canyon  26 at Hagwilget that Indians may well have  27 preferred the latter as a fishing site.  Its  28 proximity to such a proven location makes a  29 specific finding unnecessary.  30 Secondly, it appears that the main reasons  31 for these villages, except possible for  32 defensive or strategic reasons, was probably  33 easy access to a principal food resource which  34 was salmon.  Neither people were particularly  35 fond of game and animals for food and beaver  36 was not plentiful."  37  38 And I say, once again in my factum, the findings  39 are amply supported by the evidence given on behalf of  40 the appellants.  So that what it came down to, as the  41 issue before the Chief Justice in respect of  42 territoriality and exploitation of resources, was  43 whether or not the beaver trapping territoriality that  44 existed at the time, and fed into the commercial fur  45 trade, was a product of the fur trade, and whether the  46 fur trade materially changed aboriginal life.  The  47 Chief Justice found that the fur trade materially 2203  Submissions by Mr. Willms  1 change aboriginal life.  He made that finding at page  2 203 of his judgment, among other points, and I have  3 already referred your lordships to the assessment of  4 the remarkable concordance between the traplines and  5 the house territory claims advanced by the appellants  6 at trial.  7 On paragraph 7, I point out that Dr. Ray at one  8 point thought that the fur trade had radically altered  9 the local economy.  And that's the point that I would  10 like to take your lordships to right now, and it's in  11 R & D-l at tab 7.  I would ask your lordships to turn  12 to page -- the pages are numbered at the bottom right  13 hand corner at each tab, and you will see that there  14 is a Roman numeral and then a slash and then an arabic  15 number.  That tells you what part of the factum it  16 relates to.  So that it's Roman numeral VII tells you  17 it's tab 7 of the factum, arabic 7 tells you it's  18 paragraph 7 of the factum.  And I would ask my lords  19 to turn to page 2.  Sorry, page 3.  Page 3 is a  2 0 document that's entitled Comments On Skip Ray's Kemano  21 Paper by S. Clark and J. Cove.  22 TAGGART, J.A.:  Is this appendices volume one?  23 MR. WILLMS:  No, it should be a document — it's a book that  24 says R & D-l on the spine.  25 TAGGART, J.A.:  All right.  26 MR. WILLMS:  It's R & D-l, tab 7, page 3.  27 TAGGART, J.A.:  Yes.  28 MR. WILLMS:  Now, in Dr. Ray's cross-examination, Dr. Ray -- he  29 was asked whether or not he had, still had a copy of  30 this Kemano paper.  He said he didn't have the copy of  31 the paper but he acknowledged that he did -- that  32 these are comments on a paper that he had written in  33 the past.  The comments are by S. Clark --  34 WALLACE, J.A.:  That he had written?  35 MR. WILLMS:  He had written a paper.  3 6 WALLACE, J.A.:  Ray?  37 MR. WILLMS:  Dr. Ray had written a paper and received comments  38 by S. Clark and S. Cove.  Now, John Cove, who was an  39 anthropologist who was on the plaintiffs' witness list  40 but was never called to give evidence and his report  41 was never marked.  And you might have recalled early  42 in the appellants' argument they referred to extracts  43 from Mr. Cove's book, which was not marked as an  44 exhibit.  Mr. Grant did.  S. Clark, we understand, was  45 Mr. Cove's student, or Dr. Ray thought S. Clark was  4 6 Dr. Cove's student.  47 On the first page: 2204  Submissions by Mr. Willms  1  2 "We believe that the paper contains much useful  3 material derived from the Hudson's Bay  4 archives.  However, we see two overall problems  5 that are potentially harmful to the Tribal  6 Council's case regarding Kemano Hearings and  7 the court action.  First, Ray has made certain  8 assumptions and has drawn certain conclusions  9 about pre-contact and early post-contact  10 Wet'suwet'en social organization and  11 territoriality that are not substantiated by  12 the evidence he presents.  From an  13 anthropological perspective there are  14 inaccurate interpretations of data that  15 contradict the argument the Tribal Council  16 wants to make.  We believe that a re-  17 interpretation of the data collected by Ray,  18 together with other material from various  19 sources, will give a more accurate picture of  20 Wet'suwet'en social organization and  21 territoriality.  These anthropological problems  22 exist primarily in the first 21 pages of Ray's  23 paper and most especially on pages eight to  24 nine and 19 to 21.  The second overall problem  25 is one of tone.  In certain places throughout  26 the paper Ray's wording imparts a tone that  27 leaves an inaccurate impression of Wet'suwet'en  28 realities.  Again, these instances are  29 potentially harmful and should be corrected.  30 Our critique of Ray's paper is based on our  31 understanding of pre-contact and post-contact  32 Wet'suwet'en and Gitksan societies and the  33 differences between the two.  Our data sources  34 include discussions with Wet'suwet'en and  35 Gitksan people, the interviews taken by the  36 researchers and Tribal Council, the Barbeau-  37 Beynon material, Diamond Jenness's material and  38 other anthropological works."  39  40 So they explain to Dr. Ray the basis for their  41 criticisms of Dr. Ray's Kemano paper.  The first  42 criticism I would like to ask your lordships to turn  43 to is page five.  When I give you page numbers it will  44 be the page number in the lower right hand corner.  45 Now, you will see here they were referring to Mr.  46 Ray's Kemano paper at page six at the middle of the  47 page, right above the three-hole punch.  And it starts 2205  Submissions by Mr. Willms  1 off, the paragraph starts off at page six:  2  3 "A problem with tone -- that the fur trade  4 'radically altered' the local economic  5 situation.  It may have had an impact but  6 radically altered is too strong.  As well,  7 European goods, including metal tools, may have  8 been used initially as feast items rather than  9 as trade or productive items.  This needs more  10 study.  Studies by various scholars, George  11 MacDonald at the coast and Brian Given, a  12 student of Cove, in New England suggest that  13 the introduction of European tools, including  14 guns, which were not much, if any, improvement  15 over existing tools.  Regarding hunting, the  16 Gitksan and the Wet'suwet'en used primarily the  17 deadfall technique -- a technique that would  18 not necessarily be improved by the use of guns.  19 The argument that guns had a major impact on  20 the productive activities of the Algonkians has  21 also been questioned recently."  22  23 I will just pause there, my lords, because I will  24 come back to the Algonkian, it's called the Algonkian  25 Hunting debate, and it's a debate that arises in  26 eastern Canada but it figured prominently in  27 anthropological works, and the debate is simply this:  28 Did the fur trade cause territoriality?  Did it  29 intensify existing territoriality?  Or did it have no  30 impact whatsoever on territoriality of the aboriginal  31 people when the traders came in?  And that is the  32 Algonkian hunting debate, and I will turn to that in a  33 moment, because it's set out in a little bit more  34 detail.  Carrying on:  35  36 "Incidentally, the Algonkian hunting territory  37 debate continued among  38 anthropologists/historians for many years,  one  39 camp claiming the Algonkian economy and  40 territoriality were radically altered by the  41 fur trade and the other camp claiming that they  42 were not.  In that debate at least the latter  43 seemed to have won."  44  45 Then:  46  47 "Page 6: tone --  that the Coast Tsimshian were 2206  Submissions by Mr. Willms  1 forced to find alternate furs for fur trade  2 after the sea otter decline.  'Forced' is too  3 strong since the Tsimshians' degree of  4 dependence on the commercial fur trade is  5 questionable anyway.  6 Pages 6-7:  Ray implies a radical change in the  7 native economy in 1821 -- not so.   While the  8 fur trade may have intensified around that time  9 the Indian economy changed very little,  10 especially from the point of view of production  11 and productive relations.  Hunting and berry  12 picking continued in order to meet dietary and  13 clothing requirements.  Fishing continued and  14 perhaps increased in order to meet dietary  15 requirements and to supply the Hudson's Bay  16 post with salmon.  Trapping continued in order  17 to meet the trade requirements with the coastal  18 people and now with the HBC."  19  2 0 Which is the Hudson's Bay Company.  21  22 "Thus it might be said the only real change as a  23 result of the fur trade was an increase in  24 direct trade with the HBC."  25  26 The last extract that I would like to refer to is  27 at page ten, and once again I am referring to the  28 numbers in the lower right hand corner.  And you will  29 see a reference above, beside page 19, just above the  30 three-hole punch in the middle of the page.  Again,  31 they are commenting on Dr. Ray's page 19 and they say  32 again:  33  34 "It is not clear from the data that pre-contact  35 Carrier society had been radically transformed  36 by the 1820s."  37  38 So they are criticizing Dr. Ray's opinion that  39 that was -- that there was a radical change.  40 LAMBERT, J.A.:  I am just a little behind on understanding.  41 This material seems in itself to be very interesting  42 and helpful, but is the -- is Dr. Ray's paper itself  43 in evidence?  44 MR. WILLMS:  No, we couldn't find it.  He didn't have it, no one  45 had it.  We couldn't find the paper at the time.  46 LAMBERT, J.A.:  But Dr. Ray was a witness and he was examined?  47 MR. WILLMS:  Yes, I am going to take your lordship's to the 2207  Submissions by Mr. Willms  1 cross-examination on this paper in a moment, where he  2 acknowledges that at one time he held that view but he  3 says he changed his mind.  4 LAMBERT, J.A.:  Obviously you have to put the whole picture  5 together of Dr. Ray's views, his changed views and  6 these criticisms of his views as one package to  7 understand it together.  8 MR. WILLMS:  Yes, my lord.  And so I thought I would go to this  9 first and then go to the comments, his cross-  10 examination makes more sense after I have taken your  11 lordships to this first.  12 LAMBERT, J.A.:  Thank you.  13 MR. WILLMS:  And then the next extract.  14 TAGGART, J.A.:  You were at page ten.  15 MR. WILLMS:  I was at page ten and I just read those two  16 sentences:  17  18 "It is not clear from the data that pre-contact  19 Carrier society had been radically transformed  20 by the 1820s."  21  22 A comment, I say, and I suggested at trial, that  23 that was an opinion that Dr. Ray once held, not an  24 opinion he held by the time of trial.  25 So if I can ask your lordships now to turn to page  26 13, this is the cross-examination of Dr. Ray at page  27 13 in the lower right hand corner, and it's his  28 cross-examination on this paper, on these comments on  29 his paper.  And if you look down to line 39 at page  30 13,1 say this:  31  32 "On page four now, and they say about your  33 Kemano paper:  34 'Ray implies a radical change in the native  35 economy in 1821 -- not so.  While the fur trade  36 may have intensified around that time, the  37 Indian economy changed very little especially  38 from the point of view of production and  39 productive relations.'.  40 Just pausing there, is -- do you recall ever  41 writing a paper implying a radical change in  42 the native economy in 1821?  43 A  Well, we have been around that several times  44 now.  As I say I can't recall but they are  45 referring to it so presumably I had an opinion  46 at that point.  What opinion I had five years  47 ago and what opinion I have now, having 2208  Submissions by Mr. Willms  1 thoroughly immersed myself in the stuff, you  2 know what my opinion is now and I stand by it.  3 I have no trouble with it.  4 Q   And perhaps with a more thorough immersion over  5 another five years you could change your  6 opinions again?  7 A   It's very possible.  I hope I don't suffer from  8 mental hardening of the arteries.  I would say  9 the weight of the evidence is more in favour of  10 the direction I have taken it."  11  12  13 Now, just pausing there, my lords, later on I will  14 will be directing your lordships' attention to the  15 opinion evidence of Dr. Robinson, who disagreed with  16 Dr. Ray on this particular point.  But the point that  17 I am making right here is that on the evidence of Dr.  18 Ray himself, at one point he was of the view that the  19 fur trade radically changed the economy of the  20 Wet'suwet'en as early as 1821.  Now, the next point I  21 am going to refer to, which is at tab 7 in the  22 evidence, is that at trial Dr. Ray stuck to his  23 opinion that in 1831 and on, the fur trade radically  24 changed the economy.  So he doesn't say in his  25 evidence that the fur trade never radically changed  26 the economy of the Gitksan and the Wet'suwet'en.  The  27 difference in his evidence at trial from an opinion  28 that he held earlier, was he moved the date, and the  29 date was now 1831.  And that evidentiary extract is at  30 the very beginning of tab 7, page 1, in the lower  31 right hand corner, and at line 38, and I will start  32 reading from his answer because his answer --  33 TAGGART, J.A.:  This is in the reference book?  34 MR. WILLMS:  I am still in the reference book, my lord.  35 TAGGART, J.A.:  Tab?  36 MR. WILLMS:  Still at tab 7 but I have gone back to page 1, at  37 line 38.  And this is Dr. Ray answering a question by  38 Mr. Macaulay:  39  40 "A  Well, if you're talking -- precisely, the  41 lower, if you are talking about the impact of  42 building the trading post..."  43  44 And there they are talking about the trading post  45 at Fort Simpson,  46  47 "...yes, that's the whole point of my longer 2209  Submissions by Mr. Willms  1 report was once that post is built at the mouth  2 of the river, it changes the whole political  3 economy and political and trading strategies of  4 this area.  So when we get into what's  5 happening after 1831 we are not dealing with  6 the situation Brown described.  7 Q   And it was -- you have agreed already it was  8 rapid?  9 A   Yes.  In that period it was rapid because  10 remember what's happened now is that trade  11 ceased to be a predominant sea otter trade to a  12 predominantly inland trade.  So the volume in  13 the inland connections had now assumed a  14 paramount importance in native politics,  15 whereas previously they would have been an  16 adjunct to the maritime fur trade which was the  17 dominant trade.  18 Q   And it changed not only one aspect of the  19 Gitksan or Wet'suwet'en system but it had an  20 impact on almost every aspect?  21 A  After 1831."  22  23 So his evidence at trial, which was slightly  24 different than the Kemano paper, was that he shifted  25 the date.  Now I am going to be referring to other  26 anthropological opinion that supported Dr. Robinson's  27 opinion that the fur trade radically changed  28 everything in this whole area.  But the point, the  29 only point I want to make here, and I make it in  30 paragraph 7 of my factum --  31 LAMBERT, J.A.:  The trade he is talking about in this passage  32 you have read us is the Hudson's Bay Company trade and  33 not the Gitksan trade, not the Gitksan with the coast  34 or the Gitksan with the Tsimshian, for example, it's  35 the Hudson's Bay Company that's trading in sea otters.  36 MR. WILLMS:  That's what I am calling — my lord, when I talk  37 about the fur trade I am talking about the commercial  38 fur trade.  That's what I am talking about.  39 LAMBERT, J.A.:  Yes, yes.  But I was just confirming that when  40 Dr. Ray was talking about it he was using the same  41 terminology and concepts.  He is a student, his field  42 of interest is the Hudson's Bay Company.  43 MR. WILLMS:  The Bay, yes.  44 LAMBERT, J.A.:  That's right.  So naturally when he talks about  45 the trade throughout this area was such and such, he  4 6 means the trade the Hudson's Bay Company was engaged  47 in was such and such. 2210  Submissions by Mr. Willms  1 MR. WILLMS:  That's a good point, my lord, because Dr. Robinson,  2 who did her dissertation study on the maritime fur  3 trade on the coast, her evidence, and Dr. Ray later on  4 acknowledged that the fur trade from the coast into  5 the interior didn't start in 1831.  The fur trade --  6 Dr. Ray eventually acknowledged that he thought it was  7 about the 1780s, the fur trade from the coast to the  8 interior.  That is the furs coming from the interior  9 down to the coast to be traded out to the ships was  10 1780.  It preceded the Hudson's Bay.  Dr. Robinson  11 gave the same evidence, and there is really no  12 dispute, it's in all of the anthropological literature  13 up and down the coast that as soon as the traders  14 started coming in the 1780s, that the trade was  15 regular and had a dramatic impact on the economy of  16 the coast.  So that when Dr. Ray is talking here about  17 trade to the coast, you're quite right, because he is  18 a Hudson's Bay person, he is focusing on The Bay.  19 Now Dr. Robinson, who looked at the maritime fur  20 trade as well, she was the one that pointed out, and  21 Dr. Ray accepted it, that there was a fur trade down  22 to the coast during the maritime fur trade as well.  23 In fact, the oral histories of the Gitksan support  24 this because Legaic was coming up the river before The  25 Bay to trade furs.  And Legaic was trading furs to the  26 people who were coming to the coast.  Legaic was a  27 Tsimshian chief at the mouth of the Skeena.  So that  28 evidence really wasn't in dispute.  29 HUTCHEON, J.A.:  The 1750 map showed that, the map of 1750.  30 MR. WILLMS:  Yes.  I don't know which map that is but I know  31 that some of the --  32 HUTCHEON, J.A.:  I have got it very much in mind.  It's in that  33 book of maps, and it was the one to which Mr. Macaulay  34 told us the sideline notes were not to be taken as  35 evidence.  But it showed the --  36 MR. WILLMS:  Right, that's the map from  the Historical Atlas of  37 Canada.  38 HUTCHEON, J.A.:  Yes.  39 MR. WILLMS:  Yes.  So there is -- in this area there is trade  40 coming from two directions, there is trade coming from  41 the coast and then as The Bay and the Northwest  42 Company come across from the interior, there is trade  43 going that way as well.  44 Now, if I can ask your lordships to turn to -- back  45 to the factum, paragraph 8, which is on page five.  I  46 point out something there that I just alluded to  47 there, there is a considerable academic debate in 2211  Submissions by Mr. Willms  1 Canada which is sometimes called the Algonkian hunting  2 debate about the importance of trapping and  3 territoriality and the effect of the fur trade on the  4 aboriginal populations of Canada.  On the one hand  5 some scholars asserted that the fur trade merely  6 intensified existing subsistence economies and  7 resource use, others argue that the fur trade  8 radically changed resource use in aboriginal  9 societies.  10 Well, during the course of the trial a document,  11 and this is -- if you can turn back to the yellow book  12 at tab 8 -- I will call it the reference book, my  13 colleagues have explained that that might alleviate  14 some confusion.  The reference book at tab 8, and,  15 first of all, page eight.  At page eight there is --  16 and, once again, when I refer to page numbers, my  17 lords, it will be in the lower right hand corner.  18 This is an extract from the opinion report of Dr.  19 Robinson.  And in this section of the report what Dr.  20 Robinson is dealing with is a writing by a Dr.  21 Kobrinsky, who spent 12 months at Fort Babine, I think  22 in the early '70s, and three months at Moricetown at  23 the same time.  Dr. Kobrinsky is an anthropologist and  24 I think it's -- he spent three months at Moricetown  25 and four months at Fort Babine.  But paragraph 42, Dr.  26 Robinson refers to Dr. Kobrinsky and says that his  27 viewpoint is important for two reasons:  28  29 "First, his assertion that significant  30 socioeconomic changes occurred during the  31 protohistoric period supports claims that  32 European influence was a major factor in  33 disrupting 'traditional' native lifestyles  34 before direct contact between Indians and  35 Europeans.  