Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-12] British Columbia. Supreme Court May 12, 1992

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 495  Submissions by Mr. Grant  1 Vancouver, B.C.  2 May 12, 1992  3  4  CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal of  7 British Columbia, Tuesday, May the 12th, 1992.  The  8 matter of Delgamuukw versus Her Majesty The Queen at  9 bar, my lords.  10 TAGGART, J.A.:  Mr. Grant.  11 MR. GRANT:  Thank you, my lord.  I was referring the court to  12 the argument with respect to jurisdiction and  13 specifically with respect to the resources at page 157  14 of Tab 4 of the factum, paragraph 321.  And I will be  15 taking you to the reference book which is R-8 at Tab  16 321 as well.  17 As the appellants set out, and this is in the  18 context of what I raised yesterday in my opening, that  19 both the Gitksan and Wet'suwet'en witnesses testified  20 to the body of rules which have been developed to  21 ensure successful harvest of resources and a healthy  22 continuing ecosystem.  In Gitksan this body of  23 observances and practises is called "sesatxw" and in  24 Wet'suwet'en "hahl'ala".  This body of knowledge and  25 procedures includes technical skills, practical  26 workmanship, knowledge of the terrain, of the life  27 cycles and habits of the target species, and a  28 regiment of self-denial and personal discipline which  29 involves sexual abstinence and the physical cleansing  30 of the body.  31 And I have referred you there to a number of  32 references, and just as an example I would like to  33 take you to the second reference, which is to Stanley  34 Williams after the first brown sheet in the tab.  And  35 I would like to take you to page 14 of that reference.  36 This is Mr. Williams who, as I described earlier, was  37 born in 1908, describing as a young man, as a boy  38 actually, his father's training regarding the grizzly  39 bear.  Line 15:  40  41 "Q   Do you recall a particular event regarding the  42 hunting of grizzly bear where your father  43 helped with your training?  44 A   I remember everything that he's taught me and I  45 remember that we went to a mountain where he  46 shot a grizzly.  After he shot the grizzly, the  47 grizzly was struggling, the grizzly was still 496  Submissions by Mr. Grant  1 alive, he took a knife and he cut the tongue of  2 the grizzly and he gave it to me to eat.  I did  3 eat the tongue of the grizzly and after this he  4 took the grizzly and he rubbed it, the grizzly  5 was still alive, and he rubbed it against my  6 face and my head."  7  8 And at page 16 Stanley Williams describes his  9 training regarding mountain goat hunting in the same  10 tab two pages over.  11  12 "Q   Did your father do anything to prepare you to  13 help you to hunt mountain goats when you were  14 young?  15 A  My grandfather trained me -- I mean my -- I  16 always say grandfather.  My father trained me a  17 lot of things and he also trained me how to  18 hunt the goats.  During my training with my  19 father we shot some goats with Robert Harris,  20 Frank, and Tommy Harris.  In the evening when  21 he was training me how to travel on the  22 mountain to get the goats, what my father did  23 is he cut off the hooves of the goat and he put  24 it on the fire until the -- until the hooves  25 came off the -- came off the bone, and he took  26 the hooves and he put it on my toes.  The --  27 while he was doing this, the hooves are still  28 hot and he -- after this he takes the hooves  29 and then he goes up to the mountain and he puts  30 these hooves in the cracks of the mountain.  31 After he put the hooves in the cracks of the  32 rocks up the mountain he -- he came down and he  33 takes a bath four times in the -- in the water.  34 The fourth time he did this, and this is the  35 reason why I always feel what he -- he is doing  36 the purification, what he went through too.  37 After he -- he did this and I -- after I went  38 to the mountain I could feel that, what my  39 father did by the purification.  I could feel  40 it when I was travelling up the mountains.  41 Whenever I -- I chase a goat on the mountain,  42 it's just like a flat surface for me.  It  43 doesn't seem rough at all."  44  45 WALLACE, J.A.:  How might you use this anecdotal history to  46 assist me in resolving this?  47 MR. GRANT:  I appreciate your lordship's question. 497  Submissions by Mr. Grant  1 WALLACE, J.A.:  I can see this at trial level, but the Court of  2 Appeal level it seems --  3 MR. GRANT:  As you recall what I said yesterday, I commented on  4 his and directed you to his lordship's comments about  5 the beliefs and about the facts.  That's the first  6 point.  7 And the second is the point that I wish to raise  8 out of this, and there are other examples, is it's not  9 a question here, of course, for this court, or even  10 for counsel, whether or not this practice assisted Mr.  11 Williams in his hunting or not.  That's not the point.  12 The point is, and it's not only Mr. Williams, but  13 there are many other examples, that the Gitksan and  14 the Wet'suwet'en performed these practises which are  15 not derivative of European practises.  What I say this  16 establishes is, that their hunting of mountain goats  17 pre-dated the Europeans.  Now, where did they go to  18 get mountain goats?  They went far from the villages.  19 How did they get the mountain goats?  They did it  20 under a system of laws and practises.  And in my  21 argument, my lord, I am going to come back to this in  22 referring to how we look at how your lordships should  23 look at the laws of these people, which is in a  24 different context than, of course, how we look at the  25 laws in the court under the crest behind your  26 lordships.  27 What I am saying is this is as much in the  28 aboriginal perspective a part of their laws as what we  29 are dealing with here in the common law.  And all I am  30 stating about this particular example, my lord, is  31 that it's not a difficulty that -- for the court to  32 say, "Well the Gitksan believed these things assist,  33 this practice assists in hunting."  We don't have to  34 decide whether it does or not, and there was no effort  35 to prove whether it was better if they practised  36 sesatxw or not practice sesatx.  That wasn't the  37 point.  The point is that the Gitksan have laws to  38 manage the resources.  They have training for specific  39 persons to be the hunters.  Here is an example of one.  40 And the only way to describe it, you say it's an  41 anecdotal, and it is, but the only way to describe it  42 is from the witness's experience.  They say, "This  43 happened to me.  I am one of the specialized hunters."  44 And it wasn't Mr. Williams himself who said that, but  45 other witnesses who said he was specially trained to  46 do this.  47 So what I am saying is, is this is an example in 498  Submissions by Mr. Grant  1 the Gitksan perspective of their management and laws  2 of conservation and of how they prepare themselves for  3 the harvest of the resources.  4 And when you look at this, my lord, all I ask you  5 to question is could this have arisen after -- from  6 some European influence.  7 WALLACE, J.A.:  Assume this is a practice that the individual  8 parents, hunters taught others the importance of  9 hunting.  Where does that take us?  One would assume  10 that any hunter has got to be trained by somebody  11 sometime in order to be more proficient hunter.  12 MR. GRANT:  But this is a special practice by which the hunter  13 is trained to -- not just trained in how to shoot  14 better or those kinds of things, which of course you  15 expect, but is trained in the spiritual relationship  16 with the particular species so that he will be a  17 better hunter.  That's what I am referring to here.  18 This is from the aboriginal perspective.  And what I  19 say is it's indicative of the laws of the Gitksan.  20 It's indicative of their laws.  And it's not for this  21 court -- you don't have to find the specific law that  22 the Gitksan have to carry out this practice to hunt,  23 but what I ask you to find, my lord, what I am asking  24 you to recognize, is that the Gitksan have laws with  25 respect to the resources.  If you only go that far,  26 that's all that I am asking you to do -- the  27 appellants are asking you to do.  28 WALLACE, J.A.:  It could be characterized as a practice,  29 couldn't it, Gitksan practises in respect to hunting?  30 Even if it went that far, because it's only an  31 individual incident.  32 MR. GRANT:  Well, yes, but I am not going to take you, of  33 course, to the multitude of incidents.  It's not an  34 individual, what I say, it's a communal, as is the  35 right is communal.  36 WALLACE, J.A.:  Every boy had to eat the tongue of the bear?  37 MR. GRANT:  In terms of his training, yes.  Art Mathews  38 described how he was directed to go into the grizzly  39 bear's den in the winter in his evidence.  Another  40 aspect of the practice.  What I am saying is --  41 WALLACE, J.A.:  Well, that's what I meant, practice.  42 MR. GRANT:  Okay.  What I am saying is that when you take the —  43 I appreciate what you say.  Eating the tongue of the  44 grizzly itself may be a practice focused on this  45 house, as with Art Mathews' house, as specialized  46 hunters and grizzly bears as well, and he described  47 his training, but the law is that there is the 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  MR. GRANT:  WALLACE,  LAMBERT,  499  Submissions by Mr. Grant  performance of sesatxw, the spiritual preparation for  hunting.  In this case it is this method, in other  cases it's other specific aspects.  Okay.  But there  is a law for the preparation for hunting, and that is  reflective of the aboriginal relationship to the  resources and management and conservation of the  resource.  And what I say to you, my lord, is this is  why Mr. Brown --  WALLACE, J.A.:  Okay.  MR. GRANT:  I'm not sure if I —  WALLACE, J.A.: You know my concerns. I am just wondering where  this is going to advance -- your particular recitation  of these facts are going to advance the principle that  you are --  Later this morning I am going to come to the laws  and how you should look at the laws, and I think then  we can reflect back on this and answer your lordship.  J.A.:  I may understand it then.  J.A.:  I think perhaps I should leave my concerns until  you reach that stage too.  If you're going to relate  them to the concept of aboriginal rights that was  explained by Mr. Jackson last week in relation to the  right of occupancy, in relation to the land, and what  this demonstrates in respect of that asserted right,  then I'll just wait until I see you tie it all  together.  Yes, I will do that.  Now, if I could take you to the last, after -- I'm  sorry, I'll just say there is James Morrison's  evidence and then I'll take you to Dr. Daly's report  in the same tab.  And at the top of page 253 he refers  to this.  He talks about:  "In Gitksan this body of observances and  practices is called sesatxw; in Wet'suwet'en:  hahl'ala.  Properly observed, sesatxw/hahl'ala  is said to empower the hunter to succeed in his  mission, especially in the winter-long task of  food-getting.  Today among families whose  members actively harvest the resources of their  territories at least some features of the  sesatxw/hahl'ala are observed, although this  aspect of Gitksan and Wet'suwet'en culture is  not readily revealed to outsiders.  Younger  members of House groups are tutored in  sesatxw/hahl'ala as part of their training by  their fathers or olders members of their  MR. GRANT: 500  Submissions by Mr. Grant  1 house."  2  3 And then he referred to the reluctance to explain  4 the practice in detail with reference to some of the  5 evidence at the trial.  6 Now, I go to paragraph 322 and I say the trial  7 judge's finding of common sense subsistence practises,  8 entirely compatible with bare occupation for the  9 purpose of subsistence, is completely at variance with  10 the extensive evidence given regarding technology  11 employed in the processing and storage of a variety of  12 resources, including fish, hides, meat, fur, wood,  13 berries and other plants.  14 And I take you to Tab 322 only because it has the  15 other comment of the Chief Justice, the trial judge in  16 the case.  At page 372 he says under C:  17  18 "I have no difficulty finding that the Gitksan  19 and Wet'suwet'en people developed tribal  20 customs and practises relating to chiefs, clans  21 and marriage and things like that, but I am not  22 persuaded their ancestors practised universal  23 or even uniform customs relating to land  24 outside the villages.  They may well have  25 developed ...,"  26  27 And I emphasize this:  28  29 "... a priority system for their principal  30 fishing sites at village locations."  31  32 I would like to take you to the village site  33 issue, and I refer you to paragraph 323.  Dr. Daly and  34 many witnesses described the processing of fish in the  35 summer months.  For example, Dr. Daly in the quote --  36 I am in the factum itself, my lords.  37  38 "A phenomenal amount of labour was expended in a  39 matter of a few summer weeks.  Martha Brown,  40 Xhliimlaxha, explained to me that she and her  41 mother would annually process three thousand  42 sockeye for the family's winter needs, usually  43 at a three week period beginning in late July,  44 then smoke one thousand to two thousand  45 humpbacks on which to feed the dogs over the  46 winter.  Then, by way of holiday, they would  47 pick and smoke-dry forty to sixty packloads of 501  Submissions by Mr. Grant  1 berries."  2  3 And if I take you to Tab 323, after that first  4 Dr. Daly what you have is two photographs.  And these  5 are photographs of a site you may be familiar with  6 from the Nikal case because it is photographs of the  7 Moricetown Canyon prior to the fish ladders being  8 installed, but it is of the gaffing in the canyon.  9 Now, I would like to just ask you to note in your  10 factum here that there are several witnesses who  11 describe the fishing sites I am going to take you to  12 in a moment.  For example, Olive Ryan.  And I believe  13 I have asked the Registrar to pull out Exhibit 29-5,  14 which is a map.  It's not in the reference book.  15 It's a map of the Kitsegukla fishing sites.  If you  16 just examine that, you can see the markings of the  17 fishing sites where the triangles are.  She named  18 those sites, and the first name is the name of the  19 site, the second name is the name of the clan, and the  2 0 name under that is the name of the owner.  So that  21 would be the House group that owns the site.  22 Now, Pete Muldoe also gave evidence on this point,  23 and Stanley Williams and Martha Brown and Glen  24 Williams and Walter Wilson.  25 The cumulative effect of that evidence -- and  26 maybe, Mr. Registrar, there is another smaller version  27 of this map for Mr. Justice Hutcheon and Mr. Justice  28 Wallace in case you can't see.  This is the map in the  29 map atlas, but I have got the enlarged version here  30 which is also an exhibit.  At the bottom here and for  31 those of you that want, it's in the map atlas at map  32 22 in the small map atlas.  But the Kitsegukla sites  33 that Martha Brown described are here on the bottom.  34 I should just locate you -- unfortunately, the  35 cartographer was of the view that we could go on an  36 east/west axis and nobody would be confused.  I think  37 we've all proven him wrong.  So I put this sideways.  38 This is the north at the top and this is the north end  39 of the territory.  40 Now, what's significant, and in the copy you can  41 see there, is there is no doubt, as the trial judge  42 found, that significant fishing sites are located  43 within the canyon sites.  For example, you have in  44 here the Kispiox area.  And what happens is in the  45 darkened area here, just so that you can understand  46 this, here is the Kispiox, Skeena area, and it's  47 actually lined to this, which is the Skeena and 502  Submissions by Mr. Grant  1 Kispiox River sites.  So those dark green areas on  2 your map are actually enlarged along the side and  3 there is actually lines that go to them that you can  4 see on the small version.  5 What's significant is when you look at this map,  6 my lords, is that you see that there are fishing sites  7 way up in the north and there are fishing sites way  8 down in the south and there are fishing sites along  9 the Skeena River.  Here is Kitwanga here.  This one  10 was not used as an enlargement, but there are fishing  11 sites right down to the site Mr. Rush referred you to  12 last week called Xsugwink'aat.  And that site, of  13 course, is the site of Gitanga'at, which is in the  14 oral history, and it's described as the fishing site  15 of a House and the oral histories describe it.  16 So these fishing sites are spread throughout the  17 territory.  In the Wet'suwet'en area the fishing sites  18 are way down in the lake areas, including areas  19 excluded by the trial judge in his map 5, and I say  20 that it demonstrates the fishery was widespread.  It  21 was not solely focused at the fishing villages.  22 There is no doubt that the fishery is of  23 significance and was one of the key economic features  24 that distinguished the Gitksan and Wet'suwet'en from  25 other groups that they had to deal with.  26 In paragraph 324 I just ask you to refer to that.  27 I won't read it to you.  It's there.  But Dr. Daly  28 describes the types of gear that were used.  29 And at paragraph 325 I would like to take you back  30 to Art Mathews' evidence.  And this demonstrates again  31 how they distinguish the fish from different groups.  32 If you go to page 4651 at the beginning of that tab.  33 At the bottom of the line he is talking about what  34 happens in the fishery.  And he says at line 45:  35  36 "A  And they would take these fish and split them  37 open one along the back and side.  They would  38 split it open and start filleting the fish.  39 When it is half dry, and do the other side, and  40 each house have a distinctive mark -- marking  41 the way it is filleted for identification to  42 know where it came from.  This is a strict law  43 in our house where I know it's done.  My mother  44 cut half the fillet and cut two lines this way  45 across the fish.  If that was the head and that  46 was the tail, when they fillet, they cut two  47 slots across like this. 503  Submissions by Mr. Grant  1 Q   And is that inside or outside?  2 A   Inside ....  And when my wife, I remember I  3 told her -- she was from Kit katla.  She makes  4 two other lines here and I tried to tell her do  5 it this way and she said no, it is my fish,  6 I'll do it the way as my mother taught me as  7 our own distinctive sign.  So each house has  8 its own distinctive sign, identification from  9 where these fish come from.  10 Q   Do other Gitksan houses have a distinctive sign  11 too?  12 A   Yes."  13  14 LAMBERT, J.A.:  Well, every woman does it the way her mother  15 taught her.  16 MR. GRANT:  Yes, the evidence is clear, every woman does it the  17 way her mother taught her, but what's also significant  18 is that each house group does it in a different way.  19 And Olive Ryan gave such evidence too, and they have  20 shown it.  And so even in the same village different  21 house groups do it different ways.  22 Now, if I could just take you in the same tab to  23 Dr. Daly at page 391.  So it's two brown sheets over.  24  25 "The salmon are the anchor  ..."  26  27 Dr. Daly's opinion was this, and this is  28 corroborated by other anthropologists.  29  30 "The salmon are the anchor and focal point of  31 the subsistence economy."  32  33 And by "subsistence" here he does not mean merely  34 survival.  He explains that in anthropological terms  35 means a whole economy, including trade and other  36 aspects.  37  38 "They comprise the mainstay, in terms of the  39 protein needs of the people.  When this protein  40 is combined with their own fat content and that  41 of other fish and game species, as well as with  42 the seasonally available carbohydrates (mainly  43 berries, sap, bark and bulbs), the salmon  44 provided a secure and balanced diet to the  45 pre-contact Gitksan and Wet'suwet'en.  46 In their book, Gathering What the Great  47 Nature Provided the Gitksan list twenty-four 504  Submissions by Mr. Grant  1 names associated with delicacy cuts of the  2 salmon, succulent parts of the anatomy, methods  3 of preparation of everything from oversmoked  4 fresh salmon to salmon roe, eyes and the rich  5 and delicious belly strips called ts'okw ..."  6  7 Going to the next paragraph.  8  9 "Much energy was, and still is, invested in the  10 summer food fishery."  11  12 And he is there referring to the methods used.  13 And if you go over to two more tabs to Mary  14 Johnson.  Now, Mary Johnson, I believe I indicated  15 she -- and this is in transcript 10 at page 1617, she  16 was born August 4th, 1909.  She was talking about when  17 she was young in the Kispiox, and she describes there  18 how -- page 776 of Mary Johnson, starting at line 17,  19 and she describes from there over to the next page at  20 line 31 both the methods of smoking and the trading  21 with the people at Kisgegas, which is one of the other  22 Gitksan villages to the north.  And I'll come back to  23 the trade when we deal with the evidence beyond the  24 villages.  25 Just as with fish, it was the same with berries.  26 And as I say at 326, organization and production of  27 various berry crops which grow in the appellants'  28 territories also demonstrates a high degree of  29 management and cooperation with the house and its  30 members.  31 And I take you to Tab 326, page 1139.  It's in the  32 second page in of Olive Ryan.  Line 7.  33  34 "Q   Could you describe to the court how the berries  35 were dried and what was done?  36 A  Well, they cook the berries in the rocks.  They  37 build a fire and put the rocks in the fire and  38 they put the berries in the box.  And they --  39 and there is another box for the water, pail of  40 water, and they take the rocks out of the fire  41 and dip it in the water.  They clean the rocks  42 before they put it in the berries, and that's  43 what they did.  They put he rocks in the box  44 and the berries and they laid the berries on  45 top of the rocks and add some more berries  46 until the box is full, and they put the mat  47 over the box and tied it and let it stand for 505  Submissions by Mr. Grant  1 overnight.  And the next day they put it on the  2 rack and they build the fire under the rack,  3 while the berries was -- cooked berries on the  4 rack.  That's how they do when they dried the  5 berries.  And they saved the juice when, you  6 know, after they cook the berries, and save the  7 juice in the other box.  And they put the  8 berries on a rack.  They used skunk cabbage.  9 That's what they used over the rack, so the  10 berries on top.  And they saved the juice, they  11 call it sa ga t'ikxw."  12  13 Now, what she is talking about, of course, is the  14 process of berry preservation.  And if I could take  15 you for a moment to the map atlas, I would just like  16 to show you that you can see commencing with maps --  17 actually, and I won't take you to every one of them,  18 but maps 3 to 10, this is Sybille Haeussler's  19 evidence, show the different berry species.  20 Now, if you look at map 3, you see the abundance  21 of soapberries, which was one of the species that's a  22 prime feature not only for use but for trade, is  23 within the Gitksan and the Wet'suwet'en territory.  24 And what I would like you to note is the significant  25 feature on these maps is that in this case there are  26 berries that are productive, are primarily internal,  27 and then in other places -- I'm sorry, interior, and  28 in other places they are coastal.  So here -- and this  29 is a feature that Dr. Daly observed in terms of the  30 importance of trade.  So soapberry is a prime feature  31 of trade from the Gitksan and the Wet'suwet'en to the  32 coastal groups.  And you see similarly with Saskatoon  33 and Tab 4.  34 I would like to take you to one where you see a  35 different feature.  Well, one of them is the oval  36 leafed blueberry and the high bush cranberry, and  37 that's at maps 8 and 9.  And there what you see is the  38 opposite feature.  The berry production is most  39 prevalent in the coast going inland.  And Mr. Mathews,  40 Tenimgyet, described -- just bear with me.  I'll take  41 this out of the way.  He described how he would pick  42 berries and would trade them to other Gitksan.  If you  43 look at those maps, you will see that this area here,  44 the most western most Gitksan area of Tenimgyet, is  45 one in which there are these species that are coastal  46 and they are not interior.  So he described how they  47 picked -- they used the berries here and traded them 506  Submissions by Mr. Grant  1 to other Gitksan.  The few areas as it juts out to the  2 west so far.  3 I won't refer you to the other references in 326.  4 I would ask you, in considering the use of that  5 resource, that you look at those.  6 And 327, back in the factum, I wish to refer you  7 to the evidence of harvesting and preparation of meat,  8 hides and furs of various animals for purposes of  9 domestic consumption, trade and fulfilling feast  10 obligations.  11 Now, here I would like to ask you to at least  12 cross-reference or go back to page 114, paragraph  13 4-185 of the argument.  Here is the observation of  14 Daniel Harmon in 1810 and 1812.  And he says:  15  16 "The following ceremonies attend such festivals.  17 The person who makes the entertainment, who is  18 always a chief, boils or roasts several whole  19 beavers; and as soon as his guests are seated  20 around a fire, which is in the centre of his  21 house, he takes up a whole beaver, and with a  22 raised voice, relates how and where he killed  23 it, that all present may know that it came from  24 his own land."  25  26 Now, I want to advise your lordships that from a  27 review of the judgment the trial judge did not refer  28 specifically to Harmon and certainly did not refer to  29 this.  Harmon here is ten years before William Brown.  30 And even if one suggests there is an impact of the  31 coastal fur trade, and we say that that -- the impact  32 would have been at a time much later with the Gitksan,  33 because they are an interior group, it's certainly at  34 the time of Harmon.  