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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-21] British Columbia. Supreme Court Nov 21, 1989

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 22542  Opening by Mr. Macaulay  1 Vancouver, B.C.  2 November 21, 1989  3  4 (PROCEEDINGS RECONVENED AT 10:00 A.M.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this 21st day of November, 1989.  The matter  8 of Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  10 MR. GRANT  11 THE COURT  12 MR. GRANT  My lord.  Mr. Grant.  Just before my friend, Mr. Macaulay, commences, one  13 matter that Mr. Plant did not mention on his  14 outstanding issues but which I spoke to him about and  15 he agreed this morning, is the issue of the  16 cross-examination of Mr. *Hobenshield.  And our  17 silence, of course, yesterday was not to imply that we  18 had waived our position on that, and he understands  19 that and he agrees that's an outstanding issue.  2 0 THE COURT:  Yes, all right.  Thank you.  21 Mr. Macaulay.  22 MR. MACAULAY:  May it please your lordship, this is the 299th  23 day of the trial.  24 THE COURT:  Is it really?  25 MR. MACAULAY:  And in those circumstances, an opening that might  26 do justice to this vast subject may not be  27 appropriate.  I will attempt to be as brief as I can.  28 I do not intend to argue my case but only to outline  29 the -- some positions that will be taken on behalf of  30 the Attorney General of Canada, and I will make  31 observations on what we consider to be the principal  32 issues.  33 First, the matter of the claim for ownership and  34 jurisdiction.  We will submit in argument that that  35 claim is unsupportable by the law and by the facts  36 that have been adduced in evidence up to now.  It is  37 essentially a claim for provincial status, as I  38 understand it, it is a claim that the plaintiffs own  39 not just in fee but have some sort of sovereignty over  40 22,000 square miles of territory that they say was  41 occupied by them and governed by them before  42 sovereignty was acquired by Great Britain.  It  43 challenges that very sovereignty.  It only challenges  44 that sovereignty in respect of provincial jurisdiction  45 in this case.  But the gravamen of the claim is that  46 it applies to both jurisdictions.  I can't see how it  47 would apply to one and not the other. 22543  Opening by Mr. Macaulay  1 I submit that the important issue before your  2 lordship and the issue on which we will make most of  3 our submissions has to do with the matter of use and  4 occupation of those territories comprised in the claim  5 area.  It's been a topic that's almost as old as the  6 Colony.  Sir James Douglas referred to that issue in  7 his address to the Legislative Assembly in -- on March  8 1st, 1860.  It was the -- in effect, the subject of  9 his request to the colonial office, March 25th, 1861,  10 for funds to enable him to extinguish Indian title to  11 lands on Vancouver Island.  The -- that particular  12 despatch is in evidence, so is the address to the  13 assembly.  The letter to the colonial office is  14 Exhibit 1057, tab 30 and 31.  15 THE COURT:  1057?  16 MR. MACAULAY:  1057, tab 30 and 31, yes.  17 Tab 31 is the Hendrickson version and it's useful  18 because it has a lot of colonial office notes and  19 draft replies and the like.  20 The colonial office reply is at Exhibit 1039, tab  21 48.  And as I understand the colonial office's reply,  22 the Imperial Government's reply is that the government  23 agreed -- rather, the supervising government agreed  24 that this should be done but that the Colony would  25 have to find the funds itself.  26 It came up again in the 1870's, not very long  27 after confederation.  The -- what amounts to a legal  28 opinion by the Deputy Minister of Justice which was  29 presented to the cabinet, the Privy Council, by the  30 Minister of Justice of the day, Mr. Fournier, is at  31 Exhibit 1040, tab 88.  That's dated January 19th,  32 1875.  And then there was Lord Dufferin's speech in  33 Victoria on September 1876, which is Exhibit 1040, tab  34 90.  35 There were some rather strongly worded letters  36 from the Minister of the Interior of the day, Mr.  37 Mills, one of them to Mr. Sproat who was the -- one of  38 the then -- then one of the three Indian reserve  39 commissioners, eventually became the sole  40 commissioner.  And that was marked at -- it's Exhibit  41 1040, tab 93.  That letter was shown by Sprout to the  42 Provincial Government, and that's at Exhibit 1057, tab  43 49.  In fact, it's also at Exhibit 1040, tab 93 as  44 well.  Mills also wrote to Mr. Powell who was the  45 Superintendent of Indian Affairs in British Columbia,  46 the first one, in a similar vein, or on the same day.  47 And Powell showed that to the Provincial Government, 22544  Opening by Mr. Macaulay  1 to Mr. Elliott of the Provincial Government, and  2 you'll -- that's to be found at tab 1040 -- I'm sorry,  3 Exhibit 1040 tab 92.  4 Then Powell reported back to the Minister, Mr.  5 Mills on the 19th of September, 1877, that so far as  6 he could determine, the provincial government's  7 position on this matter of what I say are aboriginal  8 rights properly so-called, was if they had to do what  9 was being suggested by the federal government, that  10 they would rather give up Provincial Crown lands.  And  11 the matter seems to have subsided then for a time, and  12 it has come up in a different guise.  Not in a  13 different guise particularly, but through different  14 channels, the most notable of which were through  15 the -- by means of the Nishga petition of 1913 and at  16 various other times.  17 Only -- in 1912, the federal government offered  18 to the Nishga to have the issue -- that issue referred  19 to the Exchequer Court, and of course with an appeal,  20 ultimately, to the Privy Council on certain terms.  21 Those terms were rejected and the matter never did  22 reach the court and the issue, unfortunately, not  23 decided in the Calder case, and it's now before your  24 lordship.  I can't think of a more important issue and  25 it's time it was decided.  26 It is sometimes said that British Columbia denies  27 that there is any such thing, but that's, I think, an  28 exaggeration, to be fair to British Columbia.  I noted  2 9 with some interest the -- some remarks made by my  30 learned friend, Mr. Goldie, in his opening address on  31 July 10th last.  It's found at volume 250 of the  32 proceedings at trial at page 18458.  He talks about  33 the -- he is talking about the Colony, and the  34 Colony's position regarding this matter.  He says:  35 "What was recognized" -- and I'm starting at line 7:  36  37 What was recognized and protected was an  38 interest of the native peoples of British  39 Columbia in their occupied village sites and  40 where they had adopted an agrarian way of life  41 as in the southern interior, cultivated fields  42 and as much land as they could tilland enjoy  43 the rights or was required for their support  44 together with the free exercise of fishing the  45 lakes and rivers and hunting over all  46 unoccupied Crown lands in the Colony.  47 22545  Opening by Mr. Macaulay  1 Your lordship will recall from the evidence  2 you've already heard that Sir James Douglas addressed  3 large gatherings of Indians at Cayoosh and elsewhere  4 in just those words.  And the -- the context was, of  5 course, that the unoccupied Crown lands then comprised  6 almost the whole Colony of British Columbia.  There  7 was practically no settlement.  And when those words  8 were spoken by Sir James Douglas, the then Governor.  9 There was no settlement at all in the claim area.  The  10 only white men -- the only Europeans who had ever been  11 there were the Hudson Bay traders and Mr. Downie, the  12 first of the provincial officials who had travelled  13 quickly through the claim area in 1859.  14 Settlement was then contemplated.  There were  15 ordinances providing for Crown grants and for a system  16 of pre-emptions.  But at that time it didn't seem  17 likely that there would be very much in British  18 Columbia -- in the Colony of British Columbia.  19 Perhaps they foresaw -- the Governor foresaw something  20 more along those lines in Southern Vancouver Island,  21 where, as a matter of fact, he had made some treaties  22 in the Hudson Bay Company days.  23 Canada has always acknowledged these rights,  24 these aboriginal rights.  