Second, much of the ethnographic  36 evidence he assembles related to changes in  37 styles of resource control.  Specifically,  38 Kobrinsky asserts that precise delineation of  39 territorial boundaries relating to the  40 allocation of rights to fine-fur species was a  41 by-product of the fur trade."  42  43 Now, later on in her report, I have the whole  44 section discussing Kobrinsky in here, but I would like  45 your lordships to turn to page 12 in the lower right  46 hand corner, because it's at this point that Dr.  47 Robinson points out that Dr. Kobrinsky is not alone in 2212  Submissions by Mr. Willms  1 his views about what the fur trade did.  2 At paragraph 48 of this extract, Dr. Robinson said  3 in a report:  4  5 "Analyses of proto-historic developments similar  6 to those presented in points 42 to 49  7 pertaining to other Carrier populations, have  8 been presented several writers, notably Julian  9 H. Steward for the Stuart Lake and Babine Lake  10 Carrier, and Irving Goldman for the Alkatcho  11 Carrier.  Somewhat further afield, but still  12 pertinent to any study of trade-related  13 Northwest Coast Indians' influence on  14 Athabascan populations, are works by Catharine  15 McClellan about the Tagish, Tutchone and Inland  16 Tlingit of southwestern Yukon territory.  17 Steward, for instance, considers nobility,  18 'phratries', and the potlatching complex have  19 been recently introduced among Carrier Indians  20 living in the vicinity of Stuart Lake and  21 Babine Lake.  According to his interpretation,  22 these traits were derived from Northwest Coast  23 cultures -- specifically, from neighbouring  24 groups on the upper Skeena River and were in  25 place in the early 19th century.  Steward  26 relates their adoption to the stimulus  27 furnished by the European fur trade prior to  28 the presence of white traders in this area.  29 Introduction of the Northwest Coast social and  30 economic patterns to the Carrier probably took  31 place two or three decades before the whites  32 entered their country and without any change  33 whatever in exploitative technology or local  34 resources.  What triggered adoption of coastal  35 trades was that the Carriers suddenly had a  36 negotiable surplus."  37  38 Now, I am going to refer in more detail to  39 something that a writer named Dr. Bishop wrote later,  40 a more recent paper.  But if you turn to page 15 at  41 this tab, page 15 at tab o. Now these are the  42 footnotes to Dr. Robinson's report, and footnote o.,  43 she quotes from Dr. Bishop.  And Dr. Bishop, I will be  44 referring to him later because Dr. Bishop and Dr. Ray  45 co-authored a very important paper.  And also Dr.  46 Bishop wrote again after 1979 about this same issue,  47 and I will take you to that later on.  But here is 2213  Submissions by Mr. Willms  1 what Dr. Bishop said in 1979:  2  3 "Most scholars argue that the Carriers obtained  4 the rank system from the Northwest coast as the  5 European fur trade stimulated trade and  6 contact.  While there must have been  7 prehistoric trade between the coast and the  8 interior, the fur trade altered the nature of  9 exchange relationships and led to an increase  10 in volume and regularity.  Since maintaining  11 rank positions over time required gaining  12 permanent control over the fur resources, we  13 can speculate that changes in the land tenure  14 system were also occurring during the early  15 19th century.  Whatever the nature of the  16 aboriginal land tenure system, it would appear  17 that during the early 19th century leaders  18 belonging to particular matrilineages in each  19 village were in control of tracts of land where  20 beaver could be found.  This is suggested by  21 William Connolly's 1825 statement that 'the  22 country is shared amongst a certain number of  23 families who will not permit others to work  24 upon the lots which respectively belong to  25 them.'"  26  27 So Dr. Robinson pointed out in her report other  28 writers who had come to the conclusion that the fur  29 trade had a dramatic influence on the Carrier, the  30 Gitksan and the Wet'suwet'en.  31 Now the last item I would like to address, ask your  32 lordships to turn to at this tab, is a work that came  33 out during the course of trial, and it's at page 30.  34 LAMBERT, J.A.:  I just don't understand that last passage.  Are  35 you saying that we should be -- that what Charles  36 Bishop says might well be taken to be a correct  37 assessment of what's happening, and what he says is  38 happening is that he adopts William Connolly's 1825  39 statement that "the country is shared amongst a  40 certain number of families who will not permit others  41 to work upon the lots which respectively belong to  42 them"?  43 MR. WILLMS:  Yes.  44 LAMBERT, J.A.:  If that's correct, then the adoption of those  45 lots must have happened extremely speedily, if it  46 wasn't before contact, and yet was in effect by 1825.  47 MR. WILLMS:  Oh, yes, my lord, the point that I am going to be 2214  Submissions by Mr. Willms  1 making, which is what Dr. Ray observed from reading  2 Brown, when he read Brown, Brown said that there were  3 men of property who had beaver territories that they  4 wouldn't let anyone else trap on.  Marten could be  5 trapped anywhere, no restriction on big game, it was  6 beaver.  So that I -- that's the evidence.  The  7 evidence is that at the time of contact --  8 LAMBERT, J.A.:  The Hudson's Bay Company wasn't interested in  9 big game?  10 MR. WILLMS:  The Hudson's Bay — well, that's not quite correct,  11 my lord.  When you read the records --  12 LAMBERT, J.A.:  It's a question.  13 MR. WILLMS:  When you read the records of what it was like to  14 live at Fort Kilmaurs, and how miserable it was to  15 live through a winter at Fort Kilmaurs and eat salmon  16 every day, one of the things you read when you read  17 through that diary that was kept by Brown, I mean it's  18 like salmon again.  If they could get any kind of  19 meat, any kind of meat, it was a very valuable  20 commodity at that time.  They would trade their goods  21 for dogs to eat dogs.  I mean, they were that  22 desperate for meat.  And this is from their own  23 records, from the Hudson's Bay records.  So it's not  24 quite right to say they weren't interested in big  25 game.  If they could have traded for big game, they  26 would have.  The other reason why it's not quite right  27 to say that they weren't interested in big game is  28 that one of the most valuable trade items that The Bay  29 had to trade with the people in this area, was  30 leather.  And they had to import vast quantities of  31 leather, moose skins, deer skins, into the area, and  32 they found that that was a very valuable item to  33 trade.  And that's in Brown, Connolly and other  34 references in the historical record.  So big game was  35 an important issue for The Bay as well.  But marten,  36 getting back to marten, my lord, The Bay was very  37 interested in marten.  When you look at the fur  38 returns from Fort Kilmaurs, the beaver and the marten  39 returns for many years were virtually identical.  40 Very, very close in terms of the returns from the  41 coast.  Yet it was beaver that was related to the  42 land.  And I hope to explain in a moment why there was  43 no territoriality with respect to marten.  44 LAMBERT, J.A.:  I just don't know, I still don't know what to  45 make of this passage that you referred us to.  I mean,  46 Charles Bishop is saying that there was -- whatever  47 the nature of the aboriginal land tenure system during 2215  Submissions by Mr. Willms  1 the early 19th century leaders belonging to particular  2 matrilineages in each village were in control of  3 tracts of land where beaver could be found.  Now, he  4 is not saying that the allocation is beaver.  5 MR. WILLMS:  He does later.  He does in a later paper.  He makes  6 it clear in a later paper that it's beaver.  7 LAMBERT, J.A.:  Then he says:  "This is suggested by William  8 Connolly's 1825 statement 'the country is shared  9 amongst a certain number of families who will not  10 permit others to work upon the lots which respectively  11 belong to them.'"  Now Mr. Connolly in 1825 is not  12 saying the beaver are divided up, or the beaver  13 trapping areas are divided up, he is saying the  14 country is shared amongst a certain number of  15 families.  16 MR. WILLMS:  That's why the evidence of Dr. Ray, which on this  17 point was accepted by the Chief Justice, is so  18 important.  Dr. Ray gave evidence that from the  19 perspective of The Bay, when you read about working  20 various lands, you would read about working them for  21 the beaver and then, in addition, trader Brown -- now  22 Connolly I think is at Bear Lake when he writes this.  23 He is either at Bear Lake or he may be at Fort  24 Alexandra, I can't remember where Connolly was when  25 this was written.  But wherever he was when this was  26 written, trader Brown, when he got to Babine Lake,  27 noticed that it was beaver only.  Now, that's why I  28 wanted to get to this next paper, my lord.  It's not  29 unusual in this country to find that relating to  30 beaver and not relating to other resources.  In fact,  31 the anthropological debate across the country appears  32 to be resource-specific.  So that it varied from  33 resource to resource.  And for some resources there  34 was territoriality for that resource, for other  35 resources there was no territoriality whatsoever, for  36 others there was territoriality which didn't match the  37 territoriality for another resource.  And that's why I  38 wanted to take the court, take my lords to an issue in  39 an anthropological text that came out during the  40 course of the trial and was marked as an exhibit, and  41 sets out relatively succinctly the different views  42 that anthropologists have across this country as to  43 land tenure, aboriginal land tenure, which fit right  44 in with most of what Dr. Ray said.  45 And that was at page 30, my lord, and it was a  46 special issue of Anthropologica, I think it was marked  47 by my friend in cross-examining Dr. Robinson, but I 2216  Submissions by Mr. Willms  1 might be incorrect.  I think it was Mr. Grant  2 cross-examining Dr. Robinson and this was marked then.  3 But you will see the special issue that -- what's  4 being discussed in this special issue is "Who owns the  5 beaver?  Northern Algonquian Land Tenure  6 Reconsidered."  And there is a succinct summary of  7 where the debate is at today, at page 35 in the lower  8 right hand corner.  And you will have to turn to  9 sideways, my lords, but I want to read from paragraph  10 14 in the lower left hand corner.  11  12 "Ethnocentric viewpoints have often appeared in  13 many studies of Indian land tenure to date.  If  14 the concept of Indian land tenure existed at  15 all in the minds of non-Indian scholars, it  16 tended to be modelled after western European  17 concepts.  Do we believe what we want to  18 believe?  The answer is often yes thus we must  19 also be on guard especially in the stage of  20 litigation over Indian land claims.  Both  21 comprehensive claims, i.e. regarding land and  22 specific claims, i.e. regarding treaty  23 obligations, hunting and fishing rights, et  24 cetera, are now before the courts or in  25 preparation for adjudication.  More and more  26 expert witnesses are being called upon by  27 plaintiffs, usually Indians, and defendants,  28 usually the federal or provincial governments,  29 to testify on behalf of clients, although  30 academics have traditionally debated the views  31 through the medium of publication and scholarly  32 journals.  The issues are no longer the  33 innocent disagreements that once occurred in  34 these journals, although they may at times be  35 equally vitriolic.  Claims made by native  36 people for what they believe to be past wrongs  37 and the millions of dollars sought for  38 compensation for such wrongs are also under  39 scrutiny.  The historic and academic validity  40 or evidence for the conclusions drawn by  41 Indians are being tested in the courts.  42 Accordingly, expert witnesses called upon to  43 testify were under oath 'to tell the truth.'  44 But what is 'the truth' regarding land  45 tenure among sub-arctic Algonquians and others?  46 As we have seen, anthropologists have held  47 varying views over time about the antiquity of 2217  Submissions by Mr. Willms  1 hunting territories.  Which one of the three  2 views on sub-arctic Algonquian land tenure does  3 an expert witness advocate?  First, there was  4 the 'classic' view where scholars argued that  5 family hunting territories existed in  6 pre-contact times.  This was followed by the  7 post-classic view which argued that family  8 hunting territories arose after the arrival of  9 Europeans primarily as a result of the fur  10 trade.  Finally, there is the modified view  11 which might be termed 'neo-classic' and which  12 contains the conceptual refinements expressed  13 in papers of this volume.  Scholars have  14 recently focussed on how Indians now use the  15 land.  In so doing, they imply, not  16 categorically state, that systems of game  17 management and use which are today associated  18 with family hunting territories have  19 considerable antiquity.  Does this viewpoint  20 support pre-contact land tenure as argued in  21 the classic period?  Through an examination of  22 archival documents other scholars suggest that  23 family hunting territories existed earlier than  24 was previously thought."  25  26 So in that paragraph they set out where the debate  27 is in Canada today on this question.  And although  28 it's called the Algonquian hunting debate, as I hope  29 to illustrate from reading you the Kemano paper or the  30 comments on the Kemano paper, because it's Algonquian  31 doesn't mean it's limited in area.  It is a debate  32 that has ranged right across the country in terms of  33 land tenure.  34 But what this sets out, my lords, I submit, is what  35 the Chief Justice had before him in terms of deciding.  36 And, I say at paragraph 9 of my factum that when faced  37 with two conflicting -- and really the neo-classic  38 view wasn't really advanced before his lordship, and  39 the neo-classic view is probably, probably closer to  40 the right one, that there are more documents that I am  41 going to refer to that were marked in evidence, that  42 demonstrate that resource use and territoriality  43 depends on many more factors than just what was the  44 resource.  It depends on abundance of the resource.  45 It really depends on is the cost of defending the  46 resource worth more than the resource itself?  Is  47 there some value to defend the resource?  If the 2218  Submissions by Mr. Willms  1 resource is super abundant, most of the literature is  2 clear, there is no territoriality for a super abundant  3 resource, no benefit to be gained.  So that that's why  4 when you see through these records about fishing, you  5 see communal fishing in the records.  And I will refer  6 again later on to Dr. Adams, who noted the same thing  7 about fishing.  8 I now turn, my lords, to the other evidence that,  9 in my submission, amply tilted the scale in favour of  10 the finding of the Chief Justice.  And that is the  11 evidence of the population dislocation as a result of  12 the fur trade.  And I set out the first part of that  13 evidence at paragraph 11 of page six, at tab 7 of my  14 factum.  And at page six and paragraph 11, my lord, I  15 quote from an exhibit that was marked by the  16 plaintiffs.  It's called the "Epic of Nekt."  It's —  17 Dr. MacDonald uses archaeology to put a little bit of  18 meat on an oral history.  But it was an exhibit marked  19 by the plaintiffs and Dr. MacDonald said this in that  2 0 document:  21  22 "From these times..."  23  24 And he is talking about times pre-1700,  25  26 "...a situation of relative stability appears to  27 have prevailed until the early 1700s.  By that  28 time there is evidence for a wide-spread de-  29 stabilization of population throughout much of  30 the northwest coast.  In the interior it  31 appears that the Kitwancool and other Gitksan  32 tribes were pushing north at the expense of the  33 Tsetsaut and other Athapaskan neighbours to  34 secure the trading trails that ultimately  35 connected through to southeast Alaska and the  36 new sources of wealth."  37  38 Now, the new sources of wealth in southeast Alaska  39 is Russian trading, according to Dr. MacDonald anyway.  40 But carrying on, I point out in paragraph 12 that Dr.  41 MacDonald's conclusion is consistent with what Dr.  42 Rigsby, one of the appellants' experts, said:  43  44 "The Gitksan, remaining behind in the middle  45 Skeena Valley, then began expansion in the  46 Upper Skeena Valley.  We imagine that peaceful  47 intermarriage, sociocultural absorption and 2219  Submissions by Mr. Willms  1 replacive bilingualism initialy characterized  2 their upriver movement.  Moving into a slightly  3 different environment, they borrowed Athabaskan  4 words for some new fauna.  Many small  5 Athabaskan-speaking hamlets and local groups,  6 such as the [Gitxsigjihl]..."  7  8 I can't pronounce that, my lords.  9  10 "...of Caribou Creek, must have been gradually  11 and peacefully Gitksanized in socioculture and  12 speech.  The fur trade seems to have spurred  13 Gitksan occupation of the middle Nass and  14 especially the upper Nass and upper Skeena  15 territories.  As many oral traditions testify,  16 this was not a peaceful gradual process, but  17 some Athabaskan place names were retained.  It  18 is interesting to note that there were no  19 Gitksan permanent winter villages on the middle  20 or uppper Nass, nor on the far upper Skeena.  21 There were summer fishing camps and hunting  22 trapping grounds in these territories but the  23 real bases of operation were the large winter  24 villages at Kitwancool, Kispiox, Kisgegas and  25 Kuldo.  It was during the same period of the  26 fur trade that the children Nisga'a and the  27 Tlingit, along with epidemic disease, reduced  28 the Tsetsaut Athabaskans of Portland Canal to a  29 handful of survivors by the turn of the  30 century."  31  32 Now, I don't know if my lords have heard about  33 Tsetsaut before, but there is an exhibit that was  34 marked by the plaintiffs which provides some rough  35 approximation of where everybody was at contact.  It's  36 at tab 12 of the reference book, and it's a map.  This  37 map, tab 12 of the reference book, and there should be  38 a plastic pocket.  39 Now the map is entitled Native Languages of the  40 Northwest Coast.  The map was prepared, you will see  41 in the right hand corner, the text and language  42 boundaries were prepared by Wayne Suttles.  That's Dr.  43 Suttles, he is the witness whose evidence was accepted  44 in Sparrow on behalf of the Musqueam.  And the map  45 purports to depict the territory of languages as Dr.  46 Suttles believed them to be at the time of European  47 exploration.  But if you look at the middle of the 2220  Submissions by Mr. Willms  1 map, it's not the way that people make maps these  2 days, but you will see that if you come in from the  3 Queen Charlottes, you will see the territory that is  4 called Tsimshian Territory, and then you will see in  5 the interior Nass-Gitksan, you will see to the right  6 Babine, and then to the left, which is to the north of  7 Nass-Gitksan, you will see Tsetsaut.  Now the Tsetsaut  8 were Athabaskan, and as Dr. Rigsby pointed out, that a  9 combination of the Nisga'a, the Tlingit and epidemic  10 disease reduced the Tsetsaut people to a handful of  11 people by the turn of the century.  12 You will also note that Kuldo and Kisgegas are  13 marked on the map, along with Kispiox, Kitanmaks,  14 Kitsegukla, Kitwancool and  Kitwanga,in the Nass-  15 Gitksan.  Now this map, and I am not suggesting that  16 these boundaries are specific or precise boundaries,  17 they just let your lordships know generally where the  18 anthropologists thought various language speakers were  19 at the time of contact.  But the important point here,  20 which is completely consistent with what Dr. MacDonald  21 says, and what Dr. Rigsby said, one of the plaintiffs'  22 experts, is that the fur trade appears to have spurred  23 the Gitksan into the Upper Nass and the Upper Skeena  24 at the expense of the Tsetsaut.  Because Kuldo is the  25 northernmost Gitksan village at the time of contact.  