This is certainly something that  35 could not have been created at that time.  36 When you contrast what Harmon said in 1810 with  37 what I am going to refer you to, and I'll take you to  38 Tab 327, Mary McKenzie, the first reference.  And here  39 is what she says.  She is being asked here about the  40 feast today where Clara, a chief at a headstone feast,  41 has put in money.  That's what leads up to this.  42 She's asked:  43  44 "Q   Why does she do that, why is she putting money  45 in?  46 A   It's Gitksan law that -- let me -- I tell the  47 modern and before.  The older time they didn't 507  Submissions by Mr. Grant  1 use money, but they use the hides of the  2 animals, like the beaver or the ground hog or  3 the hide of a moose, or deer, and these are  4 brought in in the whole portion.  Then the  5 moose hide is cut up in portions about 12  6 inches to probably 24 inches, the same way with  7 deer hide, and ground hog, three or four are  8 sewn together, they're put in, and same way  9 with the beaver hide.  Now, all this is put  10 there and there will be piles of that, so after  11 the Europeans came, guns were brought in and  12 put in as well as the hides, because they were  13 able to buy these rifles.  Hudson Bay blankets  14 were brought in and were used."  15  16 Then going to the bottom of that page.  17  18 "Now, today we use money, cash is used instead  19 of like the hides of a moose and deer, because  20 the reason why moose and deer was used and the  21 ground hog, the Gitksan people killed these  22 animals off their territory, and there was a  23 season that at prime time when these first  24 are -- and these pelts are of prime sort that  25 they -- this is why they -- it took them many  26 years probably, or a few months to get all  27 these.  Now, their season is open for the  28 hunting, it's not -- although they're limited,  29 the kill, but still with every wil'na t'ahl and  30 every House of a Gitksan would have these  31 prepared for a Feasting, so this comes from the  32 territory, like the ground hog, the beaver, the  33 moose, and the deer, but today we were not able  34 to do that because the seasons are set now for  35 the people to do their hunting and trapping, so  36 we don't use those anymore in our Feasting, so  37 we use cash, but the food is there, we still  38 use the food off of the territory today.  We  39 don't use the hide."  40  41 And then if you refer to the two references over,  42 that would be two brown sheets over to Dora  43 Wilson-Kenni.  And she describes the preparation of  44 the moose hide at the bottom there.  And I just ask  45 you to highlight her note because I am not going to  46 read it to you.  Line 36 over to the next page.  And  47 what she is describing there is a traditional method 508  Submissions by Mr. Grant  1 of hide preparation for the feast.  2 And then I would like to show you, if you go to  3 the next two more brown separation sheets over, and  4 you have the photograph of Sylvester William.  He is  5 now deceased.  He was the former Hag wil negh,  6 Wet'suwet'en chief, stretching the beaver skin at his  7 camp at Pack Lake.  8 And going back to my factum, my lords.  What I am  9 saying here in 328 is that this evidence, and the  10 other references are there in paragraph 327, this  11 evidence establishes the close husbandry of animals  12 which the first white traders observed was a  13 pre-existing feature of the appellants' management and  14 conservation regime.  The trial judge's conclusion  15 that there was no such regime, only common sense  16 subsistence practises, is, with respect, contrary to  17 the evidence.  And that's where I say he either failed  18 to appreciate the evidence or completely disregarded  19 it.  20 I submit here, my lords, that the system of the  21 harvest management and conservation has to be more  22 than these common sense subsistence practises.  23 I then take you into the evidence of the head  24 chief having authority to manage and conserve the  25 resources, and I would like to refer you to the  26 evidence of Solomon Marsden at paragraph 329.  He  27 talks about -- testified that:  28  29 "When the decision has been made for a successor  30 of the former chief, then the name is put on  31 this new chief, and the power and the authority  32 is put on this chief to make decisions on the  33 territories."  34  35 And I refer you to the evidence of Pete Muldoe,  36 which is the second tab in at Tab 329, and where he  37 says:  38  39 "After Gitludahl passed on and the name is  40 passed on to me, I have the full authority to  41 look after the place or give permission to  42 anyone that wanted to go there."  43  44 And if you go to the next tab, Mary McKenzie  45 introduces the concept of authority among the Gitksan.  46 At line 11 she's asked at page 362:  47 509  Submissions by Mr. Grant  1 "Q   Is there a Gitksan word for the authority of  2 the chief to make the decisions regarding the  3 territory?  Is there a Gitksan word or phrase  4 that describes that?  5 A   Daxgyet, that's giving the authority."  6  7 And in fact, my lords, I just want to comment here  8 that really if you're talking about -- there is always  9 this concern when we use the English term of  10 jurisdiction at trial and the trial judge equated  11 jurisdiction with sovereignty.  And as Mr. Jackson  12 said last week, that's distinctive.  And in our  13 argument we refer to jurisdiction and we refer to  14 self-government.  But if you were to say to a Gitksan  15 person, "What are you really talking to me about?"  16 They would say "daxgyet".  And daxgyet includes that  17 authority of the chief to make decisions and control  18 the land and the resources and to seek the aid of his  19 House members to help him in the feast.  20 If you refer over to Glen Williams, which is at  21 the next sheet over at page 6812.  And he says -- he  22 is asked at the bottom of the previous page about the  23 Gitksan legal system.  At the top at line 3:  24  25 "Q  ...  who would, under the Gitksan laws, have  26 authority over the territory, let us say, the  27 territory of a particular house?  28 A   It's mainly the head chiefs in that house and  29 that house itself that has authority over that  30 territory."  31  32 And he again uses the term "daxgyet" as that  33 authority.  34 And then at line 34 he is asked:  35  36 "Q   Well, let me ask you this:  Does the authority  37 of the house chief in the feast hall, connect  38 to the authority of the chief on the territory?  39 A   Yes, it does.  4 0 Q   Can you explain how?"  41  42 And here is the linking of the feast institution  43 and the territory, in my submission.  I submit this is  44 a fairly important explanation and fairly clear.  45  46 "A  What the chief is doing, that house group, the  47 chief in that feast, what he is doing is 510  Submissions by Mr. Grant  1 demonstrating publicly in that feast to the  2 other chiefs that he has invited in the feast  3 hall, that he has laws that he has to follow  4 for that particular feast and that he is  5 demonstrating publicly that he has land, that  6 he has fishing holes and that he has power and  7 that he has wealth and that he owns the land  8 and these are my other members of my house,  9 immediate house.  That's what he is doing.  He  10 is publicly telling all the people in that  11 feast hall, that this is who I am, I am a  12 chief, I am a high chief and this is my  13 authority."  14  15 And the other reference there is to the  16 Wet'suwet'en description, Mr. Joseph, which has  17 already been referred to you.  18 Now, the chief alone doesn't exercise this  19 authority.  The chiefs testified to exercising  20 jurisdiction -- I'm at paragraph 330 of the factum --  21 to harvest, manage and conserve the resources in  22 consultation with sub-chiefs of their house.  Chiefs  23 also regularly delegate their power to sub-chiefs to  24 manage sections of a large territory.  25 Now, I would like to demonstrate this to you  26 because it's quite interesting in the case of Mary  27 McKenzie at Tab 330, the first page.  She is asked at  28 line 29:  29  30 "Q   There is although the head chief of a  31 territory.  Then there is the sub-chiefs or the  32 wings?  33 A   Yes.  The reason, sometimes, I am going to make  34 it more clear, in Gyoluugyat territory now,  35 it's a big area and there is Houses, like you  36 say five, four, but then each one of us have a  37 portion belonging to each chief but as at  38 wil'naa t'ahl we say that whole thing, the  39 wil'naa t'ahl.  No one is put out of not  40 sharing that territory."  41  42 Now, Mr. Rush referred you to this in the facts,  43 and I just want to just remind you.  In this case Mrs.  44 McKenzie is talking about that right now, and this  45 happened around -- from the genealogies, it appears to  46 have happened around 1917 with the influenza  47 epidemics.  It happened to a number of Gitksan houses. 511  Submissions by Mr. Grant  1 The chiefs of a number of houses came together because  2 the membership was just too small.  3 And on an anthropological point, and Heather  4 Harris' report -- Mr. Justice Hutcheon, you asked Mr.  5 Rush yesterday about this -- that in fact  6 anthropologically speaking it was assessed that a  7 group, a House group could not be smaller than 25 and  8 be survived.  They really needed that as a minimum.  9 So the range is 25 to 150 members of a House group.  10 They get larger than 150, then they have to break  11 apart.  12 So there was this disease, and it appears from the  13 genealogy around 1917.  It certainly appears to be as  14 a result of influenzas, the 1917/1919 influenza, or  15 one earlier in this case.  But it's around that period  16 of time.  17 So what she describes is that there are four House  18 chiefs that all become into Gyolugyet, and she names  19 them, and presently some of her children hold those  2 0 names.  21 What the effect of this is -- that is a Wolf House  22 of Kuldoe, the northern village, and what you see on  23 this map is this is a -- here is Kuldoe, here is a  24 Gyolugyet territory.  There is a line there and here  25 is another Gyolugyet territory, a line there and  26 another Gyolugyet territory.  Now, what the evidence  27 established, that in fact these -- today it's one  28 House, Gyolugyet, but it actually is run by different  29 chiefs in that House because in previous times they  30 were separate.  31 This was a question that the trial judge had, "Why  32 do you have such disparate sizes of territories?"  33 Well, obviously one reason would be resources, but  34 another reason in some cases would be like this:  You  35 in fact have an amalgamation, and Heather Harris in  36 her report describes this amalgamation process, that's  37 the genealogical evidence, but you have an  38 amalgamation, and so you see this is what's happening.  39 So what Mrs. McKenzie, Gyolugyet, is saying, is that  40 in fact we divide up the territory here.  And that's  41 part of what a chief -- and the chiefs do in the  42 House.  43 TAGGART, J.A.:  How many Houses would there have been at the  44 time of contact, say, when Mr. Brown was there?  45 MR. GRANT:  I am not sure if there was evidence led as to that.  46 There certainly was -- I would suspect with respect to  47 the Wet'suwet'en you would probably have a similar 512  Submissions by Mr. Grant  1 number of Houses as here, except in that case two  2 clans amalgamated.  The Wet'suwet'en are thirteen  3 Houses today, and they seem to have a relatively  4 stable history.  5 With the Gitksan, because of this, the larger  6 populations, you went from seventy-four, and there is  7 descriptions that there were over a hundred Houses, a  8 hundred to a hundred and five Houses originally.  When  9 I say originally, my lord, what I am saying is that  10 you go to a House like Gyolugyet and you say that's  11 five Houses that is now one House today, but they say  12 if you put them altogether, broken up, you would have  13 one hundred to one hundred and five.  14 TAGGART, J.A.:  And Wet'suwet'en were how many?  Thirteen?  15 MR. GRANT:  I'm sorry?  16 TAGGART, J.A.:  Wet'suwet'en were thirteen Houses?  17 MR. GRANT:  There are thirteen Houses today.  And Mr. Rush has  18 referred me to, and I just ask you to note, paragraph  19 194 of Tab 4, which is the reference to Brown where he  20 talks of twenty chiefs of different gradations and  21 sixty-seven married men as heads of families and  22 possessors of lands.  23 Now, that's the best we have from him.  So it  24 would suggest that there may have been twenty separate  25 Houses at that point of the Wet'suwet'en.  On the  26 other hand, he is talking -- clearly when he talks  27 about possessors of lands and heads of family, he is  28 talking about sub-chiefs and Houses.  It's a point I  29 am going to come to later.  30 TAGGART, J.A.:  What would the population of the Wet'suwet'en  31 area have been at that time?  32 MR. GRANT:  At contact — I believe that's referred to in our  33 factum.  Ray's opinion with respect to the Gitksan was  34 at seven thousand.  35 TAGGART, J.A.:  At contact?  36 MR. GRANT:  At contact.  And there is not evidence of the  37 Wet'suwet'en, although Harmon and Brown both talk  38 about very large tribes -- Harmon talks about a very  39 large tribe to the west, Nate-ote-tains, which I'll  40 come to, signifying that they were -- his information  41 was that they were much larger than the Stuart Lake  42 Carrier that he was dealing with.  43 TAGGART, J.A.:  How would that seven thousand population at  44 contact compare with the population today?  45 MR. GRANT:  There is fifty-five hundred Gitksan today.  I should  46 say at trial, my lord.  47 TAGGART, J.A.:  And Wet'suwet'en? 513  Submissions by Mr. Grant  1 MR. GRANT:  And Wet'suwet'en there are two thousand.  2 I'll just refer you just for the record to -- for  3 your own reference to note here, Exhibit 964-05, which  4 is the 1822/23 report of Brown.  He talks about  5 Hotset, which is Moricetown, as the largest and most  6 populous of the Babine villages.  And he refers to --  7 as I say, he is there talking about 140 to 150 married  8 men, an equal number of married women, 162 to 200  9 young men, and he goes on.  He talks about 20 chiefs  10 of different gradations, and those chiefs are listed,  11 and a number of those chiefs are head chiefs of Houses  12 today, but there also are ones that are within those  13 Houses.  Because of the absence of historical  14 material -- there is certainly evidence that the two  15 clans amalgamated because of disease among the  16 Wet'suwet'en, but not --  17 TAGGART, J.A.:  Post-contact?  18 MR. GRANT:  Yes.  That would be around the 1860s.  19 WALLACE, J.A.:  Where would I find that exhibit to which you  20 referred?  21 MR. GRANT:  The exhibit is Exhibit 964-05.  And in the reference  22 books it's at Tab 4-194.  23 TAGGART, J.A.:  That's R-8, is it?  2 4 MR. GRANT:  R-6.  25 TAGGART, J.A.:  Tab 4-1 —  26 MR. GRANT:  94.  And you should note 4-195, which includes  27 Exhibit 964-12, the debt list of Brown.  And in that  28 debt list he refers to a large number of Wet'suwet'en  29 chiefs.  30 WALLACE, J.A.:  Give me that reference again.  31 MR. GRANT:  Tab 4-195.  It's again in R-6, and it's Exhibit  32 964-12.  33 And, your lordships, neither of those particular  34 references are transcribed.  So if you look at them  35 and wish to have it -- I can read them, but it may be  36 that they are not that easily read.  You get used it  37 to it after awhile.  38 TAGGART, J.A.:  Find some younger eyes than mine.  39 MR. GRANT:  They are not as small as some of us writing.  40 Now, if I can take you to paragraph 331.  The  41 chief -- as I say, this goes to the wealth of the  42 territory being distributed at the feast.  This is, of  43 course, depending on the chief properly managing the  44 territory and fufilling the obligations of the House  45 on the land and at the feast to fathers and spouses of  46 its members.  47 And you remember in the matrilineal systems that 514  Submissions by Mr. Grant  1 Mr. Rush explained that the fathers would be a  2 different House and clan, so would the spouses because  3 of clan exogamy, but they assist at the feast and have  4 obligations and they also are repaid.  The wealth of  5 the territory will be distributed, enhancing the name  6 of the chief and benefiting the whole community.  7 As Alfred Joseph stated:  8  9 "Head chiefs when he takes a name, like I said,  10 the territory goes with it and you have to see  11 that the rest of the sub-chiefs and other - see  12 that all the clan members are using the  13 territory, have a place to go, and the more  14 people that go out to use the territory, that  15 means the head of each House has more power and  16 wealth to distribute or pay for anything, that  17 is any services that have been performed by  18 other clans, especially on the father's side."  19  20 Now, I would like to refer you here to Dr. Daly,  21 and I want to emphasize here in paragraph 332 that  22 this is Dr. Daly's opinion.  It's not just based on  23 his work with the people, but also it's consistent  24 with that of other anthropologists that have studied  25 northwest coast cultures.  But Dr. Daly -- and you  26 will hear later today about the anthropological  27 evidence and the judge's conclusions on that.  But Dr.  28 Daly's opinion, I say, demonstrates that the  29 harvesting and management is "consistent with bare  30 occupation for the purpose of subsistence" is directly  31 at odds with the opinion evidence of Dr. Daly and, as  32 I say, and other anthropologists and the evidence of  33 the chiefs.  Dr. Daly at line 33 of the factum:  34  35 "The Chief has to assess these piles of  36 commodities in the homes of his or her House  37 members and know the general state of the  38 domestic economy and the bank balances of House  39 members so as to be able to assess the House's  40 ability to acquit itself well, when called upon  41 to support a relative's feasts ...  42 In the course of managing the economic  43 round, the Chief has to bear in mind the need  44 to attract and hold as large and hard working a  45 group of people as possible, whose day to day  46 endeavours will eventually contribute to the  47 House's ability to engage in feasting, and 515  Submissions by Mr. Grant  1 thereby pay for its ownership rights in  2 society."  3  4 And I would like to take you for a moment to the  5 second reference in Tab 332.  This is the reference of  6 Johnny David.  This is the oldest witness that you  7 have been introduced to, the oldest witness at trial.  8 At line 12 of page 4 of the second reference.  The  9 first reference is to Dr. Daly's report on that point.  10  11 "Q   Now, in normal cases who does the Head Chief  12 -- who would the Head Chief of your House allow  13 to use your House territory?  Would all members  14 of the House usually be given the right to use  15 the territory?  16 A   Okay, the different members of the House or the  17 clan are allowed to use the territory with the  18 permission of the Head Chief and the person who  19 is given permission to use the territory at a  20 feast redistributes the meat or the money to  21 members of the House and this is our own Indian  22 law and it is not the white man's law.  23 Q   Would the husbands or wives of members of the  24 House be allowed to use the territory?  25 A   Okay, the spouses -- spouses as well as the  26 relatives who are honest and trustworthy are  27 allowed to hunt in the Laksilyu territory."  28  29 He is talking there, of course, about his own  30 clan, about Laksilyu.  31 Now, at page 13, just one brown sheet over of  32 Johnny David's evidence, he answers at line 14 about  33 the feast being combined.  34  35 "You would have three feasts in the old days but  36 now that doesn't happen.  It is combined."  37  38 And then at line 26 he says:  39  40 "Okay.  This person who is going to take over  41 the name, he goes out to his hunting territory  42 and a date is set.  When the date is set he  43 brings all the animals he has killed and this  44 is distributed at the feast."  45  46 Now, if you can go past that to the next  47 photograph, the next tab with the photograph.  I will 516  Submissions by Mr. Grant  1 only take you to this because it's in this order.  2 This is Sarah Layton, one of the witnesses, at a feast  3 in the early 1980's, the feasts for her House.  The  4 point of this photograph, as demonstrated by the  5 evidence, I don't want this court to be misled that  6 they just took the goods from the land.  What Dr. Daly  7 said is they gathered the resources from the House,  8 and that, of course, includes wage labour, it includes  9 money.  Here is Mrs. Layton at the feast when she took  10 on the name from her grandmother, that's the chief's  11 name Knedebeas.  She is one of the plaintiffs.  She is  12 standing in front of the goods that she and her House  13 has brought in.  As you can see, there are -- actually  14 that's only the first row.  There are several rows of  15 these large, large bags of sugar.  I don't need to  16 tell you what's in the Paul's Bakery.  They are full  17 of bread.  We are talking about not hundreds but  18 thousands and often tens of thousands of dollars worth  19 of goods being distributed at these feasts.  20 And I would just ask you to note, because I will  21 come back to it later this morning, early this  22 afternoon, that in 1920, when we talk about the  23 post-contact, Barbeau himself went to the feast of  24 Hagwilget.  And I will refer you to the reference  25 later and give you the exhibit number.  I believe it's  26 in Exhibit 1045, but I'll confirm that.  But Barbeau  27 confirms that he himself in 1920 is given a hundred  28 dollars in silver and gold coins and, he says, "I see  29 chiefs with blankets with seven hundred dollars in  30 coins put down at one of the feasts."  There were four  31 feasts in a row that he went to in 1920.  32 So the cash outlay is large at these feasts.  It's  33 not symoblic.  34 TAGGART, J.A.:  Where do those funds come from?  35 MR. GRANT:  The funds come from, in the feast system, the  36 House -- this is what Dr. Daly was explaining -- the  37 head chief and the House members contribute those  38 funds.  They are all paid in at the feast.  39 TAGGART, J.A.:  How do they establish the basis of payment in?  40 MR. GRANT:  The basis is — it's paid in and it's demonstrated  41 in the feast books.  Let's us say, for example, and  42 this occurred and was evidence of this feast, the  43 feast of the former Delgamuukw, Albert Tait.  He was a  44 Frog chief.  The first -- the highest amounts paid in  45 would come from the successor to his name, who was  46 then Ken Muldoe, and he put in some thousands of  47 dollars.  Ken Muldoe's mother, who, of course, is in 517  Submissions by Mr. Grant  1 the same House, would be the next major contributor.  2 And then the other -- there are, and Mr. Rush referred  3 you to these seating charts that are in these tabs,  4 but there are the head chief Delgamuukw, then there is  5 a series of chiefs along the side close to him in the  6 feast hall when they are sitting.  Each of these  7 chiefs in order of their priority and importance would  8 put in.  9 So, for example, in that case, and I'm going from  10 memory, if he put in $3,000, maybe that his mother,  11 who held the sub-chief's name in that House, would put  12 in $2,000, and so would another chief.  It would go  13 down and then a lower level -- a person with a lower  14 chief's name may put in $500, and then what you have  15 is all the members of the House right down to the  16 children would put in maybe $20 or $30 or $50.  Then  17 all of the other Frog Houses would put in for that  18 feast as well.  So you have these contributions.  And  19 in the feast books, which were established in  20 evidence, and in the evidence of the chiefs, they  21 describe these contributions being paid in.  22 What happens then is you have a pot at the end,  23 not only of all the goods like Mrs. Layton shows, but  24 of cash, and it may be -- in the feast of Delgamuukw,  25 I believe, it was between 20 and $30,000 all cash.  26 That cash is then distributed.  The father -- a side  27 of Albert Tait who buried him would first be paid for  28 all their work, and they are paid outright in the  29 feast and it's announced.  Then the other high chiefs  30 who are guests from the Fireweed and the Wolf clan,  31 they are paid, and it goes like that.  The chiefs are  32 paid the most.  They might be given in a large feast  33 3, 4, $500.  In a feast of a lower named person they  34 might be given a $100 or $50 until all of the money is  35 distributed.  And as Barbeau -- it's interesting in  36 his description in 1920.  He says, "I felt  37 embarrassed", because he wasn't a giver, he was just a  38 receiver of money.  He says, "I didn't know what to  39 do.  I had been given $100."  And he was told you have  40 to give the $100 -- or you have to accept it.  You  41 cannot refuse it.  42 So that's what happens in the feast and that's  43 what goes on today.  And, as described, all of the  44 goods in the Layton feast are also distributed.  For  45 example, at that feast there, a person of the rank of  4 6 Johnny David would be given maybe one or two of those  47 huge sacks of sugar.  Those would be given only to the 518  Submissions by Mr. Grant  1 chiefs and other goods would be given out to other  2 people in the feast.  3 So, you have an exchange system that Dr. Daly  4 endeavoured to explain to the court, summarize, and  5 lay witnesses did, of you are talking of tens of  6 thousands of dollars.  And the feast books that Mr.  7 Rush referred you to that are in evidence demonstrate  8 that in the 1980's, and one of those, it's an appendix  9 to our material, where we have summarized the total  10 amount in feasts, out of those feast books you can  11 look and you can see well over 100, $200,000 being  12 exchanged in the feast, being given out.  13 TAGGART, J.A.:  How does the economy of that area support this?  14 It's one thing to talk about hunting and fishing and  15 gathering from the land and maintaining the flow of  16 those feasts so that you can do that.  17 MR. GRANT:  Right.  18 TAGGART, J.A.:  And partake in the feasts and distribute.  