But we will submit at the  25 proper time and in argument, a definition for your  26 lordship's consideration that will be broader than  27 the -- or perhaps more precise than the words used by  28 Sir James Douglas and echoed by Mr. Goldie in his able  29 opening.  30 The court will be asked to answer a number of  31 questions that arise out of the concept of aboriginal  32 rights or sometimes called in the older cases, Indian  33 title.  The court will be asked to define them.  What  34 are they?  There have been definitions.  The courts  35 from time to time, and our courts recently in, for  36 instance, in Sparrow, have started the process of  37 definition.  But this -- your lordship will be asked  38 to provide a much more comprehensive definition  39 because of the multifaceted character of the claim.  40 Your lordship will be asked to decide who holds them  41 and where are they, in a geographic sense I mean,  42 territorially?  Which ones have been extinguished, and  43 what is required to extinguish, and who has the power  44 to extinguish at any given time?  Your lordship will  45 be asked to decide which of the aboriginal rights have  46 not been used for so long that they may be considered  47 as abandoned.  That, by the way, my lord, is an aspect 22546  Opening by Mr. Macaulay  1 of aboriginal rights that has received practically no  2 attention in the courts up to now.  Perhaps because  3 the evidence didn't require it.  But it will be  4 something that will be raised by the Attorney General  5 of Canada here, because as I'll -- and I'll come in a  6 minute to that -- there are village sites and fishing  7 stations, for instance, that have been long abandoned.  8 And when I say "long abandoned", abandoned in this  9 century, but for a very long time.  10 Another issue will be whether compensation was or  11 is payable on the extinguishment to those holders of  12 the rights who were half -- after the extinguishment,  13 prevented from exercising the rights.  And we will  14 submit that the answers to all those questions can't  15 be given without a careful examination of the history  16 of the development and changes in Indian society and  17 the history of development and changes in the larger  18 Canadian society in which the Gitksan and Wet'suwet'en  19 society finds itself, and with which it is  20 inextricably entwined.  21 Now that leads me to the evidence -- to a  22 reference to some of the evidence that will be adduced  23 on behalf of the Attorney General of Canada.  Gitksan  24 and Wet'suwet'en society, as it was at first contact,  25 is reasonably well described by the Hudson Bay  26 officers in their journals.  Unfortunately, the  27 journals are periodic.  Whole decades of them are  28 missing.  We have -- your lordship has heard about the  29 first ten years of them when Mr. -- Dr. Ray gave  30 evidence, for instance.  31 We -- and your lordship has heard a good deal of  32 evidence about white settlement and the way in which  33 it brought fundamental changes to the character of  34 that society, the Indian society.  And you've heard  35 evidence of changes in the economy, both before and  36 after settlement, which affected those uses and that  37 occupation by which aboriginal rights are based.  And  38 in those categories, that is the -- what the society  39 was when it was first recorded and the effect of white  40 settlement and white Europeans generally, including  41 missionaries, and the changes in the economy, will be  42 the subject of a series of historical documents that  43 have been -- we have collected, that supplement --  44 supplement a lot of the documents that have already  45 been placed in evidence.  And this series -- this  46 historical series, if I can call them that, and the  47 historical records already in evidence that we say 22547  Opening by Mr. Macaulay  Submission by Mr. Grant  1 ought to be considered together with them, will be the  2 subject of many of our submissions.  3 A series that -- of documents that I would like  4 to hand up now, all of them archival, all of them  5 ancient documents, is the Loring Reports.  I have them  6 collected in six volumes, 462 tabs.  7 MR. GRANT:  My lord, I would like to speak to this if my friend  8 is tendering these as -- I do have a submission I  9 would like to make with respect to this.  And if my  10 friend wishes to wait until he completes his opening  11 to tender them, that's fine.  12 MR. MACAULAY:  I propose to read from some of them in my  13 opening.  14 THE COURT:  All right.  Well, then I should hear from your  15 friend.  Thank you.  16 MR. GRANT:  My lord, the submission that I wish to make -- and  17 it's a concern that I have with respect to the  18 approach the Federal Crown has taken with respect to  19 their evidence.  I had requested these documents in  20 advance of today, and yesterday I was informed that  21 the Federal Crown had not yesterday decided on all of  22 the documents that they -- historical documents they  23 intended to tender, but they did intend to tender them  24 at the time of their opening.  25 I have no doubt that within the Loring  26 documents -- these are called the Loring Reports which  27 cover a period of time of 31 years -- that there are  2 8 relevant documents.  I equally have no doubt that  29 there are documents that may have absolutely no  30 relevance.  I do not know at this point, having  31 received this batch of documents at ten o'clock this  32 morning and not having a chance to look at them, I  33 don't know if my friends have edited these for  34 relevance.  And I have not had a chance to review this  35 compilation in this organization, and the submission I  36 make is that the Federal Crown cannot -- and I want to  37 emphasize something about their pleadings here, my  38 lord:  39 There is a significant difference between the  40 pleadings of the Federal Crown and the pleadings of  41 the province.  The province has asserted positively  42 that extinguishment, diminishment, and these aspects  43 apply.  In other words, they have raised positive  44 defences.  The Federal Crown has not, in their  45 pleadings, raised any positive defence.  They have  46 merely denied.  Now, I am not saying that that means  47 they can't tender the Loring documents, my lord, or 2254?  Submission by Mr. Grant  1 Loring's reports that are relevant.  But it is, in my  2 respectful submission, it is, as my friend says, it  3 takes -- my friends delivered to us the fiftieth  4 supplementary list of documents a day or so ago, which  5 I think we were up to 12,000 or something.  This list  6 of documents -- or this batch of documents here, it  7 is -- certainly makes disclosure through a list of  8 documents quite academic and theoretical when my  9 friends do this.  And I had asked them to provide  10 these ahead of time to us.  I had anticipated, given  11 their organization of their case, that they were not  12 going to tender historical documents this early, but  13 was informed they were yesterday.  And I say that if  14 these go in, that my friends -- that they have to be  15 subject to relevance, all of them, and that any of  16 them may be argued against if it is not relevant.  17 Loring did many things when he was up there in the  18 31 years.  I don't know what has been canvassed in  19 these documents.  I do agree there is certainly  20 documents of Loring's that are relevant, there is  21 documents that you've seen and you've dealt with.  But  22 when the plaintiffs tendered Loring's documents, we  23 focused on relevance.  And now the defendants are  24 tendering six volumes over the course of 30 years as a  25 sort of a batch.  And I'm sure what my friend is going  26 to read from, those -- I'm sure, firstly, that he is  27 not going to read from all of them, and I'm sure that  28 what he is going to read from is going to be relevant  29 or he wouldn't be reading from it.  But, I submit that  30 this is -- makes the disclosure process pretty  31 theoretical.  And we have similar problems with  32 something else that's come into our hands this  33 morning.  34 THE COURT:  Do I understand that all the documents being  35 tendered by Mr. Macaulay at this time have been  36 previously disclosed on one or more lists of  37 documents?  38 MR. MACAULAY:  They were disclosed, a lot of them, years ago.  39 Most of them years ago.  4 0    THE COURT:  Yes.  41 MR. MACAULAY:  My friend now has a list showing our document  42 number, the date of the document, and in the proper  43 case, the exhibit number where it's already in  44 evidence.  45 THE COURT:  All right.  