26 Whoever invents a map that folds itself will  27 become rich overnight.  28 TAGGART, J.A.:  They take on a life of their own, don't they?  29 MR. WILLMS:  Now, after your lordships have had that put away I  30 would like to return back to my factum at paragraph  31 13.  32 At paragraph 13 I note that there was -- what  33 happened was we obtained copies of Dr. Rigsby's draft  34 report, and then the final report that was filed in  35 court contained a deletion -- there was a part that  36 was deleted from it.  But I put that deleted part to  37 Dr. Kari, who did give evidence, and you will see the  38 result in a moment.  I have set out the result of  39 that.  Here is the part that was deleted:  40  41 "There is also some tantalizing evidence for  42 transitional bilingualism involving language  43 shift from Athabaskan to Gitksan.  Adams..."  44  45 And this is John Adams who you heard about from  46 Ms. Koenigsberg, says:  47 2221  Submissions by Mr. Willms  1 "'...as recently as perhaps the 1830s, half the  2 inhabitants of Gitsegyukla spoke the Hagwilget  3 language and the village of Kitwancool was half  4 Stikine.'"  5  6 And then quoting Jenness:  7  8 "'... Some Wet'suwet'en assert indeed that the  9 inhabitants of Kitwancool itself once spoke the  10 Tsetsaut [Athabaskan] tongue.'.  11 If these reports are correct, this provides  12 further support for the proposition that the  13 Gitksan were a primary reference group for  14 Athabaskan-speakers rather than vice versa."  15  16 I point out in paragraph 14 that when this  17 extract was put to Dr. Kari, the appellants' other  18 linguistic expert in cross-examination, he expressed  19 some surprise that it had been deleted from Dr.  20 Rigsby's portion of the report and said "Can we add  21 it?" and we added it.  But the point here is that --  22 and I just, if I can -- Dr. Rigsby and Dr. Kari co-  23 authored a written report that was marked as an  24 exhibit at trial.  Only Dr. Kari gave evidence at  25 trial, Dr. Rigsby didn't give evidence, but they co-  26 authored the linguistic report.  And what it appeared  27 was someone had decided that a portion of Dr. Rigsby's  28 report shouldn't be in, but Dr. Kari, during the  29 course of his testimony, I guess overruled that and  30 said that it should go in.  The important point about  31 that is the dating, according to Dr. Rigsby, the  32 linguistic expert, because what we have is a period of  33 time when the fur trade is just starting, and you have  34 people in Kitwancool and Gitseguecla, they are very  35 close together, Kitwancool and Gitseguecla,  36 Gitseguecla is on the Skeena River and Kitwancool is  37 just north of Kitwanga.  But you have them speaking  38 either the Tsetsaut tongue, this is consistent with  39 what Dr. MacDonald said in the Epic of Nekt, and  40 consistent with what Dr. Rigsby said about the Gitksan  41 moving in great rapidity up the Skeena and into the  42 upper Nass, as a result of the fur trade.  That has  43 some importance later when I point out once again the  44 remarkable concordance between the traplines and the  45 territories that were claimed.  So that the  46 territories that are claimed in this case extend into  47 the far upper reaches of the Nass and the Skeena.  But 2222  Submissions by Mr. Willms  1 according to Dr. Rigsby and Dr. MacDonald, that  2 movement is a fur trade movement into that area.  3 Now, turning to paragraph 15, my lords, in there --  4 and I haven't listed each one of the experts, but this  5 is what Dr. Robinson said.  Dr. Ray and Dr. Kari were  6 consistent, Dr. Ray not quite on this point about  7 territoriality, but certainly Dr. Kari, and Dr.  8 Robinson and the writing of other scholars in the  9 area, including Dr. Jenness, Cranny, McLellan, De  10 Laguna, Oberg, Garfield, Tobey, Stuart, Krause,  11 Goldman, Hudson, Kobrinsky, should be Kobrinsky with a  12 Y, not an I, my lords, MacDonald, Ames, Adams, Yerbury  13 and Bishop and Father Morice.  14 Now, I am only going to turn at tab 15 of the  15 reference book to two of those.  I am just going to  16 turn to John Adams and to Dr. Kobrinsky.  And at tab  17 15, starting at page -- once again, in the lower right  18 hand corner -- page 17, what I have put in from page  19 17 on is all of Dr. Adams' work called The Gitksan  20 Potlatch.  And you may recall that Miss Koenigsberg  21 directed you to extracts from this report, or this  22 paper before, but that Dr. Adams and his wife, Dr.  23 Kasakoff, spent 13 months living with the Gitksan  24 between July, 1965 and May, 1967.  So they lived in  25 the area, and they described what they did, and I  26 won't re-read that, I understand that Ms. Koenigsberg  27 has already read what they did.  But I would like you  28 to turn to page 17 -- sorry, page 19.  I am sorry,  29 just to make a note that what Ms. Koenigsberg read to  30 you, I think what she read to you earlier was from  31 page 19 here, to make a cross reference, starting at  32 page 19, and I am not going to read the same parts  33 that she read.  But if you turn the next page to page  34 20, I am going to read something I don't think she  35 read at the lower left hand corner of the page.  "We",  36 and Dr. Adams is speaking about himself and his wife,  37 Dr. Kasakoff:  38  39 "We collected all the trapline registrations  40 current for the Gitksan in the spring of 1967  41 from the game wardens of Smithers, Terrace and  42 Prince Rupert, who share jurisdiction over the  43 lines held by the Gitksan.  I also collected  44 information about changes and deletions in  45 registration from the files going back to the  46 beginnings in the late 1920s.  In addition, my  47 wife drew copies of the official maps of all 2223  Submissions by Mr. Willms  1 the registered lines.  Chris Harris of Kispiox  2 arranged for me to record descriptions of  3 trapline holdings on maps published by the  4 government.  He served as informant for Kuldoe,  5 Simon Wright for Kisgagas, and Jonathan Johnson  6 and Moses Morrison for Kispiox."  7  8 I pause there to note those were all hereditary  9 chiefs.  10  11 "At the same time these men gave me the names of  12 the houses in each of these villages, together  13 with the principal Indian names within them  14 ranked as well as the English names of the  15 people currently holding them.  I would include  16 all this documentation here but I was asked by  17 the Fish and Game Branch not to publish it as a  18 condition of my being allowed to make the  19 copies.  The map collected from Chris Harris,  20 et al, is now apparently being accepted by the  21 game warden as the correct map of the holdings  22 of those villages."  23  24 Now, in evidence, and it's not clear that it's this  25 map, but in evidence, Neil Sterritt, who on behalf of  26 the Gitksan -- I could probably put it this way --  27 supervised the mapping project for the Gitksan.  He  28 certainly had a very large hand in the mapping project  29 for the Gitksan.  One of his very first maps was a  30 tracing from what was called the Chris Harris map.  31 Now, there isn't any evidence that says that that  32 Chris Harris map is this Chris Harris map.  But it's  33 not a large leap, in my submission, to go from the  34 Chris Harris map that Dr. Adams talks about here, to  35 the original starting point of, really the basic  36 starting point for Neil Sterritt's mapping project.  37 Now, I would ask you then to turn to page 27 of the  38 reference at the same tab, page 27, I am still in the  39 Gitksan potlatch.  And on the right-hand side, the  40 paragraph, the second full paragraph "from  41 information...":  42  43 "From information about where a sample of the  44 women get their fish nowadays it appears that  45 everyone who lives regularly in a village has  46 access to a spot for fish.  There was no hint  47 given that anyone who wanted fish could not get 2224  Submissions by Mr. Willms  1 all she wanted when she wanted.  It was never  2 mentioned as a source of contention, whereas  3 several stories of trouble revolved around  4 traplines.  5 Traplines were put under the jurisdiction  6 first of the Indian agent then, about 1926, of  7 the Fish and Game Branch which began to  8 register the lines.  Many lines were issued to  9 whites so that the integral nature of the  10 Indians' territories was modified.  But  11 disputes about these lines have been so  12 frequent that it is now the unwritten policy of  13 game wardens to reserve the lines of whites as  14 they fall into disuse and fail to be  15 re-registered for the appropriate house of the  16 appropriate Indian village.  Whites and Indians  17 cannot be registered on the same line.  And  18 though white laws of partilineal inheritance  19 have frequently caused lines to pass from one  20 house to another, the wardens are increasingly  21 apt to let village councils decide inheritance  22 rights as well as to settle disputes which  23 arise between Indian claimants."  24  25 I don't know -- I have one more reference to the  26 Gitksan potlatch and I don't know whether your  27 lordships want me to take you to that before the  28 break.  29 TAGGART, J.A.:  Well, perhaps to finish this aspect.  30 MR. WILLMS:  Thank you, my lord.  It's at page 29.  31 At page 29, on the left-hand side, the first full  32 paragraph on the page which says:  33  34 "The Indians of British Columbia have signed  35 away very little territory over the years --  36 mostly to the railroad or to the highway  37 department -- and have never signed a general  38 treaty with the government.  They are now  39 claiming practically the whole extent of  40 British Columbia of which the Gitksan claim  41 approximately the area registered with the game  42 warden together with whatever land within that  43 general area still registered to white  44 trappers.  As sources of revenue today the  45 lines are almost worthless but the land values  46 they symbolize, especially timber and mineral  47 rights, is considerable. Interest in these 2225  Submissions by Mr. Willms  1 rights is intense and provides more than  2 sufficient reasons for the Indians to continue  3 feasting to maintain their rights among  4 themselves. That the potlatch survives today in  5 a state of considerable complexity is  6 undoubedly due to its value in the natives'  7 eyes as a means of furthering their land claims  8 against the government, but it is also a  9 touchstone of Indian identity in a world  10 increasingly dominated by the white man's  11 values."  12  13 Those conclusions, my lords, were reached by  14 someone who spent 13 months --  15 HUTCHEON, J.A.:  The puzzling thing to me is that if that was so  16 why didn't the people in the feast constantly refer to  17 boundaries?  If it was to advance their claim, why  18 wouldn't they constantly refer to boundaries?  19 MR. WILLMS:  Well, my lords, I think the appellants say that  20 boundaries are decided at the feasts.  I know the  21 evidence was --  22 HUTCHEON, J.A.:  I understand that, but the evidence was, one  23 lady, for example, hadn't heard of it mentioned for 20  24 years or so.  But if Adams is right, I would have  25 expected -- he seems to indicate there is a motive  26 behind these feasts, that is to advance the claims.  27 If that was right, I would have expected that at every  28 feast someone would stand up and describe the claim,  29 if that's all it was about.  But they didn't.  30 MR. WILLMS:  Well, the first answer to that, my lord, is we  31 don't have transcripts of all of the feasts.  We do  32 know that some of the witnesses --  33 HUTCHEON, J.A.: Ms. Koenigsberg, or someone, took us through the  34 evidence the other day about the feasts, and what it  35 didn't contain was a constant reference to boundaries.  36 MR. WILLMS:  No, but your lordship has hit a second reason why  37 the appellants' theory fails.  The appellants' theory  38 is based on their -- the appellants' theory of  39 reputation evidence is based on that.  40 HUTCHEON, J.A.:  I understand that. All I am saying is that  41 there is something wrong with this motive that Adams  42 is attributing to the feasts.  He says it's to advance  43 the claims.  I would have thought if it was to advance  44 it, if that was the motive, you would have the  45 boundaries every time you spoke.  46 MR. WILLMS:  Well, I don't know whether Dr. Adams is making that  47 statement based on someone explaining to him the 2226  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  Submissions by Mr.  theory -  HUTCHEON,  Willms  J.A.:  He doesn't say anything.  Just a conclusion he  has drawn that doesn't seem to accord with what we  have heard about the feasts.  It doesn't accord with  what we have heard about the feasts.  MR. WILLMS:  His conclusion in the '60s —  HUTCHEON, J.A.:  Yes.  MR. WILLMS:  -- doesn't accord with what your lordships have  heard about the feasts.  Yes. All right.  I can't  explain that, my lord.  HUTCHEON, J.A.:  That's why I —  MR. WILLMS:  Dr. Adams talked to people who didn't give evidence  at this trial.  Dr. Adams talked to the chiefs who  preceded the chiefs who gave evidence at this trial in  many cases.  Whether there has been a difference over  the last generation, I don't know.  I just point to  this as an observation of Dr. Adams, who isn't  anybody's expert, that came from 13 months of living  with these people.  Now, I can't explain how that  relates to the evidence that the Chief Justice heard,  my lord.  I don't know how it could relate to the  evidence that the Chief Justice heard because he heard  from different people than Dr. Adams heard from.  TAGGART, J.A.:  All right.  We will take the morning break.  (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  TAGGART, J.A.:  Yes, Mr. Willms.  MR. WILLMS:  My lords, I would like to make one further comment  in respect to Mr. Justice Hutcheon's observation.  At  the opening of the trial, the appellants said this,  they said:  "My lord, the boundaries of the Gitksan and  Wet'suwet'en territories are not to be found by  reference to the survey limits of their  reserves.  Those boundaries for many  generations have been and are still being  proclaimed and validated in the feast hall."  That was the opening of the appellants at trial.  The explanation, the only explanation I have is  perhaps Dr. Adams was told exactly that by the  appellants but never attended the feasts to validate,  to see whether or not that in fact happened.  So it  may well be that Dr. Adams was told by the appellants  exactly what the Chief Justice was told in the opening 2227  Submissions by Mr. Willms  1 at trial, and he relied on that statement and didn't  2 go through and validate it and see if it was in fact  3 what was happening.  4 The next reference is at page 142 of the reference  5 book at tab 15, and this was to Dr. Kobrinsky, who I  6 already mentioned spent 12 months at Fort Babine and  7 three months at Moricetown.  8 And I put in the whole article of Dr. Kobrinsky but  9 it's just the extract at page 142 that I would like  10 your lordships to turn to.  And it's starting at the  11 second full paragraph, Dr. Kobrinsky says:  12  13 "I am convinced by further evidence that these,  14 a complex of territory-owning matrilineal crest  15 divisions led by a class of potlatching  16 divisional chiefs are manifestations of the fur  17 trade period."  18  19 And I won't read the next paragraph because he is  20 discussing in there crests and septs.  But if you go  21 down to the paragraph underneath the three-hole punch,  22 "The system of phratry territories..."  23  24 "The system of phratry territories is  25 essentially a system of fur trapping areas  26 adopted to regulate access to fur resources,  27 probably with a view to checking hostility in  28 the heat of the competition for claims and  29 possibly, too, with a view to administering  30 problems of conservation.  This is reminiscent  31 of Helm's and Leacock's conclusion about the  32 (primarily) Algonkian territories that 'in  33 fact, the "territories" are, properly speaking,  34 not hunting grounds, but areas surrounding  35 traplines'.  36 The diffusion of the coast complex of  37 territorial crest divisions was probably  38 triggered by the proprietary claims of  39 important hunters over specific beaver lodges  40 within their customary hunting areas.  Personal  41 ownership of beaver lodges in the early contact  42 traditional period has been widely reported by  43 Osgood for the Satudene and Slave and by  44 Honigmann for the Lower Post Kaska and Lower  45 Laird Indians as well as by Morice for the  46 Stuart Lake Carrier.  On the other hand, since  47 the fine-fur species other than beaver and 2228  Submissions by Mr. Willms  1 muskrat -- marten, fox, weasel, mink, etc., are  2 'nomadic', in Morice's parlance, they could not  3 be claimed with reference to conspicious and  4 specific nest-sites."  5  6 That is a point, and if I have time later there is  7 another article I could direct your attention to. But  8 I mentioned earlier that territoriality might be be  9 resource-specific.  And there is quite a bit of  10 discussion in the anthropological  literature about  11 the fact that beaver are relatively immobile, beaver  12 have lodges, beaver have nests, they have areas where  13 territoriality can make some sense, whereas the other  14 game, which is nomadic, territoriality is meaningless,  15 with respect to the other game.  The game travels, you  16 don't know whether it's in your territory or not.  Now  17 that is a -- that fits precisely within what Brown  18 observed.  Brown observed that there was  19 territoriality with beaver, but people with no land  20 stake, according to Brown, could trap marten anywhere  21 they wanted to.  22 LAMBERT, J.A.:  This passage you have read doesn't say what you  23 say it says, I don't think.  At the bottom of the  24 page: "On the other hand, the fine-fur species other  25 than beaver and muskrat, marten, fox, weasel, mink, et  26 cetera are nomadic in Morice's parlance they could not  27 be claimed by reference to conspicuous and specific  28 nest sites.  It is therefore with respect to these..."  29 that's the other species, "...that ownership would  30 need ultimately to be limited to the stipulation of  31 physiographically identified areas."  I am not a -- I  32 didn't mean to sound accusatory, but I just don't  33 understand your point in relation to what's actually  34 said there.  He says -- what he says is, you don't  35 identify your beaver by -- you identify beaver by just  36 a beaver dam, but if the species moves around you have  37 to have a whole area geographically delineated in  38 order to assert the claim to the ability to trap those  39 species in that area.  40 MR. WILLMS:  Well, I took it the other way, my lord, and I think  41 that the Chief Justice must have as well.  But, I took  42 it --  43 LAMBERT, J.A.:  Well, he reached a conclusion contrary to this.  44 But it doesn't mean he just rejected it.  45 MR. WILLMS:  In my submission, it isn't contrary to this, my  46 lord.   In my submission what Dr. Kobrinsky is saying  47 here is that with respect to marten, fox, weasel, 2229  Submissions by Mr. Willms  1 mink, being nomadic, they could not be claimed with  2 reference to conspicuous and specific nest sites, that  3 is geographic areas.  4 LAMBERT, J.A.:  I don't think nest sites could mean geographic  5 area.  6 MR. WILLMS:  Well, that, my lord, is what Dr. Ray, his evidence  7 about what was -- about the beaver, in contrast to the  8 marten, which could be hunted anywhere, and the other,  9 the other academic debate, which is in the evidence,  10 about territoriality and resources, makes a specific  11 point about the immobility and predictability of  12 location of a resource being linked to territoriality.  13 And that when you had a nomadic resource,  14 territoriality made no sense.  15 LAMBERT, J.A.:  But, of course, that proposition is just not  16 self-evident.  Because one would certainly have  17 thought with a nomadic resource, territoriality makes  18 a lot of sense.  When the deer are in your territory  19 or the marten are in your territory, you can take  20 them.  But you can't follow them out to anyone else's  21 territory.  That's quite a logical way of dividing up  22 the right to take marten.  23 MR. WILLMS:  My lord, on the assessment that would be quite  24 wrong.  