19 That's one thing.  You don't find $100,000 lying  20 around on trees, and it doesn't generate itself  21 MR. GRANT:  Well, Art Mathews, who I think that the trial judge  22 described him as an enthusiastic weekend aboriginal  23 hunter, because he was also a shop steward in the  24 mill, and he was -- he's a high chief as well and he  25 worked in the mill for 20 years.  He was asked  26 directly that question, "How do you connect your work  27 at the mill with your role as a chief?"  And he said  28 he works at the mill in part because he uses that  29 money, his income in the feast.  30 I can only say, my lord, I think your question is  31 directly appropriate, because it's surprising and  32 perplexing, but you see the cashflow in, and it's  33 cash.  It's not I.O.U.'s, it's not rubber cheques,  34 it's all cash.  That's where all of the House has to  35 come together.  So if you end up with a chief who  36 basically says I am going to give all these big names  37 to my kids, and that kind of thing may or may not  38 happen, you see then all of a sudden a feast comes up,  39 that chief's got themselves some big problems because  40 they got ten children with big chief names but nobody  41 that can contribute.  So it's all of the House and all  42 of the clan has to come together to contribute.  And  43 that's where you have these feasts going on and, as I  44 say, 20 and $30,000, and depending upon the rank of  45 the chief the money will be higher.  46 Of course this was exactly what shocked Barbeau  47 when the feast was, of course, banned.  And I'll come 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  WALLACE,  MR. GRANT:  MR. GRANT:  519  Submissions by Mr. Grant  to that where Loring kept saying from 1899 to 1919  that the feast was dying and dying out, and there was  Barbeau goes to a feast in 1920 and it's in the  newspaper that $7,000 is raised at a feast in 1920.  Now, My lord, I wasn't alive in 1920, but my  recollection from history is that that would be a  significant amount of money at that time, $7,000 to be  contributed in a feast.  Now you see it in the  twenties and thirties.  J.A. :  One thing -- I gather from what you said, that  this was all distributed again amongst the members of  the feast, so it's a redistribution procedure.  Among those that are not hosting the feast, the  guests.  There is the Frog who hosts it and the other  clans would be guests.  That's right.  WALLACE, J.A.:  And the non-hosts also make the contribution by  way of money, et cetera, food, or do they?  Only the -- for example, if Albert Tait's father was  from -- let's say he was from Tenimgyet's House, a  Wolf House.  Just that House would contribute.  They  don't contribute in the feast.  What they do is they  arrange for the funeral, they do all of those things  which we -- which any society has to deal with with  respect to the burial, plus certain ceremonies, and  they are repaid in the feast.  Okay.  So the guests  don't contribute at a funeral feast.  When a pole is raised or a headstone, which, as  Mr. Rush explained happens on average about -- within  a year, then the spouses will also make a  contribution.  But it's not the major contribution.  It's that side that has to contribute.  And this was evidence that came out at trial.  For  example, one House lost two or three chiefs in the  course of two years, it was -- it's always said, "Oh,  that House has a tremendous burden."  And you say  well -- immediately when that is said you know  something's happened.  Well, what's happened is they  lost another chief in that House.  Because it's a  tremendous burden to a House and to that clan if there  are a large number of chief's deaths within a short  period of time.  J.A.:  Just on another subject matter before we break.  I have been looking at the maps and particularly the  fishing sites in 22.  Yes.  J.A.:  And what I wanted to ask you about is what is  the state, so far as the admissibility of evidence,  HUTCHEON,  MR. GRANT  HUTCHEON, 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  520  Submissions by Mr. Grant  what is the state of the notes at the top?  MR. GRANT:   I appreciate your honour's comments.  HUTCHEON, J.A.: Because they are very significant notes.  MR. GRANT:  As shown on the index, my lord, for reproduction  purposes, and I certainly wasn't -- I believed that  these notes were excluded.  WALLACE, J.A.:  They are at the top of the page?  MR. GRANT:  Not, of course, the legend, but the notes.  HUTCHEON, J.A.:  The notes were excluded?  MR. GRANT:  But now that you raise it, I think there were only  some paragraphs that were excluded, and I'll come back  to you with that.  J.A.:  You see, the kind of thing that interested me  was that I could not in my own mind fix the territory  of the House with this many fishing sites.  :  Right.  J.A.:  But the notes tell me that the boundary of the  House stopped short of the river in these places,  which I didn't know about.  :  That's in evidence, independent of these notes,  whether they are in or not.  J.A.:  Where I found it was on these notes because I  had in my own mind a difficulty of fitting in a  House's territory which is fairly large with dozens  and dozens of fishing sites seemingly very close  together, quite close together, but the notes tell me  that the boundary of the House stopped short of the  river in order to accommodate these many sites.  :  Yes.  Right.  In the case of the river fishery, that  is independent evidence.  Certainly the last paragraph  about the last century, that was excluded.  And I'll  go back to the transcript reference just to confirm --  J.A.:  Yes.  We'll have to be very careful, then,  because --  :  It's only this map, and it's shown in the front.  Map 23 on the salmon, I think, was also excluded in  part.  J.A.:  I'm looking at the second paragraph where it  says :  "However, their sites can also be found quite  frequently along the stretch of the river where  there are fish in sufficient numbers to provide  for several House groups.  In such cases the  territory adjacent to that stretch of the  river, which otherwise would have extended to  the river, stopped short of the river bank to  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON, 521  Submissions by Mr. Grant  1 allow for the fishing stations."  2  3 Now, when I look at that, that's organization,  4 isn't it, of considerable complexity?  5 MR. GRANT:  Yes.  The easiest route is that I will first check  6 that this -- I believe that part of the note was  7 either given in oral -- was given in oral evidence by  8 Mr. Morrell or was there.  It wasn't all excluded.  9 There was a concern about the comments about the turn  10 of the century and the effect of white impact on the  11 fishery at the end.  It certainly was given in other  12 evidence, and I will give you the reference to insert  13 here of that.  This very point was proven  14 independently in evidence.  15 TAGGART, J.A.:  All right.  Would it be appropriate to take the  16 break now?  17 MR. GRANT:  Certainly, my lord.  18 THE REGISTRAR:  Order in court.  Court stands adjourned.  19  2 0 MORNING RECESS  21  22 THE REGISTRAR:  Order in court.  23 TAGGART, J.A.:  Yes, Mr. Grant.  24 MR. GRANT:  My lords, I don't know if I should go back to my  25 factum.  26 I would like to actually refer you for a moment in  27 response -- I'm still -- I'm going to come back to  28 the -- when I deal with the issue beyond the villages  29 to your lordship, Mr. Justice Hutcheon's reference,  30 because I want to give you exactly what's said about  31 that point.  And I appreciate it was established in  32 evidence.  And this afternoon when I deal with the  33 laws I will come back to both Mr. Justice Wallace and  34 Mr. Justice Lambert's point.  35 One of the issues you raised is actually dealt  36 with in Appendix I, and my colleague indicated that  37 maybe I left the wrong impression.  I would like to  38 refer you to the appellants' factum, Appendix I  39 briefly.  It's in volume 3 of 3.  40 TAGGART, J.A.:  This is in relation to?  41 MR. GRANT:  This is in relation to the feast.  And I did not —  42 your lordship Mr. Justice Taggart had asked me about  43 the feast contributions.  It was not my intention to  44 suggest that at one feast $100,000 was contributed,  45 but that cumulatively over a hundred thousand has been  46 contributed in the last several years.  47 If you go to Tab I, you see the opinion of Dr. 522  Submissions by Mr. Grant  1 Daly.  And then what follows is a list of financial  2 contributions, and in some cases the value of food and  3 goods distributed made at funeral feasts in a 5 year  4 period, based on Exhibit 702, the notes of Neil  5 Sterritt of the feasts he attended and on feast books.  6 And if you just -- you can see the column right  7 after the name of the deceased person is the cash  8 contribution, and then there is another column that in  9 some cases is empty, but it's total contribution of  10 food and goods.  If you go over to page 2 of the  11 appendix, James Wood, and the evidence establishes  12 James Wood was a high chief who held the name  13 Niisgiminuu, at his funeral feast there was a total of  14 $14,600, $11,000 was in cash contributions.  Down at  15 line 39, that is not the Stanley Williams who gave  16 evidence, of course, but if you go over to page 3,  17 this is a feast -- two feasts of Ellen Johnson, and  18 evidence was led at trial of these two feasts.  At  19 line 26, this is her funeral feast, $23,000, a total  20 of $25,000 contributed.  21 Now, you can see there in November of the same  22 year there was the headstone feast for Ellen Johnson  23 and the total contribution there was $27,000.  So in  24 two feasts in less than a year for one chief, the  25 funeral and the headstone, you have a total  26 contribution of over $50,000 in cash.  That's in cash  27 and goods at that feast.  28 Another feast of Buddy Williams on page 4.  He was  29 the former holder of the name Haluus, a chief and was  30 a plaintiff in this case until his untimely death.  He  31 was in his early fifties.  And the total contribution  32 to his feast was $39,900.  And that's in evidence as  33 well.  34 Martha Brown, who you've seen the evidence of her,  35 at her feast in August 30th of 1987, the holder of the  36 name Kliiyem laxha, was $29,000.  37 And of course you see above that the stone feast  38 for James Wood senior, $11,000.  That's the same James  39 Wood as is on page 2.  So there is $22,000 in cash  40 given there.  41 WALLACE, J.A.:  Just so I've got it straight, the Martha Brown,  42 the $19,548, that would be a contribution by her  43 House?  44 MR. GRANT:  No.  All of the cash contributed, the cash only  45 contributed at that feast is $19,000.  The cash and  46 goods contributed in that feast is $29,000.  That  47 would be by her House.  She's a Wolf chief, and by the 523  Submissions by Mr. Grant  1 other chiefs of the Wolf clan.  2 WALLACE, J.A.:  I see.  All right.  3 MR. GRANT:  You see, like at the —  4 WALLACE, J.A.:  That would all be distributed to the guests at  5 the feast --  6 MR. GRANT:  That's correct.  7 WALLACE, J.A.:  -- other than the House, her House and the other  8 Wolf clan Houses.  9 MR. GRANT:  That's right.  That's right.  10 WALLACE, J.A.:  I got it.  Thank you.  11 MR. GRANT:  Now, just in further answer to your lordship Mr.  12 Justice Taggart's question.  I gave the example of Art  13 Mathews' junior working at the sawmill.  The evidence  14 is that you have other chiefs who were in the fishing  15 industry, other chiefs who were in different  16 enterprises that they were involved in and they used  17 cash, but this is not to suggest that today, and  18 evidence established that even today goods and  19 resources are taken from the land.  20 You may have a chief who is retired or a chief who  21 is unemployed or a hunter in the House who would  22 provide -- for example, one of the delicacies is the  23 beaver meat is taken to the feast, and someone brings  24 that in from the far north, for example, at the Bowser  25 Lake area up in that far northwest it's prized.  It's  26 announced where it comes from and it's distributed to  27 the chiefs as well as the cash.  28 Now, if I can take you over to page -- paragraph  29 333.  30 I would like to just, if you don't mind, take you  31 to the last reference in paragraph 332 to Mary  32 McKenzie.  She describes, starting at line 23 of 291,  33 the types of food that's brought into the feast, and  34 she describes the wild game.  Maybe I'll just read it  35 because you can see the wide variety there.  36  37 "A   Today, we always make soup or stew you might  38 call it, bread is plentiful, and soda crackers,  39 apples and oranges, bananas, are brought in.  40 Berries that are picked from the berry patches  41 of the head chiefs.  These are all brought in  42 and with these, with this food, it's -- there  43 is a person there that announces who brought  44 this, how many boxes of apples one chief, one  45 person would bring oranges or bread, how many  46 gallons of berries that the women would bring  47 and these women would tell just where they 524  Submissions by Mr. Grant  1 picked these berries, whose berry picking place  2 they brought, they picked it from.  This is  3 announced in the feasting.  So that all food is  4 announced that who brought, who brings in and  5 what food and it's brought out from the  6 territory is announced as well too.  Like fish  7 would be served too, that person that brings  8 that, the fish would say just where, whose  9 fishing section, where that salmon or fish is  10 from, he would announce it.  11 Q   Is moose or wild game used at the feast?  12 A  Well, that's what we use to make the stew, deer  13 meat, moose meat, and beef today too, but  14 that's all announced too, if you have moose  15 stew, you have to announce where you shot the  16 moose, yours, or --  17 THE COURT:  I am sorry, I think you have said in  18 addition to wild game and you said 'today we  19 use', something about meat?  20 A   Yes, we use moose meat, deer meat and beef.  21 THE COURT:  And beef?  22 A   Yes.  2 3 THE COURT:  Thank you.  24 Q   Do you recall feasts which you have attended  25 where beef, like whole cows have been used at  26 the feast?  27 A   Yes.  When I was quite small ...,"  28  29 I believe Mrs. McKenzie was born in 1919.  30  31 "... the people of Gitanmax and Kispiox, they  32 would have herd of cattle, like, and when here  33 is a feasting a chief would kill one cow or  34 probably two, if it's your House, you are the  35 host of that feasting and these are - it's  36 butchered and it's that feasting and these  37 are -- it's butchered and it's all cut up in  38 small portions and they are all distributed to  39 each chief or to all who is there.  But it has  40 to go to the chiefs first."  41  42 And Dr. Daly indicated this as well.  43 LAMBERT, J.A.:  Would that mean distributed as cuts of beef?  44 MR. GRANT:  In the case of the whole cow, it would be  45 distributed as bulk, so that a chief could get a whole  46 quarter or a portion of a cow.  47 LAMBERT, J.A.:  There is actually feasting going on at the feast 525  Submissions by Mr. Grant  1 in the sense of eating?  2 MR. GRANT:  Yes.  3 LAMBERT, J.A.:  And it's all ceremoniously done, but it is in  4 fact eating and entertainment and that kind of thing;  5 am I right?  6 MR. GRANT:  That's right.  And it's interesting that Brown  7 describes it, and describes it in a similar way to  8 what you see today in both of the eating, the  9 ceremony, the collecting of the money or the hides in  10 the early time and then the distribution and the  11 announcing of the names.  12 The evidence established the feasts typically  13 today.  They may go for -- I think Barbeau's feast in  14 1920 he was there, he was asked -- told he could leave  15 at 3 in the morning.  Feasts today go 'til 5 --  16 evidence was that 5, 7 in the morning.  They may start  17 at 7 o'clock at night and they go 'til the next  18 morning.  And the evidence establishes strict rules of  19 people sitting and not only where you sit but that you  20 stay seated throughout the feast.  21 I go to 333, my lord.  The evidence, I submit, on  22 the chiefly management of ecological relations was a  23 function of rules of respect with the chief and elders  24 instilled in the House members toward the animals and  25 fish upon which the people relied.  26 I have given you references there to the first  27 salmon ceremony, and I won't take you to them, but  28 they are there, which exhibits this respect wherein  29 the early spring salmon is caught, sprinkled with  30 eagle down, like on an honoured chiefly visitor, and  31 the flesh is cut into small pieces skewered and  32 distributed to as many people in the village as  33 possible.  This happens every spring in the villages.  34 I believe it was Mr. Morrell, a biologist who was  35 staying up there while he was doing his research.  36 When he first moved there he gave evidence that he  37 didn't know what was happening and this person came to  38 the house of the person whose house he was staying at  39 and all of a sudden started distributing this salmon.  40 And then he discovered afterwards that what he  41 actually had observed was a ceremony.  He just  42 thought, "Well, that is a nice thing, the person is  43 bringing this person some fresh fish, the first fish  44 that is caught."  45 I can now say that I will skip over what Mr. Rush  46 has done and take you to page 177 of the factum.  In  47 terms of reference books, we would be in reference 526  Submissions by Mr. Grant  1 book 9.  2 Paragraphs 380 through to 384, I am not going to  3 read them, but they are really an introduction for  4 your lordships in terms of the analysis of the  5 institution of self-government, and of course, as I  6 have indicated, that combines with the control and  7 management of the resources.  8 I would like to start with a reference to  9 paragraph -- start you at paragraph 385 of the factum.  10 That the Hudson's Bay Company documents from the 1820s  11 demonstrate the Gitksan and Wet'suwet'en have each  12 included, before European contact or influence, the  13 residents of several villages collectively organized  14 as people or nations.  And this speaks to the comments  15 of the trial judge that:  16  17 "If it were necessary to find that the Gitksan  18 and Wet'suwet'en, as aboriginal peoples rather  19 than villagers ..."  20  21 And that's at reference 386.  I would like to take  22 you to that reference because I want to refer you to  23 more.  He states there -- the trial judge stated:  24  25 "I am quite unable to say ..."  26  27 This is in the first reference at Tab 386, about a  28 third of the way through this binder.  It's the first  29 page in that tab.  30  31 "I am quite unable to say that there was much in  32 the way of pre-contact social organization  33 among the Gitksan or Wet'suwet'en simply  34 because there is so little reliable evidence.  35 Based upon Re Southern Rhodesia, however, I  36 find that no particular level of sophistication  37 should be required."  38  39 Then he says :  40  41 "Assuming Gitksan and Wet'suwet'en village  42 customs furnished whatever social organization  43 the law requires, I accept the opinion of  44 Professor Ray that the minimal social  45 organization described by trader Brown at  46 Babine Lake in the 1820s could not have been  47 borrowed or developed just since contact. 527  Submissions by Mr. Grant  1  2 And I'll come back to that, the rest of that in a  3 later reference.  The next page isn't there.  4 Going to the next tab at page 381, the trial judge  5 said:  6  7 "It is my conclusion that Gitksan and  8 Wet'suwet'en laws and customs are not  9 sufficiently certain to permit a finding that  10 they or their ancestors governed the territory  11 according to aboriginal laws even though some  12 Indians may well have chosen to follow local  13 customs when it was convenient to do so.  14 Doing the best I can with this evidence,  15 and I have tried to take into consideration all  16 that I heard, I conclude that prior to British  17 sovereignty the ancestors of the plaintiffs  18 lived in their villages at strategic locations  19 alongside the Skeena and Bulkley Rivers and  20 they probably organized themselves into clans  21 and houses for social purposes, but they had  22 little need for what we would call laws of  23 general application.  While peer pressure in  24 the form of customs may have governed the  25 villages, there was, in my judgment, no  26 difference between the aboriginal sovereignty  27 or jurisdiction in the largely empty lands of  28 the territory on one hand, and occupation or  29 possession of the same empty lands for  30 aboriginal sustenance on the other hand.  31 I also incorporate into this section the  32 conclusions I expressed earlier regarding the  33 relationship between land use and fur trapping,  34 which only started after contact.  Before that  35 time there was no reason for the plaintiffs'  36 ancestors, individually or communally, to  37 purport to govern the wilderness beyond the  38 areas surrounding their villages, even though  39 they may have used such areas from time to time  40 for aboriginal purposes."  41  42 Well, with respect, my lords, I say that those  43 comments fly in the face of the evidence and they fly  44 in the face of the evidence of the institutions and  45 authorities that were before the trial judge.  46 Now, I go at paragraph 387 to show you that even  47 within the reasons for judgment there seems to be some 528  Submissions by Mr. Grant  1 inconsistency.  The trial judgment accepted, from  2 linguistic evidence, that both the Gitksan and  3 Wet'suwet'en were, and I quote, "distinct peoples" --  4 I'm at paragraph 387 of the factum -- for centuries or  5 millennia.  It leaves unexplained how each people  6 could possibly maintain a common language, itself an  7 institution, in the absence of common institutions.  8 We are not here relying solely on the common  9 language, but that's one feature.  10 The inconsistency is even further reinforced when  11 the trial judge says with reference to pre-contact  12 times:  13  14 "The evidence is that both plaintiff groups are  15 peoples with common clans, languages and  16 customs."  17  18 And that's the reference that's given there.  19 Well, my lords, they had to have institutions if  2 0 they had common clans, languages and customs, and what  21 are we talking about when we talk about customs as  22 opposed to laws?  And I'll come back to that in how we  23 have to look at the laws of the different system.  24 The Hudson's Bay records are full of evidence that  25 the Babine and the Wet'suwet'en and the Gitksan were  26 peoples or nations, each consisting of peoples based  27 in several villages connected by kinship, language,  28 feasting and trade.  29 And I refer you here to Harmon in 1810 identified  30 the Nate-ote-tains, Babine, as a tribe or nation.  And  31 I'll just take you to Tab 390, because it says a  32 little more than is in the factum.  And you have  33 Daniel Harmon in the highlighted portion, the marked  34 portion.  35  36 "A number of Indians arrived from the other end  37 of this lake in six canoes and among them were  38 two, the Father and Son, belonging to a Tribe  39 who call themselves Nate-ote-tains ..."  40 And you can see the footnote there.  They lived in  41 the region around Lake Babine.  42  43 "... and are the first of that nation ever saw  44 here.  But they say they are a numerous Tribe  45 who are scattered over a large tract of Country  46 almost west of this, and that it is not more  47 than eight or ten days march to their first 529  Submissions by Mr. Grant  1 village."  2  3 Then Harmon, if you go to the next tab, he  4 actually travelled to the five Babine villages.  And  5 I've taken you to the next tab at page 150, just above  6 where it's marked on the margin he talks about:  7  8 "... I had promised the two that I would in the  9 course of this Winter pay them a visit to see  10 their Country and they now gave us some account  11 of the White People who came up the large River  12 as they had done before when at the Fort last  13 Summer and to convince us that what they had  14 said was true they showed us many articles,  15 which they barter from their Neighbours the  16 Atenas  17  18 The evidence established that Atenas were the  19 Gitksan.  So you have these people, the  20 Nate-ote-tains, talking about another group who are  21 the Atenas.  They are a different group, distinct  22 group, who purchased them directly from the white  23 people, which were guns, cloth, blankets, axes and  24 cast iron pots.  And I'll come back to that, because  25 the evidence is -- he's being told here -- this is  26 significant.  He's being told what's being purchased,  27 but it isn't what he's observed at this point in time.  28  29 "... At the five Villages we visited we might  30 have seen two thousand Souls, who are well made  31 and appeared healthy, but they like the  32 Carriers subsist principally on Salmon and  33 other small Fish."  34  35 And that is one indication of the number, in  36 answer to your lordship, Mr. Justice Taggart's  37 question.  38  39 "Their clothing was much the same as that of the  40 Carriers."  41  42 And it goes on.  And then they say:  43  44 "... they also let me have a Blanket or Rug  45 which was manufactured by the Atenas, of the  46 wool of the Sheep that are numerous on the  47 Mountains in their Country.  They told us that 530  Submissions by Mr. Grant  1 we saw but a small part of the Nate-ote-tains  2 for added they 'we are a numberous Tribe'.  3 They have a dialect peculiar to themselves, yet  4 the most of them speak the tongue spoken by the  5 Carriers."  6  7 That is entirely consistent with the linguistic  8 evidence at this trial of Dr. Kari that the  9 Babine-Wet'suwet'en is a distinctive linguistic group  10 from the Carrier.  11 I point out at paragraph 392 that Harmon, the  12 first white person to really report on -- to be near  13 the Gitksan, twice called the Atenas their neighbours  14 or those of the Gitksan.  15 I am back at my factum, my lords, at paragraph  16 393.  I want to say here that the evidence of Harmon,  17 which is of course -- which is undisputed, is the  18 earliest record establishing these two peoples as  19 distinct.  There is no conflict on that.  