Well —  46 MR. GRANT:  I got that.  That's what I got at ten o'clock this  47 morning, my lord. 22549  Ruling by the Court  1 MR. MACAULAY:  And he'll see that nearly all of them are in the  2 3000 and 4000 series which was -- were documents we  3 disclosed in 1987.  That's my guess.  It may be  4 earlier.  5 THE COURT:  All right.  Well, Mr. Grant, I think you should  6 strive for practicality here.  It seems to me that  7 there is much to be said for allowing your friend to  8 get on with his opening.  And there is much to be said  9 for your observations on the question of relevance,  10 particularly your claim to have an opportunity to  11 determine what is relevant and what is not.  It seems  12 to me that what I ought to do is to receive the six  13 volumes, to assign to them a number, but not  14 necessarily to have them marked as exhibits at this  15 time, and for you to examine them at your expeditious  16 leisure, and to make your objection to the relevance  17 of any of them as soon as you may be in a position so  18 to do.  19 But in the meantime, it seems to me that unless  20 there is a specific objection on relevance or other  21 grounds to any particular document which Mr. Macaulay  22 wishes to refer to in his opening, then he should be  23 allowed to proceed in that way.  Because while  24 disclosure is one thing, once documents have been  25 disclosed, counsel can make such use of them at trial  26 as he thinks appropriate.  And the assembly of  27 documents into collections or otherwise is a  2 8 convenience that -- without which we would have very  29 great difficulty.  But I do not think it should  30 interfere with the usual rule, that having disclosed  31 documents counsel are able to proceed on the basis  32 that he can use them subject to specific objections  33 which may arise.  34 MR. GRANT:  Yes.  I firstly think that your suggestion is the  35 way to -- that resolves my concern right now.  I do  36 want to make a point, that I had requested, when my  37 friends said they were still compiling them yesterday,  38 I said, "Provide me with an an index," which is 56  39 pages long, and of course I didn't get the index,  40 again, until this morning.  That would have helped,  41 but I think I'm going to be involved.  42 THE COURT:  Well, Mr. Grant, I have heard lots of complaints  43 coming from three different directions in this trial  44 about the failure of other parties to give timely  45 assistance in this connection.  This is not the first  4 6 time I have heard it.  I heard it many times during  47 the course of the plaintiffs' evidence, I heard it 22550  Ruling by the Court  Opening by Mr. Macaulay  1 many times during the course of the province's  2 evidence, and I am not surprised I am hearing it  3 during the course of Canada's evidence.  I think I am  4 immune to that sort of objection.  We have to -- we  5 have to carry on as best we can.  6 MR. GRANT:  Yes.  I just wish to advise that I anticipate I'll  7 be in court for the balance of the federal case and  8 where both the Federal Crown and the plaintiffs are  9 trying to expedite it, so it may be later that I will  10 be reviewing these, but --  11 THE COURT  12 MR. GRANT  13 THE COURT  Yes.  With your comments, that satisfies my concerns.  Thank you.  Mr. Macaulay.  14 MR. MACAULAY:  My lord, the index over which we took some pains  15 wasn't ready until last night.  16 THE COURT:  That's all right.  I wasn't ready until this  17 morning.  18 MR. MACAULAY:  Well, I'm referring to my friend's remarks.  We  19 weren't withholding that from him.  2 0 THE COURT:  Yes.  21 MR. MACAULAY:  And his expert, Mr. Galois, obviously had combed  22 this particular set of documents very carefully and  23 expressed opinions on a great number; in the Exhibit  24 1035 series particularly, which is the Galois  25 collection.  They are all RG10 documents, that is,  26 they are archival.  And they've all been equally  27 accessible to every party and we know that the  28 plaintiffs have been looking at these for a long time.  29 I remember a letter from Mr. Grant in 1986 about Mr.  30 Loring's monthly reports.  I didn't know at the time  31 that there was such a thing, but Mr. Grant, he was  32 asking for whatever copies we had at that time.  33 The -- I should say something about the character  34 of these things.  Every month for a long time,  35 Loring -- except at the very earliest dates -- Loring  36 made a report to his superior, usually Mr. Vowell or  37 Mr. Moffatt.  Perhaps I could hand up to your lordship  38 volume 1 that has the first 80 tabs, and the index is  39 there.  4 0 THE COURT:  All right.  41 MR. MACAULAY:  He also, for many years, made quarterly reports  42 on his travelling, and although laterally they were  43 nothing much more than a report of his expenses, for  44 some time they constituted a -- in effect, a separate  45 series of reports on what he observed and did during  46 his travels around the claim area, around his bit of  47 it.  And then every year, he had to make an annual 22551  Opening by Mr. Macaulay  1 report, and the annual report is included, that is the  2 printed as well as the -- as well as the handwritten  3 report.  4 One reason researchers may have been reluctant to  5 tackle what we've tackled is the difficulty in making  6 out Mr. Loring's handwriting.  And not only that, Mr.  7 Loring's syntax is one of the most eccentric kind.  8 His sentence structure is really a translation, a  9 direct, literal translation from German, I suspect.  10 Mr. Loring was from Germany.  11 Loring was appointed as the first Indian agent in  12 1889.  13 THE COURT:  I'm sorry, 1889?  14 MR. MACAULAY:  Yes, 1889.  He arrived in the claim area in  15 September of that year and he spent the rest of his  16 career there.  He retired at the end of 1920.  His  17 last report is the report of December 1920.  He  18 married the widow of the first European settler, Mrs.  19 Hankin, who was the daughter of Donald Macaulay,  20 Hudson Bay trader, and a Tsimshian lady of noticeable  21 extraction.  Mrs. Loring knew the Indian language very  22 well.  She was the interpreter.  23 Your lordship may recall a rather dramatic meeting  24 between all the chiefs -- or the chiefs of most of the  25 villages and Captain Fitzstubbs and Chief Constable  26 Roycraft in August 1888.  We have a transcript of  27 those proceedings because of Mrs. Loring -- or Mrs.  28 Hankin as she then was, Margaret Hankin.  And of  29 course there was a court reporter present too.  But  30 she was used as interpreter by her husband and he was  31 allowed to charge for her services for the next 25  32 years.  She died about 19 -- 20 years.  She died  33 around 1910, I think.  34 So that Loring had several advantages as an  35 observer.  He got there at the very beginning when  36 this society was just about to change, when European  37 settlement and a new economy were about to burst on  38 them.  And he had his -- of course his wife as the  39 interpreter for Indians who then -- very few of whom,  40 I suppose, had any English at all.  Well, I'm just  41 guessing at that, because oddly enough, it doesn't  42 appear from the reports.  43 He reported on the question of -- I understand  44 what Mr. Grant is saying, and it's a proper objection  45 to make to the whole series.  I thought of doing what  46 Mr. Galois did, and that is to select a few here and  47 select a few there.  But when I took the trouble to 22552  Opening by Mr. Macaulay  1 read them all, when I did, I found that the whole was  2 greater than the parts.  That it showed an astonishing  3 progression from 1889 to 1920.  Changes in the -- in  4 every conceivable way affecting the Indians in all  5 that time.  Information that you find nowhere else.  6 Villages that were then inhabited and now have  7 disappeared, and regarding which your lordship has not  8 heard a word of evidence.  Huge fishing stations  9 active in the 18 -- used by many, many Indians in the  10 1890's and up to 1920, for that matter, in some cases,  11 concerning which there is no evidence at all.  12 If Mr. Grant finds a report or a few reports that  13 don't seem to have much bearing on what your lordship  14 has to decide -- he is going to have difficulty  15 finding reports like that -- then of course your  16 lord -- perhaps they should be withdrawn.  But I -- I  17 suggest to your lordship that they -- the whole series  18 ought to be put in.  