Because one of the major factors for deciding  25 territoriality in the anthropological literature is  26 whether the cost of defending is worth it, and if the  27 only food source travels across a boundary line, the  28 cost of defending that food source is your life or the  29 deer's, and the deer loses, not you.  There is an  30 article, and I will try to take your lordships to it  31 after lunch, which describes in some detail the logic  32 of territoriality and why it is illogical to have  33 territoriality where you have nomadic, unpredictable  34 game.  35 LAMBERT, J.A.:  I haven't heard that yet so I will wait.  36 MR. WILLMS:  I will try to get it for the afternoon.  It's an  37 article by Fikret Berkes.  But just finishing up on  38 this point in the factum, before I turn to the  39 appendix --  40 TAGGART, J.A.:  Before you turn to that, in that final sentence  41 on page 143, the word "ultimately" is used.  I assume  42 that it's in respect of the species other than beaver.  43 It takes some considerable time, first to identify  44 their existence in any given area; and secondly, to  45 identify their quantities and qualities.  And it's not  46 until you have a sufficient number and of sufficient  47 quality that they become worth fighting over.  And 2230  Submissions by Mr. Willms  1 only then, ultimately, as the author seems to say,  2 only then would you resort to some method of saying  3 this is allocated to A and this to X.  4 MR. WILLMS:  Yes.  The article that I am going to refer to later  5 shows that if you have super abundance of a particular  6 resource, there is rarely territoriality.  And the  7 evidence on fishing that Dr. Adams observed is quite  8 consistent with that.  When there is super abundance  9 there is no territoriality.  When there is a lack of  10 the particular resource, there is no territoriality,  11 if it's very, very scarce.  It's only when it falls  12 within somewhere between those two ranges, and it's  13 predictable, that territoriality makes any sense.  14 LAMBERT, J.A.:  We heard evidence about specific fishing sites  15 at Moricetown in one of the fishing cases.  That is,  16 it seems there is abundant resource of salmon,  17 specific family crest house units had specific rocks  18 and places which they fished and no one else fished.  19 MR. WILLMS:  For the evidence about specific fishing sites, my  20 lord, I think Adams' observation -- I mean, it's a big  21 river and there is a lot of rocks on the river.  And  22 the other point that isn't developed at all with  23 respect to that, it is developed in Brown, it appeared  24 that quite a bit of the fishing that Brown described  25 was weir fishing, where a weir would be put across the  26 river, and the weir fishing also continued after  27 contact as well in some areas, and it turned into  28 quite a problem.  But weir fishing was communal  29 fishing for a large group.  There is also evidence in  30 Brown's journals at a time when the fishery completely  31 failed, and I think it completely failed for the  32 Wet'suwet'en and they moved en masse to Babine Lake to  33 fish on Babine Lake when their fishery failed.  And I  34 think that probably was the year that the rocks fell  35 into the river at Hagwilget, which caused them to move  36 from Moricetown to Hagwilget to get the fish, because  37 the fish weren't getting past the rocks.  I don't know  38 what happened to the fishing sites in Moricetown when  39 they moved to Hagwilget, or whether ownership of those  40 sites made any difference.  All I am suggesting is  41 that for super abundant resource, there is no reason  42 to have fishing spots, and there is no dispute over  43 them.  Unlike traplines, as Dr. Adams pointed out, and  44 there was quite a bit of evidence at trial about  45 disputes about traplines and traplines boundaries.  46 WALLACE, J.A.:  Where are you in your factum?  47 MR. WILLMS:  I am just responding to a question. 2231  Submissions by Mr. Willms  1 WALLACE, J.A.:  I thought perhaps.  2 HUTCHEON, J.A.:  He is still on paragraph 15.  3 MR. WILLMS:  I am just finishing tab 7, page 15.  4 HUTCHEON, J.A.:  Could I just ask you something, Mr. Willms, for  5 clarification on 141?  Who is Kobrinsky talking about  6 in this --  7 MR. WILLMS:  In this paper?  8 HUTCHEON, J.A.:  Yes.  9 MR. WILLMS:  Dr. Kobrinsky is talking about —  10 HUTCHEON, J.A.: He is not talking about the Gitksan.  11 MR. WILLMS:  No, he is talking about the Wet'suwet'en.  12 HUTCHEON, J.A.:  I thought this was the northwest area.  13 MR. WILLMS:  No.  If you go back, my lord, to the introduction  14 to the paper at page 136, the first paragraph, what he  15 is doing is offering "...a conjectural reconstruction  16 of salient features of the social history of several  17 peoples of the northwest boundary of the Carrier  18 domain, the Hwitso hwideyniy..."  now that's phonetic  19 but that's the Wet'suwet'en of Bulkley River, "...and  20 the Nado hwideyney of Lake Babine."  21 HUTCHEON, J.A.: So when he talks about Carrier he is talking  22 about the Wet'suwet'en?  23 MR. WILLMS:  Yes, he is talking about these two groups in his  24 paper.  That's why I am saying that of all of the  25 people who did research prior to the commencement of  26 this litigation, Dr. Adams and Dr. Kobrinsky are very  27 important, because they both spent a great deal of  28 time, Dr. Adams a great deal of time with the Gitksan,  29 and all of the Gitksan, including the Kitwancool, and  30 Dr. Kobrinsky with the Babine Wet'suwet'en, that is  31 the Wet'suwet'en not only of Bulkley River but the  32 Wet'suwet'en or Babine Wet'suwet'en of Babine Lake.  33 HUTCHEON, J.A.:  Thank you.  34 MR. WILLMS:  Now, I am going to leave the factum and go to the  35 appendix now, my lords, because I -- that was just a  36 highlight of some of the evidence which I say amply  37 supports the conclusions of the Chief Justice on  38 beaver trapping territoriality.  39 I will be referring to some more as I go through  40 appendix one.  So I would ask you take out appendix  41 volume one of the factum.  And what I will be -- the  42 references that I will be going through, to start  43 with, are in the reference book that says R&D number  44 two on the spine.  45 TAGGART, J.A.:  R&D number two.  46 MR. WILLMS:  You should have -- the reference book R&D number  47 two.  The factum that I will be going to will say 2232  Submissions by Mr. Willms  1 appendices volume one on it.  We should have those two  2 books, and I am at tab 1 of the appendices.  The first  3 note that my lords may wish to make in appendix one  4 beside paragraph one, is that the references for this  5 whole tab are found -- and I haven't put every one of  6 them in, I have put in a sample of them -- but they  7 are found in the R&D reference books number two and  8 three, and the tabs correspond to the paragraphs.  9 Now, I say in paragraph one on page one of appendix  10 one that the appellants in their factum are extremely  11 critical of the Chief Justice's assessment of the  12 expert evidence proffered by them at trial.  In the  13 factum, the amicus has already pointed out that  14 significant portions of the expert evidence,  15 especially that of Dr. Ray, were accepted by the Chief  16 Justice.  It has also been pointed out, and I haven't  17 pointed that out so I will point it out the first  18 time, the argument that my lords heard from the  19 appellants was not -- was a re-argument of the trial  20 argument, and we say that the appellants don't appear  21 to be suggesting that there is any palpable and over-  22 riding error which affected the Chief Justice in his  23 assessment of the evidence.  But I say that in the  24 sections that follow, the paragraphs that follow, that  25 evidence is set out, much of it tendered by the  26 appellants, which amply supports the conclusions of  27 the Chief Justice.  28 And as a -- I have a general description in  29 paragraph 2 of what kinds of evidence indicate that  30 people lived in a particular area at a particular  31 time.  And I have two documents that I have put at tab  32 2 of the reference book which aren't referred to in  33 the references to paragraph 2, but they are very  34 important.  And at tab 2 of the reference book, the  35 very first part of the reference book is Dr.  36 Robinson's report.  37 TAGGART, J.A.:  Tab 2?  38 MR. WILLMS:  Tab 2, the report is entitled Protohistoric  39 Development in Gitksan and Wet'suwet'en Territories.  40 And starting at page 2 I would like to review the  41 first part of Dr. Robinson's report.  42  43 "This report investigates the argument that  44 indirect contact with Europeans during the  45 proto-historic and early historic periods  46 provoked significant changes in patterns of  47 Gitksan and Wet'suwet'en land use.  By proto- 2233  Submissions by Mr. Willms  1 historic I mean the time prior to European  2 presence in the area claimed by the plaintiffs  3 but when European influence was felt through  4 native intermediaries.  Roughly speaking, the  5 proto-historic period spans the mid-17th  6 century to the early 19th century.  Historic  7 references to times when Europeans were  8 present, even if intermittently, pre-historic  9 applies to all time prior to the proto-historic  10 era.  Most modern scholars engaged in North  11 American ethnohistoric research agree that  12 indigenous populations were profoundly affected  13 by indirect contact with Europeans before they  14 experienced direct contact with them.  Although  15 the nature, timing and intensity and  16 repercussions of proto-historic European  17 influence varied considerably from region to  18 region, research indicates that no native  19 groups in what is now known as British Columbia  20 were isolated from stimulus stemming from  21 European presence in the new world.  22 Recognition that proto-historic European  23 influence developments took place and were  24 significant has one very important implication:  25 It casts suspicion on any portrayal of a  26 pristine or truly aboriginal way of life based  27 on contemporary knowledge.  Most of our  28 contemporary knowledge is untainted by European  29 influence -- none of our contemporary  30 knowledge --"  31  32 Sorry, that's a very important change in the sense.  33  34 "None of our contemporary knowledge is untainted  35 by European influence which was manifested long  36 before relevant written records were kept.  37 More to the point, reconstructions of  38 traditional native socioeconomies which failed  39 to account for indirect European influence deny  40 the dynamic dimensions of ongoing cultural  41 adaptations and resign their subjects to an  42 untenable, however romantic, snapshot stacis.  43 In this context, Gitksan and Wet'suwet'en  44 claims about traditionally having owned and  45 managed certain territories are questionable.  46 This report is based on a review and  47 interpretation of existing information, largely 2234  Submissions by Mr. Willms  1 contained in secondary sources, both published  2 and unpublished, concerning the Gitksan and  3 Carrier as well as other northwest coast and  4 interior native groups.  I have not carried out  5 field work among the Gitksan or Carrier, nor  6 have I conducted archival research in  7 connection with this report.  Although I am  8 familiar with many of the archival sources, my  9 general understanding of the consequences of  10 European influence is shaped by the research I  11 carried out for my doctoral dissertation.  12 In connection with the study of Indian  13 agriculture on the northwest coast, which will  14 be referred to here as Robinson, 1983, I  15 investigated ethnographic and early historic  16 records pertaining the Tlingit, Haida, Coast  17 Tsimsian and neighbouring native populations.  18 Tracing the connection between European fur  19 traders and adoption of agricultural practices  20 by some coastal native groups required that I  21 develop an understanding of changes in regional  22 economies stemming from direct and indirect  23 contact with Europeans which is applicable to  24 the study of the Gitksan and Wet'suwet'en.  25 Although my analysis in the present report  26 borrows from the work of others, the  27 conclusions are my own.  The report is divided  28 into several sections."  29  30 I don't think I need to that read that, my lords.  31  32 "A note about terminology is required. The term  33 Gitksan is well-established in the  34 anthropological literature and is generally  35 used to describe the inhabitants of seven  36 tribal villages of the Upper Skeena River in  37 north-central British Columbia:  Villages now  38 known as Kitwancool, Kitwanga, Kispiox,  39 Gitanmax, Kitsegucla, Kuldo and Kisgegas.  The  40 term Wet'suwet'en, which is used by the  41 plaintiffs in this case is of very recent  42 origin and appears to be intended to refer to  43 those Carrier Indians who inhabited the  44 villages now known as Hagwilget and Moricetown  45 on the Bulkley River.  They are described by  46 Diamond Jenness as the 'Hwitsowitenne'.  While  47 there are some similarities between the two 2235  Submissions by Mr. Willms  1 groups in terms of their social, economic and  2 political organization, there are also  3 important differences.  For this reason they  4 are treated differently in some sections of  5 this report.  6 It is important to emphasize the  7 limitations inherent in any theory of  8 aboriginal land use which attempts to  9 reconstruct a reality that existed before any  10 relevant written records were kept and long  11 before the memory of living man.  In my  12 research I have discovered no conclusive  13 evidence that suggests that prior to the advent  14 of European influence in the claim area, the  15 Gitksan and Wet'suwet'en lineages and families  16 identified ownership rights to large and  17 precisely defined tracts of hunting  18 territories.  Such evidence as exists, which  19 varies in its reliability, may support more  20 than one theory of pre-contact land and  21 resource use.  Speaking generally, one may  22 expect that some form of organized control  23 would have been exercised over access to the  24 fisheries and other resources which are  25 necessary for survival and over the local  26 trails and bridges which facilitated  27 pre-historic trade networks.  But prior to the  28 intensifications of pressure on interior fur  29 resources sparked by European demands for furs,  30 there would appear to have been no need for a  31 sophisticated and elaborate body of rules  32 governing access to resources or for extensive  33 and defined areas of land for their  34 exploitation.  In the absence of competition  35 over scarce resources, there is no reason for  36 the rules to exist."  37  38 Dr. Robinson was a cultural geographer, which  39 meant -- Dr. Ray was a historical geographer.  They  40 both acknowledged in the evidence that there was very  41 little difference, really, in what both of them did,  42 save to this extent:  A cultural geographer, while  43 using historical references, emphasizes more cultural  44 references, ethnography, ethnology, and the historical  45 geographer's viewpoint is more towards the historical.  46 But other than the emphasis, there is very little  47 difference in the kinds of things that they look at. 2236  Submissions by Mr. Willms  1 And so -- and also, the other important point to make  2 is Dr. Robinson came to this project after doing a  3 dissertation on the northwest coast.  So she already  4 had, before writing this report, before writing the  5 expert's report, a great deal of information about  6 northwest coast culture, territoriality, arising out  7 of the research that she did on her dissertation, and  8 especially related to the maritime fur trade.  And you  9 will see in the evidence Dr. Ray acknowledged, or  10 acknowledges that the maritime fur trade isn't his  11 primary focus, it's The Bay fur trade, and Dr.  12 Robinson's primary focus was the maritime fur trade.  13 That doesn't mean they ignored each other's primary  14 sources of reference.  Dr. Robinson considered The Bay  15 material, not to the extent of Dr. Ray; Dr. Ray  16 considered the maritime material, but not to the  17 extent of Dr. Robinson.  18 Now, the next document, and I say it's important,  19 my lords, not only because it sets the framework for  20 what does proto-historic, prehistoric and historic  21 mean, but because it's a document co-authored by Dr.  22 Ray, and it starts at page 31.  And, once again, I put  23 the whole article in.  And this is where Dr. Bishop,  24 and I referred your lordships to Dr. Bishop in the  25 morning, Dr. Bishop's investigation of the Carrier.  26 Dr. Bishop and Dr. Ray wrote a general paper about  27 ethnohistoric research, and the part of the paper that  28 I think is particularly important starts at page 39 in  29 the lower right hand corner.  30 Now, this has relevance, my lords, because the  31 Chief Justice did an assessment of what was happening  32 during the proto-historic period in the claim area,  33 and he has a section of his judgment where he  34 discusses the proto-historic period and how long it  35 was.  But for definitional purposes, what Drs. Ray and  36 Bishop set out here is quite apropos, and is basically  37 what the Chief Justice used as the definitional basis  38 and also Dr. Robinson.  39 If you start at the middle of page 39, Drs. Bishop  40 and Ray said this:  41  42 "With respect to linking the historic records  43 with those relating to the pre-historic period,  44 it must be stressed that the chronological unit  45 designated is the pre-historic, proto-historic  46 and historic periods have to be clearly defined  47 and employed in a consistent fashion by 2237  Submissions by Mr. Willms  1 archaeologists, ethnologists and  2 ethnohistorians.  The prehistoric period is  3 said to end when trade goods or other  4 Euto-Canadian influences, such as disease,  5 first reach a region.  Obviously, changes can  6 occur before direct, first-hand contact with  7 Europeans takes place locally.  The initial  8 influx of trade wares or disease served to make  9 the beginning of the protohistoric period if  10 these goods are obtained through Indian  11 middlemen."  12  13 Then they give an example about the plains tribes  14 who adopted the horse during the 18th century but had  15 no direct contact with the Europeans, after adopting  16 the horse which was introduced to North America by the  17 Europeans.  18  19 "The proto-historic period also includes the  20 time during which Indians travelled beyond the  21 limits of their territories to visit  22 missionaries or to obtain trade goods to be  23 used by themselves and to be exchanged, often  24 after they were worn out, for furs obtained by  25 other usually remote Indians.  It might be  26 argued that since these middlemen had  27 established direct links with Europeans, the  28 historic period had begun.  However, since  29 these Indians rarely kept the objects exchanged  30 for more than a few seasons, and since they did  31 little or no trapping, the placing of the  32 Indian middlemen within the protohistoric  33 period has implications for archaeological  34 analyses to be discussed shortly.  The historic  35 period begins when Indians experience direct  36 contact with Europeans and when they themselves  37 trap the fur bearers needed to obtain the trade  38 wares.  In a sense, those Indians who trapped  39 furs to receive goods through Indian middlemen  40 resemble those who trapped furs for direct  41 exchange at the post.  However, those nearer  42 the post almost always became much more  43 dependent than those at a distance.  They had  44 considerably less bargaining power than the  45 middlemen who could mark up the value of goods  46 obtained when trading with the less dependent  47 Indians of the hinterland.  Furthermore, 2238  Submissions by Mr. Willms  1 Indians who trapped furs to be exchanged  2 directly at the store often provided first-hand  3 information on their behaviour in the bush  4 being nearer at hand, whereas data on the  5 behaviour of middlemen and distant groups had  6 to be obtained indirectly or secondhand."  7  8 And then they carry on:  9  10 "It is necessary to stress that these two  11 periods, the protohistoric and historic,  12 overlapped considerably in time depending upon  13 the geographical region involved, and in this  14 sense they reflect conjunctive or interactive  15 relations rather than absolute chronology."  