The Babines  20 both regarded themselves, and were regarded by Harmon,  21 as a linguistically distinct tribe or nation, having  22 more than one village, occupying a large territory,  23 with another such distinct group, the Gitksan, as  24 neighbours.  25 Now, coming to more familiar ground of Brown.  26 In Brown's account in 1826, the Babines of the Lake  27 had three villages, Tatchy, Nah tell cuz and Nass  28 chick.  Paragraph 394 of my factum.  Brown called Ack  29 Koo shaw, of Nass chick, "the principal chief of the  30 Indians of the Lake, and  ... possessed of the most  31 influence".  He also said Casepin was the "most  32 reputable" chief of the Nah tell cuz, but "not the  33 principal chief of his tribe", and that Cabbah, of  34 Nass chick, "belongs to the same tribe as Casepin of  35 which he is the principal chief".  Chil clue of Nah  36 tell cuz, according to Brown, was "one of the most  37 decent and respectable men, amongst the whole of the  38 Babine nation."  39 Now, my lords, what I say here is that this  40 account demonstrates that even through the eyes of a  41 fur trader, completely unfamiliar with these people,  42 who didn't understand what the Babine-Wet'suwet'en  43 system was before he came there, there was a system of  44 government and control over the lands.  With all due  45 respect, Trader Brown saw more of what was the system  4 6 than was found in the trial judgment here.  He  47 recognized this system of chiefs, and I'll come to 531  Submissions by Mr. Grant  1 heads of families.  2 Thus Brown makes it clear that there were chiefs  3 of the same tribe, which he distinguishes from family,  4 the House, in more than one of the Babine villages,  5 that some of the chiefs had influence in more than one  6 village, and that the whole group could be identified  7 as a nation.  8 And I would just like to take you to Tab 396,  9 which is transcribed, just the extract, for your ease  10 of reading.  11 LAMBERT, J.A.:  I'm just a little confused about how everyone is  12 using the word "Babine" and "Babines of the Lake".  13 Maybe it ought to have been clear to me by now, but I  14 see your paragraph 396 equates Babines of Simpson's  15 River as the Wet'suwet'en.  16 MR. GRANT:  Right.  17 LAMBERT, J.A.:  Are there other Babines?  18 MR. GRANT:  Yes.  19 LAMBERT, J.A.:  Are they neither Gitksan nor Wet'suwet'en but  20 something separate, outside the borders?  21 MR. GRANT:  Yes.  The Babines of the Lake, Fort Kilmaurs, is on  22 Babine Lake.  And it's clear in Brown's report that  23 what he is talking about is -- and here is Babine Lake  24 here on the map, my lords.  25 LAMBERT, J.A.:  Yes.  26 MR. GRANT:  He is talking about the Babines of the Lake.  And  27 then, of course, Simpson's River, which independently  28 in the evidence was established as the Bulkley  29 River -- here is Moricetown.  You see the conjunction.  30 What he does is travels, he comes up through up here,  31 and this is the Babine River down to Kisgegas when he  32 starts meeting the Gitksan.  So he actually travels up  33 this route.  But the Babines of the Lake are these  34 people here at Babine Lake.  The Babines of the  35 Simpson's River are these people.  The evidence at  36 trial established that the Babines --  37 Babine-Wet'suwet'en is one linguistic group.  In fact,  38 just as with the Kitwancool, who are Gitksan, but they  39 are here outside the claim, there are the Babines of  40 Babine Lake which are linguistically Wet'suwet'en.  41 They are not plaintiffs in this action.  So he is  42 talking about this group as Babines of the Lake.  43 Dr. Kari, and I believe it's summarized in our  44 facts, Dr. Kari's evidence was that those were the  45 same linguistic groups, and he calls them  4 6 Babine-Wet'suwet'en.  47 And the fort that Brown is at is on Babine Lake, 532  Submissions by Mr. Grant  1 Fort Kilmaurs.  2 LAMBERT, J.A.:  I'm going to try to ask a very elementary  3 question.  4 MR. GRANT:  Certainly, my lord.  5 LAMBERT, J.A.:  The Wet'suwet'en who are not plaintiffs, is  6 there any basis for thinking that they have renounced  7 any claim whatsoever in relation to the area that's  8 claimed by the Wet'suwet'en who are plaintiffs?  9 MR. GRANT:  The Wet'suwet'en — I have your point.  I said  10 linguistically they are one group, territorially they  11 are distinctive.  This is the area of the Babine --  12 the Babine of the Lake -- the Wet'suwet'en of Babine  13 Lake.  It's outside the claim area.  This is the area  14 inside.  15 LAMBERT, J.A.:  I should have known this, but we are not dealing  16 with the whole Wet'suwet'en nation in this case, nor  17 the whole land area claimed by the whole Wet'suwet'en  18 nation?  19 MR. GRANT:  On the linguistic evidence alone, that is correct.  20 On the linguistic evidence.  21 LAMBERT, J.A.:  And is that also true with the Gitksan?  22 MR. GRANT:  With the Gitksan, the Kitwancool, it's in the  23 pleadings, are specifically excluded.  They  24 specifically excluded themselves.  25 LAMBERT, J.A.:  You call them the Kitwancool —  26 MR. GRANT:  They are Gitksan.  27 LAMBERT, J.A.:  They are Gitksan?  28 MR. GRANT:  Yes.  But there were Kitwancool chiefs that gave  29 evidence, and they confirmed this boundary which is  30 between other Gitksan and them.  31 LAMBERT, J.A.:  Yes.  Thank you.  32 MR. GRANT:  Okay.  33 LAMBERT, J.A.:  Thank you.  And that's all set out by Chief  34 Justice McEachern, who indicates who the plaintiffs  35 are and what they are claiming?  3 6 MR. GRANT: Yes.  37 LAMBERT, J.A.:  And you are content with how he describes that?  38 MR. GRANT:  I think he does that at the beginning, and I'll just  39 quickly review that before I answer.  I don't think we  40 are disputing it.  41 LAMBERT, J.A.:  Yes.  All right.  It would help me to have that  42 clearly in my mind.  43 MR. GRANT:  In fact I think it clearly sets out those two  44 distinctions.  45 LAMBERT, J.A.:  Yes.  All right.  46 MR. GRANT:  At paragraph 396 he is talking about — Brown is  47 talking about the Babines of Simpson's River, and he 533  Submissions by Mr. Grant  1 says:  2  3 "They reckon twenty chiefs of different  4 gradations, and sixty-seven married men whom  5 they denominate respectable, as being heads of  6 families and possessors of lands.  The  7 following are the most noted amongst the  8 chiefs, and those with whom we have had the  9 most dealings."  10  11 And then he goes and starts to list them.  And  12 that's the transcription there.  13 Now, he has described that there is at least 750  14 people at Hotset when he visits.  Because of their  15 system there may well have been more, because the  16 people would have been out on the land as well.  17 The point of this -- at one point in his judgment  18 the trial judge said that Brown never mentions Houses,  19 and in argument he asked if the term "Houses" was used  20 by anthropologists before this trial, and a whole  21 series of references were referred to him in answer to  22 that question.  And it is true that Brown does not use  23 the term "Houses", but when Brown says 20 chiefs of  24 different gradations, and when he says 67 married men  25 as being heads of families and possessors of lands, he  26 is clearly talking about different gradations of  27 chiefs completely consistent with the evidence of the  28 House system.  That's why in 395 we refer to it as the  29 Houses.  30 Now, I can go to paragraph 397 of the factum  31 itself.  As we have already noted in the context of  32 territorial ownership and succession, Brown's 1826  33 journals records succession of chiefly names and  34 inheritance of land across villages.  Now, here you  35 find a Wet'suwet'en chief from Moreicetown died in the  36 Babine Village of Nass chick, this was at the lake.  37 There was a feast, and one Ash shaw -- and it's  38 unclear whether Ash shaw is Babine, that is from the  39 lake, or Wet'suwet'en, and in this part of the factum  40 that's how we are distinguishing that - Brown lists  41 the name twice -- took his place and his lands.  The  42 name Ash shaw was in turn taken by a Babine.  The  43 feast and accompanying inheritance of names and  44 territories is a clear example of a people organized  45 in a society which included several villages.  46 I have referred you to paragraph 197 there at Tab  47 4 which sets that out, and Mr. Rush took you through 534  Submissions by Mr. Grant  1 that yesterday.  It summarizes it.  And also those  2 pages are at the Tab 397.  3 Now, my lords, how can that description of the  4 feast be explained other than to demonstrate that the  5 feasting system and the succession of name and the  6 succession of territory was in place?  It's the only  7 way it can be explained.  It is anything but equivocal  8 in our submission.  9 Now, when Brown wrote from personal experience  10 about the Atnahs, who are the Gitksan, it's apparent  11 from the geography and the evidence, he was clearly  12 speaking about what he called a nation or race  13 distinct from other nations, such as the Babine and  14 Wet'suwet'en, that is the Babines of the Lake and the  15 Babines of Simpson's River respectively, the Nishga.  16 And I should just take you to 398 so you can see where  17 he is referring to this.  The second page of the  18 transcription at Tab 398, because you won't recognize  19 the word, on page 10.  This is one where he is  20 describing his journey over to the Gitksan country.  21  22 "From Quo em's village ...",  23  24 Where the reference is to page 10, that's from the  25 handwritten version.  26  27 "... to the one below it is a march of two days,  28 and from there to the forks is a march of two  29 days more.  There are three other villages of  30 Atnahs below the forks, which are two days  31 march asunder each.  From the upper of these  32 villages, there is a track over land leading to  33 a large river where the nation called Ute Sinah  34 ..."  35  36 That's the Nishga.  37  38 "... reside.  These people who inhabit the sea  39 coast are called Kispallots ...",  40  41 And that's the Tsimshian.  42  43 "... and their village at the entrance of the  44 river has the same name."  45  46 So he is talking about going up towards Kuldoe on  47 the Skeena and then crossing over to the Nishga 535  Submissions by Mr. Grant  1 country.  That's where he is referring to there.  As I  2 said, he would have travelled down here and he comes  3 in, and you see the Nii Kyap territory here.  Then the  4 Skeena and the Babine meet right about there.  Right  5 there actually.  Then the Skeena goes up here, Kuldoe,  6 then he's talking about over there to Nishga country.  7 That's one of the trails.  Then he is talking about  8 coming down here.  There is this junction here, there  9 is -- and then you come down to the Kispiox and Skeena  10 junction and the forks at the Bulkley River and the  11 Skeena.  Then he is talking about down the river to  12 the people at the coast.  So, in other words,  13 geographically what he is describing makes perfect  14 sense, and he is talking about different nations.  15 Then I point out in 399 he describes eight or more  16 villages of the Gitksan, at least three on the  17 Babine -- and he uses the term "nation" -- at least  18 three on the Babine River, one on the Skeena upstream  19 of its confluence with the Babine, one at the forks of  20 the Skeena and the Bulkley, and three more on the  21 Skeena River downstream of the forks.  22 In the report Brown identified two of the Gitksan  23 villages on the Babine River as places where they  24 assemble to make their feasts.  And if you can go to  25 that tab, because I did not get this particular one  26 transcribed.  At the very beginning you see:  27  28 "Of the Atnahs in the Babine River ...",  29  30 Page 1 of Exhibit 964-12.  Actually page 13.  31  32 "The two principal villages of the Atnahs who  33 inhabit the upper parts of the Babine River are  34 Weep sim and Chil do call - They are 5 miles  35 asunder and lie about 115 miles to the west or  36 perhaps to the northwest of our establishments.  37 There are a number of other villages within a  38 short distance of them where the different  39 bands reside particularly during the salmon  40 season.  But the above two places is where they  41 assemble to make their feasts and perform all  42 ceremonies of a general nature."  43  44 So he is talking about the people coming together  45 to make feasts in 1826.  This is Exhibit 964-12, my  46 lords.  I read the handwritten version at the tab.  47 At Tab 401 he talks about the chiefs that he 536  Submissions by Mr. Grant  1 meets, and it's the same exhibit, and I go to the next  2 page of that exhibit.  There are three chiefs,  3 Needchip, which we say is Niigyap; Sojick, which we  4 say is Tsabux; and Quo em, which we say is Gwoimt.  5  6 "The first is the principal, and from what I  7 have seen of him the best.  He is no hunter."  8  9 As you can see in paragraph 401, we analyze the  10 names, and his writings of the names coincide with  11 chiefs' names.  Niigyap is a plaintiff, Gwoimt is a  12 plaintiff, and Tsabux is a House closely related to  13 Gwoimt.  And I refer you to -- I just ask you to  14 cross-reference 401 to paragraphs 199 and 200 in which  15 he makes similar references in describing the  16 territories.  Just as a cross-reference.  You don't  17 have to go to them.  18 Professor Ray's opinion was of both the Gitksan  19 and Wet'suwet'en that "the villages were linked  20 together by kinship ties, trade, gambling and feasting  21 activities".  22 We submit that the trial judge erred in finding  23 the Gitksan and Wet'suwet'en at contact only had an  24 organized society as "villagers", and not as  25 aboriginal peoples.  He failed to appreciate or  26 completely disregarded the evidence from the  27 historical documents and Professor Ray.  And I say he  28 found -- the trial judge found that the Brown record  29 was a rich source of historical information which  30 showed peoples or nations or races each consisting of  31 several villages, and each having its own language,  32 feasts, kinship, trading and other relations.  33 And I just want to refer you here to what Mr.  34 Jackson referred you to last week in Worcester and  35 Georgia, and you may make a note of it, it's at A-3 at  36 Tab 61 at page 500, where Chief Justice Marshall in  37 the same decade as Brown says:  38  39 "The very term 'nation' so generally applied to  40 them means a people distinct from others."  41  42 In other words, he was reflecting what in fact the  43 thought was, not only in -- amongst American traders  44 and American colonists, but in North America  45 generally.  They were nations, a people distinct from  46 others.  And that's what William Brown described them  47 as, using the same language, and described them as a 537  Submissions by Mr. Grant  1 nation.  2 Now, I wish to refer you to the laws and  3 aboriginal government and laws, and I summarize at 404  4 that we have addressed the trial judge's legal  5 conclusion regarding jurisdictional rights.  We argued  6 that as a matter of law he improperly characterized  7 the appellants' claims to sovereignty.  8 Now, going to 405, I wish to say we address the  9 trial judge's findings on the factual basis for the  10 appellants' right to self-government.  The trial  11 judge, while acknowledging that the appellants'  12 ancestors governed themselves in their villages,  13 characterized the governance in the most limited  14 terms.  For example, he says at page 384:  15  16 "I am prepared to assume for the purposes of  17 this part of my judgment that, in the legal and  18 jurisdictional vacuum which existed prior to  19 British sovereignty, the organization of these  20 people was the only form of ownership and  21 jurisdiction which existed in the areas of the  22 villages.  I would not make the same finding in  23 respect to the rest of the territory, even to  24 the areas over which I believe the ancestors of  25 the Plaintiffs roamed for sustenance purposes."  26  27 The trial judge's characterization of the  28 pre-existing aboriginal regime as existing in a "legal  29 and jurisdictional vacuum" and his statements  30 elsewhere in his judgment that the appellants'  31 ancestors did not govern their territory "according to  32 aboriginal laws even though some Indians may well have  33 chosen to follow local customs when it was convenient  34 to do so", reflect a misconception, a fundamental  35 misconception about the nature of aboriginal  36 governments and laws.  37 And I submit, my lords, that the trial judge's  38 error is captured in the following passage from the  39 "Report of the Aboriginal Justice Inquiry of  40 Manitoba".  And I would like to take you to that, and  41 I ask you to note that that inquiry, not the entire  42 report, but chapters 2 and 3, which deal with  43 aboriginal laws, is at Tab A-29 -- or sorry, Volume  44 A-29, Tab 68.  But for the moment if you can go to Tab  45 407.  46 WALLACE, J.A.:  Give me that reference again.  Volume A-29.  47 MR. GRANT:  Tab 68.  Chapters 2 and 3 of the justice inquiry 538  Submissions by Mr. Grant  1 report there.  And those are the chapters that deal  2 with how do you look at aboriginal laws and aboriginal  3 systems.  4 And I would like to take you to the reference at  5 Tab 407, which is an extract from those chapters.  6 TAGGART, J.A.:  The tab number again.  A-29, Tab —  7 MR. GRANT:  68.  If you go to the second page in after the title  8 page at Tab 407.  This isn't all of what's there,  9 although I have put the footnotes in, parts of 2 and  10 3.  11 The Royal Commission, of course, of the Associate  12 Chief Justice Hamilton, Associate Chief Justice  13 Sinclair, as you recall, this report came down  14 subsequent, I believe, to the judgment in the case  15 under appeal, but the commission had to deal with  16 aboriginal concepts of law, and this is what this  17 Royal Commission stated at page 22 of the tab, Tab  18 407:  19  20 "There were and are aboriginal laws.  There were  21 and continue to be aboriginal governments with  22 lawmaking powers and with provisions to enforce  23 those laws.  There were and are aboriginal  24 constitutions that are Supreme 'law of laws'  25 for some aboriginal peoples and their nations."  26  27 He then refers to the Marshall principles.  He  28 says -- and this is key, my lords.  I submit this is a  29 key finding -- a key proposition.  30  31 "No society can exist without law.  Laws grow  32 from the customs, traditions and rules of a  33 society of people.  They exist to inform people  34 what that particular society considers to be  35 acceptable and unacceptable."  36  37 Then he goes on to the trouble we've had in North  38 America.  39  40 "Many non-aboriginal writers in the past have  41 regarded aboriginal societies through the  42 stereotypes and cultural biases they held at  43 that particular time, or that they accepted as  44 'true' from the time of the original account.  45 These histories, for the most part, still  46 comprise most of the history courses taught in  47 Canadian schools, from elementary school to 539  Submissions by Mr. Grant  1 university.  One such writer was Diamond  2 Jenness,"  3  4 And he's an anthropologist that's been referred to  5 and relied on at both sides of this case.  6  7 "Whose books were and still are referred to  8 widely in many schools and universities as  9 authoritative accounts of aboriginal  10 societies."  11  12 And just the first part at the top, 23.  This is  13 Jenness.  14  15 "In the absence of chiefs and of any legislative  16 or executive body within the tribes and bands,  17 law and order depended solely on the strength  18 of public opinion.  There were no written laws,  19 of course; merely rules and injunctions handed  2 0 down by word of mouth from an immemorial  21 antiquity, and more temporary taboos operative  22 during the lifetime of an individual.  23 Persuason and physical force were the only  24 methods of arbitrating disputes, social  25 outlawry or physical violence the only means of  26 punishing infractions of the moral code or  27 offences against the welfare of the band or  28 tribe ...  29 Fear of the blood-feud was a powerful  30 restraint on murder, and social disapproval,  31 more keenly felt in small communities than in  32 large, checked the commission of many lesser  33 crimes."  34  35 Going after Jenness to what the commission says.  36  37 "Such attitudes about aboriginal people and the  38 stereotypes they promote continue to persist,  39 regardless of how much one might hope they  40 would be out of favour or distasteful in  41 today's society.  But they seem embedded firmly  42 in Western culture.  They spring from  43 centuries-old theories, philosophies and  44 policies that form a worldview through which  45 Western man has perceived and interpreted other  46 cultures."  47 540  Submissions by Mr. Grant  1 He then refers to a more recent author in the next  2 page, which is quoted as well in the factum.  This is  3 Jennings, "The Invasion of America".  4  5 "The Europeans pronouncements that the Indians  6 had no government were contradicted by their  7 practice of dealing with Indian chiefs through  8 the protocol of diplomacy with sovereign  9 states."  10  11 And I aside here that Mr. Jackson took you through  12 that in a summary form last week.  13  14 "The bulk of evidence about Indian communities  15 implies structures of political association  16 irreconcilable with assumptions of anarchy.  17 From anthropology comes the root conception of  18 'kinship state', a community of families and  19 clans in which some of the order and functions  20 of society are performed by the kin groups  21 individually while others are assigned to  22 offices and counsellors chosen cooperatively.  23 In this structure, as European observers  24 were quick to notice, there was no law in the  25 European sense, and no specialized apparatus of  26 law enforcement.  Binding decisions were made  27 by legitimate officers, however, and before the  28 intervention of Europeans eroded the chiefs'  29 authority there were forceful sanctions for  30 both occasional decisions and enduring customs.  31 In an community where every man bore arms no  32 need existed for a corps of specialized  33 police;"  34  35 And he refers then to the 17th century obervers,  36 and he comes to Adriaen Van der Donck, a lawyer in  37 colonial North America.  38  39 "... wonderingly noticed 'how uncommon' crimes  40 were among the Hudson River Indians.  'With  41 us', he continued, 'a watchful police is  42 supported, and crimes are more frequent than  43 among them.'  Not recognizing the sanctioning  44 functions performed by means that he had  45 himself described, he was baffled to understand  46 how there could be so little crime 'where there  47 is no regard paid to the administration of 541  Submissions by Mr. Grant  1 justice.'  A lawyer himself, Van der Donck  2 could recognize the due process only when it  3 appeared in the forms to which he had been  4 trained.  That fault was shared by other  5 Europeans contemporary with himself and in  6 following generations."  7  8 The commission goes on to say:  9  10 "Regardless of whether the laws of aboriginal  11 societies conformed to the preconceptions of  12 Europeans, there were laws and a system of  13 sanctions that allowed aboriginal people to  14 function in a coherent and orderly fashion.  15 Aboriginal people could be hardly be  16 characterized, as Jenness implied, as living in  17 anarchy or having a system of 'social  18 outlawry'."  19  20 And then going back he refers to Jennings:  21  22 "Indian tribes were internally more peaceful  23 than European nations partly because of the  24 kin-oriented sanctions pervading Indian  25 villages, as distinct from the greater  26 impersonality of European social relationships,  27 and partly because Indian custom defined and  28 punished fewer crimes than European law ..."  29  30 Then I will not read, although he gives examples  31 in the next paragraph of the contrast between the two.  32 Then he says:  33  34 "This does not imply ..",  35  36 And this is not sort of a romanticized view of the  37 world, which unfortunately it appears in someplaces in  38 the judgment the trial judge thought we were arguing  39 for.  And it says:  40  41 "This does not imply that Aboriginal societies  42 were free of crime or criminal activity.  There  43 were laws against certain types of behaviour  44 and, inevitably, as with all laws, they would  45 be broken."  46  47 Mr. Rush referred you in the fourteen examples to, 542  Submissions by Mr. Grant  1 I believe, two examples where the law was actually  2 broken of access.  3  4 "However, the types of behaviours that were  5 considered objectionable or aberrant might have  6 been different from those identified by  7 European societies.  The manner in which  8 Aboriginal people imposed sanctions was  9 different too.  This was to be expected, after  10 all, since they sprang from a whole different  11 world which had evolved entirely different  12 societies from those in Europe.  13 Social control rested in kinship.  Among  14 native cultures the means of control was in  15 close contact of their members.  The sanctions  16 of ridicule, avoidance and shame were effective  17 means to check those deviants who fell into  18 behavioural lapses.  Internal, unofficial  19 communication was the process.  20 These types of sanctions suited most  21 misbehaviours within a small, tightly knit  22 group of people who often were family members.  23 However, some crimes required more serious  24 sanctions than mere scolding or ridicule.  As  25 in European societies, some crimes required the  26 complete removal of the criminal from society.  27 In most aboriginal societies this meant  28 banishment.  In such close, family-oriented  29 societies, where survival depended upon  30 communal cooperation, such sanctions were  31 considered a humane alternative to death, no  32 matter how traumatic they may have been to the  33 offender."  34  35 And then he refers to the -- the quote at the  36 bottom is to Trigger, who studied the Huron history,  37 and going over to page 26, after referring again to  38 Trigger, I emphasize this, because I say the evidence  39 establishes this in this case.  40  41 "Instead of bloody and disruptive feuds within  42 the society, aboriginal people settled upon a  43 system of atonement and reparation by the  44 offender to the victim.  