We have left out a few  19 documents -- in addition to the periodic reports both  20 monthly and yearly and quarterly for some years,  21 Loring was asked to write to the -- his superiors --  22 or did report to his superiors on specific things, a  23 number of specific things.  Now I'll use an example:  24 The Gunanoot incident about which Mr. Williams wrote  25 about.  26 Various specific matters, some of which are  27 relevant and some of which are not.  On one day he  28 wrote, I think, 20 letters on a whole variety of  29 things.  We've only included two and I think both of  30 them are already exhibits.  That was February 11th of  31 1898.  He was catching up on what appeared to be --  32 furiously catching up on his correspondence.  We have  33 been selective in regard to those letters outside of  34 the regular course of reporting letters, and have  35 tried to confine ourselves to those comparatively few  36 of them that have a direct bearing on the issues  37 before the court.  38 We have been making -- trying to make  39 transcriptions in cases where the reports are very  40 difficult to read.  These -- what we have, of course,  41 is taken off the RG10 films.  In some cases that's not  42 good enough and I've asked somebody in Ottawa to look  43 at the originals themselves.  Now, I'm told that the  44 originals suffered water damage years ago.  It seems  45 to be a tradition in the Canadian Archives.  I hope  46 to —  47 THE COURT:  Trouble with leaks, Mr. Macaulay? 22553  Opening by Mr. Macaulay  1 MR. MACAULAY:  Well, it seems to have been a practice that with  2 archival documents, they place them underneath a  3 rusting water pipe.  4 THE COURT:  Oh, that kind of leak.  5 MR. MACAULAY:  That kind of a leak.  6 THE COURT:  Yes.  7 MR. MACAULAY:  But we will soon find out whether that's been  8 done, and I hope to have that done this week, and then  9 I'll hand -- provide my friend and your lordship with  10 our transcriptions of those things and we'll make  11 everybody's job a lot easier.  12 So far as I know, nobody has ever tackled that,  13 and it's a job that gives the people who undertake it  14 a big headache, literally.  And you need magnifying  15 glasses and the like.  Some of them are better than  16 others.  17 The tab 1 of this series, that's legible, but  18 it's not in Loring's hand.  It's a representation by  19 the Executive Council of the Province asking the  20 Dominion to appoint an Indian agent, and in  21 particular, Mr. Loring, who had served earlier.  He  22 had been in the claim area in 1888 as a constable, so  23 that wasn't his first trip to the claim area.  And  24 then we -- I do want to refer, especially in the early  25 years, to a number of the reports and draw your  26 lordship's attention in my opening to some of them.  27 If your lordship will turn to tab 3, it's a  28 report dated October 1st, 1889.  This is before -- I  29 think it was before he started making his month-end  30 reports, and he is reporting on events that had  31 happened in September.  This is a report that deals  32 with his discussion with the Gitanmaax and later with  33 the Kispiox villages of the feast.  It mentions a man  34 who comes back again and again in the history of the  35 area, Big Louis, who was at one time a constable  36 serving under Captain Fitzstubbs, was retained again  37 many years later as a constable, and became Geel.  He  38 was a famous -- he was by then, of course, the head  39 chief and leader of Kispiox.  What happened there was  40 the Gitanmaax people appeared to agree to giving up  41 the potlatch, but Big Louis spoke up and said that --  42 and I'll quote him here:  43  44 I know the law is against stealing etc.  I am  45 an officer of the law myself.  We do not want  46 anyone to come to [Kispiox] with any new laws  47 from the Govt.  How would the government like 22554  Opening by Mr. Macaulay  1 to have their laws locked up, as they do ours?  2  3 And then Loring adds:  4 Then I told him, it was for those under oath to  5 uphold the law, to help to reform and not  6 obstruct it.  Furthermore, that his remarks  7 were uncalled for as I was addressing the  8 [Gitanmaax] tribe, and instructed to visit his  9 village in a few days or so.  10  11 And then he goes on -- the report goes on to say what  12 happened in Kispiox.  13 And that's perhaps a revealing glimpse at what  14 was going on at that very early time.  There was -- it  15 was in the earliest days of the attempt to assert the  16 common law and the criminal law and the statutes in  17 that area.  18 Tab 4, and I'm going to refer only to a small bit  19 of this.  This is November 30th of 1889.  He — at the  20 top of the page, the first two paragraphs, Loring  21 reports this:  22  23 I am glad to state that everything is going  24 on nicely.  Was very well pleased by having  25 been received at [Kitsegukla] and [Kitwanga]  26 with the most cordial welcome.  At both  27 villages heathenism is becoming very weak.  I  28 found a good many sick and destitute, whom I  29 attended to.  30 Destitution is very prevailing among the  31 Indians of all the villages I have visited.  In  32 some cases actual distress and pitiful to see.  33  34 And then he says:  35  36 I gave relief to the amount of $53.10.  37  38 And he refers to the vouchers.  39 And then father down the page he reports his  40 little stock of medicine is nearly exhausted.  I want  41 to contrast that with what the picture was in 1910 or  42 even 1900.  43 Tab 6, the third paragraph on the very first  44 page.  He is giving an account of his --  45 THE COURT:  Sorry, what's that date?  Is it —  46 MR. MACAULAY:  January 31st, 1890.  4 7    THE COURT:  Thank you. 22555  Opening by Mr. Macaulay  1 MR. MACAULAY:  He is giving an account of his first visit to  2 Kisgegas -- or at least the first visit we can find,  3 and it probably is his first visit in the winter.  He  4 said in the third paragraph:  5  6 On arrival, found that all the people had  7 left for a few miles distant and were encamped  8 through the woods, taking advantage of its  9 shelter and fuel, as their village is situated  10 on a prominence very much exposed to the  11 cutting winds.  This site has been chosen to  12 enable them to be more on the defensive and  13 less liable to a surprise, since the --  14  15 And I think the word is "scare".  16  17 -- of most of the inhabitants by the Nass-River  18 Indians in the old village, which stands  19 totally deserted on a sheltered plateau nearer  20 to the forks of the Skeena and Babine Rivers.  21  22 That is -- there are two things there.  All  23 through the reports there are mentions of the --  24 first, the habit of the Gitksan and Wet'suwet'en  25 villages of -- the Wet'suwet'en of abandoning their  26 villages in midwinter for the shelter of the woods.  27 And even up to 1917 and '18 and '19, there is a report  28 that the older people still adopt that custom, but  29 that the younger people who are in single-family  30 dwellings and have milled lumber, stay home in the  31 winter.  I don't remember any evidence of that or that  32 change before.  33 We'll come to the same thing again in other  34 villages; Hagwilget, for instance.  He goes to the  35 Hagwilget winter village, he doesn't go to the village  36 itself because he knows it's abandoned in January --  37 in the winter, for encampments in the woods nearby,  38 sometimes in the winter village, because some of the  39 villages then had winter villages, on which he makes  40 reports and mentions the population and the caribou  41 and so on.  42 The second matter referred to there, of course,  43 is the concern about the raids, raids by the Nishga,  44 the Nass-River Indians.  Now, one of our series of  45 historical documents, it's a document taken from a  46 publication, a Methodist publication called The  47 Missionary Outlook.  And from time to time, various 22556  Opening by Mr. Macaulay  1 prominent people, members of the Methodist Church,  2 like Dr. Wrinch for instance, who was a medical  3 missionary, and others, wrote in The Missionary  4 Outlook.  And in one of the issues, which will be put  5 in evidence, the author describes the origins of  6 Edward Sexsmith.  Edward Sexsmith originally became  7 Kliiyem lax haa.  According to the genealogy he was  8 born in 1861 and died in the 1930's.  9 The -- but The Missionary Outlook describes him  10 as coming to Kispiox with the Methodist missionary.  11 He had been found in the Nishga country in these  12 circumstances:  His mother and he had been taken as  13 slaves, but he had been educated by the missionary and  14 came back to Kispiox with the missionary and was  15 welcomed there by Kliiyem lax haa, who is mentioned in  16 The Missionary Outlook, properly identified.  