16  17 I will skip the description of the protohistoric  18 period in the region southwest of the Hudson's Bay,  19 but if I can pick up after figure one in that  20 paragraph:  21  22 "The assumption is often made that the  23 protohistoric period was generally short and  24 that the amount of change that could have taken  25 place would have been necessarily slight.  26 Since documents are almost always scanty for  27 this period, prehistorians frequently connect  28 archaeological records directly to what is  29 designated as the historic period while  30 ethnologists working backward through the  31 historic period assume that data pertaining to  32 the latter period provide us with a reasonably  33 accurate picture of aboriginal cultural  34 conditions."  35  36 And this is really important:  37  38 "Such mental jumps have caused a great deal of  39 confusion since changes that took place during  40 the protohistoric period are rarely considered  41 adequate."  42  43 Now, the reason why that has importance here is  44 because the Chief Justice did consider in his judgment  45 what happened during the proto-historic period and how  46 long the proto-historic period existed for these  47 people.  The reference to that is at pages 138 to 142 2239  Submissions by Mr. Willms  1 of the judgment.  2 HUTCHEON, J.A.:  Adequate for what?  I am still trying to pick  3 up this sentence.  4 LAMBERT, J.A.:  I think it must mean are rarely considered  5 adequately.  6 MR. WILLMS:  It must be adequately, my lord.  7 HUTCHEON, J.A.:  Adequately.  8 MR. WILLMS:  I think I have always read that as being adequately  9 and —  10 HUTCHEON, J.A.:  Yes.  11 MR. WILLMS:  The point in respect of this, and I am going to  12 develop it later on here, is that before Brown got to  13 Babine Lake the people at Babine Lake were already  14 trading with the Hudson's Bay Company.  They were  15 trading with The Bay at Fort St. James starting in  16 1805.  They were also trading down to the coast,  17 according to Dr. Ray, the late 18 -- late 1700s.  I  18 think Dr. Ray acknowledged that it would be about 40  19 years before Brown got to Fort Kilmaurs, which was in  20 the 1820s.  And that's consistent with the evidence  21 from the coast of the fur trade, the coastal fur trade  22 accelerating dramatically in the 1780s.  So that what  23 you have before Brown even gets to Babine Lake and  24 makes his observations, you have fur trading going to  25 the coast, since about the beginning of the 1780s,  26 about 40 years, and you also had fur trading going to  27 Fort St. James since 1805.  So that by the time Brown  28 got there, Brown wasn't even observing uninfluenced an  29 uninfluenced culture.  Now the extent of the influence  30 is the -- was the matter of the evidence before the  31 Chief Justice, and especially focused on trapping.  32 Now, I -- returning to --  33 TAGGART, J.A.:  I take it the 1780 figure, that would be trading  34 with Europeans at the coast.  35 MR. WILLMS:  At the coast.  36 TAGGART, J.A.:  Russians?  37 MR. WILLMS:  There was some Russian trading -- the Russians I  38 think had a fort at Wrangel in 1740, further up the  39 panhandle, and you will recall Dr. MacDonald -- there  40 was a debate.  Dr. Robinson said she thought the  41 protohistoric period was 100 years before Brown got  42 there. She pushed it back to around 1720.  As the  43 Chief Justice noted, the range of when it started  44 coming from the coast was somewhere between 1720 and  45 1780.  But the maritime fur trade really got going,  46 according to all of the evidence, in the 1780s.  And  47 Wilson Duff said by 1785 the coast was glutted with 2240  Submissions by Mr. Willms  1 trade goods, and that's a reference in the Chief  2 Justice's judgment.  3 But the trade was mostly -- with the British and  4 the Americans the trade was to the ships, and that's  5 where Legaic was coming up the river to trade, the  6 Tsimshian chief was coming up the river to get furs,  7 and the fort didn't go in until 1831, Fort Simpson.  8 Now, I am not going to read or refer to -- back in  9 my factum at page 2 of appendix one, the sum and  10 substance of everything that I have set out in  11 paragraphs 3 through 24, which is a discussion of the  12 archaeological evidence, can actually be made in two  13 points:  The first point is archaeology doesn't tell  14 you anything about boundaries, so that's what all of  15 that evidence supports, you can't tell boundaries from  16 archaeology.  And the second thing is archaeology  17 doesn't tell you who was there.  Archaeology tells you  18 someone was there but it doesn't say who.  And so  19 that's a short summary of those paragraphs.  20 Now, if your lordships could turn to page 17 of the  21 argument -- sorry, I am in appendix one at tab 1 of  22 the argument, page 17, and the paragraph there is  23 paragraph 25.  24 TAGGART, J.A.:  All of preceding material, except for the  25 introduction, has to do with archaeology?  26 MR. WILLMS:  Archaeology, yes.  Once again, in the paragraphs  27 beginning at paragraph 25, and they run all the way  28 through to paragraph 40, there is a discussion of  29 historical evidence.  And in paragraph 26, and this is  30 the -- because I know that doctor -- I am sorry, I  31 know that Mr. Macaulay referred your lordships to  32 quite a bit of the Hudson's Bay evidence, and I don't  33 intend to do that again, but I am going to ask you --  34 I am going to refer to one point from Harmon.  And in  35 paragraph 26 I refer to Daniel Harmon, who probably  36 provided the first written record of the people at  37 Babine Lake.  Harmon spent six years living with the  38 Carrier and wrote a book called 16 Years In Indian  39 Country.  And if you turn in the reference book to tab  40 26, starting at page 17 of the -- once again, in the  41 lower right hand corner.  42 LAMBERT, J.A.:  Tab 26.  43 MR. WILLMS:  Tab 26, page 17.  44 This is a book that was prepared by Kaye Lamb.  45 Kaye Lamb also was the one who prepared the book on  46 Simon Fraser.  Very well respected historian, and  47 tab 26, page 17.  And I haven't included the whole of 2241  Submissions by Mr. Willms  1 the book, obviously, but I will just point out at page  2 19, lower right hand corner, page 19, it's the index  3 of the book carrying on.  And the period that Harmon  4 spent in the area is entitled New Caledonia, 1810 to  5 1816.  And it's a period of time around Stuart's Lake  6 and Fraser's Lake, but he also did travel to Babine  7 Lake.  He didn't -- he wasn't posted at Babine Lake,  8 there was no fort there at the time, but he did travel  9 to Babine Lake.  He spent six years in the area.  The  10 part that I commend to your lordships to read, I am  11 not going to read it all because it's too long, but it  12 starts at page 28 in the lower right hand corner.  13 What starts at page 28 is Daniel Harmon's account  14 based on his six years of the Indians living west of  15 the Rocky Mountains.  And extracts of that have been  16 referred to your lordships, I think by the appellants,  17 certainly most of the experts, most of the  18 anthropologists referred to Harmon.  But these are  19 Harmon's observations, based on living for six years,  20 1810 to 1816, in New Caledonia.  21 LAMBERT, J.A.:  It seems he lived another three years after  22 that, because it goes on.  23 MR. WILLMS:  Yes, my lord, thank you very much.  You know, you  24 can be with a case for a long time and you can learn  25 something for the first time many years later.  But I  26 had always thought of it as six years.  But you're  27 quite right, there is a journal of another three  28 years, so there is nine years.  29 I don't know whether those years were voyages back  30 into New Caledonia from outside or whether he was  31 still posted there.  He was posted there for a  32 considerable period of time.  33 The one part that I would like to direct your  34 lordships to is at page 37, lower right hand corner,  35 page 37.  This is an account of someone who lived in  36 the area for six years at least.  And it's the last  37 full paragraph.  Harmon said this:  38  39 "The Carriers have little that can be  4 0 denominated civil government in the regulation  41 of their concerns. There are some persons among  42 them who are called Mi-u-ties or chiefs and for  43 whom they appear to have a little more respect  44 than for the others.  But these chiefs have not  45 much authority or influence over the rest of  4 6 the community.  Anyone is dubbed a Mi-u-ty who  47 is able and willing occasionally to provide a 2242  Submissions by Mr. Willms  1 feast for the people of his village."  2  3 And Harmon attended feasts while he was in the  4 area, there is a description in this book of feasts  5 that he attended, this is his observation from living  6 with the Carrier for six years.  7 Now, you will see by the time Brown -- and Harmon  8 does describe a feast at which he ate beaver and a  9 feast at which the chief described where the beaver  10 was obtained.  But this sets the context for a  11 consideration of Brown's observations when he finally  12 gets to Fort Babine.  13 The other document, and I am going to spend some  14 time with it, my lord, so I might want to turn to it  15 in the afternoon, but it is at the very beginning of  16 tab 26 and it is Dr. Bishop's -- Dr. Bishop returned  17 to write about the area in 1987.  And that's what I  18 want to turn to after the adjournment.  I could take  19 some extracts, my lord, but there are a number of  20 them.  21 TAGGART, J.A.:  That's right at the beginning of it, is it?  22 MR. WILLMS:  It's right at the beginning of tab 26 in the  23 reference book.  24 TAGGART, J.A.:  All right.  2 o'clock.  25  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein to the best of my  30 skill and ability.  31  32  33  34 Wilf Roy  35 Official Reporter  36 United Reporting Service Ltd.  37  38  39  40  41  42  43  44  45  46  47 2243  Submissions by Mr. Willms  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON BREAK)  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Willms.  5 MR. WILLMS:  Thank you, my lord.  My lord, I was at the  6 reference book, tab 26 and the 1987 article of Dr.  7 Bishop and just to set the framework for what the  8 article addresses, on page 2, once again in the lower  9 right-hand corner, Dr. Bishop midway down the  10 paragraph on the left-hand side says:  11  12 "I argued (Bishop 1983) that:  13 (1)  exchange between the Northwest Coast and  14 interior British Columbia generated ranking among  15 interior groups during the protohistoric period;  16 and (2) the processes of development among  17 interior peoples, although accelerated by the  18 European fur trade, were essentially the same as  19 those that had generated ranking pre-historically  20 on the coast."  21  22 And then he says:  23  24 "Additional evidence to support this view will be  25 given here."  26  27 The next page is a sketch map and it might be helpful  28 to fit what your lordships have already heard about  29 the various forts on this map.  The forts are numbered  30 and I think if you want to perhaps make a note besides  31 the fort, I will tell you when the fort was  32 established so on page 3, the fort on the right with  33 the number four is McLeod Lake and it was established  34 in 1805.  The fort number one which is the one at  35 Stuart Lake was 1806 and you will see right underneath  36 it number two which is Fraser Lake is 1806.  Number  37 three is Fort George which was established in 1808 and  38 Harmon was primarily at one and two.  He was primarily  39 at Stuart Lake and Fraser's Lake although he was a bit  40 at McLeod Lake and I think he was also at Fort Fraser  41 but that was the area where Harmon lived for that  42 period of time.  There is a slight mistake on this map  43 in respect of Fort Kilmaurs which is the number five  44 on the left-hand side.  Now that is where the second  45 Fort Kilmaurs was.  The second Fort Kilmaurs was at  46 the north end of Babine Lake and the second one was  47 established in 1836 but the first Fort Kilmaurs and 2244  Submissions by Mr. Willms  1 the one that Brown was at --  2 TAGGART, J.A.:  Excuse me.  1836?  3 MR. WILLMS:  1836 is the one at number five at that location.  A  4 little lower down you will just see where the lake  5 makes a U.  It's still at the top of the lake but it's  6 a U.  That's where the original Fort Kilmaurs was,  7 down in the U at the top of the lake, about a  8 centimetre to the south and that's where Brown was.  9 TAGGART, J.A.:  And that was established in?  10 MR. WILLMS:  The winter of 1821, 1822 or maybe '22/'23.  11 '22/'23, I am sorry, my lord.  But that gives you a  12 geographic context to where Harmon was and then where  13 Brown was.  14 TAGGART, J.A.:  What was number six?  15 MR. WILLMS:  Six, my lord, is just described as being -- there  16 was ultimately a Hudson's Bay post there but it wasn't  17 until the 1860s.  18 Now, over onto page 4 of Dr. Bishop's article in  19 1987 he -- and he is referring to not only  20 anthropological material but also Hudson's Bay  21 material in this discussion.  At the bottom of the  22 page on the left-hand side, the protohistoric Carrier:  23  24 "At the time of earliest European observation in  25 the early nineteenth century, the  26 Athapaskan-speaking Carrier occupied over 20  27 village sites in interior British Columbia.  Three  28 divisions based upon dialect differences can be  29 distinguished; the Lower Carrier, the Upper  30 Carrier and the Babines, so named because of their  31 use of lip plugs.  The name 'Carrier' is derived  32 from the practice whereby mourning widows carried  33 the ashes of their cremated husbands for two or  34 three years.  The Carrier lived a semisedentary  35 existence, relying primarily upon river salmon for  36 subsistence.  Dried salmon were supplemented by  37 other species of fish, waterfowl, berries, tubers,  38 caribou, bear, hare and other small game depending  39 upon the season.  Although hunting was subordinate  40 to fishing, beaver flesh was an important food  41 consumed at feasts, especially feasts for the  42 dead.  Within each village was a chief or mi-u-ty  43 who seems to have had little power.  Daniel  44 Harmon, the North West Company trader, writing at  45 Stuart Lake about 1815, indicates that anybody  46 'who is able and willing, occasionally, to provide  47 a feast, for the people of his village' could be 2245  Submissions by Mr. Willms  1 considered a chief.  In addition to these chiefs,  2 there were usually one or two persons who were  3 referred to as 'men of note'.  Such data suggest  4 that hereditary offices similar to those on the  5 Northwest Coast had not yet been firmly entrenched  6 at Stuart Lake, a view generally accepted by  7 others."  8  9 The next point and what I am reading, my lords, is  10 the opinions that are consistent with what Dr.  11 Kobrinsky said and also consistent with what Dr.  12 Robinson said.  If you turn the page to the page with  13 five at the bottom, on the right-hand side, the  14 paragraph:  15  16 "Both the archaeological and historical evidence  17 suggest that the tempo of coast-interior trade  18 increased between the 1780s and the early  19 nineteenth century.  The year 1805 marked the  20 beginning of continuous direct trade between  21 Europeans and Carrier, when the North West Company  22 built a post on McLeod's Lake.  Fort St. James on  23 Stuart Lake and the Fraser Lake post were  24 established the following year, while Fort George  25 on the Fraser River was opened in 1808.  In 1821  26 these posts were transferred to the Hudson's Bay  27 Company, and the same summer Fort Alexandria was  28 established near the southern edge of Carrier  29 territory.  Fort Kilmaurs, situated in what was  30 then known as New Caledonia, was the last major  31 post built in the region.  It was constructed the  32 following year on Babine Lake.  Despite the  33 presence of Europeans, some Carrier continued to  34 trade with coastal Indians.  The Upper Carrier and  35 Babines exchanged beaver pelts and moose hides  36 with the Gitksan for European goods and also  37 copper, eulachon oil, and dentalium shells that  38 had become a sort of special purpose money.  The  39 Gitksan, in turn, got their European wares from  40 the Tsimshian, who traded them directly from  41 European ships.  Peter Skene Ogden, who visited  42 the Carrier village of Hotset in the 1820s --"  43  44 Now that's another mistake.  He didn't visit the  45 village until 1837, 1836 or 1837.  It wasn't in the  46 1820s but that he visited Hagwilget or Hotset:  47 2246  Submissions by Mr. Willms  1 "-- stated that there was 'a constant barter of  2 furs in exchange for articles of European  3 merchandise procured from the traders by the  4 Tsimshian.'  According to Morice, the Babines met  5 with coastal peoples at Hagwilget at the junction  6 of the Bulkley and Skeena Rivers."  7  8 So that the protohistoric period for this area, that  9 is the Wet'suwet'en area would have been from the  10 coast, according to Dr. Robinson and even according to  11 Dr. Ray, from the 1780s and confirmed by Dr. Bishop  12 and from the North West Company, the first post is  13 1805 and then the two very close posts at Fraser Lake  14 and Stuart's Lake are 1806.  This is all taking place  15 before Harmon even gets there to make his  16 observations.  Some -- according to Dr. Bishop,  17 Harmon's observations about mi-u-ties and chiefs is  18 made in -- about nine years later, 1815.  19 Now over to the next page, page 6, he talks about  20 borrowing and I don't intend to take much time on this  21 but there is a lot of anthropological evidence of  22 cultural borrowing by the interior people from the  23 coast, that is borrowing of various societal or  24 cultural traits but I think this is important.  In the  25 right-hand side on page 6:  26  27 "Although 'borrowing' from coastal societies  28 accounts for the presence of many Carrier cultural  29 traits, the manner in which this occurred is  30 significant for understanding the emergent rank  31 system.  As noted, the trade in luxury items was  32 in the hands of the nobles.  Among Carrier  33 villages that originally lacked such status  34 positions, it would have been convenient to adopt  35 the emblems, paraphernalia, and titles of one's  36 high ranking partners in order to avoid the  37 appearance of inferiority.  Likewise, to gain  38 control over the right to trade in luxury or  39 prestige goods, it would be necessary to extend  40 control over the exchange resources.  This the  41 emergent Carrier nobility did by establishing  42 territorial claims to beaver lodges.  While a  43 noble's kinsmen might help to kill beaver, the  44 noble, nevertheless, had the exclusive right to  45 trade the pelts either at the newly founded  46 European trading posts or with other Indians."  47 2247  Submissions by Mr. Willms  1 So once again, the consistent theme of the fur trade  2 being the generating factor in respect of and related  3 to beaver.  4 Now I would like to return to the factum, my lord,  5 and I am not going to deal with anything more on the  6 historical evidence, sorry, I am in the -- I called it  7 my factum.  I am in appendix one.  I am still where I  8 was before lunch but at paragraph 41 on page 24.  Now  9 between paragraphs 41 and 48 I deal with the  10 anthropological evidence and I don't intend to spend  11 much time but I would like to direct the Court's  12 attention to a point which I think is quite  13 significant and I have quoted at paragraph 41 from  14 Appendix P of the -- Appendix E of the appellants'  15 factum where they point out that other courts have  16 found anthropological evidence on these kinds of  17 questions necessary and helpful and then they refer to  18 Calder where anthropologists Wilson Duff testified as  19 to the nature of the Nishga civilization and culture  20 in detail and Mr. Justice Hall quoted from this  21 evidence extensively and this is important:  22  23 "Duff concluded that the Nishga had occupied their  24 territory since 'time immemorial... and. ..were  25 owners of that territory."  26  27 So this is taken from the appellants' factum.  I do  28 point out in paragraph 42 that Calder was litigated on  29 an Agreed Statement of Facts but in this case, a  30 Kitwancool chief, that means before the Chief Justice,  31 a Kitwancool chief gave some evidence about the Calder  32 case and that evidence is quoted starting at the top  33 of page 25.  