The payment would be  45 borne by all members of the offender's clan or  46 family and it would be shared by all members of  47 the victim's clan or family.  Only if such 543  Submissions by Mr. Grant  1 payment were refused did the clan have the  2 right to resort to violence or arms."  3  4 And skipping a paragraph.  5  6 "By making criminal activity a collective  7 responsibility of a tribe, village or a clan,  8 Aboriginal people were able to impose law and  9 order without resorting to capital punishment  10 or other harsh forms of sanctions.  The  11 philosophy in Aboriginal society was for all  12 parties to acknowledge the crime, allow for  13 some process of atonement, and install a system  14 of reparation or compensation in order to  15 restore harmony to the community.  16 But even more to the point, Europeans and  17 Aboriginal people viewed the same crime of  18 murder in different ways.  The two groups  19 perceived the other's system of justice as  20 inconsistent, incoherent and incomprehensible."  21  22 And then he quotes.  And I would ask you just to  23 highlight.  I'm not going to take the time to take you  24 through the Jennings' example of murder, because we'll  25 come to it in terms of the evidence in this case, that  26 is the killing.  And then at the bottom after page 27  27 after referring to Jennings' description from the  28 invasion of America he says:  29  30 "The underlying philosophy in Aboriginal  31 societies in dealing with crime was the  32 resolution of disputes, the healing of wounds  33 and the restoration of social harmony."  34  35 And, my lords, I must say that is the evidence  36 that was established, I say, overwhelmingly in this  37 case that that was how the Gitksan and Wet'suwet'en  38 dealt with matters.  39  40 "It might mean an expression of regret for the  41 injury done by the offender or by members of  42 the offender's clan.  It might mean the  43 presentation of gifts or payment of some kind.  44 It might even mean the forfeiture of the  45 offender's life.  But the matter was considered  46 finished once the offence was recognized and  47 dealt with by both the offender and the 1  2  3  4  5  6  7  544  Submissions by Mr. Grant  offended.  Atonement and the restoration of  harmony were the goals - not punishment."  And if you go to page 51 of that extract, he talks  about a historical overview, and he talks about the  inability to understand aboriginal laws.  At page 51,  the first full paragraph:  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  "We appreciate that it is difficult to define  It's in the same tab, my lords.  There is another  brown sheet.  I don't have the brown sheet.  HUTCHEON, J.A.:  I have it.  Yes.  Thank you.  MR. GRANT:  Page 51.  "We appreciate that it is difficult to define  aboriginal or customary or traditional law.  In  its broadest application, customary law  includes three different subjects: specific  rules that prescribe proper behaviour in a  community; observable regularities in everyday  human behaviour; and definable approaches to  instances of dispute.  However, it is difficult  to be precise about what constitutes a law or a  legal system in an aboriginal world that does  not employ such fixed concepts.  A few  illustrations should demonstrate, however, how  a legal system operated in pre-contact  aboriginal Manitoba and why such cultural bases  must be a part of our thinking in today's  Manitoba."  And I just take you to the next page, 52, where he  refers to our friend Daniel Harmon who was travelling  through Manitoba in the early 19th century as well.  And Harmon said:  "These traditional methods of social control  served the same purpose as our modern criminal  justice system."  That's the Royal Commission saying that.  "Fur trader Daniel Harmon discovered when he  visited southern Manitoba in the early 19th  century that: 545  Submissions by Mr. Grant  1 'It is a common thing among all of the Natives,  2 for an offender to offer property in  3 satisfaction for an injury, and when this is  4 accepted by the injured party, contention  5 between them entirely ceases.  Even murder is,  6 sometimes, in this way atoned for; but not  7 commonly.  In ordinary cases, nothing but the  8 death of the murderer, or of some of his near  9 relatives, will satisfy the desire for  10 revenge.'"  11  12 What I am saying there, my lords, is that when I  13 review with you the evidence of what has happened --  14 what happened before the trial judge here, you will  15 see similar components.  It's a very difficult task.  16 It's one reason I do want to come back at the  17 conclusion of this to your lordship Mr. Justice  18 Wallace's question, "Well, is that not just a practice  19 and not a law?"  Because it's a question here of going  20 back to some of those points raised last week with Mr.  21 Jackson about the nature of the right.  22 I'll take you to paragraph 408 of the factum.  23 The view of the trial judge, that aboriginal societies  24 existed in a "legal and jurisdictional vacuum", should  25 be contrasted with that expressed by Llewelyn and  26 Hoebel, who in one of the classics of modern  27 jurisprudence and anthropology, the Cheyenne Way,  28 demonstrated the sophistication of Cheyenne law and  29 legal process.  Writing some twenty years later Hoebel  30 summarized their findings.  31  32 "As an operating system, Cheyenne law is  33 remarkable for the degree of juristic skill  34 that is manifested in it.  By juristic skill we  35 mean the creation and utilization of legal  36 forms and processes that efficiently and  37 effectively solve the problems posed to the law  38 and in such a way that the basic values and  39 purposes of the society are realized and not  40 frustrated by rigid legalism.  Juristic skill  41 implies the ability to define relations between  42 persons, to allocate authority, and to clear up  43 conflicts of interest (trouble cases) in ways  44 that effectively reduce internal social  45 tensions and promote individual well-being and  46 the maintenance of the group as a group.  We  47 have commented on this outstanding quality of 546  Submissions by Mr. Grant  1 the Cheyenne ..."  2  3 And he is talking here about pre-contact Cheyenne.  4  5 "... it is not merely that we find neat juristic  6 work.  It is that the generality of the  7 Cheyennes, not alone the 'lawyers' or the  8 'great lawyers' among them ... worked out their  9 nice cases with an intuitive juristic precision  10 which among us marks a judge as good; that the  11 generality among them produced indeed a large  12 percentage of work on a level of which our  13 rarer and greater jurists could be proud."  14  15 It is submitted that, contrary to the findings of  16 the trial judge, the evidence that I will review with  17 you below demonstrates that the Gitksan and  18 Wet'suwet'en maintained a pre-existing legal system  19 which, as with the Cheyennes, "defined relations  20 between persons, allocated authority and cleared up  21 conflicts of interests in ways that effectively  22 reduced internal social tensions and promoted  23 individual well-being and the maintenance of the  24 group".  25 The trial judge wrote:  26  27 "I do not accept the ancestors 'on the ground'  28 behaved as they did because of 'institutions'.  29 Rather I find they more likely acted as they  30 did because of survival instincts which varied  31 from village to village."  32  33 What do these terms mean, my lords?  The  34 definitions of "institution" are:  35  36 "The giving of form or order to a thing; orderly  37 arrangement; regulation.  38 An established law, custom, usage, practice,  39 organization, or other element in the political  40 or social life of a people."  41  42 An "instinct", by contrast, is:  43  44 "An inate propensity in organized beings (esp.  45 in the lower animals), varying with the  46 species, and manifesting itself in acts which  47 appear to be rational, but are performed 547  Submissions by Mr. Grant  1 without conscious adaptation of means to ends."  2  3 When the trial judge, without citing any evidence,  4 referred to supposed variations and practice between  5 villages, he was pointing to culture, not to instinct.  6 And maybe, my lords, he was thinking back to what he  7 had said about belief and not facts.  An inate  8 propensity would presumably be expressed no matter  9 what village one lived in.  10 The simple fact is that people did not build  11 villages, make tools, clothes and weapons, compose  12 songs and dances, design crests, raise poles, practice  13 feastings, engage in trade or war, make peace, or own  14 and inherit titles of lands, on the basis of instinct.  15 Rather, the means for creating, maintaining and  16 transmitting all these features of economic,  17 political, social, cultural and legal life are  18 institutions.  On the evidence, the Gitksan and  19 Wet'suwet'en have well established institutions for  20 doing all of these things.  21 I would like to take you --  22 TAGGART, J.A.:  You would like to take me to lunch?  23 MR. GRANT:  Depends who is buying, My Lord.  24 TAGGART, J.A.:  2 o'clock.  25 THE REGISTRAR:  Order in Court.  26  27 NOON RECESS  28  29 I HEREBY CERTIFY THE FOREGOING TO  30 BE A TRUE AND ACCURATE TRANSCRIPT  31 OF THE PROCEEDINGS TRANSCRIBED TO  32 THE BEST OF MY SKILL AND ABILITY.  33  34  35  3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47 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  548  Submissions by Mr. Grant  (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  THE REGISTRAR:  Order in Court.  TAGGART, J.A.:  Yes, Mr. Grant.  MR. GRANT:  Thank you, my lord.  Before proceeding, I would like to just - over the  lunch hour I had a chance to look at the trial  judge's reasons and at page 204 regarding the  question of Mr. Justice Lambert regarding the Babine  Lake people and the Wet'suwet'en, he states, after  referring to them and to Dr. Ray, that:  "There is no reason to believe the  neighbouring Indians of the territory had any  lesser degree of social organization at the  same time."  So, he dealt with the groups effectively at the  same level of social organization and found that  both the Babine and the Wet'suwet'en - that doesn't  take away from the fact that they had a distinctive  territory which I showed you before the break.  LAMBERT, J.A.:  To the extent that rights means rights under a  system of organization that are recognized by other  people, the evidence of the neighbours may be more  powerful evidence of rights than the evidence of the  people themselves.  MR. GRANT:  It certainly goes to that very issue of the  recognition of the rights by the neighbours.  LAMBERT, J.A.:  So, it is important I would suppose to know  who the neighbours are, and what testimony relates to  the recognition of those rights.  It becomes more  complicated when I now come to realize rather  belatedly that the Wet'suwet'en who are making these  claims have as neighbours other Wet'suwet'en who are  people who would be recognized in those rights and  the same for the Gitksan.  MR. GRANT:  Yes.  In the case of the Gitksan, Solomon Marsden  whose evidence you referred to, and Glen Williams,  were both Gitksan chiefs of Kitwancool.  Neither of  them were their house groups or neither of them were  part of the claim, and they confirmed the boundary  and the reputation of the boundary as shown on the  map.  In the case of the Babine Wet'suwet'en, the  Babine people, to my recollection there were - well,  I should wait and check, because there certainly  were witnesses who presently reside at Babine, and 549  Submissions by Mr. Grant  1 they were witnesses on the territory around Bear  2 Lake.  These witnesses, some of them to my  3 recollection, were actually Gitksan by their  4 genealogy, but they lived at Babine.  This is, of  5 course, in contemporary times.  6 LAMBERT, J.A.:  By at Babine, you mean at Babine Lake?  7 MR. GRANT:  At Babine Lake, yes, yes.  8 I would like to take your lordships now to return to  9 the factum, and I would say, my lords, that in  10 dealing with reputation and territory, we'll come  11 back to that point in terms of what you said as  12 significance of that evidence.  13 LAMBERT, J.A.:  Yes.  14 MR. GRANT:  And I refer here to paragraph 414 of the factum  15 which I have cited to you, and before going to the  16 Hudson's Bay documents, I would like to move you  17 into one part of the Appendix, and this is with  18 respect to an oral history, and this oral history on  19 the evidence even found by the trial judge and  20 accepted by him is an oral history dating to 3500  21 years ago in the area of Temlaham, and at tab 414 of  22 your reference Book 9, is a record of the Madik  23 adawk, and I refer to it.  This is an extract from  24 appendix (C), and the validity or oral history will  25 be dealt with in another part of our argument, but  26 it is a summary of the Madiik adaawk, and I would  27 just like to refer you to that.  It was just put  28 into your reference books at the noon hour.  29 LAMBERT, J. A.:  Tab 414?  30 MR. GRANT:  Yes, 414, my lord.  31 LAMBERT, J. A.:  Thank you.  32 MR. GRANT:  And this is an extract from our factum appendix.  33 At paragraph thirteen, I refer to the Temlaham.  34 Just so you are aware of where we are talking of, we  35 are talking just in this area here just downstream  36 of Hazelton, right in the central area and the  37 evidence established that - you see a small area  38 there, the territory that is square, and there is a  39 mountain in behind here.  That is the mountain known  40 as Stekyawden that you will see in the adaawk, or  41 the history, and the events that occur are on both  42 sides of the Skeena River there; the village being  43 on the north side and the events that happened on  44 the south, and the oral history describes that:  45  46 "Temlaham once more was a place of peace and  47 plenty; of wholesome work to provide for the 550  Submissions by Mr. Grant  1 needs of the people; of ample time for  2 recreation and social contacts.  The years were  3 filled with activities.  In the springtime came  4 the work of preparing the traps with which they  5 caught salmon."  6  7 Now, why this is bolded is to indicate to you  8 aspects of the social organization dated 3500 years  9 ago.  10  11 "Throughout the summer the silvery horde passed  12 up the river and the people took their toll,  13 curing the fish and storing it against the  14 winter's need."  15  16 And the description goes on, and other aspects  17 are shown.  If you go four paragraphs down on page  18 five:  19  20 "Under the bright warmth of the September sun  21 the maidens learned the dances; the dance of  22 greeting; the dance of welcome; the dance of  23 the chief.  As some practised the graceful  24 postures others perfected themselves in the  25 songs and the chants."  26  27 And then if you go further down, two paragraphs  28 further:  29  30 "Many years passed.  Temlaham was a prosperous  31 town.  Ranging for many miles along the banks  32 of the Skeena River, the town had been many  33 streets running parallel to the river.  The  34 place of honour was the river.  Here dwelt the  35 chiefs.  Here in a place called An-Gud-Oon--the  36 steep place on the river bank where a man is  37 pulled up with the right hand of a friend-dwelt  38 Neas Hiwas, titular ruler of the city.  Close  39 by his house lived his five brothers, also  40 chiefs, whose ranks were only less than his  41 own.  Their houses faced south across the  42 river."  43  44 The narrative goes on then to describe what  45 happened as a result of the girls at the lake across  46 the river playing with these fish bones, and then  47 they describe on page six, and I'll come back to it 551  Submissions by Mr. Grant  1 for dating, the destruction and the actual landslide  2 which was dated independently at 3500 years BP, but  3 for the purpose of my argument here, I'll take you  4 to page seven in which it is set out, after that  5 happened:  6  7 "In due course Neas Hiwas called a  8 council.  Many things had to be done.  New  9 chiefs had to be raised up in the place of  10 those who had been slain.  New laws governing  11 the proper training of children had to be made.  12 In that council Neas Hiwas recalled to their  13 memory the fit of the goat crown.  That was a  14 symbol of a tragedy similar to the vengeance of  15 Medek.  'From this day,' he announced, 'I take  16 as my head-dress the head of Medek, the grizzly  17 bear.  It is the law that when men die in a  18 disaster those who follow after them have the  19 right to take to themselves the name of the  20 destroyer.  From this day on I take the name of  21 Medek.  It shall be the crest of my totem'."  22  23 And, of course, Mr. Rush showed you the other  24 day the Madiik crest and a number of the totems.  25 Now, the significance of this is that in this  26 narrative recorded in 1936 over several months by  27 Will Robinson, Walter Wright narrated it to him, and  28 it is the whole story of the Madiik and the wars of  29 Madiik - this is just one small portion of it - that  30 you see certain elements of the social organization  31 of the Gitksan, and this is the one adaawk, the oral  32 history that was dated.  33 If you go to the Hudson's Bay documents, I  34 refer you to paragraph 416, where we quote in the  35 factum itself, where we have quoted the trial judge,  36 and he says:  37  38 "I accept the opinion of Professor Ray that the  39 minimum social organization described by trader  40 Brown at Babine lake in the 1820's could not  41 have been borrowed or developed just since  42 contact."  43  44 While the trial judge was correct in  45 recognizing that the appellants' social organization  46 could not have arisen suddenly at contact, he  47 nevertheless erred in three respects:  Firstly, in 552  Submissions by Mr. Grant  1 Professor Ray's opinion, Brown was describing an  2 elaborate social organization, not a "minimal" one.  3 And just a note at page 202 of the reasons, the  4 trial judge found that it was a rudimentary system.  5 Second, in Professor Ray's opinion, that elaborate  6 social organization, including land ownership, could  7 not have arisen in the 40 years before contact, but  8 must have existed earlier; and thirdly, as the trial  9 judge elsewhere acknowledges, Brown's observations  10 were not confined to Babine Lake, but included  11 direct contact with both the Gitksan and  12 Wet'suwet'en in their territories.  And that is at  13 pages 141 and 142.  14 Now, Professor Ray's evidence was not, as the  15 trial judge says, that Brown described a "minimal  16 social organization" - and I referred to some of  17 what Professor Ray stated, and I refer you to tab  18 418 to take as an example, because this where  19 Professor Ray both on direct, cross-examination and  20 re-examination is very clear what he is describing.  21 At the first entry at tab 418, my lords:  22  23 "The problem -- the way the question was put, I  24 consider the question too narrow.  The problem  25 is that it's well-known that the coastal fur  26 trade, until well into the early part of the  27 19th century, was predominantly oriented to the  28 sea-otter.  That coastal inland furs become  29 important only at the tail end of the maritime  30 fur trade, and given that fact, it seems to me  31 that I would argue that the coastal fur trade  32 had a small impact on this area prior to 1800,  33 and I doubt very much sufficient time had  34 lapsed for the whole elaborate social-political  35 territorial feasting system that we've seen in  36 place, to have been put in place in such a  37 short period of time.  And in fact, even if we  38 allow the alternate point of view and say,  39 well, since the maritime fur trade began, I  40 would still submit that even 40 years is  41 probably premature or is not long enough, given  42 what we are talking about.  We are not just  43 talking about little cultural details; the  44 adoption of a pot or a gun or a knife.  We are  45 talking about fundamental social-political  46 organization.".  47 553  Submissions by Mr. Grant  1 And I refer you to his cross-examination by Mr.  2 Willms in the next reference, and I just ask that  3 you note.  I will not take you to each of those  4 three references.  5 We have already explained as I submit back in  6 the factum at paragraph 419 that the Gitksan and  7 Wet'suwet'en were not merely villagers or peoples or  8 nations, but evidence of the operation of  9 institutions, including language, kinship, social  10 and political rank and authority, inheritance of  11 titles and land, funeral customs, feasting, and  12 trade.  It is significant that every one of these  13 institutions involved persons from more than one  14 village, so that the trial judge's reference to  15 "survival instincts which varied from village to  16 village" can be seen to be doubly mistaken.  17 Nor was this the only evidence from the Bay  18 records of institutionalized political authority.  19 Professor Ray characterized gift exchange with the  20 chiefs as a means of establishing or cementing  21 trading relationships between Indian groups and  22 between the Indians and the Hudson's Bay Company.  23 Clearly chiefs had an institutionalized authority  24 which was recognized both by other Indians and by  25 the Bay traders.  26 From the examination of Dr. Ray, we have set  27 out what his evidence is.  He says, and  I just will  28 take you to the second paragraph in the factum  29 itself at page 190.  30  31 "What is interesting about this [Gitksan  32 and Wet'suwet'en] area is it is clear from  33 Brown's account that there are exchange  34 ceremonies going on here as you would expect.  35 He even describes one in the Gitksan territory -  36 not between the company and him but between  37 other natives.  But he also does send presents.  38 --But the term trading captain and lieutenants  39 does not appear in this literature."  40  41 And you have already heard that reference and  42 seen that he has chiefs and the objective is to get  43 them on his side.  And he testified that the  44 economic authority of the chiefs as reflected in the  45 fact that chiefs or "nobles" were the ultimate  46 recipients of most of the furs taken from their  47 lands. 554  Submissions by Mr. Grant  1 Taking you over to paragraph 422 Brown gives a  2 detailed account of a nax nox dance performance by  3 the Gitksan chief Quo Em.  And if I can just take  4 you to that tab, my lords, at 422, and take you to  5 Brown's own words which I have taken the liberty of  6 transcribing to make it easier, halfway down the  7 first page of the transcription.  Now, Quo em as you  8 may recall is Quo Em, one of the plaintiffs in this  9 action today.  He describes when he comes to the  10 village of Quo Im starts:  11  12 "Found Quo Em nearly in his birthday suit.  He  13 made a long harangue to us of his poverty etc.  14 however sometime after he went out and called  15 his young men into another lodge where I  16 understood he was going to dance - after an  17 hour had been expended in dressing himself and  18 the rest of the party he made his appearance  19 dressed up with a number of trinkets, and in  20 particular with a very fine plaid or blanket  21 made out of the mountain sheep's wool - the  22 colours of it were good and the figures similar  23 to those on some of the Chin nock hats with a  24 fringe of about 8 inches drop of fine wool very  25 neatly plaited.  His head was covered with a  26 most enormous load of hair with different  27 colours - and his lower parts with a very  28 fantastic - it is unreadable in the  29 transcription -  and pair of leggings.  He was  30 accompanied by several others one of whom had a  31 plaid nearly the same as his own in size and  32 colour, but was made of cotton instead of wool.  33 Another had a sort of blue grey coat with a brace  34 of pistols stuck in his belt.  But none of the  35 party danced except Quo Em himself - in the  36 course of his evolutions he produced a false  37 face and a head of a monstrous appearance which  38 he managed so dextrously by bending his neck  39 and hiding his head with his plaid and  40 (unreadable) of hair and placing this false  41 head in its stead that a person unacquainted  42 with a thing of the kind would be apt to  43 conclude that it really was his own head.  When  44 thus equipped he frequently placed himself in a  45 threatening position before me to try I suppose  46 what effect it would have.  The dance being  47 over one of his followers presented me with 555  Submissions by Mr. Grant  1 sixteen prime martens, in return for which I  2 gave him a small moose skin."  3  4 He goes on to describe what he gave him.  5 And then going to page three of the  6 transcription, he says:  7  8 "I made a trial to trade salmon to serve me to  9 the next village below, but was unable without  10 paying ten times the price of them, and even  11 then they would demand more.  These people are  12 so accustomed to the irregular trade of the  13 Indians from the coast that it is hardly  14 possible to deal with them.  This being the  15 case and finding that no furs worth mentioning  16 are to be produced amongst them I have made up  17 my mind to return from here in the morning."  18  19 That description of that nax nox performance  20 which is a special ceremony of the chiefs performed  21 at pole raising feasts and at headstone feasts today  22 is parallel to the description the chiefs gave today  23 of very similar performances, different type of  24 performance, but in any event each chief has his own  25 nax nox.  26 Now, if I go to paragraph 424, and I would like  27 to take you to this, and this is in the context of  28 what Jenness says and is quoted in the Royal  29 Commission Report of what I referred you to this  30 morning.  Dr. Ray says:  " referred to the feast  31 as an institution for peace-making", and he said:  32  33 "These people, like anyone else, had their  34 internal conflicts and they had their problems.  35 It's clear from these accounts that we have given  36 here that murders took place from time to time,  37 and given the nature of the society, it's  38 common of societies organized in this fashion,  39 blood feuding or blood revenge was one of the  40 options for dealing with that.  The alternative  41 option was hold a feast to resolve the  42 differences peacefully.  And we have seen that  43 happen here.  