17 So that one of the things that -- if it didn't  18 exist in the 1890's, it existed not long before that  19 that there was border warfare and slavery.  There is  20 no evidence that any Gitksan held or owned slaves, but  21 there is a good deal of evidence that they were taken  22 as slaves by the Nishga and other tribes.  And that's  23 one who survived until the 1930s and was a prominent  24 figure, a prominent member of Kispiox and became a  25 chief in Kispiox later.  At any rate, in 1893 they  26 were concerned, they had moved their village.  27 There is lots of evidence of the remains of the  28 old village.  I think it may still be seen, or bits of  29 it, near the forks of the Babine and the Skeena.  This  30 is why it was moved, because of Nishga raids and the  31 strategic problems that that posed.  And these are the  32 early days and this is what was going on.  33 In — at tab 8, which is March 31st, 1890, the  34 noteworthy thing there is in the first paragraph in  35 which Loring reports that -- and I'm going to quote  36 him here:  37  38 The Indians would suffer and starve, had not  39 they their caches of potatoes.  Their supply of  40 dried salmon is exhausted.  41  42 That's March 31st, 1890, and that is one of the  43 situations that was facing that population at that  4 4 time.  45 THE COURT:  Where does it say this, "they were starved"?  The  46 first paragraph?  4 7    MR. MACAULAY:  Yes, my lord. 22557  Opening by Mr. Macaulay  1 THE COURT:  I think I see where it says, "Provisions are very  2 scarce," I think it says.  End of the third line?  3 MR. MACAULAY:  That was tab 8.  4 THE COURT:  Yes, I'm at tab 8.  5 MR. MACAULAY:  Well, I was reading the last sentence — two  6 sentences of the first paragraph.  My rendering of the  7 first paragraph goes this way:  8  9 There is still no chance of sending a  10 letter since the midwinter Snowshoe Mail left.  11 The river is still solid across.  Provisions  12 are very scarce.  Not even flour and basics to  13 be had.  But there is some rice in the [Hudson  14 Bay Company] store to fall back on yet.  The  15 Indians would suffer and starve, had not they  16 their caches of potatoes.  Their supply of  17 dried salmon is exhausted.  18  19 THE COURT:  Yes.  He is talking there about Hazelton, is he?  20 MR. MACAULAY:  He is talking about Hazelton, my lord.  21 THE COURT:  Yes.  22 MR. MACAULAY:  There was no other Hudson Bay detachment.  When  23 he doesn't identify the place he talks about, he's  24 talking about Hazelton, and all the mileages he gives  25 in "so many miles from here", he means Hazelton.  2 6 THE COURT:  Yes.  27 MR. MACAULAY:  This is January 31st, 1891.  He — there is an  28 early mention of a theme that reoccurs almost every  29 month.  Certainly every two or three, for the first --  30 right up to the end of the 19th century.  And the end  31 there he talks about -- he says in this last part of  32 this short page:  "Voucher No. 33, $28, travelling  33 expenses incurred on a trip to Dam-olp.  34 Dam-olp was a lake and also a winter village, my  35 lord.  It was one of those winter villages.  I believe  36 the Hagwilget -- Hagwilget winter village.  And he  37 goes on:  38  39 There I found the Indians well excepting a few  40 cases of influenza amongst them and a few cases  41 of trespassing each other's hunting grounds to  42 settle.  43  44 He was engaged in settling those things winter and  45 summer, for years and years and years.  And that said  46 something -- says something to us about the changes in  47 the society.  If society was in ancient times as the 2255?  Opening by Mr. Macaulay  1 plaintiffs would have it, it was changing rapidly now.  2 MR. GRANT:  Maybe I — I just want to clarify.  My friend has  3 described not only on this occasion but others.  Like,  4 he has described now where Loring is referring to as  5 Dam-olp.  I just wonder if my friend is basing that on  6 other things that Loring has said or on other evidence  7 and similar names?  Just so that I know why he is  8 saying as to where places are and what's his basis for  9 that?  10 MR. MACAULAY:  The contents of the Loring Reports.  He gives a  11 more specific geographic description of Dam-olp  12 farther along.  13 MR. GRANT:  Thank you.  14 THE COURT:  Is that O-L-P?  15 MR. MACAULAY:  That's how we make it out, yes, my lord.  16 THE COURT:  Thank you.  17 MR. MACAULAY:  He describes it later as a lake and also the site  18 of actually two villages, two settlements, one at the  19 head of the lake and one farther down, six miles away.  20 It's one reason one should read these as a set,  21 because you get this information here and the  22 geographic information somewhere else.  23 Tab 16, this is his -- perhaps his first trip to  24 what we now call Kuldoe.  He spelt it G-A-L-D-O-E, and  25 sometimes he used a K, K-A-L.  But in this case the  26 spelling is G-A-L-D-O-E.  And this is May 30th, 1891.  27 And after dealing with his -- the cost of going there,  28 he says, towards the bottom of the page, the last two  29 paragraphs:  30  31 I had been urgently requested to repair to that  32 latter place on complaints that [two] more  33 fortunate of the Indians, their processing  34 stations in the canyon, the only available  35 place to fish at this time was in the habit to  36 withdraw their planks from off their --  37  38 And I can't make the next word out.  If we look at the  39 original -- "in order to prevent others from getting  4 0 any salmon."  41 THE COURT:  "Perches", I think.  42 MR. MACAULAY:  Might be "purchase", my lord.  43 THE COURT:  P-E-R-C-H-E-S.  44 MR. MACAULAY:  Well, I read it as "getting," G-E-T-T-I-N-G, "any  45 salmon."  46 THE COURT:  No.  "Off their perches in order to prevent others  47 from getting any salmon."  Is that what it says, 22559  Opening by Mr. Macaulay  1 "perches"?  2 MR. GRANT:  Yeah, P-E-R-C-H-E-S.  3 THE COURT:  Yes.  4 MR. MACAULAY:  Yeah.  5 MR. GRANT:  And my friend said that "two of the more fortunate,"  6 I think that's what I heard.  7 MR. MACAULAY:  Oh, I see, "off their perches".  8 THE COURT:  Yes.  9 MR. MACAULAY:  Yeah.  10 MR. GRANT:  My friend said at the beginning "two of the more  11 fortunate," and I think it's "the more fortunate of  12 the Indians", from my reading of that.  13 THE COURT:  Yes.  14 MR. MACAULAY:  Mr. Grant may be right.  At any rate, he  15 concludes by saying:  16  17 I have been very successful to bring about the  18 desired effect, that is, to have them act in a  19 more magnanimous spirit towards the less  20 fortunate in the future.  21  22 That's another example of the disputes and the  23 resolutions all the time in all these reports.  24 Your lordship may wonder why, if we've read it  25 once, why do we read it again?  The very number, we  26 will submit, has a significance.  27 In tab 18, July the 31st, 1891, at the bottom of  28 the page, after giving his travel expenses, this has  29 to do with what he calls the Langhlay, L-A-N-G-H-L-A-Y  30 as best we can make out, fishery.  I'm not sure where  31 that is.  And he says:  "The trip mentioned I have  32 taken by" -- this is at the bottom:  33  34 The trip mentioned I have taken by request as a  35 feud existed between several families about the  36 possession of a fishery, which is  37 satisfactorily settled.  38  39 MR. GRANT:  "Satisfactory".  40 MR. MACAULAY:  "Satisfactory settled", yeah.  41 I skip on to 29, my lord, and I don't intend to  42 refer you to every one of them by any means.  At 29 we  43 are up to 1893, March the 4th, 1893.  Here is a case  44 where Loring is responding to a particular inquiry in  45 this case, apparently a circular, complaining about,  46 of all things, tombstones.  And he says in the claim  47 area they don't use tombstones.  But at the bottom he 22560  Opening by Mr. Macaulay  1 says:  2  3 In response to the proposition made by Mr.  4 [somebody] in his letter, [some other word]  5 enclosed, I must state that within the limits  6 of this agency, the custom of erecting totem  7 poles is as good as a thing of the past as only  8 one has been erected on this river at  9 [Kitwanga] during my being here, that is from  10 September the 25th, 1889.  11  12 And some conclusions, may or may not be drawn from  13 that.  14 But at the very next, 29A, we -- we put 29A and B  15 in when we found two travelling statements is what  16 they are, quarterly travelling statements -- after we  17 put the collection together last night.  