This is in the cross-examination of  34 Solomon Marsden, a witness who was called by the  35 plaintiffs:  36  37 "Q    Some years ago the Kitwancool were aware  38 that the Nisgaha were bringing a court  39 action in connection with their land claims.  40 Do you recall that?  41 A     Yes, I remember.  42 Q     And the Kitwancool, in order to help the  43 Nishga, did not speak out when the Nishga  44 claimed in the court case, lands which the  45 Kitwancool, said they owned; is that  46 correct?  47 A     Yes. 2248  Submissions by Mr. Willms  1 Q And in exhibit 439 which is the Kitwancool  2 Comprehensive Land Claim, I find at page 22,  3 and I'm going to read it to you.  Perhaps  4 you might tell him what I'm going to do.  5 It's at the bottom of page 22 and I quote:  6  7 'For some years now the Nishga Tribal  8 Council has claimed that their people lay  9 ownership to the land which drains into the  10 Nass River, from the watershed which divides  11 the Skeena and the Nass drainage.'  12  13 Now just pausing there, does that refer to  14 the Kiteen River area?  15 A Yes."  16  17 Now that's important because the Kiteen River area was  18 claimed by Kitwancool.  19  20 "Q    All right, thank you.  Now I'm returning to  21 page 22 and the Kitwancool land claim  22 statement at this point goes on to say, and  23 I quote:  24  25 'The Kitwancool, cautious to prevent any  26 injury to the Nishga case which went before  27 the Supreme Court of this country, did not  28 speak out.'  29  30 And this is correct, is it not, Mr. Marsden,  31 that the Kitwancool did not speak out when  32 the Nishga went before the Supreme Court of  33 the country?  34 A Yes, yes.  That's what it was said, because  35 there is a way to settle this.  The Nishga  36 have their way to settle this and we have  37 our ways to settle this, and we did not want  38 to get involved while their land claims was  39 going on.  4 0 Q     And —  41 A The Kitwancool people did not let their  42 territory go just because they never spoke  43 out, it's just that they have respect for  44 these people while they are in front of the  45 courts.  46 Q Yeah.  And what was it that the Nishga,  47 according to Mr. Marsden's understanding, 2249  Submissions by Mr. Willms  1 were seeking in the courts?  2 A     The Nishga people want it made clear that  3 they were -- that they owned the territory  4 that they were claiming.  5 Q     And is that -- is that the same thing that  6 the Gitksan is seeking here?  7 A     Yes, it is.  8 Q     Same thing that the Nishga were looking for  9 in the Calder case?  10                A     Yes."  11  12 Over to the next page I have evidence from Stanley  13 Williams, a Gitksan hereditary chief who gave evidence  14 about a statement that Mr. Calder had made to him  15 while discussing territorial boundaries and this is  16 from a quote from Stanley Williams:  17  18 "After I told him this, then Frank Calder jumped  19 up and he said, 'All the waters that are -- that  20 are going into -- all the waters that are flowing  21 from that mountain into Nass River, these are our  22 territories.'  Frank Calder was sitting about ten  23 feet from where I was, and after he had said this,  24 I told him, I said, 'Frank, why are you talking  25 about the Nishga territories?  Your territory is  26 in Gitsequkla, you are in the house of Guxsan,  27 this is where your territory is.'  I told him, 'If  28 you want to go on your territory, then you would  29 have to come and talk to your house members and to  30 your chief in Gitsegukla.'  Frank never answered  31 back.  He -- he took off out through the door and  32 he never returned again."  33  34 The point that I make in paragraph 44 is that the  35 Supreme Court of Canada didn't know about the  36 suppression of the Kitwancool claim and it appears  37 neither did Dr. Duff because Dr. Duff's evidence was  38 that they owned this territory and I am sure that if  39 Dr. Duff had known about the Kitwancool land claim he  40 would have never said that.  41 Now in this case the Chief Justice had evidence  42 before him about the significant overlapping claims  43 and you have already been referred to that but that's  44 a significant difference and it may also have caused  45 the Chief Justice some pause in deciding whether  46 anthropological evidence proves ownership of land or  47 exactly what does anthropological evidence prove in 2250  Submissions by Mr. Willms  1 relation to ownership of land but certainly Dr. Duff  2 and the Calder case is no authority for the absolute  3 necessity of anthropological evidence in circumstances  4 like this.  5 Now the next paragraph I ask your lordships to  6 turn to is at page 29 and it's paragraph 48 and this  7 is more of the evidence that the Chief Justice had  8 before him and I say that the constant -- the  9 consistent interpretational thread to prehistoric,  10 protohistoric and historic occupation in the Claim  11 Area, is that, and here I am quoting from Dr. Rigsby:  12  13 "-- 'the fur trade seems to have spurred the  14 Gitksan occupation of the Middle Nass and  15 especially the Upper Nass and Upper Skeena.'  The  16 Gitksan also appear to have 'lodged between [the  17 Kitimat and the Wet'suwet'en] like a wedge'."  18  19 And I believe that's Dr. Jenness:  20  21 "-- in the last few centuries.  The Wet'suwet'en  22 moved south around Eutsuk Lake in the 1830s."  23  24 And that's from Dr. Borden who is I think referring to  25 Dr. Jenness.  And then I also point out:  26  27 "-- as has already been observed, the Wet'suwet'en  28 at Moricetown moved to Hagwilget in historic  2 9 times."  30  31 In fact Hagwilget is in an area claimed by the  32 Gitksan.  33 The next portion -- I don't intend to refer to the  34 oral history section of the factum or, sorry, this  35 appendix to the factum.  It runs from paragraphs 49 to  36 53 and deals with oral histories but I would like  37 to -- there is a point where some criticism has been  38 levelled at the Chief Justice and I will come to it  39 later but it's the Chief Justice's focus on villages,  40 on village based society and I will come a little bit  41 later to what Dr. Duff said about that but at tab 51  42 of R & D 2, the reference book number two, there is a  43 reference there.  The second page at that tab is a  44 letter from Sim-a-deeks, the First Chief of Kitwangah  45 to Mr. Vowell, the Superintendent of the Indian  46 Department, August 14th, 1903, and here's what he  47 said: 2251  Submissions by Mr. Willms  1  2 "When Judge O'Reilley surveyed our reservation he  3 told us that these lands were kept for our tribes  4 and that the reserve at Andamahi was for the  5 Kitwangah people.  Now a number of the Kitzeguola  6 people are coming on to the reserve and we do not  7 like it.  We have spoken to Mr. Loring about it  8 and he has told them they must go back to  9 Kitzeguola, but still they do not go, and we hear  10 that more are coming.  They have two reserves of  11 their own, and we ask that they be made to keep to  12 their own reserves and not trouble us.  We fear  13 that it may lead to more trouble if they are  14 permitted to encroach on us in this way.  Please  15 let me know if the reservation is not intended for  16 strangers as well as our own people; and will you  17 please make these people do what is right in this  18 matter."  19  20 Now if you turn to the tab, the next tab over  21 which is page 3, at page 3 there is a transcript of  22 the exchange between the Commissioner and I think it's  23 Commissioner O'Reilley in 1893 in laying out the  24 reserve at Kitwangar and you will see in the left-hand  25 side "K-a-w-k" partway down and he is described as one  26 of the chiefs, I suppose the third ranking chief up  27 top and he says to Commissioner O'Reilley:  28  29 "I am glad to see you, you have come to do us  30 good.  My grandfather told me what you did before.  31 He did not want strangers here."  32  33 And I think when you look at the transcript, the  34 actual handwriting, the "long ago" refers to this next  35 sentence:  36  37 "Long ago.  Then we fought for the land now we  38 don't.  That is why we are glad to see you, it  39 will settle all disputes."  40  41 So that what you have in exchange at least from the  42 Kitwangar reserve to the Indian commission is a claim  43 that the Kitsequecla people are strangers and we don't  44 want them here.  Now there isn't any allegation of  45 some pan Gitksan nationalism.  There is something  46 completely consistent with this being village based  47 and as I said, I will come a little later to what 2252  Submissions by Mr. Willms  1 Wilson Duff said which has really been accepted by  2 almost everyone that the Gitksan were seven villages.  3 Now I was -- the next portion of the appendix I  4 will not deal with.  From page 34 on, I -- the factum  5 deals with resources in the claim area looking at  6 historical, archaeological and anthropological  7 evidence and that discussion carries through to page  8 63.  I would like to point out something though that I  9 don't know has been emphasized in the evidence yet and  10 that's at paragraph 58 on page 36 and this is once  11 again from the evidence of the appellants, primarily  12 from the evidence of the appellants.  At paragraph 58:  13  14 The appellants' expert biological evidence  15 indicates two things.  First, moose and deer came  16 into the Claim Area relatively recently and the  17 caribou population has declined, probably in  18 response to climatic changes.  Second, the climate  19 in the Claim Area was colder during the period  20 known as the Little Ice Age which extended into  21 the mid-19th century with glaciers in the area  22 descending as low as 1,200 metres.  The climate  23 would have been hard on everything including the  24 vegetation --  25  26 According to the appellants' evidence and I say that  27 aboriginal exploitation, carrying on at line 34:  28  29 "-- of Alpine and subalpine resources diminished  30 in the last few thousand years of pre-history up  31 to the culmination of the Little Ice Age."  32  33 And this is important I think because the early  34 historic observations of the relative scarcity of game  35 and Dr. Ray's conclusion that salmon was the mainstay  36 of the economy is supported and explained by the  37 different climate and the -- you can't even go to this  38 territory today at a particular time of the year to  39 try to get an impression of what it was like 200 years  40 ago because 200 years ago the climate was dramatically  41 different and it was colder, much colder.  42 I do want to make another point on the  43 anthropological evidence and I make it at paragraphs  44 85 and 86 on page 52 and, my lords, you don't need to  45 turn to the reference book but I have put in the  46 extracts from the cross-examination of the reference  47 book, the cross-examination of Dr. Daly.  Dr. Daly did 2253  Submissions by Mr. Willms  1 agree, for example, that other people who worked in  2 the area had come to consistent conclusions.  They  3 were different from Dr. Daly's but he admitted that  4 each of these other people had come to a conclusion  5 that within themselves was consistent but different  6 from Dr. Daly's.  7 That is essentially the same for Dr. Mills because  8 the anthropologists that she relied on for the most  9 part came to different conclusions than she did too so  10 that although they all agreed that the anthropologists  11 were well respected people and had done research in  12 the field, the experts at trial came -- the  13 plaintiffs' experts at trial came to different  14 conclusions.  Now Dr. Robinson didn't.  Dr.  15 Robinson --  16 HUTCHEON, J.A.:  Excuse me.  I thought the only one was Dr.  17 Adams because they --  18 MR. WILLMS:  Oh.  Dr. Adams, Dr. MacDonald, George MacDonald is  19 different from Dr. Daly.  Dr. Rigsby who was one of  20 the plaintiffs' experts is different than Dr. Daly.  21 That's -- those are the main people from the west.  In  22 respect of Dr. Mills, Father Morice, Dr. Jenness, Dr.  23 Steward, Dr. Goldman, Dr. Kobrinsky, for this area,  24 all different opinions and with Dr. Mills, she changed  25 her opinion from her draft in '86 to her final 180  26 degrees.  Her draft opinion was consistent with  27 important respects with Dr. Steward, Dr. Kobrinsky,  28 Dr. Jenness, Father Morice but it changed by the time  2 9 she gave evidence and by the time the final report was  30 put in so that what you have with the two main  31 anthropologists who gave evidence on behalf of the  32 appellants is they are kind of -- kind of like the  33 Maytag repairman in that particular area.  They were  34 really mostly alone in their opinions and inconsistent  35 with other work that people had done in that area.  My  36 lord, Mr. Justice Hutcheon, I referred to Adams and  37 Kobrinsky primarily because they did work in the area  38 for a period of time before the lawsuit started and  39 came to different conclusions.  40 HUTCHEON, J.A.:  What bothers me is in this way then it would  41 have been, it seems to me, the trial judge would have  42 simply said that Dr. Daly stands by himself on this  43 and I have on this other side these -- this evidence.  44 He didn't do that.  He said, if I remember the  45 passage, I don't need these anthropologists.  46 MR. WILLMS:  For the history of these people.  That's the  47 passage.  That's what he said; for the history of 2254  Submissions by Mr. Willms  1 these people.  2 HUTCHEON, J.A.:  That's what we have been talking about;  3 history.  4 MR. WILLMS:  Oh, no.  My lord, I am going beyond history here.  5 Later on in the --  6 HUTCHEON, J.A.:  Well we have been dealing with history, haven't  7 we, since early this morning?  8 MR. WILLMS:  Later on —  9 HUTCHEON, J.A.:  See, Dr. Bishop is all history.  10 MR. WILLMS:  It's page 434 of the judgment where he summarizes  11 what he has already discussed in the judgment.  At  12 page 434, and this is when he is going through and  13 coming to some conclusions about the appellants'  14 evidence generally.  He says:  15  16 Fifthly, as I have already mentioned, there is a  17 strong but not unanimous body of anthropological  18 opinion including Goldman, Steward, Kobrinsky,  19 Jenness, Robinson and Father Morice --  20  21 That's Dr. Robinson who gave evidence at the trial:  22  23 -- that the social and economic organization of  24 these peoples was likely a response to the fur  25 trade which I have already discussed.  Earlier I  26 mentioned the opinion of Dr. MacDonald that there  27 was much destabilization in the area of the 1700s.  28 Even Dr. Ray at one time agreed with this expert  29 but changed his opinion because of the information  30 he gained from the Hudson's Bay Company records.  31 That there are differing opinions is not  32 surprising.  While I am happy to leave these  33 fascinating questions to the academic community, I  34 conclude the evidence raises serious doubts about  35 the time depth of particular Indian presence in  36 distant territories, that is away from the  37 villages.  It is unlikely that the plaintiffs'  38 ancestors prior to the fur trade would occupy  39 territory so far from the villages, particularly  40 in fierce Canadian winters and even fiercer 200  41 years ago.  This theory is well supported by a  42 large number of reputable experts and casts doubts  43 upon the plaintiffs' position that many of the far  44 north and far south territories claimed by many  45 chiefs were used for as long as they allege.  46  47 Now, the earlier portion of the judgment where he 2255  Submissions by Mr. Willms  1 first assesses Dr. Mills and Dr. Daly, there is two  2 parts going on in that assessment.  In the first part  3 of the assessment he is saying I don't find these  4 people particularly credible.  I find them to be  5 basically advocates for the appellants.  He then goes  6 on to say:  I didn't find their evidence very helpful  7 in determining the history of the people.  Now you  8 have to go through the evidence of Dr. Daly and Dr.  9 Mills and read it to see why it's no help in  10 determining the history of the people.  They're  11 primarily aimed at showing what Gitksan's social and  12 political organization is today.  That's what Dr. Daly  13 and Dr. Mills are primarily aimed at; what the social  14 organization is today.  The Chief Justice said after  15 his findings on credibility that he didn't find them  16 very helpful in assessing the history of the people so  17 I think that that has been blown out of proportion by  18 the appellants as being an absolute rejection of the  19 anthropological evidence in the case.  He didn't  20 reject all the anthropological evidence in the case.  21 He makes a very specific comment there related to the  22 history of the people.  23 Now if I could ask your lordships, back in the  24 appendix and I promised, my lords, that the Berk's  25 article, the article on resource use and when you  26 might have territoriality.  At paragraph 107 of the  27 factum, I am sorry, I said factum, I meant appendix  28 one, page 67, paragraph 107, and, my lords, you are  29 now going to need Russell & DuMoulin's, the R&D  30 references number three and if you turn to tab 107 of  31 the references you hopefully should find an article,  32 you can't see his whole name, by Fikret Berk.  This is  33 an article where the author discusses concepts of  34 territoriality.  Now on the right-hand side where the  35 English begins the author says:  36  37 "Territoriality is related to the intensity of use  38 of an area and its resources, and territories are  39 possible only when the benefit of holding a  40 territory exceeds the cost of defending it.  Thus  41 an explanatory model of hunting territories needs  42 to be dynamic to accommodate changes in the  43 intensity of resource use and common property  44 institutions such as those governing  45 territoriality."  46  47 He then on the next page sets out his model.  Now on 2256  Submissions by Mr. Willms  1 the right-hand side under "Pre-conditions for  2 territoriality":  3  4 "In general, it is held that territoriality is  5 possible only when the benefits from holding a  6 territory exceed the cost of defending it.  The  7 concept was originally borrowed from cost benefit  8 studies in economics and used in ecology for  9 analyzing the feeding territories of birds.  It  10 was adapted for use in ecological anthropology by  11 Dyson-Hudson and Smith.  These authors considered  12 that a resource must be sufficiently predictable  13 and abundant to permit the development of a  14 geographically stable territorial system for its  15 use.  However, ongoing work in ecology suggests at  16 least one additional condition.  It has been found  17 that territoriality occurs within certain maximal  18 and minimal limits in the abundance of the  19 resource in question.  It does not occur if the  20 resource is very scarce, relative to demand, or  21 superabundant."  22  23 So that in Figure 1 he sets out the three conditions  24 that generate territoriality:  25  26 "Resource productivity and predictability must be  27 relatively high, and the resource must be  28 limiting."  29  30 Now he gives an example of that on page 3 of the  31 appendix -- four of the appendix, two pages in.  Here  32 the appendix pages are in the middle of the page but  33 it's appendix page 4 and on the top left-hand side he  34 says:  35  36 "The beaver has a special place in the resource  37 use system; it is an important species, for both  38 meat and fur, and is easier than other species to  39 manage by territories.  By contrast, the otter,  40 another important fur species, is not a sedentary  41 animal and cannot be managed by territories."  42  43 That was what led me to say earlier in response to Mr.  44 Justice Lambert's question that territoriality may  45 depend and vary species by species and it would depend  4 6 on what the demand for the resource was and what the  47 competition for the resource was.  Now what becomes 2257  Submissions by Mr. Willms  1 clear from the historical records is that there was  2 some sort of beaver territoriality.  