There was a system place to  44 resolve conflict, to avoid the system careening  45 out of control...  The chiefs of greatest  46 respect were the peacemakers...  So it's clear  47 that all these upsets would occur, as you would 556  Submissions by Mr. Grant  1 except in any human society, they also valued  2 peaceful relationships rather than warfare  3 within and amongst themselves.  So it could be  4 upset ...if you allowed these blood feuds to go  5 on, but in the cases that we have seen they  6 didn't.  So the answer to your question is it  7 certainly was not a system without internal  8 conflict, but it was also a system that had a  9 way of resolving that internal conflict."  10  11 And if you go to the next page in the factum,  12 Brown himself talks about a great feast:  13  14 "...and besides the Babine Tribe, all the  15 principal Indians who inhabit the country  16 between there and the seacoast to be assembled  17 on purpose to make a general Peace, at which  18 they particularly wish us to be present.  Those  19 Indians who are in the habit of trading with  20 them will be there also, we will have an  21 opportunity of ascertaining what will be the  22 best method of putting a stop to their  23 traffic."  24  25 And he is referring there to the question of  26 the trade from the coast to the interior, and he  27 goes on in that report to describe whether they  28 should be there themselves or whether they should  29 send gifts, whether there is a risk to them going or  30 not.  That is to the traders.  Clearly here Brown  31 himself in 1823 shortly after his arrival recognized  32 that there were methods for the different aboriginal  33 nations to make peace between themselves, and, of  34 course, this was important and significant in the  35 context of the trade that he was trying to sort of  36 bite into the trade from the coast.  37 In the Fort Kilmaurs Post Journal in October  38 and November 1825 - I'm in the factum still - there  39 is an account of a Wet'suwet'en feast to which the  40 Babine and the Gitksan were also invited.  And I  41 would like to, your lordships, take you to that.  42 And it is at tab 426, the second page in.  43 This is Friday, the 21st of October 1825, and Brown  44 writes, and its words are highlighted in the margin:  45  46 "In the evening Houchititukic & two indians  47 from Simpson River arrived from below.  The two 557  Submissions by Mr. Grant  1 latters have not ".  2  3 Sorry, I read this all once and it was fine.  4  5 " spoken to.  They went immediately to  6 Casspin's Tent whom they are come to invite to  7 Quiltno's Feast, while I hope will not take  8 place immediately as Casspin and several  9 Indians of this place will be foregoing which  10 will be very injurious to the Fall hunts, if I  11 cannot prevail upon them to remain."  12  13 Then, at the bottom he refers to:  14  15 "Casspin has not as yet decided whether he will  16 go to the feast or not.  I have not seen him  17 since the day before yesterday."  18  19 Going to the next page, on Sunday, the 23rd:  20  21 "I had a long talk with Casspin to prevent him  22 from going to Guiltno's feast, but he seemed  23 determined to go.  I have done all my  24 endeavours to prevent him as we will lose his  25 fall hunt & that of several other Indians who  26 will follow him."  27  28 That is on the Sunday.  29 On Tuesday, the 25th in the afternoon, the next  30 page over, my lords, it is - I'm following where it  31 is bolded and dark in the margin:  32  33 "In the afternoon, Casspin, Squee, Atclys,  34 Nistecfrap, Clahmah & Chinzrollah left for  35 Quiltno's feast.  Casspin says he will be  36 absent twenty days.  The five Indians who are  37 gone with Casspin are no great hunters.  I  38 believe the best have remained from whom I  39 expect a good Fall hunt."  40  41 And then on the next page, Friday, the 11th, and  42 this isn't all sequential; it is just the relevant  43 pages:  44  45 "In the afternoon, Casspin"   46  47 And he lists the others - 558  Submissions by Mr. Grant  1 " arrived from Simpsons River.  It seems that  2 everything went along well at the feast.  The  3 different tribes who met there departed good  4 friends.  The Indians of Simpsons River must  5 have had a good lot of furs as the Indians  6 below and the few that were from this  7 place have obtained a tolerable quantity of  8 Beaver and other furs.  Casspin says that  9 between him and the Indians below they have 250  10 Beaver besides other furs."  11  12 The significance of that report of Brown is  13 that when a feasting occurred - and you'll see this  14 reflected even in the turn of the century with the  15 early missionaries complaining that when a feast  16 occurred nothing else happened.  That was the  17 priority, and that demonstrates the significance of  18 the feast.  19 I refer you to the use of feasts and for what  20 is called peace settlements or some of the witnesses  21 called it in Gitksan, feasts.  22 The importance of feasting as a means of  23 keeping peace and settling disputes involving  24 the Gitksan, Wet'suwet'en, and Babine, is  25 apparent in a further account from the Babine  26 Post Journal for 1825 concerning the resolution  27 of a threatened conflict."  28  29 And I would like to take you to that.  Again  30 here I have transcribed it at tab 427, this is from  31 Brown's Journal of 1825.  On Tuesday, August 30,  32 1825, Brown writes:  33  34 "I am extremely sorry to learn that as  35 Ackooshaw and party entering Niigyap'a lodge on  36 their arrival at the Atnah village - Bugale  37 made a false step, and his gun being cocked it  38 went off when the contents went through the  39 shoulder and arm of Beyeigh - and afterwards  40 the body of Atteccheick, who supposing they  41 were attacking by the Atnah's fired his piece on  42 them and fell down dead, exclaiming he was  43 sorry he had not seen his wife - this  44 accident caused a great bustle in the camp but  45 fortunately nothing further.  The deceased was  46 burnt and his bones brought back to his  47 relatives - both the dead and the wounded were 559  Submissions by Mr. Grant  1 Casepin's nephews, who, on hearing the news,  2 was so enraged that he immediately armed  3 himself - met the party and attempted to kill  4 Ackooshaw - but was prevented from those who  5 accompanied him - since which time several  6 presents have been made - but the whole are  7 still in the state of commotion, and mutual  8 dread of each other - which prevents them from  9 killing the few salmon which comes up the river  10 so that I much doubt there will be scarcity."  11  12 Now, I just want to say in the journal appended  13 - I didn't transcribe it all - the dispute is  14 continued to be discussed, and Brown who becomes  15 sick offers to send his assistant, Mr. Ross, to see  16 if he can settle the dispute.  Ross returns and his  17 report is set out at the next page.  Ross is not  18 needed to settle the dispute.  19 By Mr. Ross's report:  20  21 "It appears that Ackooshaw's Band made a  22 feast lately, and gave considerable Presents to  23 the Principal of Casepin's People, which has in  24 some measure restored tranquillity amongst  25 them, and they are now applying themselves to  26 the working of the Salmon."  27  28 The settlement was as a result of the feast between  29 the parties.  30 Going back to my factum, at paragraph 428, my  31 lords.  32 It is impossible to read the Hudson's Bay  33 records without being aware of the central place  34 feasting occupied in these Indian societies.  35 Enormous effort and resources were expended in  36 putting on and attending feasts.  37 The Brown records alone demonstrate that  38 they had many purposes, including succession -  39 to which Mr. Rush referred - exchange - to which I  40 referred earlier - and peace-making.  They drew  41 people from many villages, and even several Indian  42 nations.  Other activities frequently gave way when  43 a feast was to be held.  44 And this is something that Brown himself felt  45 frustration about but could do nothing about, and  46 yet the trial judge wrote in the face of this:  47 560  Submissions by Mr. Grant  1 "Brown's reports in the 1820's... hardly  2 mention the feast, particularly as a  3 legislative body."  4  5 The first part of this statement, in the light  6 of scores of reference to the feast in the Bay  7 records is simply wrong.  As for the second part, if  8 His Lordship meant that bills were not debated or  9 voted upon, then indeed the feast was not a  10 "legislative body."  11 The appellants made this clear in their opening  12 where we said the feast is not a legislative body.  13 But it is obvious from the preceding references, and  14 those which follow that the feast had a central  15 place in the political, social, economic and legal  16 life of the Gitksan and Wet'suwet'en.  17 Now, I would like to turn to the Institutions  18 of Self-Government within the Gitksan and  19 Wet'suwet'en systems.  20 The appellants submit that the Gitksan and  21 Wet'suwet'en have maintained institutions of  22 self-government, including institutions for  23 resolving disputes within their communities and with  24 other societies.  25 I then refer back to what I have already  26 referred you to in terms of the early documentary  27 records.  28 At paragraph 433 I refer you to the evidence  29 demonstrated that the exercise of jurisdiction in  30 relation to the determination of membership of the  31 House through succession and adoption; maintenance  32 of the House system through amalgamation and  33 division of Houses; regulation of family relations,  34 marriage and divorce; education of House members;  35 harvesting, management and conservation of House  36 territories and resolution of disputes; and the  37 conduct of political and trading relations with  38 other nations and with non-aboriginal governments.  39 Now, my lords, if you look at tab - well, if I  40 take you to page 195, you may want to note in your  41 factum, just for ease of cross-reference, that those  42 subheadings there I have numbered - probably not  43 numbered in your copies - membership is one,  44 maintenance of the House system is two; regulation  45 of family relations is three, and education of House  46 members is four, and the tab under 433 is broken out  47 by those four tabs. 561  Submissions by Mr. Grant  1 And I would just very briefly like to refer  2 you   3 LAMBERT, J. A.:  Where is that?  4 MR. GRANT:  Sorry, page 195 of the factum.  That way you can  5 see the references are subdivided under the tab, but  6 they were not subdivided in the factum by numbers.  7 Now, I would like to refer you to the first  8 page of tab one.  This is the opinion report of Miss  9 Harris, Exhibit 854, and I only refer you to that  10 for the question raised by Mr. Justice Hutcheon.  11 This is where she discusses the House population  12 today and historically, and she talks about  13 pre-contact house of less than 25 people would  14 probably have been in danger of extinction.  This is  15 well accepted by many others in the field including  16 Cove, Steward, Pfeiffer, and Service.  17 If you go to the third sheet, I would just like  18 to refer to the membership laws through the evidence  19 of Mary McKenzie.  At page 377, under sub tab one,  20 after the third brown sheet at page 377.  21 She is asked at line 26:  22  23 "Q   What is the importance to the Gitksan of  24 adoption and rules of adoption?  25 A    The adoptions is when, as I said before,  26 that a House of a Chief, and is only one  27 chief, and maybe there is - they have  28 brothers but no sisters, so they - the  2 9 House wouldn't be there anymore when the  30 Chief dies, so they have to adopt a lady  31 or girl from another House, sometimes very  32 close to the Chief's House.  You see,  33 there is the wil'nat'ahl, I think.  So the  34 adoption was taken from there, so the  35 chiefs and the people have to look into  36 these matters, that no House just falls  37 apart with no chiefs there left there  38 anymore.  We want that House to be alive  39 all the time the Gitksan people are alive.  40 So this is how we take these adoptions very  41 seriously.  And it has to be done in a way  42 that both Houses would agree and they both  43 see why the adoption had to take place, is  44 bringing up the House of a chief.  45 Q    Is it always the case that the adoption  46 must be agreed to by the chiefs of the  47 House adopting the person and the chiefs 562  Submissions by Mr. Grant  1 of the House where the person comes from,  2 A    It has to be, yes."  3  4 And she them goes on in the marginalized marked  5 portions to describe the adoption and confirms that  6 the adoption has to take place and be confirmed and  7 ratified in the Feast Hall.  8 Now, I would like to take you to - that is one  9 of several examples of the membership being dealt  10 with through the feast.  I would like to take you to  11 sub tab 2 in the authorities, the very last  12 reference - I'm sorry the second from the last  13 reference which is the report of Heather Harris and  14 I'm taking you to page 84 of that report.  15 TAGGART, J.A.:  Second reference; is it?  16 MR. GRANT:  The second last reference, my lord, in tab 2, at  17 page 84 of Heather Harris' report.  It is about four  18 pages back from the end of that.  Page 84.  19 TAGGART, J.A.:   Right.  20 MR. GRANT:  This is - Miss Harris' and this whole section,  21 this whole reference you may want to note talks  22 about amalgamation and division, and the effect of  23 disease.  At page 84 she talks about amalgamated  24 houses:  25  26 "Amalgamated Houses are usually closely related  27 Houses at least one of which has suffered a  28 severe reduction.  Sometimes both Houses were  29 low in numbers.  When a small remnant of a  30 House joins a larger relative there are then  31 enough people to protect the property and  32 maintain the traditions of the smaller House.  33 When such an amalgamation took place while the  34 Gitksan still lived in the big houses, the move  35 was clear because it was physical."  36  37 Of course, they are talking the capital "H" is  38 the social unit, and the small "h" is the building.  39  40 " the move was clear because it was physical.  41 The surviving remnant of the dying House moved  42 into their relatives' dwelling and were  43 assigned part of that house.  In more recent  44 times the amalgamation of houses usually occurs  45 with the people born into one House using the  46 names of the other House joining the two  47 houses.  It will be remembered which names, 563  Submissions by Mr. Grant  1 crests, songs, etc. belonged to which House,  2 leaving open the possibility of future  3 separation, but the people become one family."  4  5 She then gives an example of the:  6  7 " Lax Seel Houses, Delgamuukw and Axgigii'ii,  8 had only men and one childless woman left and  9 their existence was threatened."  10  11 And she is referring there to Lottie Muldoe who was  12 adopted into Axgigii'ii's House, and she proved to  13 be prolific but the men of the related House were  14 dying off so her adopted brother, Albert Tait, took  15 the chief's name of the dying House.  And that is  16 all reflected in the genealogy in Exhibit 853 of  17 Delgamuukw.  18  19 "Today, that woman's children and her  20 daughter's children use the names, territories  21 and other properties of both Houses.  It is  22 remembered which names belong to which House  23 and theoretically the Houses could regain  24 separate existence if their population grew  25 sufficiently."  26  27 And then she talks about the effect and impact of  28 disease in the early part of the century on the  29 amalgamation of houses.  30 Here I am only referring to this as to how the house  31 system is maintained.  The Gitksan and Wet'suwet'en  32 systems are one that are alive in the sense that  33 they can find the references that they can find a  34 method to maintain the house system.  35 In the regulation of family relations, I have  36 referred you to a number of those already or they  37 have been alluded to by Mr. Rush.  I would just  38 refer you to the reference to Mary Johnson which is  39 the third after the second brown sheet in after tab  40 3 at page 757 and 758.  41 Here she is talking about her own divorce feast.  At  42 line 32:  43  44 "Q    I would like to refer you to another  45 Feast, or type of Feast, and that's the  46 Divorce Feast which you referred to  47 earlier when you were talking about your 564  Submissions by Mr. Grant  1 names?  2 A    Yeah.  3 Q    And you yourself held a Divorce Feast in  4 1977.  5 A    Yes.  6 Q    Can you tell the court why you held the  7 Divorce Feast?  8 A    Yeah.  The reason is when things happened  9 like that and those people that done you wrong  10 put all the filth on you, and they put shame on  11 the family crest, and that's the - when you go  12 around, you won't be able to lift your head up,  13 you are so ashamed of what happened, that's why  14 the Divorce Feast is, they call - they call  15 this kind of Feast is bitxw, that's divorce, to  16 be divorced is bitxw."  17  18 And she goes on to describe the feast and who  19 came and the reference to Kiskaast as to her own  20 clan, that is Fire weed.  21 And I just want to point out to you, my lords,  22 that she also describes here that her own  23 grandmother, Hakst, was divorced, and that just for  24 your reference is transcript twelve, page 760.  25 Hakst was born in 1891.  So this is a divorce that  26 occurred at the early part of the century she  27 referred to.  28 If I could just take you to the next reference,  29 which is to Dr. Daly at page 195.  This is at the  30 very end of tab 3.  I'm sorry, my lords.  I have  31 just given you the wrong reference.  I intended to  32 take you to Joan Ryan's reference in the tab 3.  33 TAGGART, J.A.:  I don't think there is one.  There isn't one  34 listed.  35 MR. GRANT:  There is one listed, my lord.  I had it noted, but  36 that's okay.  I'll leave that for now.  I'll insert  37 that afterwards.  38 WALLACE, J.A.:  Tab four.  39 MR. GRANT:  I'm sorry, yes.  That is where it is listed is in  40 tab four.  That is the reference I wish to take you  41 to.  This is a question on education of members, and  42 it is actually two pages from the end of this tab.  43 You remember Joan Ryan is the holder of the chief's  44 name, Hananuxw, and she is talking here about her  45 work outside of the community and in the NITEP  46 program.  Page 5001 at the very bottom, line 42, she  47 is asked: 565  Submissions by Mr. Grant  1 "Q   Can you explain to the court how you see  2 your continuing work with the NITEP  3 program, and the work in fact you've  4 outlined for the court over the years, how  5 do you see that related to your role, your  6 authority as Hanamuxw?"  7  8 And she here explained the authority of the  9 chief and obligations:  10  11 "A   One of the requirements of a chief is that  12 you are expected to take care of your  13 people and to improve their lot in life,  14 whatever that may take."  15  16 And she describes what she has done, and down  17 at line 15, she says:  18  19 "I feel that in doing this work I'm also  20 fulfilling one of the historical  21 precedents started by my grandparents that  22 whenever we try to solve problems, and I'm  23 going to have to take you back to the time  24 when the four houses of Gisk'aast -  25 fireweed - were established in Gitsegukla.  26 The four houses of the Gisk'aast are, Xsgogimlax  27 ha, Gwis gyen, Hanamuxw and Wiigyet.  28 THE COURT:  Pardon?  What was the last one,  29 please?  3 0 MR. JACKSON:  Wiigyet.  31 THE COURT:  Wiigyet.  Thank you.  32 A    I'm going to have to change one of those.  33 I'm sorry.  I got confused.  I was thinking ahead  34 of myself.  Guxsan is the other one, not  35 Wiigyet.  36 THE COURT:  That's Guxsan as we call it,  37 G-U-X-S-A-N?  38 A    M'hm.  3 9 MR. JACKSON:  Yes, my lord.  40 A    When those four houses met a long  41 time ago when they were conducting  42 their businesses of directing the  43 activities of the people it was  4 4 always Hanamuxw who had to make the  45 announcements for the people, who had  46 to take the messages to the  47 neighbouring tribes.  And based on 566  Submissions by Mr. Grant  1 that role of being the spokesperson  2 for Gisk'aast at my village I looked  3 upon my involvement with NITEP as  4 fulfilling that responsibility of  5 being the spokesperson not just for the  6 Gitksan people, but for the Indian people  7 of British Columbia, because when we  8 conducted meetings with B. C. NITEP we  9 found that many of the Indian people in  10 British Columbia had similar needs."  11  12 And this particular reference - and there are  13 others - focus in broader but it focuses on the  14 element of education both internally and externally  15 and the obligations of the people in terms of the  16 chiefs.  17 I just want to say here, my lord, that with  18 respect to this whole concept that - and as Mr.  19 Justice  Hutcheon raised the other day with Mr.  20 Rush, at page 372, - the trial judge found that the  21 appellant had developed tribal customs and practices  22 and chiefs marriage an things like that.  But what  23 unfortunately he failed to appreciate or disregarded  24 in that evidence is that the chiefs and the clans  25 and the marriage had everything to do with the  26 relationship to the territory.  You couldn't have a  27 feast unless they were relating to the territory.  28 The tens of thousands of dollars I referred you to  29 this morning is not symbolic; it is very real, and  30 that these were not primitive people who were  31 focused solely on their villages.  They were  32 civilization to make international relations that is  33 with other aboriginal nations and who dealt with  34 trade and who dealt with peace settlements, who had  35 a whole system albeit completely different from ours  36 but as effective as ours.  37 Now, I refer on paragraph 436 of the factum to  38 the evidence that Mr. Rush referred you to yesterday  39 and Friday about the well-articulated concepts of  40 trespass and a range of sanctions to ensure respect  41 for proprietary rights, but the imposition of the  42 sanctions did not take place within the legal matrix  43 familiar to the common law.  44 And we then refer to 437 to an analogy of our  45 system, both the focus and the process of the  46 Gitksan and Wet'suwet'en justice system, in  47 common with many other aboriginal systems, is 567  Submissions by Mr. Grant  1 different.  The purpose of invoking sanctions  2 is not the punishment of the offender but the  3 restoration of peace and harmony within the  4 community.  In a kinship society collective  5 rights and responsibilities are primary and  6 offences against the law and their resolution  7 involves the kinship groups of both offender and  8 victim.  Since restoration of harmony is the  9 goal, there is emphasis on compensation and  10 restitution rather than the isolation of the  11 offender through imprisonment.  12 And I then refer you and quote the reference to  13 the Aboriginal Justice Inquiry in Manitoba to which  14 I have already taken you.  15 Returning now to the Gitksan and  16 Wet'suwet'en laws of trespass, evidence given at  17 trial relating to the imposition of sanctions showed  18 that this took place in the context of rules and a  19 process designed to ensure ongoing peaceful  20 relationships between the kinship group of the  21 trespasser and the House against whom the trespass  22 had been committed.  The feast hall and not a court  23 room plays the central role in the process of  24 dispute settlement.  25 And I refer you there - and I'm not going to  26 take your to Dr. Mills' references, Dr. Mills  27 describing the situation of the Wet'suwet'en.  I  28 would like to take you instead to paragraph 442.  29 Feasting to compensate for a death resulting from  30 trespass is a potent example of the exercise of  31 jurisdiction among the Gitksan and Wet'suwet'en.  32 The House had the authority to kill a trespasser, a  33 right arising from ownership and governed according  34 to law.  35 There was evidence in the case that in free  36 contact times of course in the last century it was  37 not so uncommon in our own legal system that the  38 death penalty was imposed on a repeated trespasser  39 who trespassed three times after being warned.  40 However, subsequently the House had to  41 publicly explain the trespass in a feast and pay  42 compensation in order for the homicide to be  43 sanctioned by the whole community.  44 And I would like to take you to the Walter  45 Blackwater reference at paragraph 442:  46  47 "What I want to make clear" 568  Submissions by Mr. Grant  1       This is at line six of page 49:  2  3 "THE WITNESS:  What I want to make clear is  4 that it passes the ninth cabin ".  5  6 He is talking about the territories, and then  7 he says at line 14:  8  9 "What happened is one of the relatives  10 were sent to go hunting on that area, and  11 one of the Stikine people murdered this  12 person.  They went and confronted the  13 Stikine people why did they kill him.  I  14 gave him the permission to go hunting on  15 my territory.  And when they were  16 confronted, they made a compensation,  17 which is known as Xsiisxw.  That's why the  18 boundary is out like this, because of  19 the -- it didn't belong to us to begin  20 with, but because of the murder  21 it was a payment from the Stikine  22 people.  Do you know what I am talking  23 about?  24 Q    Yes.  Thank you very much."  25 And we're talking here about at the top there,  26 this is the Kweese territory - and we'll talking  27 about that - you see that jutting out there sort of  28 overlapping there.  That is the area that he is  29 discussing was compensation with the Stikine.  30 If you go to the next paragraph, I would like  31 to refer you to what Solomon Marsden described as  32 Xsiisxw.  This is at the first reference.  He was  33 asked:  34  35 "Q    Do you know of a law where land can be  36 transferred which is referred to as  37 Xsiisxw, and if so, can you explain it?  38 A    Xsiisxw is when something is given, when a  39 - when land is given to the person or when  40 - when life is given to the person.  These  41 are the - they don't want anything that  42 will wear out right away, like material  43 things.  They don't want this for  44 compensation...  