18 March 31st, the travelling statement refers to a  19 trip to Lach-al-sop with his wife as interpreter and  20 two packers at $2.50 per diem.  This is in March, and  21 he says:  22  23 I thought it necessary to go there on account  24 of disputes of fishing platforms in the canyon  25 of the Hagwilget River.  26  27 And "Lach-al-sop" is his word for Moricetown, what is  28 now Moricetown, and he uses Lach-al-sop for 15 or 20  29 years before he starts using the other -- the other  30 word.  As I understand it, the difficulty was there  31 was a Lach-al-sop in Nishga country as well.  32 And now the next one is a -- involves a place  33 that comes up again and again, Lach-an-dalgh.  I  34 shouldn't say again and again, it comes up from time  35 to time.  There's a better description later on.  It  36 appears to be either a village or a significant --  37 very significant summer fishing camp that's long since  38 been abandoned.  When I say "long since", in this  39 century been abandoned.  As you'll see from reading  40 these reports, the population withdraws from the --  41 it's L-A-C-H —  42 THE COURT:  Which tab are you at?  43 MR. MACAULAY:  I'm, sorry it's 29 — 29B, the next one.  It's  44 the travelling statement for the quarter ending June  45 30th, 1893, and he is reporting in May he went to  46 Lach-an-dalgh, L-A-C-H, hyphen, A-N, hyphen,  47 D-A-L-G-H, "went 30 miles up the Skeena River". 22561  Opening by Mr. Macaulay  1 MR. GRANT:  Thirty-four miles.  2 MR. MACAULAY:  Right, 34.  3  4 -- situated on its left bank, as two families  5 threatened each other with violence for the  6 possession of a fishery and smokehouse.  7  8 And then he says he left Hazelton with Mrs. Loring as  9 his interpreter, and two packers.  And then it goes  10 on:  11  12 I arrived at Lach-an-dalgh next day the 24th  13 late.  Made a most satisfactory settlement of  14 the trouble during the same evening and left  15 Lach-an-dalgh early next day the 25th, taking  16 two days returning to Hazelton.  17  18 We'll soon see, my lord, that there is an enormous  19 amount of activity in those days at the 23-mile mark,  20 at the 29-mile mark, and less frequently but it's  21 there, at the 34-mile mark, because Mr. Grant is  22 right, it's referred to as 34 miles up the river in a  23 later report.  Those are all abandoned.  Now, we  24 haven't heard anything about any fishery there and  25 we'll soon have a description of the fishery, a very  26 striking description of the fishery.  27 34A, we have a 34A, unfortunately.  2 8    THE COURT:  Oh yes.  Yes, we do.  29 MR. MACAULAY:  It's another travelling statement for the quarter  30 ending December 30th, 1893.  First he refers to -- in  31 October to trouble at Lach-al-sop concerning a bridge.  32 He says:  33  34 One faction of the Indians there claiming sole  35 right to same and tore up the bridge, forbiding  36 to replace it by another at that point.  I  37 arranged matters satisfactorily and was assured  38 no further trouble will arise on its subject.  39  40 Then in December, he reports that he and Mrs.  41 Loring, his interpreter:  42  43 ..by request of the Kispiox Indians for  44 Andil-ghran [A-N-D-I-L, G-H-R-A-N], their  45 winter camp.  As they were all assembled and  46 wanted to --  47 22562  Opening by Mr. Macaulay  1 And I have yet to figure out what the next couple of  2 words are.  3  4 -- to request the Reserve Commissioner, on his  5 next coming to allot to them Andil-ghran as it  6 is their home in winter and place to catch  7 their spring salmon.  They also asked me to  8 settle complaints among them about fishing  9 rights, et cetera.  10  11 Like most of the villages, the Kispiox had winter  12 villages at that time, and a winter fishery concerning  13 which there were some -- apparently, some disputes.  14 In 35, which is a monthly report, July 23rd, 1894,  15 he reports something that's -- is a recurring theme  16 from then on.  In the main paragraph:  17  18 It is worth mentioning that the Indians for  19 the last two years are making better provisions  20 for their stock in the way of putting up hay.  21  22 And then he goes on to discuss the memory feasts  23 and potlatches and the difference between them.  But  24 that will be a recurring theme from then on, the  25 agricultural pursuits or his attempts to getting  26 agriculture going in that claim area with mixed  27 success.  It appears when we read the whole series  28 that Indians preferred wages to agriculture, and did  29 very well at it.  And by the 19 -- the first and  30 second decades in the 20th century, were in great  31 demand for quite a variety of occupations.  32 Forty-three.  I'll have to try to move a little  33 more rapidly through this volume.  Forty-three, tab  34 43, is an account of events that finally led to the  35 creation of Glen Vowell.  It's the transitional stage  36 that nobody else describes well.  And an important  37 stage, I submit my lord, and a very important stage in  38 looking at what was happening to this society in a  39 process of exceedingly rapid change.  He says:  40  41 I have the honour to report that in all  42 Reserves throughout this Agency, quiet and  43 content prevailed with some exceptions of those  44 on the Skeena River where a Salvation Army  45 Movement headed by a few Tsimshians met with  46 some opposition on the part of the heathens.  47 This was the case at [Kitsegukla] sixteen 22563  Opening by Mr. Macaulay  1 miles down and below, and especially at  2 [Kispiox] nine miles up the river from here.  3 There on the night of the 26th instant, the  4 Salvationists were making their rounds and  5 after ten o'clock coming to and in front of a  6 house where a memory feast was given by the  7 chief big Lach-la-op, [L-A-C-H, L-A, 0-P] who  8 enraged by the interruption from the outside  9 objected to same, which was not heeded by the  10 Salvationists.  Thereupon, Lach-la-op, seized  11 with frenzy, charged single handed amongst them  12 with a club, struck right and left, destroying  13 five lanterns, three hats and one coat and  14 drove the party from the village.  I sent for  15 Lach-la-op.  16  17 And that annoying behaviour is -- you will see from  18 the next report, that is at tab 44 -- by the  19 Salvationists, Loring deplored as showing a singular  2 0 want of judgment.  Apparently, they went around making  21 a nuisance of themselves not only in their own village  22 but at Kisgegas and Kitwancool.  23 It ultimately ended in a situation where there  24 were two factions in Kispiox.  They couldn't abide  25 each other and one faction was moved to a new village  2 6 and it was named Glen Vowell.  But that's the origin.  27 That is the origin of these troubles and of new  28 villages, some of which still exist.  29 THE COURT:  Shall we take the adjournment, Mr. Macaulay?  30 MR. MACAULAY:  Oh, I'm sorry.  Yes, my lord.  31 THE REGISTRAR:  Order in court.  Court stands adjourned for a  32 short recess.  33  34 (PROCEEDINGS ADJOURNED AT 11:15 A.M.)  35  36  37 I hereby certify the foregoing to be  38 a true and accurate transcript of the  39 proceedings herein transcribed to the  40 best of my skill and ability.  41  42  43  44  45 Toni Kerekes, O.R.  46 United Reporting Service Ltd.  47 22564  Opening by Mr. Macaulay  1  2 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  3  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, could I draw your attention to tab 45.  6 It's one of these quarterly travel statements for  7 December -- dated December 31, 1894.  It covers  8 October, November, December.  And there are three  9 trips.  The one in October was to Lack-al-sop.  That's  10 Moricetown.  In this case it's spelled  11 L-a-c-k-a-1-s-o-p.  And all he says about that is --  12 the interesting thing he says is in the -- for  13 October, down towards the bottom of the October entry  14 he says:  15  16 "The Indians here are doing well and as they  17 are almost in constant touch with the Fraser  18 Lake, I ascertained that the whole of the  19 section is in perfect order and quietude."  20  21 I should explain, my lord, that Fraser Lake was part  22 of Loring's bailiwick at that time, and so  23 Lack-al-sop, the Moricetown Indians, that is, appeared  24 to have been connected not only with the Babines, but  25 with the Fraser Lake Indians then.  26 And he goes -- he mentions settling disagreements  27 and complaints, but doesn't specify what they were.  28 But in November he -- I particularly want to draw your  29 attention to this, this one.  