We know that  3 there was a great demand for beaver for the fur trade,  4 we know that there was no marten territoriality but  5 marten lacked the predictability that the beaver do  6 because the marten are not stationary; the marten  7 are -- is an animal that is nomadic as Dr. Kobrinsky  8 said in his article so that the point which explains,  9 in my submission, why the beaver and beaver trapping  10 territoriality as seen by Brown is because the fur  11 trade increases the demand for beaver and  12 territoriality with respect to beaver makes sense.  13 It's possible.  It's not possible with respect to the  14 other animals which are nomadic and so that, in my  15 submission, is why it fits into all of the -- prior to  16 this case, all of the opinions in the area and why the  17 Chief Justice was perfectly entitled -- it's not only  18 some evidence upon which the Chief Justice had come to  19 his conclusions about fur trading and fur trapping and  20 beaver but it's overwhelming evidence in the absence  21 of the three people who gave evidence on behalf of the  22 plaintiffs who the Chief Justice didn't accept.  23 HUTCHEON, J.A.:  I haven't looked at it since we were referred  24 to it the other day but I thought in Baker Lake that  25 was the situation of a very sparse -- nomadic people  26 in very sparsely settled areas so far as animals were  27 concerned but the rights were recognized.  I am  28 speaking of Baker Lake.  29 MR. WILLMS:  Well I don't know whether there was an allegation  30 of house territoriality or anything like that at Baker  31 Lake.  My recollection was it was much broader than  32 that.  33 HUTCHEON, J.A.:  No, no, not house.  It was —  34 MR. WILLMS:  I want to -- yeah, my lord.  I want to make a  35 distinction here because the appellants' case is based  36 on house territoriality which is like the traplines.  37 The Chief Justice later on said in his judgment:  I  38 don't doubt that aboriginally areas around the  39 villages were used for resource use.  I just don't  40 accept that -- this concept of house territoriality.  41 Now I don't find that the Chief Justice is far off in  42 his conclusions from what Mr. Justice Mahoney  43 concluded in the Arctic because that's a group of  44 people, a large group of people and not --  45 HUTCHEON, J.A.:  Not closely tied —  46 MR. WILLMS:  Yeah.  Now —  47 HUTCHEON, J.A.:  — if I remember it correctly.  They weren't in 2258  Submissions by Mr. Willms  1 the sense of a tribe in Baker Lake.  2 MR. WILLMS:  I would have to go back and refresh my memory, my  3 lord, on the facts of Baker Lake but I do not recall  4 that it was advanced in the very complicated way that  5 the appellants advanced their claim to territoriality  6 in this case.  7 LAMBERT, J.A.:  The internal boundaries question has not been  8 pressed on the appeal, the internal boundaries  9 question has not been pressed on the appeal and the  10 Chief Justice found the area in the middle to be the  11 area of aboriginal rights though he had confined the  12 true aboriginal rights to village sites in the  13 originally contiguous areas but it may be that when we  14 come to grips with the actual issues in this appeal  15 that what we are asking ourselves is have aboriginal  16 rights been established over all or a part of this  17 territory without asking ourselves -- well asking  18 ourselves independently of the question of house  19 boundaries have aboriginal rights been established  20 over this area and we need then be dealing with an  21 entirely different question than the one you are  22 addressing.  23 MR. WILLMS:  I appreciate that.  In fact, my lord, I am  24 advancing this argument in support of the Chief  25 Justice's conclusion.  26 LAMBERT, J.A.:  Yes.  And in relation to internal boundaries.  27 MR. WILLMS:  Oh.  And then what he ultimately concluded with  28 respect to the area that they did use.  29 LAMBERT, J.A.:  And you don't understand that it's any part of  30 the function that we have asked you to undertake to  31 attack the concept that are aboriginal claims over  32 that whole central area or perhaps the whole part of  33 the claimed area independent of house boundaries.  34 MR. WILLMS:  Well, no.  What I understand our function is is  35 that the Chief Justice made a finding about where the  36 appellants had aboriginal rights should he be wrong --  37 LAMBERT, J.A.:  Yes.  38 MR. WILLMS:  -- on the extinguishment point --  39 LAMBERT, J.A.:  Yes.  40 MR. WILLMS:  -- and we are advancing arguments in support of  41 that finding but the big difference between that  42 finding and the case that the appellants advance is  43 that finding is based on villages and not house  44 territoriality and houses so that's the critical  45 difference between the two.  46 LAMBERT, J.A.:  It's based on villages but doesn't it extend  47 over that whole central area -- 2259  Submissions by Mr. Willms  1 MR. WILLMS:  Well it doesn't —  2 LAMBERT, J.A.:  -- along -- in accordance with the --  3 MR. WILLMS:  Yes.  It takes off the top —  4 LAMBERT, J.A.:  And the bottom.  5 MR. WILLMS:  — and the bottom and a little bit I think on  6 the -- I can't remember whether Bear Lake was in or  7 out.  8 LAMBERT, J.A.:  Yes.  9 MR. WILLMS:  It probably should have been out because everybody  10 claims Bear Lake but no, it's in, but, yes.  You will  11 see the top -- the bottom part and it's --  12 LAMBERT, J.A.:  And if -- and you are arguing a blanket  13 extinguishmet but if that argument is not upheld and  14 sustained then you are content as far as your argument  15 goes to have the Chief Justice's finding as shown on  16 that map upheld?  17 MR. WILLMS:  Yes.  Oh, yes, my lord.  No.  I didn't understand  18 we were --  19 LAMBERT, J.A.:   No, no.  All right.  I just want to be sure I  20 understand that position.  21 MR. WILLMS:  Oh, yes.  22 MACFARLANE, J.A.:  I want to make sure I understand it as well  23 in another sense.  I understood you to be arguing in  24 support of the finding of the trial judge that land  25 ownership was confined to villages.  26 MR. WILLMS:  Yes.  27 MACFARLANE, J.A.:  And I understand that the appellants'  28 contention is that land ownership extended to the  29 whole of the territory and I understand that the  30 fall-back position adopted by the Chief Justice was  31 that insofar as there were rights with respect to the  32 balance of the territories outside villages that there  33 may be -- there are aboriginal rights but they are not  34 land based rights as such; they are, I am using my own  35 language, rights such as hunting rights over  36 unoccupied Crown land, fishing rights, although most  37 of those are associated with villages or close by  38 villages and they are more land based and relate more  39 to land ownership and use of land and other rights and  40 then there are berry picking rights and such over the  41 whole of the territory but there are the two things.  42 There is a difference.  One relates to land ownership.  43 MR. WILLMS:  Yes.  44 MACFARLANE, J.A.:  That's what you are dealing with and the  45 other, other aboriginal rights.  46 MR. WILLMS:  Yes.  47 MACFARLANE, J.A.:  And although they — you know, obviously they 2260  Submissions by Mr. Willms  1 relate to the land.  They don't relate to the  2 ownership of the land but the use of the land.  3 MR. WILLMS:  Yes.  4 MACFARLANE, J.A.:  Is that —  5 MR. WILLMS:  That's correct, my lord.  6 MACFARLANE, J.A.:  That's how I saw the thing breaking down.  7 MR. WILLMS:  That's the point of this.  The appellants' case on  8 ownership is all of it.  The Chief Justice said for  9 ownership if -- if ownership, it was the village's and  10 that there were -- and then he drew the broader area  11 where aboriginal rights were exercised like hunting,  12 fishing, berry collecting, timber evidence.  I mean  13 they had houses, plank houses.  All of those what he  14 called subsistence rights, subsistence practices I  15 think is what the Chief Justice called them and I  16 don't -- I support that.  I don't challenge that.  I  17 challenge the appellants' theory of ownership and  18 point out that when the Chief Justice went through all  19 of the evidence on theories of ownership as they  20 related to territories and discreet territories he  21 rejected that and I say he properly rejected it.  22 I note I skipped a paragraph that I should have  23 read to you back at page 62 in paragraph 100, just at  24 line 47 and I don't think I need to take you to the  25 tab in the book but --  26 TAGGART, J.A.:  The paragraph number again please.  27 MR. WILLMS:  It's paragraph 100 at page 62 and it's at line —  28 it starts at line 47 in that paragraph where I say:  29  30 "Furthermore, as Dr. Barbeau said, and Dr. Duff  31 accepted, Gitksan 'tribes were nothing but  32 villages, or casual geographic units, seven in  33 all. ' "  34  35 So that -- and the references are at -- in the  36 reference book but that was the conclusion of Barbeau  37 and of Duff about the Gitksan and that was evidence  38 that the Chief Justice could accept in determining,  39 rather than there being this house theory of ownership  40 that there could indeed be a village theory of  41 ownership because that was what was consistent with  42 some of the work that had been done in the past and  43 also the evidence of Dr. Robinson.  44 Now, the last portion on the -- on this particular  45 point, my lord, is paragraph 117 and I have just -- I  46 set out in paragraphs 117 the submission that  47 "trapline" and "territory" were used interchangeably 2261  Submissions by Mr. Willms  1 by the Gitksan and the Wet'suwet'en, a point that Dr.  2 Adams noted as well.  When he looked for  3 territoriality he looked for the trapline map.  One  4 point though that should be noted with respect to Dr.  5 Mills and I refer to her in paragraph 117 and this --  6 the Chief Justice didn't -- I don't think he said this  7 in his judgment but it's an interesting comment on Dr.  8 Mills.  She quoted in her report from an All Clans  9 Feast and the All Clans Feast contained a discussion  10 of what went on at the feast.  It was a feast of the  11 Wet'suwet'en.  I think it may have been neighbouring  12 people as well but the Wet'suwet'en were there and  13 statements were made at that feast about traplines so  14 what you see throughout the feast these notes, the  15 notes made at the feast are trapline, trapline,  16 trapline.  When Dr. Mills quoted from those notes in  17 her report she changed the word "trapline" to  18 "territory."  Now she didn't put square brackets  19 around it.  She didn't put anything to indicate that  20 she had changed "trapline" to "territory" but, of  21 course, reading "territory" is much more effective  22 than reading "trapline" and she acknowledged and the  23 Chief Justice asked her during her cross-examination  24 if that's what she did; change the words.  Well she  25 did change the words from "trapline" to "territory"  26 and I -- it is just further support for the submission  27 or for the finding of the Chief Justice that the  28 anthropologists were advocates, not independent  29 scientists.  30 HUTCHEON, J.A.:  Did she understand the language though?  31 MR. WILLMS:  No.  It's in English.  The transcript was in  32 English so she took --  33 HUTCHEON, J.A.:  Well she says or your item says that -- the  34 words in the sense of trapline and territory are the  35 s ame.  36 MR. WILLMS:  Oh, no.  Yeah.  She said the words in Wet'suwet'en  37 were the same but the transcript is in English and the  38 transcript says "trapline."  Now what she does is she  39 purports to quote from a transcript but changes  40 "trapline" to "territory."  41 HUTCHEON, J.A.:  The speaker then has used the word "trapline."  42 MR. WILLMS:  According to the text, yes.  43 HUTCHEON, J.A.:  I follow you.  44 MR. WILLMS:  Now, my lords, I am going to say a few words about  45 another section if my lords wanted to take the  46 afternoon break.  47 TAGGART, J.A.:  All right.  Five minutes. 2262  Submissions by Mr. Willms  1 THE REGISTRAR:  Order in court.  Court stands adjourned.  2  3 (PROCEEDINGS ADJOURNED)  4 (PROCEEDINGS RESUMED)  5  6 THE REGISTRAR:  Order in court.  7 TAGGART, J.A.:  Yes, Mr. Willms.  8 MR. WILLMS:  My lord.  Just before the break, my lord, Mr.  9 Justice Hutcheon pointed out the comment in paragraph  10 117 about Dr. Mills saying the words were the same.  11 The actual transcript -- the authenticity of the  12 transcript was confirmed by plaintiffs' witness Alfred  13 Joseph and I will give you the transcript reference.  14 It's volume -- transcript 35, page 2274, lines five to  15 21 where he agreed that the transcript was the written  16 record of what went on.  17 WALLACE, J.A.:  Would you give me that reference again.  18 MR. WILLMS:  It's transcript 35 at page 2274, lines five to 21.  19 The last part of the argument advanced at appendix tab  20 one starts at page 84 in paragraph 137 and it deals  21 with another bit of evidence, quite a bit of evidence  22 that was before the Chief Justice about the missionary  23 influence and I do not intend to go through the  24 section but the section shows quite clearly that early  25 land claim agitation at the time appears to have been  26 missionary instigated or at least many people  27 suggested that it was missionary instigated including,  28 and this is at paragraph 139, Dr. Drucker who I think  29 you may have heard about and if you could turn to tab  30 139 in references three.  At tab 139 I have enclosed  31 an extract from Philip Drucker, "Cultures of the North  32 Pacific Coast" and at page 2 of the tab, Dr. Drucker  33 discusses culture change in British Columbia and on  34 the right-hand side of that page he was discussing the  35 Duncan-Ridley feud at Metlakatla.  Ridley was the  36 bishop, Duncan was the reverend, Ridley -- there was a  37 dispute between Duncan and the church missionary  38 society which eventually led Duncan to take a large  39 group of people from Metlakatla into Alaska and form a  40 new community called New Metlakatla but the Metlakatla  41 controversy led to two investigations, two commissions  42 of inquiry but Dr. Drucker summarized the missionary  43 influence quite succinctly.  On the right-hand side  44 near the bottom where he talks -- he says, "This sort  45 of control."  It's about ten lines up from the bottom  46 on the right-hand side:  47 2263  Submissions by Mr. Willms  1 "This sort of control led the missionaries to  2 insist that their charges lead well-ordered,  3 civilized lives, and hence needed no Dominion  4 interference, that is, legal and secular control  5 by Indian Agents.  Therefore, the missionaries did  6 not want reserves of any size for their  7 congregations.  They wanted their charges to be  8 given title in fee simple to plots comparable to  9 those given white settlers, so that they, the  10 missionaries, could continue unmolested to guide  11 their Indians to complete Christian civilization.  12 It must be recognized that the missionaries  13 believed they were acting in the best interests of  14 their native charges.  They did not regard  15 themselves as rebels against constituted authority  16 but believed sincerely that no one else could  17 guide the Indians along the path of righteousness  18 as well as they could.  There is direct evidence,  19 not only from Indian informants of recent times  20 but from sources of that day, including a  21 Provincial Commission of Enquiry, that certain  22 missionaries openly advised their congregations to  23 demand the return of the lands that had been taken  24 from them."  25  26 Now, Dr. Drucker concludes at the next page and here  27 he is including more than just missionary influence on  28 the next page on the right-hand side where Dr. Drucker  29 says:  30  31 "The story of the land claims --"  32  33 It's the last -- the paragraph at the foot of the  34 page:  35  36 "The story of the land claims by the Indians is an  37 important part of their recent history.  Its  38 significance in regard to acculturation remains to  39 be considered.  One fact shows through very  40 clearly; the inspiration throughout was  41 non-Indian, or by sophisticated Indians long  42 removed from the native way of life and thought.  43 The techniques used were non-Indian - petitions  44 drafted by attorneys, attempts to utilize British  45 legal procedure, fund-raising campaigns to  46 implement the legal contest, and the like.  The  47 obvious conclusion is that Indian interest in 2264  Submissions by Mr. Willms  1 land, outside the few heavily settled areas, was  2 largely artificial.  Although the land was  3 technically no longer the Indian's, as long as it  4 was not settled or logged off, he had use of most  5 of it, and hence did not feel that his economic  6 plight resulted from loss of it."  7  8 Now, later on in this tab and I don't want to take  9 your lordships to it but each of the plaintiffs'  10 experts; Dr. Daly, Dr. Mills and Mr. Brody  11 acknowledged that Dr. Drucker is one of the foremost  12 anthropologists, a leading anthropologist well  13 respected.  Each one of them relied on Dr. Drucker in  14 part in coming to their conclusions and I refer to Dr.  15 Drucker not to say that that's the only opinion along  16 those lines in this case but it succinctly sets out  17 the evidence that was before the Chief Justice in  18 respect of land claims and you will hear a little more  19 tomorrow from my colleague, Mr. Plant about Lord  20 Dufferin and some of the statements that Lord Dufferin  21 make -- made that provide or the appellants say  22 provides some support for their case.  Now I --  23 HUTCHEON, J.A.:  Sorry.  I don't quite understand the  24 significance of what you are --  25 MR. WILLMS:  The significance, my lord, of this whole section  26 and I am sorry that I -- if you read through the  27 section --  28 HUTCHEON, J.A.:  Yes, I see.  29 MR. WILLMS:  -- of the factum it makes sense but the section of  30 the factum points out that the inspiration for land  31 claims originally appears to have been from  32 missionaries in this area, specifically Dr. --  33 Reverend Duncan and Reverend Duncan's disciple,  34 Reverend Tomlinson who was the one who went into the  35 Skeena area.  There were two commissions of inquiry at  36 Metlakatla that came to the same conclusion at the  37 time in the 1800s, went up and heard evidence and came  38 to the same conclusion and Dr. Drucker, applying an  39 anthropological perspective, came to the same  40 conclusion at the end of his book or his work,  41 Cultures of the North Pacific which is a well regarded  42 anthropological work in British Columbia for Northwest  43 coast cultures so that's the point that is set out in  44 that whole section.  45 HUTCHEON, J.A.:  Where does it take us?  I don't understand it.  46 MR. WILLMS:  Where it takes you, my lord, is that when you are  47 considering the evidence that the appellants have 2265  Submissions by Mr. Willms  1 referred to, they have referred you to the allied  2 petition as some support for their case.  3 HUTCHEON, J.A.:  Yes, certainly.  4 MR. WILLMS:  They referred you to the Nishga petition as some  5 support for their case.  I think they have referred to  6 some statements drafted by Reverend Tomlinson on the  7 Skeena in the 1880s as support for their case.  The  8 point in this whole section is -- the question is what  9 is the motivating force for the claims.  Now Dr.  10 Drucker thinks that it was the missionaries trying to  11 get his charges to lead a well-ordered life.  That's  12 the extract I read from Dr. Drucker two pages before  13 and then Dr. Drucker concludes that most of what was  14 going on appears to be non-aboriginally instigated and  15 he concludes that the interest in land is largely  16 artificial land claims.  17 HUTCHEON, J.A.:  I don't understand the circumference of it.  18 Firstly, there seems to be a contradiction between 125  19 and -- some of the missionaries only wanted fee  20 simple, some of them.  21 MR. WILLMS:   Yes.  If —  22 HUTCHEON, J.A.:  Others wanted the whole of the land to be given  23 back.  24 MR. WILLMS:  No.  Others wanted reserves, some of them wanted  25 reserves and so where you have got -- this is one  26 thing that the Cornwall -- I think it was the  27 Cornwall-Planta Commission noticed when it went up to  28 Metlakatla.  It noticed the differing views village by  29 village as to land entitlement.  Where there were  30 Duncan's followers in the village, the Indians -- the  31 aboriginal people say they owned the land.  They  32 didn't want a reserve.  The land was their's.  All  33 right.  