they are going to give  45 because they want to use this for - for a  46 lifetime.  A lifetime thing has to be  47 given. 569  Submissions by Mr. Grant  1 And then further after:  2  3 "Q   What is Xsiisxw given for?  4 A    This is when a person's life is taken, and  5 it's a serious matter to have to give  6 compensation to the family.  And a life  7 has been taken here, and that is what they  8 have to look at.  This is why they have to  9 give a life-time thing, like the land,  10 another person they would give because the  11 life of a person has been taken."  12  13 And he goes on and describes how long a person  14 will be taken, the land will be given for.  15 And then at line 16, of page 5958 he says:  16  17 "Q    And where - how would he announce the  18 return of the land if that chief who  19 received it was going to give it back?  20 A    The chiefs always announce their plans in  21 the Feast House, and they will also  22 announce it too when they are giving this  23 land back.  24 Q    Is there a special - at what type of feast  25 would they announce the return of the  26 land?  27 A    It is very serious when a life is gone,  28 and this is one of the biggest feasts we  29 have, is when they're having a feast for -  30 when they're having a Funeral Feast.  It  31 is one of the serious feasts, and this is  32 where they usually announce when the  33 Xsiisxw will be returned.  34 Q    Have you seen - first of all, do you know  35 of an example of a Xsiisxw when land was  36 given to the house of a victim of a  37 killing or a death?  38 A    I've seen this happen once about 30 years  39 ago when Ernest Hyzims - one of Ernest  40 Hyzims' children accidentally shot Walter  41 Wesley, and this child, the boy that shot  42 Walter Wesley, was from the House of  43 Simadiiks.  What David Wells did - he was  44 the one that held the name Sakum Higookw.  45 They were in the same house as Simadiiks, and he  46 held the name Sakum Higookw.  And what he  47 did is he gave a part of a territory to - 570  Submissions by Mr. Grant  1 - is he had papers out, and he even sent  2 those papers to Ottawa."  3  4 Now, this is described as well as by all of  5 Ryan in her evidence in Stanley Williams.  In 1958  6 there was an accident death and what he is talking  7 about here is Eagle Territory, in this area here and  8 in the small map you see - it is not marked on this  9 map because it was too small.  One small mountain  10 peak was given by Eagles to Walter Wesley's house, a  11 fraud house and that map -  it is not in your map  12 atlas, my lords.  It is in one of the sketch maps  13 that was in evidence, but that shows the very small  14 mountain that was given in compensation and a number  15 of witnesses described that.  16 The significance there is that the death was  17 accidental.  It was not an intentional killing, but  18 within the Gitksan law, there is no accident, and  19 you'll see that as we look at one or two other  20 examples briefly.  21 I take to Emma Michell within the same  22 reference, and I think what I should do is just  23 summarize for you or ask your lordships, first of  24 all, to refer to Dr. Daly's report in the same  25 evidence, at page 239, and I would just ask if you  26 would make a note to make reference to this because  27 he summarizes the Xsiisxw settlement in the, from  28 pages 239 to 244.  I just ask if you'll make a note  29 of it.  I won't take you through it.  30 In Emma Michell's case which is at the next  31 reference, she describes another killing, Sa'on.  32 This occurred when her mother was a young  33 person.  Her mother was born in 1870 and Emma was  34 born in 1908, and she talks about this death, and  35 then the compensation at pages 20 and 21.  I have  36 included the genealogy there for reference to her  37 mother's life.  38 Taking you to the last reference, Stanley  39 Williams now.  This evidence was given on April 13,  40 1988, and only a few weeks before that there was  41 another compensation feast.  It was a motor vehicle  42 accident, and he was asked:  43  44 "Q    Did you attend Joshua Campbell's funeral  45 feast that occurred a few weeks ago?  46 A    I was there.  47 Q    Was there a cleansing that occurred at 571  Submissions by Mr. Grant  1 that feast?  2 A    Oh, it - this is a different feast that  3 was - that occurred at that - at Joshua  4 Campbell's feast.  It's different from what  5 I was talking about.  This feast that  6 happened at Josha Campbell's is known as a  7 xsisxw.  8 Q    And that was a compensation for death?  9 A    What happened was it was an accident.  It  10 wasn't planned.  It was an accident.  What  11 happened was this young man hit this girl,  12 young girl with a car.  He didn't do  13 it on purpose.  He didn't see this girl on  14 the way and this is why he went forward  15 with his car.  This young man could never  16 forget what had happened.  He suffered all  17 through these years of what had happened,  18 and he took the life of a young girl by  19 accident, so what they did at this  20 feast "  21  22 The accident occurred some years ago.  23  24 " was his mother and his family put  25 almost $2,000 together and they gave it to  26 the mother of the young girl, and this is  27 what you call a xsiisxw.  The - after this  28 happens, this accident should never be  29 mentioned and the parents of the child  30 would feel that it was an accident.  31 Q    So, the type of feast that you held 42  32 years ago, those kinds of feasts are held  33 today as well?"  34  35 I would like to say something there about it  36 never been mentioned.  You saw that in the  37 Aboriginal Royal Commission Report that that is one  38 of the aspects.  Matters are settled and that is the  39 end, and this became very apparent early in the  40 trial, a point made by the former provincial lawyers  41 in their argument.  All of Ryan was questioned about  42 a killing in the 1880's which I'll refer you to of  43 Kitwancool Jim.  She said there was a feast and it  44 settled, and she said, "I'm not going to talk about  45 it."  And she just refused.  And she was asked on  46 cross-examination, "So, you don't talk about it any  47 more?"  And she said no, and she wouldn't talk about 572  Submissions by Mr. Grant  1 it when questioned.  The matter had been settled  2 between those houses.  It was wrong under her system  3 for her to speak about it.  Now, it was not pressed,  4 and it was not a conflict between the evidentiary  5 rules in court in that case.  But what was dealt  6 with clearly on her side was that the rules were  7 that she would not speak of it.  8 I just refer you to - and I won't go to them -  9 I'll just summarize that.  In the next two  10 paragraphs you have examples of a settlement of the  11 Nutsenei in paragraph 445.  This occurred down at  12 that Goosley territory in the southeast, and the  13 mark that Brown gave, she gave evidence in her  14 commission of a settlement feast relating to that  15 northern territory, and those two examples were of  16 settlements given which resulted in the case of the  17 Nutsenei confirmation of this territory down at the  18 south outside of the area marked by the trial judge  19 as Wet'suwet'en, and that is the territory of Namox  20 that is right here in the southeast area.  And then  21 the Skikm Lax Ha area is up at the far north, and  22 that was a settlement feast that she describes  23 before the white men came with the Tsetseut.  24 Moving into the area of the post-contact  25 documents .  26 TAGGART, J.A.:  All right.  I think we can take a break for  27 about five minutes.  28 MR. GRANT:  Thank you, My Lord.  29 THE REGISTRAR:  Order in court.  Court is adjourned for a  30 brief recess.  31  32 AFTERNOON RECESS  33  34 TAGGART, J.A.:  Yes, Mr. Grant.  35 MR. GRANT:  Thank you, my lord.  36 I would just like to refer you to one example from  37 447 because it ties into the authority with respect  38 to the territory, and this is the evidence of James  39 Morrison at the very end of the last three pages of  40 tab 447.  And I just ask you to note it with  41 reference to paragraph 299 of tab four of our  42 argument.  That is where Mr. Rush showed you David  43 Gunanoot wearing his regalia and the blanket with  44 the crest on it.  This description by Mr. Morrison  45 is of how at the feast Nii Kyap, David Gunanoot  46 showed his blanket and his crest and tied that to  47 the Tuudaadi Lake area.  I just ask you to note and 573  Submissions by Mr. Grant  1 cross reference that.  2 TAGGART, J.A.:  Could I have that cross-reference, please.  3 MR. GRANT:  Tab four, paragraph 299.  That is the photograph  4 of Mr. Gunanoot and the regalia.  5 I would like to now, in terms of the  6 jurisdictional argument, refer you to the last  7 portion of this relating to the post-contact  8 evidence, which we submit demonstrate that even  9 after contact the Gitksan and Wet'suwet'en asserted,  10 and attempted to maintain, institutionalized  11 political  authority over their territories and  12 themselves.  Now, the trial judge, in addressing the  13 appellants' evidence that their pre-contact systems  14 of jurisdiction continued to operate after British  15 sovereignty, said:  16  17 "Mr. Loring's report ".  18  19 Mr. Loring was the Indian agent from 1890 to 1920 in  20 the area, the first Indian agent bought up there.  21  22 " starting in about 1890, hardly mention the  23 feast, particularly as a legislative body.  In  24 fact, one of Loring's principal functions  25 seemed to have been the settlement of disputes,  26 and the evidence strongly suggests that it was  27 he who "governed" the territory.  I do not  28 suggest the Indians have not always  29 participated in feasting practices, and I  30 accept that it has played, and still plays, a  31 crucial role in the social organization of  32 these people.  I am not persuaded that the  33 feast has ever operated as a legislative  34 institution in the regulation of land."  35  36 The evidence, far from supporting those  37 conclusions, established that the Gitksan and  38 Wet'suwet'en, both within the communities and in  39 relationships with the colonial authorities,  40 continued to operate their own system of  41 jurisdiction, despite the imposition of federal and  42 provincial laws.  43 I would ask you to highlight what was said by  44 this northern-Ontario prosecutor, Mr. Ross, in the  45 paper he has published in the Canadian Native Law  46 Reporter, his point of view from a prosecutor  47 dealing with accused Indians in Northern Ontario. 57  Submiss  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  ions by Mr. Grant  He makes this point which Mr. Loring and I say with  respect the trial judge might well have pondered:  "In our ignorance we have failed to admit  the possibility that there might be rules other  than ours to which they regularly display  allegiance, an allegiance all the more striking  because it is exercised in defiance of our  insistent pressures to the contrary."  And there is no doubt that in the period of time  after 1888 in any event, there was strong pressures  to the contrary and prohibitions and other  restrictions on the Gitksan and the Wet'suwet'en.  J.A.:  Mr. Grant, could I just take you back to 449  where you are quoting the trial judge.  :  Yes, my lord.  J.A.:  That is twice the trial judge has used that  word "legislative", and he used it in relation to  Mr. Brown's journals, and is he not there using it  in a very special way?  And I think Mr. Rush  referred us the other day to something from Mr.  Brown's journal.  I think it is at paragraph 397  where Mr. Brown talks about the death of Jack Knight  or Jack King and the person that was passing through  was hoping to get the, to become chief, etc.  :  Right.  J.A.:  At that time, Mr. Rush told us that the  settlement of the succession was not done at the  feast.  It was done before the feast, and it was  acknowledged at the feast.  :  Right.  J.A.:  Isn't that what the trial judge - I don't  know whether it is - isn't that what he is talking  about?  The legislative function didn't take part  there?  I don't know whether you call it  legislative.  That is what he seems to have in mind.  :  Well, I think it is the problem that the Royal  Commission had and that Ross is referring to the  trouble and that we tried to warn the judge in the  opening is, it is very hard to make these kind of  analogies.  It is not - it is like Guerin and the  Supreme Court of Canada, using this language of  legislative may connote those.  But, having said  that, my lord, in response to your question what Mr.  Rush was referring to is that when Ackooshaw went to  see if he could take the name, or the new person 57  Submiss  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  ions by Mr. Grant  could take the name, it was not determined obviously  from what, at least from what he told Brown.  All we  know is what Brown understood, that he was going to  be the taker of the name.  He was going down there.  J.A.:  He was hoping, you mean?  :  Yes, he was hopeful that he would get the name in  Brown's language.  Clearly, assuming from that, that this person,  that is what he told Brown, the decision as to the  successor was not determined.  In the evidence, it  established that succession, that the successor may  be determined in advance of a person's death.  This  happens on occasion and it is in evidence.  It may  be decided after the person dies by the other chiefs  within the house.  That is shown in evidence.  J.A.:   By the other chiefs; not in the feast, it  says .  :  In the House.  What they do is they have, as Mr.  Rush I believe explained, at the time of the death  there will be two separate feasts.  J.A.:  Yes?  Funeral feast.  :  I'm sorry.  Yes, there is the funeral feast and  the headstone feast a year later, but before the  funeral feast, two days before is what is called a  smoke feast.  At that smoke feast, they usually will  announce the successor.  Okay.  It is announced by  the House because, first of all, the successor is  firstly the House business.  But there is evidence  that if a House cannot settle on it, if there is a  dispute there, they will bring in the other chiefs.  Then they will decide, and in fact this happened  only within the last ten years, they will decide,  and all of them will go to the feast, and say, "This  is the person who is going to take the name and  be the successor to the territories and the crest,  etc.  So, the witnesses were asked the question, and  I will search the transcript for it, but the  question of, "Well, what happens" - I think it was  Mr. Joseph - "if the successor is chosen but if no  feast is held or if no one came to a feast?"  He  said, "That is not possible because that is ratified  in the feast - and I use that language carefully in  the sense that I don't want to make a transposition  except to assist.  J.A.:  I thought Mr. Rush uses "acknowledge"?  :  It is acknowledged or ratified, it must be  ratified in the feast.  If there is no feast, then 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. GRANT:  HUTCHEON,  MR. GRANT:  MR. GRANT:  576  Submissions by Mr. Grant  that person is not acknowledged or ratified within  the social organization, within the society.  J.A.: But I think going back to the trial judge, I  think that is what he meant. He was concentrating  on the feast, and he said there was no legislative  function, and from what you told me, that seems to  be so.  Yes, I think that the reference to Brown is  possibly to the same.  He uses the same language.  J.A.:  He uses the same language as Brown.  Yes, in fact at the beginning of that quote, he  talks about Brown's report in the 1820's and Mr.  Loring's reports.  So, I would have to go back.  It  may actually be the same reference, the first part  of this reference is Brown's reports, 1820.  MACFARLANE, J.A.:   It is the same page, page 374 of the  judgment, both references.  One is Brown's Reports  and one is the Loring's reports.  Yes, it is the same reference.  He joins them and  we have dealt with them separately.  My lord, I have summarized different situations  of the feast and I have gone over them in the last  section.  I have skipped them, but, for example, the  evidence, some of which is referred to here and I  haven't taken you to it, is that if there is a  dispute over territory, where is it settled?  It is  settled in the feast.  That is where both sides  raised the issue, and there was a dispute over a  fishing site, and I think in that case, it was  Haaluus, Buddy Williams, his house raised a feast  and they announced in the Feast Hall, this is our  fishing site.  There was a question of - and again,  it is in the references in the last section I have  just passed over, my lord, of Ryan describing that  there was a fishing site given as a compensation  that will be returned in the feast.  Within the  system, the authority to confirm or pass rights with  respect to the land resolved disputes occurs within  the feast.  I take the language of legislation as a  legislative institution is that he may have been  expecting some form of parliamentary decision-making  which makes sense in the context of what your  lordship has said, that is, they decide who the  successor is.  But, maybe it can be compared in that decision  if we are forced to do these comparisons, to  something like Royal assents.  Parliament can do 577  Submissions by Mr. Grant  1 what it pleases, but if Royal assent isn't signed,  2 we know there isn't a law, and that that is needed,  3 and that that ratification is needed.  In the case  4 of the dispute resolution, it may be that it is  5 analogous to the forum we are standing in here, a  6 court forum; both chiefs speak up, other chiefs  7 describe and react to it.  The settlements, the  8 compensation, all must occur in feasts; divorce, all  9 of these things have to occur within a feast,  10 adoption or they are not confirmed or they are not  11 accepted, and that is, in that sense that is why the  12 feast operates.  It is a combination of many of the  13 kinds of forums that we have here.  But it certainly  14 is not a legislature in which the chiefs sit around  15 and discuss in a debating forum what decision they  16 should make.  In fact, maybe it is much closer to  17 the reality of the committee system of our  18 Parliament where a lot of the lobbying and  19 organizing occurs behind.  By the time the Bill  20 comes to the House, it is known whether it will pass  21 or fail.  22 But I take that language, it is operated as a  23 legislative institution, as a much more formalized  24 sense that he is expecting to see which isn't there  25 to be had.  26 Now, I would like to take you to the first  27 situation in the 1870's.  This is the fire of  28 Kitsegukla to which Mr. Rush made mention, and it is  29 paragraph 453.  I make reference to that, and in  30 1872 there was an unattended camp fire.  I think I  31 should just refer to this because it is referred to  32 in all the documents, but it is summarized  33 accurately here.  It was set by the white miners or  34 their down river Indian companions, and they stopped  35 at Kitsegukla, and the fire destroyed the village.  36 The Gitksan chiefs closed the Skeena to navigation.  37 They petitioned the provincial government for  38 compensation.  Trutch was the Lieutenant Governor,  39 and he arranged a meeting at Metlakatla of Gitksan  40 chiefs.  Dr. Galois's opinion was that he said this  41 meeting was compatible with the Gitksan procedure  42 for ratifying settlements, and Mr. Brody's opinion  43 was, reading all the documents, that the meeting  44 fulfilled the requirements within Gitksan culture  45 for acknowledgement of the offence, compensation for  46 the offence and the securing of an accord lasting  47 into the future through the institutions that the 578  Submissions by Mr. Grant  1 Gitksan believe in, that is to say, feast type  2 events.  3 Here, in accordance with Gitksan law, was a  4 clear settlement of a dispute witnessed, accompanied  5 by demonstrations of power or nax nox, payments and  6 agreement that in future there would back alliance  7 instead of discord.  8 I just refer you to the last two pages in the  9 first - I'm sorry, it is the second reference under  10 453 is the Brody's evidence.  After that statement  11 that is quoted there at page 15333, my lords - this  12 is the last page of the Brody - he states at line  13 11:  14  15 "The division of the people into their  16 phratries, the whites on one side, the  17 Kitsegukla on the other.  The sharing of power  18 symbols.  The whites fire their gun, their  19 power.  The Gitksan sing their songs in which  20 is their power.  The payment of money by the  21 hosts, who are the whites, after all they  22 invited the people to come.  The hosts make a  23 payment to the guests.  The ordinary people are  24 there, that is to say, not the chiefs who are  25 specifically identified.  They constitute, it  26 seems, as sort of witnesses here, but everybody  27 is paid compensation money, witnessing money,  28 and this is all done with entertainments and  29 affirmations of future mutual support, as it  30 were, affirmation of the terms of the peace  31 that is now brought into play."  32  33 And I have referred you to the - Mr. Rush has  34 already referred you to the polite regalia, the  35 aprons and the headpiece that survived that fire in  36 the photograph there.  I'm in the last volume of  37 this tab, my lords, which is reference book ten.  38 And ?  39 HUTCHEON, J.A.:  The fire was in 1872?  40 MR. GRANT:  The fire was in 1872.  41 I would like to take you to a few of the  42 documents which are referred to at tab 454 in  43 reference book 10, the next book, and at the fourth  44 page in, the third page in we have the petition of  45 Kitsegukla, and they describe the fire, and then  46 they say at the next page:  47 579  Submissions by Mr. Grant  1 "This was neglected by those camped there  2 and the consequence was the total destruction  3 of our village, eleven (11) houses and 13 poles,  4 also 10 canoes.  The poles are of great value  5 to us - our loss is very heavy, and thousands  6 of dollars worth of property and years of time  7 having been expended in the building of the  8 houses and the erection of the poles, all of  9 which was entirely destroyed in one hour by the  10 fire."  11  12 And then you turn the page over and you see the  13 signature of a number of chiefs.  I just refer you  14 down, the third one down is Mark Cook-Shen, that  15 would be Guxsan, and four from the bottom is  16 Es-covcumlahav.  These are plaintiffs in this  17 action, and other chiefs within the Houses.  18 If you go to the next document, there is an  19 extract of a letter from Matthew Teak, and this is  20 interesting, because in the analysis of Mr. Brody  21 you see how he comes to this.  Hankin, you see  22 Hankin, he was the storekeeper in Hazelton, and he  23 said he couldn't get his supplies up because they  24 blocked the river.  This is entitled:  "An Extract  25 of a Letter from Matthew Teak to Mr. Grahame" dated  26 in July 1872, and about the 5th line up where I have  27 marked it in dark, you see:  28  29 "Hankin, after taking an inventory of the  30 property the Indians had lost, held out certain  31 promises which the government would fulfil,  32 which satisfied them, and they allowed them to  33 take his goods pending the arrival of a  34 magistrate to settle 'the matter permanently'."  35  36 So, in other words, Hankin made offers to them  37 on that basis he had his goods taken.  Returned.  38 There was a report, the Trutch report which is the  39 second brown sheet into the inquiry, and I would  40 just like to take you to the fourth page in on that  41 report, and this is what one of the chiefs is saying  42 part way down where I have marked it:  43  44 "From my personal knowledge, I cannot give  45 a correct account of the loss of our village,  46 but that our village has stood for generations,  47 a very great number of years, and was the 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  580  Submissions by Mr. Grant  honour of our forefathers.  We therefore take  much to heart our loss, not only as a heritage  from our forefathers, but the labour and  rebuilding expense of calling together many  tribes.  I cannot say how many hundreds."  Now, going two more pages over, these are the  statements of the chiefs, half way down the page:  "I wish to speak, my brother chiefs have  spoken the truth, God gave our forefathers a  village and land as God gave you houses and  land.  The white man has come in our midst and  has chosen foolish Indians to work for them and  we put the blame accordingly on the white men  for the burning of our village."  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  And this continues on in this report.  J.A.:  I'm sorry.  I'm not with you at all.  What  tab are we under?  :  I'm at tab 454, the second entry, that would be  the second - the first brown sheet, Exhibit 1035-137  at the top, the Trutch report.  This is a copy that  was an Exhibit and is not very legible.  I then  quoted to you, my lord, from the third page in, a  statement of one of the chiefs.  J.A.:  I see, yes.  :  Okay.  At the bottom and top of the next page, and  then I went to the 7th page quoting from another  chief, "I wish to speak ," and I have just given  you a few extracts of what they have said.  J.A.:  I have it now.  :  Now, if you go to the next reference, the next  brown sheet in that same page is the description of  this event in the Beynon records, the Barbeau/Beynon  records where they did describe this fire by Mark  Wiget, and he talks about it and it is interesting  what he says.  On page five of that reference which  is the second page in, this is at the end of it.  This is how the Indian perception, the Gitksan  perception was:  "And Stax danced while all the people of  Gitsegukla sang..., and then after this, the  officers on the boat said they were going to  show the people the way they had of burning  places down.  So they took their weapons and 581  Submissions by Mr. Grant  1 fired into the shore into a hill and the fire  2 came out from the direction of which they shot.  3 They was all that we saw for this day.  4 The next day the officers came and  5 distributed money amongst us.  The foremost  6 chief got $90, some got $80.  Four got $90, and  7 some $70 and $60.  This was to assist the  8 people to purchase nails and tools."  