He and Mrs. Loring and  30 an interpreter and two packers went to Khsun.  A  31 combination -- he describes them:  32  33 "A combination of shacks, fisheries and  34 smokehouses, about twenty-three miles from  35 here, situate on the left bank up and on the  36 Skeena River."  37  38 THE COURT:  How — how do you think that is spelled?  K-h —  39 MR. MACAULAY:  Well, in that case K-h-s-u-n, my lord.  4 0    THE COURT:  Yes.  41 MR. MACAULAY:  And there is — I'll come shortly to a vivid  42 description of Upper Khsun.  Khsun started or was at  43 the 23 mile point, Upper Khsun at 29 miles.  And it  44 was a very considerable and quite distinctive fishery.  45 And he goes on on page two:  46  47 "There, many contentions as to rights to 22565  Opening by Mr. Macaulay  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  fisheries, shares and interests in smokehouses.  This condition is the ultimate result of the  demise of several, especial prominent, Indians  by 'la grippe' just about a year ago."  And he goes on to say:  "In two days I reached Khsun --"  K-h-s-u-n,  " -- remained there one day, the 15th, settling  everything to be attended to and returned to  Hazelton after two days hard travel, early on  the 17th of this month."  MR. GRANT:  My lord, I think that it's K-h-o-u-m.  And it may  have some significance in terms of.  THE COURT:  That's what it looks like to me.  MR. GRANT:  It certainly looks like that to me and not K-h-s-u-n  as my friend has it.  MR. MACAULAY:  We know it's the 2 3 mile.  THE COURT:  It looks like an "s" on the first page, K-h-s, and  this one looks more like an "o".  MR. MACAULAY:  Like an "o".  THE COURT:  All right.  MR. MACAULAY:  And in December he reports as usual.  He didn't  travel in December very much.  But on the last  paragraph he says:  "On account of very high water last spring"  And there is a word I can't make out.  "the Indians of the Skeena River portion failed  to catch the usual amount of salmon"  And "in" something,  "much short of having plenty of provisions,  salmon being their mainstay."  And then refers to the caches, reserves for  vegetables, and that there is a problem there, too,  with the gardens in 1894.  Then at tab 47, this is a monthly report, February  28, 1895.  We are into 1895 now.  And this is a -- the 22566  Opening by Mr. Macaulay  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  beginning of a recurring theme right up to 1920.  says :  He  "I have the honor to report that during this  month the Indians on the Git-an-max Reserve,  Hazelton, worked especially hard to get their  logs and timbers while good snow on the ground.  This material is for houses on the location  laid out by me during the last year.  A portion of the old people, that is, all  those still intent on making grease are gone."  That's the reference to the trip to the Nass.  And in  a later report, he will report to his superiors that  that trip no longer takes place, but it's still going  on in 1895, with the old people.  And he goes on to  say:  "I may also here state that the young and  middle aged people of along the Skeena River  have given up the latter practice and learned  to spend their time to better advantage."  And tab 49 is the -- a travelling statement again for  the quarter ending March, March 30.  On the top of  page one he describes a winter village.  Now, we are  still trying to decipher some of the words, but the  sense of it are -- is easy enough to understand:  "I have the honor to report that on the 3rd of  this month I left here along with one Indian,  toboggan and three dogs for Samult"  THE COURT  MR. GRANT  THE COURT  MR. GRANT  MR. MACAULAY  S-a-m-u-1-t.  I am sorry.  That looks like Damoult to me.  Looks likes D-a-m-o-u-l-t.  It's the same name as my friend earlier referred to.  Damoult.  It very may well be Damoult, my lord.  I will make a note of that for my transcription.  "The latter is a Hagwel-get winter camp about  35 miles in an east northeasterly direction  from Hazelton and situate on the left bank of  the Sghaw-ye-too-gna"  And I gave up there. 22567  Opening by Mr. Macaulay  1  2 "A left blank -- "  3  4 And I have another word I can't make out.  5  6 "tributary of the Bulkley or Hagwel-get River.  7 My visit there was more as a result of promises  8 previously made than actual contingencies."  9  10 And there are two words I can't make out.  11 THE COURT:  Might be "exigencies."  12 MR. GRANT:  "Exigencies," yes, my lord.  13 MR. MACAULAY:  "Exigencies," yes, my lord.  14 MR. GRANT:  And that river seems to be S-g-h-a-w dash y-e dash  15 t-w or t-o-o and then g-n-a.  16 THE COURT:  What do you say it is?  Y-e and then t-o?  17 MR. MACAULAY:  S-g-h-a-w dash y-e dash t-w or t-o-o and then  18 g-n-a.  19 THE COURT:  Yes.  20 MR. MACAULAY:  It's a tributary of the Bulkley, apparently.  21 THE COURT:  Yes.  22 MR. MACAULAY:  Which gives us some idea of the location of this  23 winter village. And then --  24 MR. GRANT:  I think it's a left bank tributary.  2 5 THE COURT:  Yes.  26 MR. MACAULAY:  Then he goes on to describe what they are doing,  27 which is at that time:  28  29 "The peoples portion of Lack-al-sop numbering  30 about sixty-five in all, I found well and in  31 high spirits over the good termination of the  32 caribou hunt and the killing of twenty-three of  33 these and were busily engaged in"  34  35 something  "and smoking -- "  36 THE COURT:  Drying.  37 MR. GRANT:  Drying.  3 8 MR. MACAULAY:  Drying.  3 9 THE COURT:  Yes.  40 MR. MACAULAY:  "The meat for caching in" I think it's "trees."  41 THE COURT:  Yes.  42 MR. MACAULAY:  "And used later on."  43 Then, my lord, if you will turn to tab 49 --  44 sorry, that was 49.  51.  At the bottom of the -- this  45 is a monthly report.  It was made in 1895.  At the  46 bottom of the monthly -- first page he says this,  47 the last three lines: 2256?  Opening by Mr. Macaulay  1  2 "On the 20th instant, I left here accompanied  3 by Mrs. Loring as interpreter and with two  4 packers for Khsun"  5  6 K-h-s-u-n, I make it.  7  8 "about twenty-three miles up and the left bank  9 of the Skeena. "  10  11 And then over the page:  12  13 "Known as a great fishing place with  14 smokehouses dotted being the one region"  15  16 And a new sentence.  And that's the German dialect  17 coming out there.  18  19 "being the one region and centre for the  20 purpose mentioned of the Git-an-max and  21 Kits-pioux Indians alike.  Many contentions  22 arise of which I settled several cases."  23  24 MR. GRANT:  I think it's the "congregational centre."  25 "Congregation centre."  26 MR. MACAULAY:  "Congregation centre" it might be, my lord.  27 THE COURT:  And what are the Indians he describes?  28 MR. MACAULAY:  The Git-an-max and the Kits-pioux.  And that's at  29 that 23 mile.  30 MR. GRANT:  I think that that on the bottom is K-h-o-u-m, my  31 lord.  32 THE COURT:  Yes.  33 MR. GRANT:  And that's consistent with other evidence in this  34 with that spelling.  35 MS. KOENIGSBERG:  What evidence?  36 MR. MACAULAY:  Now, tab 56 is a letter.  It's in evidence  37 already.  And it describes what the Indians were then  38 doing, that is in 1895.  He starts off with the  39 following:  40  41 "I have the honor to report that aside from the  42 Indians of the Kit-ksun Division, engaged in  43 hooking salmon at their fisheries, or getting  44 berries and then absent missing, packing and  45 working at the canneries of the coast, very few  46 of the old are at present remaining in their  47 respective villages." 22569  Opening by Mr. Macaulay  1  2 And then a paragraph -- there is a sentence and then  3 another paragraph:  4  5 "The Indians of the Hagwel-get Division, not  6 employed in hooking and curing salmon, or  7 picking berries, are out hunting"  8  9 And then at the very bottom of the page:  10  11 "On the 19th instant, I left here with Mrs.  12 Loring, as interpreter, two Indians as packers,  13 on foot, for Tsis-la-tin"  14  15 And I make it to be T-s-i-s hyphen 1-s hyphen t-i-n.  16  17 "a fishing village with many smokehouses,  18 situate on the Skeena River"  19  2 0 And over the page:  21  22 "on its right bank and thirty-nine miles in  23 northerly direction up the river from here.  24 Arrived there on the 22nd, remaining over the  25 23rd and 24th instant, during my stay settled"  26  27 And I make this:  28  29 "five difficulties existing.  Left on the 25th  30 for Hazelton, staying quite awhile at  31 Kits-pioux, where I had to cross the Skeena by  32 canoe, both in going and returning, arriving  33 here on the 27th."  34  35 And there is another fishing place up the Skeena.  