Where it was another religious group, a  34 different religious group, they wanted a reserve and  35 it varied depending on the religious group that  36 appeared to be influencing -- it wasn't consistent so  37 that's why the commission came to the conclusion that  38 it did which Dr. Drucker refers to.  39 HUTCHEON, J.A.:  Well there must be some significance that I am  40 missing.  You have people speaking to the government  41 saying that these people haven't been dealt with  42 properly.  Now how does that -- how does it change if  43 the people themselves, as Dr. Drucker said, did not  44 feel that his economic plight resulted from the loss  45 of the land?  I mean, how does that change the matter  46 if you have one group saying -- who is looking at the  47 situation saying:  Look.  These people have had their 2266  Submissions by Mr. Willms  1 land taken or will be taken unless they do something  2 about it, and some of the people themselves saying:  3 Well we are not too concerned because as long as it  4 was not settled and not logged off then we are all  5 right.  I don't see any significance in that.  6 MR. WILLMS:  I don't think — no.  I don't think — that's not  7 what Dr. Drucker is saying there.  What Dr. Drucker is  8 saying there is that as a source for problems you  9 couldn't point to the loss of a land base as the  10 source of problems because there was no loss of the  11 land base and that's something that the Chief Justice  12 noted.  13 HUTCHEON, J.A.:  Because the land was not then settled or logged  14 off.  15 MR. WILLMS:  No.  It's not that there weren't complaints  16 throughout the whole piece; it's just that the  17 complaints weren't about land but, my lord, I don't  18 advance this anything -- for anything further than --  19 HUTCHEON, J.A.:  He had the use of most of it is what Dr.  20 Drucker said.  As long as it was not settled or logged  21 off he had the use of most of it.  22 MR. WILLMS:  Yes.  23 HUTCHEON, J.A.:  So they were fine.  We don't have to bother  24 because we are -- our plight is all right.  25 MR. WILLMS:  Yes.  26 HUTCHEON, J.A.:  Or at least we are not in bad straits.  The  27 other people, the missionaries were saying you are in  28 bad straits even if you don't know it.  29 MR. WILLMS:  But, my lord —  30 HUTCHEON, J.A.:  I don't see that it takes us anywhere.  31 MR. WILLMS:  My lord, I think the point and I will leave it with  32 this because it really sets the context but if there  33 is a true belief in ownership, your plights are  34 relevant; okay.  The plight -- if you --  35 HUTCHEON, J.A.:  They thought they had most — they had the use  3 6 of most of it.  37 MR. WILLMS:  Exactly, but, my lord, you have hit the nail right  38 on the head; they had the use of most of it, not  39 ownership and here Dr. Drucker is talking about  40 missionary inspired, we own it.  As long as they had  41 the use of it even when other people used it.  42 HUTCHEON, J.A.:  He doesn't say that.  As long as it was not  43 settled or logged off.  44 MR. WILLMS:  That's the difficulty, my lord, from putting  45 forward extracts and the Chief Justice of course had a  46 mountain of information in this area to go through.  47 The only point I want to make here is that if you 2267  Submissions by Mr. Willms  1 truly own something you don't wait -- it's the first  2 person that comes in that you tell --  3 HUTCHEON, J.A.:  Somebody in the City of Vancouver in 1992  4 doesn't believe but we are talking about 1884.  5 MR. WILLMS:  Yes.  We are talking about for example --  6 HUTCHEON, J.A.:  People whose notion of ownership is quite  7 different.  It's use and occupation.  Use and  8 occupation.  9 MR. WILLMS:  But, my lord, that's the point; all right.  I don't  10 need to take it any further than that, my lord.  11 HUTCHEON, J.A.:  Then they are told later use and occupation  12 won't get you very far because you can be wiped out.  13 MR. WILLMS:  I don't need to take this point any further than an  14 answer to ownership, my lord.  The point on use and  15 occupation isn't addressed by what Dr. Drucker is  16 talking about.  He is talking about --  17 HUTCHEON, J.A.:  Well I may just be quibbling with you but I  18 couldn't see the sense of this.  We have got people  19 who are living in the area complaining to the  20 government, you haven't treated these people properly.  21 That's what they were saying to them.  Isn't that  22 right?  23 MR. WILLMS:  Well no.  Some of them were saying we own this  24 land.  Other peoples were saying we weren't -- we are  25 not being treated fairly.  26 HUTCHEON, J.A.:  Yes.  27 MR. WILLMS:  There is a difference and the only point of Drucker  28 and it just sets the context that what people said  29 appears to depend on who their missionary was in a  30 large sense.  31 HUTCHEON, J.A.:  Well I am not sure —  32 MR. WILLMS:  My lords, I am going to end -- I am not going to go  33 through any more of appendix tab one but I do say that  34 in respect of the Chief Justice's conclusions on  35 ownership and, of course, the conclusion that flowed  36 out of his rejection of the appellants' ownership, his  37 conclusions on use, aboriginal use, that the evidence  38 amply supports his conclusions and in fact I say that  39 the evidence goes further than what would be the  40 normal test for a finding of fact, that is some  41 evidence to support -- the preponderance of the  42 evidence supports the conclusions of the trial judge  43 on ownership and as Mr. Justice Lambert pointed out,  44 his findings on aboriginal rights are there and they  45 are mapped out.  46 The last point that I want to turn to today is in  47 appendix volume two of the factum and you don't need a 2268  Submissions by Mr. Willms  1 reference book for this, you just need appendix volume  2 two and it's tab 8, the Marshall decisions.  The  3 submissions that I will finish with today, you will  4 recall that the Chief Justice in his judgment said  5 that insofar as American decisions have been  6 incorporated into Canadian law he was of course bound  7 by that incorporation but he also said that and I am  8 just -- it's at page 339 and 340 of the judgment where  9 he discusses his reasons for declining to accept what  10 the appellants were suggesting in respect of the  11 American decisions and at page 340 of the judgment he  12 says -- he begins the top of the page referring to  13 diminished sovereign nations or domestic dependent  14 nations and I will refer to the case that he is  15 referring to there but he also says:  16  17 "The authority of American cases is weakened by  18 statutory provisions such as the act to Regulate  19 Trade and Intercourse with the Indians, 1790, and  20 the statutory substitution of compensation for  21 land claims.  In a case such as this I am  22 reluctant to rely upon American cases except to  23 the extent they have been adopted by binding  24 authority in this country."  25  26 And he then carries on to say that he is going to  27 confine himself to the Canadian authorities.  And the  2 8 argument that I am going to advance from appendix tab  29 8 was that when you look at especially the Marshall  30 decisions that the appellants put so much reliance on,  31 the Chief Justice was quite right to feel constrained  32 to keep to the Canadian authorities and what I have  33 done at this part of the appendix is set out some  34 background for the opinions of the Court that you have  35 heard quoted to you many times by the appellants and  36 the intervenors in support of the appellants from the  37 Marshall decisions and I start at paragraph 1 at  38 appendix 8, tab 1:  39  40 "The appellants and some intervenors have invoked  41 the later decisions of Chief Justice Marshall of  42 the U.S. Supreme Court as though they represent  43 unwavering statements of immutable truths."  44  45 And the appellants suggest that you must understand  46 the legal and historical matrix of the Marshall  47 decisions and we say that when you do that they don't 2269  Submissions by Mr. Willms  1 support the propositions advanced by the appellants  2 and the intervenors.  3 TAGGART, J.A.:  Which tab is this?  4 MR. WILLMS:  Sorry.  I am at tab 8, my lord, of appendix two and  5 I have just read paragraph one and I point out in  6 paragraph two that:  7  8 "The cases were decided against a patchwork of  9 different treaties and statutes.  The settlement  10 of the United States and the manner in which  11 problems with the various tribes were resolved  12 differed dramatically from the situation in  13 colonial British Columbia.  State and federal  14 authorities in the U.S. adopted policies that have  15 no parallel in Canadian history."  16  17 In paragraph 3 I point out that his own opinions  18 were not consistent.  His reasons didn't express the  19 philosophies now attributed to them and also, and this  20 is the subject of comment by the Chief Justice in his  21 judgment, he did seize opportunities to promote  22 federalist policies and validate the precarious  23 position of the fledgling Supreme Court but more  24 importantly, and this is the point I am going to  25 highlight with respect to each case, none of the  26 decisions actually determined the nature or effect of  27 Indian interests in the sense of there being two  28 parties there; government, aboriginal litigating the  29 extent of Indian interests so the first case is -- the  30 discussion starts at page 4, paragraph 5, Fletcher  31 and Peck and the points in respect of Fletcher and  32 Peck, Fletcher and Peck -- neither Fletcher nor Peck  33 were aboriginal.  They were claiming an interest in  34 land through a purchase, an aboriginal purchase but  35 the -- one of the issues in the case was whether or  36 not -- and it's always Georgia, Georgia was the state  37 that was getting into trouble in most of these  38 decisions but I set out in paragraph 7:  39  40 The case arose out of what was called the Yazoo  41 land scandal where the Georgia legislature  42 attempted to invalidate land grants on the ground  43 that the legislators who had made the grants had  44 been bribed.  The central issue was whether or not  45 Georgia could, by subsequent legislation, divest  46 landowners of their property.  47 2270  Submissions by Mr. Willms  1 "Peck's predecessor in title was the recipient of  2 one of the impugned grants.  Fletcher challenged  3 Peck's title on several grounds.  At the time of  4 the grant, the land in question was occupied by  5 several Indian tribes.  Fletcher made a subsidiary  6 argument that the Indian interests rendered  7 Georgia incapable of transfering the land."  8  9 And the Court went on to strike down the State's  10 statute not on the basis that -- argued but the  11 essence of the argument is at page 10, the argument  12 that Georgia, sorry, paragraph 10, my lords, that  13 Georgia was not free to convey the land.  Chief  14 Justice Marshall said:  15  16 "Some difficulty was produced by the language of  17 the covenant, and of the pleadings.  It was  18 doubted whether a stake can be seized in fee of  19 lands, subject to the Indian title and whether a  20 decision that they were seized in fee, might not  21 be construed to amount to a decision that their  22 grantee might maintain an ejectment for them,  23 notwithstanding that title.  24  25 The majority of the court is of opinion that the  26 nature of the Indian title, which is certainly to  27 be respected by all courts, until it be  28 legitimately extinguished, is not such as to be  29 absolutely repugnant to seizin in fee on the part  30 of the state."  31  32 Now this is the first case of the Marshall decisions  33 that deals with Indian title but it deals with it --  34 it was raised in a secondary way and he made that  35 statement but the Court as I say later on, didn't  36 decide any issue of Indian entitlement; it made it  37 clear that Indian title did not prevent Georgia from  38 conveying a fee simple.  That's what the case actually  39 stood for.  40 An interesting feature of the decision I set out  41 in paragraph 11 because the Chief Justice commented on  42 the Royal Proclamation and said -- made some  43 observations about the Royal Proclamation which were  44 made very close to the time of it.  He said:  45  46 "The court does not understand the proclamation as  47 it is understood by the counsel for the plaintiff. 2271  Submissions by Mr. Willms  1 The reservation for the use of the Indians appears  2 to be a temporary arrangement suspending for a  3 time, the settlement of the country reserved, and  4 the powers of the royal governor within the  5 territory reserved, but is not conceived to amount  6 to an alteration of the boundaries of the colony."  7  8 And then what followed, of course, in the United  9 States was subsequent Indian removal from where they  10 lived but the first point and the really important  11 point about Fletcher and Peck is the starting point  12 and it's consistent through the Marshall decisions.  13 There was no aboriginal litigant and there was no  14 aboriginal land issue directly before the Court.  15 Now Johnson and M'Intosh has been in part  16 incorporated to the law of Canada and I really  17 don't -- I don't need to say very much about Johnson  18 and M'Intosh insofar as it's been incorporated but I  19 do want to draw your lordships' attention to  20 paragraphs 15 and 16 of the argument because they  21 point out -- the case was argued on an Agreed  22 Statement of Facts and the Agreed Statement of Facts  23 set out what the Indian interest was agreed to be in  24 the Agreed Statement of Facts.  Once again, it's two  25 private litigants who want an issue resolved by the  26 Supreme Court of the United States and so when you  27 read the judgment of Johnson and M'Intosh you have to  28 be careful when you read about the factual basis  29 because there was an Agreed Statement of Facts upon  30 which the case was argued.  31 The Cherokee Nation case is set out at pages --  32 starting at paragraph 24 and there are three points to  33 the Cherokee Nation case and also the case that  34 followed which are important when you are considering  35 the applicability of this case in setting general  36 principles.  First of all, Georgia did not appear to  37 argue in this case.  This case was argued only on  38 behalf of the Cherokee Nation.  No one appeared for  39 Georgia.  This was at a period of time when some of  40 the states didn't think highly of the Supreme Court of  41 the United States and John Marshall's attempt to stake  42 out the third co-ordinate branch of government in the  43 United States which the U.S. Supreme Court ultimately  44 became but Georgia did not appear and advance any  45 argument in opposition so the case in some senses is  46 an ex parte decision but the Court described the  47 Cherokee Nation as a domestic dependent nation and 2272  Submissions by Mr. Willms  1 they had before them a treaty.  I mean, there were  2 treaties with the Cherokee so the historical  3 background to the judgment is inseparable from the  4 treaty which was before the Court and allowed the  5 Court to -- in looking at the treaty to conclude by  6 reviewing the terms of the treaty that the Cherokee  7 were a domestic dependent nation and as Chief Justice  8 McEachern said in his judgment, there is no case in  9 Canada that has characterized an aboriginal tribe in  10 that way constitutionally as a domestic dependent  11 nation and so for that reason, he declined to -- and  12 he made a reference to that, that categorization.  13 LAMBERT, J.A.:  That's a categorization in relation to  14 sovereignty and there hadn't been many cases in Canada  15 so far as I am aware in relation to what's been called  16 sovereignty in this case or jurisdiction so the  17 concept may have never had to have been decided in  18 Canada.  19 MR. WILLMS:  No.  I mean, there have been treaty cases in Canada  20 but my lord is right.  There haven't been treaty cases  21 where the issue was sovereignty in the treaty case.  22 One of the important aspects of that case was the  23 Cherokee were arguing that they were a nation so that  24 the Supreme Court of the United States would have  25 jurisdiction to hear the lawsuit and while the Court  26 described them as a domestic dependent nation they  27 didn't describe them as a nation and my lord is right.  28 It may well be that some Court in the context of a  29 treaty in this country might choose to adopt the same  30 language.  I am just saying that that hasn't happened  31 yet as pointed out by the Chief Justice.  32 Now the next case is the Worcester and Georgia  33 case and a case that is relied on by a number of the  34 intervenors as well as the appellants and once again,  35 Georgia consistent with its policy did not appear in  36 the -- I start, my lords, at paragraph 37 but the note  37 that my lords can make, Georgia didn't appear again so  38 in some senses it might be called a default judgment.  39 The language of the judgment did not reflect what was  40 happening on the ground in the United States.  That's  41 the second point.  And the third point is the same  42 point I made earlier with the Cherokee Nation case.  43 The discussion in the case focuses on the treaty.  44 There was a treaty or treaties with the Cherokee in  45 which a political organization, a complicated  46 political organization in respect of the Cherokees was  47 recognized by the U.S. government by treaty and you 2273  Submissions by Mr. Willms  1 cannot consider that case without looking at the  2 treaty before reviewing the language of the Court in  3 some of the statements which are very strong  4 statements, I acknowledge, but if you take the  5 statements out of the context of the case you can see  6 why it would be dangerous to apply it as if it was the  7 common law.  8 The last judgment which has been called one of the  9 Marshall decisions is dealt with from pages 25 to the  10 end of the tab.  It's called Mitchel and the United  11 States.  It wasn't really a Marshall judgment because  12 Chief Justice Marshall died and didn't participate --  13 didn't write an opinion.  He participated in hearing  14 the case but he had passed away by the time the  15 decision was handed down.  It was written by Justice  16 Baldwin who was the justice who dissented in Cherokee  17 Nation.  This case in U.S. jurisprudence has basically  18 been virtually ignored.  In terms of the U.S.  19 jurisprudence, the cases usually stop at Worcester  20 and Georgia but more importantly, and I won't take  21 your lordships to it, but your lordships have heard  22 about the Santa Fe case, U.S. and Dionne, the  23 Tee-Hit-Ton case.  The cases before the Supreme Court  24 of the United States in this century are all  25 completely inconsistent with what Mr. Justice Baldwin  26 said, especially the stronger statements advanced by  27 Mr. Justice Baldwin in this case and I think it's fair  28 to say that this case at the present time, the Mitchel  29 case or especially the provisions that my -- the  30 appellants have relied on which is the right of  31 occupancy is as sacred as the fee is -- does not have  32 the effect in American jurisprudence that the  33 appellants suggest that it should have in ours.  The  34 jurisprudence has advanced quite a bit further and  35 quite a bit away from what Mr. Justice Baldwin said in  36 this case.  37 My lords, those were the two areas that I wanted  38 to cover today and I have covered them and I -- if  39 your lordships would prefer and I think we would  40 prefer adjourning now and getting into extinguishment  41 tomorrow morning at ten o'clock but we are in your  42 lordships' hands, obviously.  43 TAGGART, J.A.:  I assume that by letting us go at ten minutes to  44 4:00 we are not going to stay until ten after 4:00 --  45 MR. WILLMS:  Tomorrow?  46 TAGGART, J.A.:  — another occasion?  47 MR. WILLMS:  No, my lords, no.  Four o'clock, that will be the 2274  Submissions by Mr. Willms  1 end tomorrow and three o'clock will see the end of me  2 on Friday.  3 TAGGART, J.A.:  All right.  We will adjourn then until ten  4 o'clock tomorrow morning.  5 THE REGISTRAR:  Order in court.  Court stands adjourned.  6  7 (PROCEEDINGS ADJOURNED ACCORDINGLY AT 3:50 P.M.)  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings transcribed to  12 the best of my skill and ability.  13  14  15  16  17  18 LAUREL LEIGH  19 Official Reporter,  2 0 UNITED REPORTING SERVICE LTD.  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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