9  10 So, in fact compensation was paid, and it was a  11 reflection, and in the Trutch Report - I'm not  12 overstating it - Trutch's view  was, "Well, you  13 can't stop people from going up the river but since  14 we have had no trouble with you before and since you  15 have had this disaster, we'll help you out."  That  16 was the government's perception of what was going  17 on.  The Gitksan's perception was this is a  18 settlement, this is a settlement feast, and they  19 accepted that, and that is what Mr. Brody is  20 referring to.  21 I refer to the 1874 incident at page 455.  I  22 just would like to refer you back to an incident in  23 1877 that comes within the issue of jurisdiction.  24 That is referred to at paragraph 344 at page 165 of  25 the factum, paragraph 344.  26 TAGGART, J.A.:  Paragraph 344?  27 MR. GRANT:  Paragraph 344, page 165, in which the Attorney  28 General of the province explicitly in 1877, this is  29 six years after confederation, recognized the  30 existence of Indian territories and trespass laws in  31 the Skeena River district, and instructed a justice  32 of the peace to apply it.  33  34 "Until the Dominion and Provincial  35 Governments have settled the Indian land  36 question it would be ".  37  38 And this is what he said   39  40 " it would be well to uphold the Indian law  41 in the Skeena River district, which regulates  42 the tribal rights of Indians to certain hunting  43 grounds."  44  45 This is the Attorney General of the province in  46 1877 confirming recognition of Indian law at that  4 7 time. 582  Submissions by Mr. Grant  1 The following paragraphs refer to the incident  2 of Youmans' death, and in that case I refer you that  3 in May of 1884 Billy Owens, a Gitanmaax Indian  4 drowned in the Skeena and Youmans' failure on his  5 arrival in Hazelton to report the death, or to offer  6 compensation for it, led to his death at the hands  7 of Youmans' father, and that is referred to in the  8 newspaper reports at the time which are exhibited,  9 and I refer you to tab 456, and just refer you part  10 way down where I bolded it.  They're talking in the  11 report from Port Essington on June 16th of 1884 that  12 about Mr. Youmans' ventures, and part way down they  13 say:  14  15 "From this village Mr. Youmans walked home  16 alone, which he reached on the 4th of June.  17 Mr. Youmans did not at once relate the story of  18 Billy Owens' death by drowning, fearing they  19 would take immediate revenge .  20  21 Here is what I emphasize:  22  23 " for he well knew the old Indian law that  24 when accident or death in the pursuit of any  25 enterprise occurred, he who originated it  26 should make compensation with money or its  27 equivalent to the friends of the injured or  28 forfeit his life.  29 Two days after Mr. Youmans' arrival at the  30 Forks an Indian brought the news of the death  31 by drowning near Kit-se-lash.  It rapidly  32 spread.  The Indians grew excited.  Soon the  33 father of the drowned man decided to take the  34 life of Mr. Youmans to be avenged of his son's  35 death."  36  37 And the next reference is on the same, in the  38 same - another paper, but a different report.  39  4 0 "The murder was committed out of revenge  41 for the death of the Indian's son ."  42  43 This is the next page over, my lords.  44  45 " who was drowned in the dangerous canyon of  46 Kitselass while working in the freight canoe of  47 Youmans, who was therefore by Indian law 583  Submissions by Mr. Grant  1 responsible for the young man's death.  Poor  2 Youmans had already had his life attempted on  3 the trip up the river about a week ago, but  4 temporarily escaped death.  However he was a  5 doomed man, for, disregarding warnings to do  6 otherwise the unhappy trader entered the Forks  7 on Wednesday last without taking precautions  8 for pacifying the relations.  He also  9 imprudently concealed the death for two days,  10 which only increased the bad feeling of the  11 people on the subject."  12  13 And this led to Youmans' death.  14 And in the next reference at tab 457 - and I'll  15 take you back to the factum - is Geddum-cal-doe  16 (Gyetmgaldo), head chief at Gitanmaax, wrote the  17 provincial secretary and he said:  18  19 "We wish to lay before you our law in  20 regard to accidents and death that occur in the  21 company with others.  It is expected that the  22 survivors shall immediately, or as soon as  23 possible, make known to the friends of the  24 injured or deceased, what has taken place.  If  25 this is not done, it is taken as evidence that  26 there has been foul play.  27 The general custom among the Indians is  28 that if anyone calls another to hunt with him  29 to go canoeing, and death occurs, the survivor  30 always makes a present corresponding with his  31 ability, to show his sympathy and goodwill to  32 the friends of the deceased, and to show there  33 was no ill-feeling in the matter."  34  35 Dr. Galois saw in these events:  36  37 "An example of the attempts by the Gitksan to  38 exercise their own customary laws in ...a  39 particular action by a member of the white  40 community, which contravened that law."  41  42 Mr. Brody commented as an anthropologist:  43  44 "Gitksan law required acknowledgment and  45 compensation, and here it's being asked for,  46 and I think probably the thing that's most  47 interesting to me in this passage is reference 584  Submissions by Mr. Grant  1 to Hankin having done it regularly, having been  2 in the habit in the area to follow the Gitksan  3 law of compensation."  4  5 That is in the documents of Hankin, whenever  6 there was anyone injured while employed by Hankin or  7 in any way, he always immediately arranged for  8 compensation.  Youmans basically was of a different  9 view of it and just had refused.  10 Now - and I just cross over that to what I  11 described about the incident Mr. Marsden referred to  12 that in 1958, the death of Wesley was immediately  13 compensated under Gitksan law.  14 Now, here we come to the "Skeena Uprising" of  15 1888 in paragraph 460.  This really arose out of a  16 dispute between a feast between "Kitwancool Jim" and  17 "Neatsqua", over whether Kamalmuk's son, or Neatsqua  18 himself ought to succeed to the name Hanamuk.  19 Kamalmuk, who blamed Neatsqua for using his powers  20 as a halyt to cause the deaths of one or more of  21 Kamalmuk's sons, shot and killed Neatsqua.  22 And he goes on.  What happened quite simply -  23 and the documents referred to in paragraph 460 which  24 I won't take you to, but it is all documented.  This  25 is quite simply what happened.  A young child of  26 Kamalmuk died.  Kamalmuk - and apparently his wife  27 was of the view that this was as a result of shame  28 and power by Neatsqua.  Kamalmuk came across  29 Neatsqua on a trail and he killed him, didn't kill  30 him immediately.  The older man Neatsqua survived  31 and told them what happened.  What happened then is  32 that Neatsqua was from Kitsegukla.  Those people  33 came up to Kitwancool where Kamalmuk was, and they  34 came preparing for either killing, revenge killing  35 Kamalmuk or settlement.  Kamalmuk - and it is  36 described very vividly - comes out in a grizzly bear  37 skin on all fours in a position of submission and  38 offers to compensate.  The compensation occurs.  The  39 matter is settled from the Indian perspective, but  40 the provincial government sent a party of special  41 constables, accompanied by Indian Agent Todd, to  42 arrest Kamulmuk.  One of the constables shot and  43 killed Kamalmuk.  It was debatable whether he  44 thought he was fleeing.  Anyway, Kamulmuk stopped  45 and he was shot and killed.  This is what provoked  46 the anger and threats of the Gitksan, particularly  47 at Kitwancool. 585  Submissions by Mr. Grant  1 If I could take you to tab 462, the last page  2 which is a report of October 18, 1888, to the  3 council, executive counsel, and starting at page 11,  4 the printed page at the bottom:  5  6 "The Executive, while regretting the  7 action of the Constable in shooting the Indian,  8 have to point out that the circumstances which  9 led to the sending to the Skeena River of the  10 five Constables, as well as the circumstances  11 which gave rise to His Honour's request for the  12 services of "C" Battery, are such as to show  13 that the control of these Indians had passed  14 beyond the power of the Provincial Government.  15 Indeed it cannot be asserted that they have been,  16 at any time, amenable to law and order."  17  18 And they, then - I take you to the next tab 463  19 where the provincial Attorney General writes in his  20 instructions - this is the second page -this is the  21 Attorney General to Roycraft, in July 16, 1888, and  22 I hope it is shown on the bolding about a quarter of  2 3 the way down.  24  25 "You will use your discretion whether or not to  26 investigate by Magistrate's proceedings other  27 homicides which have occurred among the  28 Indians."  29  30 This is the Attorney General speaking in 1888.  31  32 "My view is that they are best let alone  33 in a country in which hitherto only the tribal  34 laws of the Indians have prevailed.  I need not  35 point out how just & expedient it will be to  36 use every effort to conciliate the Indians and  37 win their confidence."  38  39 Now, basically I submit, my lord, at paragraph  40 464 that Roycraft's instructions from the provincial  41 Attorney-General are an official acknowledgement  42 similar to what happened eleven years earlier that  43 Gitksan law had been operating for at least 17 years  44 after British Columbia joined Confederation.  This  45 is exactly what the Indians themselves were  46 asserting, too, and the recently appointed  47 stipendiary magistrate - I'm sorry, I'm at paragraph 586  Submissions by Mr. Grant  1 465 of my factum at page 205.  And gold commissioner,  2 Napoleon Fitztubbs, wrote to the Attorney General  3 from Hazelton in July 1888:  4  5 "On my way up I was practically stopped by  6 the Indians of the Kit-wan-gar village who  7 forbade the crew of my canoe to proceed until  8 they had been heard.  I was then addressed by  9 several of the elder men, who complained  10 that the whites had interfered with the  11 operation of their own laws and had taken the  12 life of one of their own race, that life being,  13 by the payment of a stipulated sum, no longer  14 forfeit - I replied that the law of the whites  15 was supreme and would have to be obeyed to the  16 extinction of their own.  On suggesting that  17 their chief alone should discuss such matters  18 with me, one of his people went for him but he  19 refused to speak with me."  20  21 Now, there is then reference in 466 and 467 to  22 the threats made that the villages would be burned,  23 and the fishing places would be destroyed if they  24 did not obey the Queen's law, and this is in 1888  25 from Roycraft, and in 1900 by Loring, and then in  26 468 we refer to Loring, who we will come back to,  27 that threatening to burn the Wet'suwet'en out who  28 boasted to his superiors in January 1900 about  29 "keeping the Indians in proper subjection," and  30 whose opinion was that "safety and handling them  31 depends on the respect and fear one is able to  32 inspire."  33 Now, this is the person that I submit that the  34 trial judge erred when he referred to his reports as  35 being much more on the ground than government  36 reports.  His reports were nothing more than  37 government reports, as you can see when we look at  38 them, they are a repetition.  They make, in advance  39 a photocopier they are remarkable in how exact he is  40 year by year in his reports which I submit have  41 some, there is some reason to doubt their accuracy.  42 I now come to the banning of the feast in April  43 1885, the District Superintendent issued a circular,  44 and I would just like to take you to that at tab  45 469, if I may.  When you see what the circular is  46 from the Superintendent of Indian Affairs, it says:  47 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  587  Submissions by Mr. Grant  "That any person who engages directly or  indirectly in celebrating the Indian Festival,  known as 'Potlach', or in the Indian Dance,  known as the 'Tamanawas', is guilty of  misdemeanour ."  When you look at that circular .  HUTCHEON, J.A.:  This is 468?  MR. GRANT:  469, My Lord.  I'm sorry.  HUTCHEON, J.A.:   All right.  MR. GRANT:  There is no doubt that this would have encompassed  the Gitksan and the Wet'suwet'en feasts, and if  there is any question, the section which is set out  at paragraph 470 of the factum of prohibition which  covers any Indian festival, dance or other ceremony  of which the giving away or paying or giving back  money, goods or articles of any sort forms a part,  or is a feature is prohibitive, and that certainly  would encompass these feasts.  Now, there is evidence that they tried to  prohibit the "Potlatch", at the feasting of the  Gitksan and Wet'suwet'en, and I refer to that at 471  with Mr. Poekock, and he said, this is what he  confirms writing to Fitztubbs.  When Fitztubbs  demanded compliance:  "They replied, that the law was as weak as  a baby, and in several speeches defied you, and  the government, one man also threatened your  life."  Fitztubbs himself reported to the Attorney  General.  This was of his meeting in November 1888,  and in January 1889, and he refers to Lalt of  Kitwanga, and he reported on - and Fitztubbs  recognizes the feast as the basis of their social  system:  "Lalt said 'that he had already issued  invitations to different people to attend his  Yook ' ".  That is the Gitksan term for a large feast.  "' and that he could not now withdraw them,  he had no desire to violate the law but even if  he were afterwards punished he must proceed 588  Submissions by Mr. Grant  1 with it.  I told the chiefs that under any  2 circumstances, the government held them  3 responsible for the good order of the people.  4 At Kitsayookla the chiefs said they felt  5 sure some deception was intended, that they had  6 rights, particularly in the land and fisheries,  7 and they feared being entrapped into their  8 surrender.  It was arranged that the law  9 against Yook should sleep for the winter or  10 until the Government warned them of its  11 intended enforcement.  12 I went to Kispyooks.  A young Indian stood  13 up and in very dramatic language said he had no  14 wish that his chief should give countenance &  15 aid to the Government, they were a people of  16 themselves, had their own laws and would  17 acknowledge none other; six more followed in  18 the same strain..."  19  20 I refer you, just if you want to know the  21 exhibit is there, but reference, I would ask you to  22 refer to pages 9, 10 and 11 of that exhibit at the  23 reference at tab 472.  I won't take you to that now.  24 TAGGART, J.A.:  Nine, 10 and 11?  25 MR. GRANT:  Yes, pages 9, 10, and 11 of the exhibit at tab  26 472.  27 TAGGART, J.A.:  Yes.  28 MR. GRANT:  I refer back to the trial judge's judgment, and at  29 tab 473, I also refer you to his comments about  30 Loring, and I would like to take you to that at tab  31 473.  It is at page 315 where the trial judge  32 stated, he refers to Loring, and he said:  33  34 "His many reports present a useful account  35 of the Indians of the territory during his  36 service there, which continued until about  37 1920.  In many cases, his reports present a far  38 more realistic picture of what was happening on  39 the ground than the careful language of  40 government reports and diplomatic exchanges."  41  42 In fact, I submit that Loring's reports are  43 government reports, and that they are the reports of  44 a government agent who had a very concerted interest  45 in ensuring that he was doing his job well, and  46 therefore he does frequently mention the feast.  He  47 repeatedly, but falsely, as I say in paragraph 474 589  Submissions by Mr. Grant  1 claimed to have eliminated it.  His reports are  2 reluctant testimony to the persistence and  3 importance of the feast.  4 If I could take you to paragraph 477.  5 It is impossible to be sure from Loring's  6 reports whether he ever personally attended a  7 Gitksan or Wet'suwet'en feast.  He did not speak  8 Gitksan or Wet'suwet'en, and he lost his wife's  9 services as a translator in 1910.  10 It is true he frequently reported that he  11 settled disputes among the Gitksan and Wet'suwet'en,  12 but if his constant references to recurring disputes  13 are to be believed, his "settlements" had little  14 staying power.  The disputes, like the feast, kept  15 coming back, in spite of Loring's attempts to  16 declare the one settled and the other dead.  17 Most importantly, even as Loring repeatedly  18 (and erroneously) claimed that the feast either had,  19 or was about to, disappear, he also reported on its  20 continuation.  In spite of the usual announcement  21 that "the custom is now only lingering to soon meet  22 its end", he showed sufficient understanding of its  23 purpose to write in July 1897:  24  25 "As the young men and the women failed to  26 have an interest in feasting and acting in  27 support of it, the proceeds of hunting and  28 trapping amongst the old keep it up.  The  29 origin of the potlatch is only attributable  30 to the desire of being lavish in becoming a man  31 of consequence attending the ceremony in  32 adopting a departed's place and name."  33  34 Now, there is an implication or certainly an  35 argument made at one point by the Federal  36 respondent, an implication that the trial judge may  37 have adopted it, that the feast was basically  38 completely changed over the period of time that  39 Loring was there.  This is exactly what Brown saw,  40 and it is exactly what we see in the evidence today.  41 On January 31, 1898, Loring recorded a number of  42 pole-raising feasts at Kitsegukla:  43  44 "In evidence as to the problem of the  45 feasts and their termination, I here must  46 state that during this winter at old  47 Kitsegukla, where are more heathens in 590  Submissions by Mr. Grant  1 proportion to its population, than in other  2 villages of the Skeena, and the stragglers of  3 them assisting that party could scarcely muster  4 force enough to raise a few poles, scantily  5 half of dimension than those of former years."  6  7 These are the poles and include the poles that  8 you saw photographs of that were re-raised in 1945.  9 In 1893, he had mistakenly called the custom of  10 erecting totem poles "a thing of the past".  11 In December 1904 he declared the potlatch is put down  12 for good and all.  In July 1906, he defended himself  13 against a report that potlatching was interfering  14 with attendance at the Kispiox Indian day school.  15 But what he described was a performance of a chief's  16 "nax nox', like the one performed by Gwoimt in  17 Brown's presence in the 1820's.  18 And he says:  19  20 "As to the heathen potlatch and dancing,  21 it was merely a memory feast attended by the  22 old heathens of Kuldoe, Kisgegas and  23 Kitwankool.  There is no dancing practised  24 amongst the Indians of this district in any  25 shape, unless the crow-like hopping about of an  26 old Indian, in ancient costume, can so be  27 termed.  If more than one engaged therein, it  2 8 can be likened to a pantomime.  29 The Indians attending a feast - and I do  30 not think that there will be another for want  31 of patronage - are the old Indians that spend  32 all the year on the hunting ground, and, so  33 far, it remains their sole diversion for about  34 two weeks during the long winter."  35  36 With respect, my lord, this was the kind of  37 report that was put to the trial judge that he says  38 is not an official government report, is much more  39 on the ground.  In fact, I submit this is a  40 description similar to Brown's in the sense he is  41 talking about the same point, but the real  42 telling-tale is from the ethnographer, Barbeau, and  43 the feast he attended in Hagwilgate in 1920.  He  44 refers back to the 1904 report of Loring and he  45 says:  46  47 "Agent Loring's report from Hazelton 591  Submissions by Mr. Grant  1 (March 4, 1904) to the effect that 'no dancing  2 of religious, ceremonial or social character is  3 being practised' is far from convincing,  4 however, and may be due to the Agent's attitude  5 and pretended ignorance of the facts."  6  7 And Barbeau's notes - and this is the one  8 reference I would like to take you to, to the  9 Barbeau notes of his feast at tab 484.  You see on  10 the first page he is talking there about going to,  11 part way down, going to the - when he is confronted  12 by Indian people on the train, going to the  13 "Potlatch", "Beware of prison; behave well," and  14 there is reference to Father Morice, and similarly  15 on pages two and three he meets Father Godfrey, who  16 at the top of page three says - Father Godfrey is  17 asked about whether or not if he is going to the  18 "Potlatch"?  With a question mark, and then he says,  19 "Forbidden bylaw; be careful; police, court,  20 prison."  The Indian people that are there according  21 to Barbeau giggle, and he says:  22  23 "I tell them I had heard it was postponed til  2 4 Monday."  25  26 This is Father Godfrey.  27  28 "Laughs, 'Because I am leaving on Sunday night,  29 and I am opposed to it.'  And they "  30  31 That is the Wet'suwet'en people.  32  33 " don't mind Godfrey, no authority.  I ask  34 Father 'really opposed to potlatch?'"  35  36 He says:  37  38 "Yes:  The law and they squander their  39 possessions."  40  41 And then he asked:  42  43 "Do you do it because you are an agent of fed.  44 gov't?  No.'  Would they not squander  45 possessions just the same?"  46  47 Sorry.  This is the question by Father Godfrey. 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  592  Submissions by Mr. Grant  "Suppose so, yes.  Why then oppose their fun?  Then he confessed to me that if I had a chance to  attend to it, not to miss the sight; it is  great.  And he seemed to regret not to be able  to attend to more."  WALLACE,  MR. GRANT  WALLACE,  MR. GRANT  WALLACE,  MR. GRANT  WALLACE,  MR. GRANT  J.A.  I'm having problems seeing the relevance of the  government prohibiting the "Potlatch".  How do you  use that?  What do you draw from that?  :  Well, the argument - and the trial judge is  finding that the system substantially has changed.  There is no exercise of authority or no exercise of  jurisdiction.  Let us put this hypothetical.  If the  government had not prohibited the "Potlatch", then  there would have been no effort of suppression and  none of those backers would have played on.  This  central institution which is Fitztubbs in 1888,  witnesses in 1988, defined a central institution of  their system.  J.A.:  I can see the relevance of establishing that  this central institution flourished and existed as  an Aboriginal practice of law at the time of  contact.  :  Yes.  J.A.:  But what is the relevance of their having  prohibited it?  :  The relevance of the prohibition   J.A.:  Having established the first point?  If you  haven't established the first, then there is nothing  to prohibit, but if you have established it, why all  the stress about prohibition?  :  Because one of the factors that the trial judge  found was the question about whether or not this  institution or this society existed.  It was a  primitive society, and the system did exist.  It  existed in - not - it existed in spite of government  prohibition.  Of course, my lord, the point here in  this action is not, and in this Appeal, is not the  question of compensation for what the government did  and should or should not have done.  That is not the  issue.  It is that the institution of the feast, as  Ross says in his comments, survived and flourished  in the face of overt adversity.  The other point that I'm making here - and  remember the judge relies on Loring for two points.  As I said, he talks about him at the feast hardly  survived, and then Loring is the government.  I 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  593  Submissions by Mr. Grant  mean, he says Loring settles the disputes.  What we  have done here is just taken Loring's reports of the  feast.  The feast is dying, the feast is dying, the  feast is dying.  At the end of thirty years of  Loring writing that, we have Barbeau recording four  major feasts at Hagelton going on right under his  nose.  Clearly Loring's reports are not to be  accepted on that point.  WALLACE, J.A.: I see. This is directed to demonstrating that  Loring's reports should not have been accepted.  MR. GRANT:  On this point.  On the point that the judge used  them for.  I mean, of course there are things in  Loring's reports that are acceptable, but when he  keeps saying, "The feast is dead," even Barbeau,  fifteen years later, says, "This is not feasible.  They're going on and they are flourishing."  J.A.:  I see.  J.A.:  We have reached .  J.A.:  Before we go on, should we pay attention to  what is on the screen now?  Apparently it says that,  in relation to map 22 .  Yes.  J.A.:   the editorial comment was not admitted as  evidence?  Right.  I wanted to - actually the Registrar had  pulled that just for me.  I was going to look at  those pages.  I have not - and I certainly will  provide you with the answer to that fully, because I  appreciate the seriousness, and as I say there is  other evidence that answers exactly the point you  have, and I would like to provide clarification of  that.  There certainly were discussions.  LAMBERT, J.A.: You had thought this afternoon you might reach  the conclusion which I take it is the point at which  you link this evidence to the right being asserted?  MR. GRANT:  Yes.  LAMBERT, J.A.:  Yes.  We'll get to that tomorrow morning.  MR. GRANT:  Can I do that in the morning?  LAMBERT, J.A.:  Yes, of course.  THE REGISTRAR:  Order in Court.  Court is adjourned until  tomorrow morning at 10:00.  PROCEEDINGS ADJOURNED at 4:00 p.m.  WALLACE,  TAGGART,  HUTCHEON,  MR. GRANT:  HUTCHEON,  MR. GRANT: 594  Submissions by Mr. Grant  1  2 I hereby certify the foregoing to be a  3 true and accurate transcript of the  4 proceedings herein to the best of my  5 skill and ability.  6  7  8 Dianne Cummins  9 Official Reporter  10 UNITED REPORTING SERVICE LTD.  11  12  13  14  15  16  'ñ†y-j *-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k->


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