36 At 63, we are into 1896 now, and he reports a trip  37 to Old Kitse-gukla, New and Old Kitse-gukla.  A new  38 village in his time was started nine miles away from  39 the old village, my lord, nine or ten, and he  40 describes where they are in this passage.  He says:  41  42 "I have the honor to report that in the 3rd  43 instant, accompanied by Mrs. Loring as  44 interpreter, and an Indian with a toboggan, and  45 another as packer, I left here on the ice of  46 the Skeena River for New and Old Kitse-gukla,  47 villages nine and nineteen miles, respectively, 22570  Opening by Mr. Macaulay  1 below of here."  2  3 THE COURT:  Is it nine and thirteen or nine and nineteen?  4 MR. MACAULAY:  Well, I have read that as nineteen and there  5 is --  6 THE COURT:  Yes.  7 MR. MACAULAY:  -- about nine or ten miles between the two, I  8 think.  9 THE COURT:  Yes.  It looks like nineteen.  10    MR. MACAULAY:  11  12 "Mainly the object of my visit was to  13 straighten out some difficulties existing, at  14 the latter place,"  15  16 That would be Old Kitse-gukla.  17  18 "in regard to claims to the use of smokehouses  19 by different families near several of the  20 fisheries and disputed as to some of the  21 latter."  22  23 And at tab 65 he reports for the month of April, this  24 is dated April 30, 1896, on the second last paragraph:  25  26 "Houses are now beginning to go up and greater  27 activity will be shown henceforth by those of  28 the Indians able to afford to confine  29 themselves to that purpose.  A great amount of  30 lumber has been whip-sawed by the Indians  31 during the past winter.  I succeeded to spur  32 them up to the utmost to that effect."  33  34 I should mention, my lord, that eventually he -- the  35 Indians, not Mr. Loring, the Indians got sawmills  36 going in various villages, but in the early days they  37 whip-sawed.  They had a man in the pit and one above  38 and made boards that way.  For the purpose, and it was  39 a very important purpose, and it had a significant  40 effect in my submission, and that is that they were  41 building single-family dwellings, and they were being  42 alloted -- and there is an awful lot of this reported  43 in here, they were being allotted locations a hundred  44 or so feet wide, but very deep, six or seven hundred  45 feet deep, and they were -- these locations were being  46 fenced.  There was a lot of talk about fencing.  That  47 was the fencing being done, so that they could keep 22571  Opening by Mr. Macaulay  1 their animals, their domestic animals, which they were  2 now acquiring, separate one from the other.  And  3 that's an early reference to that process.  It's in  4 every single report later on, which I am not going to  5 read them all.  6 At tab 69, it's the second page of the -- of the  7 monthly report for July, month of July of 1896.  Near  8 the top of the page, he says:  9  10 "Arrived at Moricetown on the 24th."  11  12 He's calling it Moricetown in that case, you will  13 notice, my lord.  14  15 "During my stay there, from the 24th to the  16 27th, I adjusted many difficulties as to claims  17 to rights to fisheries, etc., also the  18 intentions as to attempted charging toll by a  19 faction of the Indians having re-built a good  20 bridge spanning the Hagwel-get River at the  21 canyon there."  22  23 And further down he reports on what Moricetown looked  24 like at the time.  There are no other records.  There  25 is no -- that I know of or no record of what was at  26 Moricetown or at various other villages in any other  27 series of the historical documents.  He says:  28  29 "Of the twenty-six houses at Moricetown, the  30 major part are of the old Indian kind, of heavy  31 beams and"  32  33 Something  34  35 "split cedar slabs attached.  Nine -- "  36  37 There is a word I can't make out, small word,  38  39 "of improved models of house"  40  41 Something  42  43 "and wisely shingled.  I am assured that any to  44 be built in future will be of latter pattern."  45  46 So he —  47    THE COURT:  That's probably "house logs".  Isn't it 1-o-g-s  9 22572  Opening by Mr. Macaulay  1 MR. MACAULAY:  Yes.  71, again it's at page two that I want to  2 draw your lordship's attention of a three-page report  3 for the month of August, 1896.  Near the top of the  4 page, the second paragraph:  5  6 "On the 22nd, all the families of the village,  7 in neat attire, called on me, in contrast to  8 only a few years ago, when the blanket was worn  9 entirely, not one was to be seen then."  10  11 Now he's talking, my lord, about a visit to  12 Kis-ge-gas.  If you look at the bottom of the previous  13 page, he says, "On the 21st arrived at Kis-ge-gas."  14 And that is a comment on the rapid change of what must  15 be one of the fundamental customs of any human being  16 and that is the mode of dress, and your lordship will  17 recall he was there in 1891 the first time.  And then  18 at the bottom of the page he describes the houses  19 again.  Very bottom:  20  21 "There are thirty-eight houses in the old  22 village, five only of modern pattern.  The new  23 site will be built up entirely of the latter."  24  25 MR. GRANT:  I am sorry, if my friend -- that earlier quote my  26 friend said about the blankets, I just wondered where  27 that was.  I couldn't find it.  28 MR. MACAULAY:  Oh.  Second paragraph starting:  29  30 "On the 22nd, all the families of the village,  31 in neat attire, called on me, in contrast to  32 only a few years ago, when the blanket was worn  33 entirely."  34  35 MR. GRANT:  My lord, I am just not sure that that reference at  36 the bottom of this page is to Kis-ge-gas.  It's to  37 some place, but I certainly can't make it out.  3 8 MR. MACAULAY:  Well —  39 MR. GRANT:  For the original anyway.  4 0 THE COURT:  That's what he says where he says:  41  42 "The lots in the new village site are 100 feet  43 in width and so arranged that the homes on  44 those of the second street -- "?  45  46 MR. MACAULAY:  That the houses, oh, yes.  He has to do with  47 siting. 22573  Opening by Mr. Macaulay  1  2 "That the houses of those of the second street  3 will come alternately to the centre of the open  4 spaces of those of the first."  5  6 THE COURT:  Yes.  7 MR. MACAULAY:  He is just describing something for the future.  8 He's laid it out that way.  Well --  9 MR. GRANT:  What I was referring to is the bottom of the first  10 page, my lord, my friend mentioned a name of the  11 village and I can't make that out, because there is a  12 line down below and it doesn't seem to be a g-a-s  13 there.  14 MR. MACAULAY:  My lord, we will look at the original.  15 THE COURT:  Uh-huh.  16 MR. MACAULAY:  I make it K-i-s hyphen g-e hyphen g-a-s.  17 THE COURT:  Where do you see that?  18 MR. MACAULAY:  The last word of the last full line on page one.  19 THE COURT:  Oh.  And you say it's spelled K-i-s.  20 MR. MACAULAY:  K-i-s hyphen g-e- hyphen g-a-s.  21 MR. GRANT:  You see there is the dropped line below which is  22 usually the end of a word or something, I think.  2 3 MR. MACAULAY:  No.  The dropped line —  24 MR. GRANT:  Actually that will be the "there."  I just can't  25 make out the last part.  2 6 THE COURT  2 7 MR. GRANT  2 8 THE COURT  2 9 MR. GRANT  That's the first line of the next sentence?  Yes, that's right.  "Thus" or "there," is it?  Yes, I agree.  3 0    MR. MACAULAY:  There.  31 MR. GRANT:  It's K-i-s dash g-i, but the last part is blacked  32 out.  I am just not certain.  I don't know if much  33 turns on it or not, but I certainly can't agree right  34 now that that is the village that he is referring to  35 on that, my lord.  36 THE COURT:  All right.  37 MR. MACAULAY:  Perhaps we can find his travel accounts and see  38 if it's -- for that month, and see if it's what it is.  3 9    THE COURT:  Yes.  40 MR. MACAULAY:  The next tab, 72, it's —.  Oh, on 71, my lord,  41 there is a reference in the first full paragraph, the  42 third line on the first page, to the Epworth League.  43 You see this in various places in the reports.  The  44 Epworth League was a religious denomination.  It was a  45 branch of the Methodists.  46 THE COURT:  I don't see it.  On the first page?  47 MR. MACAULAY:  Yes.  It says: 22574  Opening by Mr. Macaulay  1  2 "There one of the principal difficulties  3 existing was, that a new Salvation Army party  4 started in opposition to the old one."  5  6 MR. PLANT:  That's tab 72.  7 MR. MACAULAY:  72.  8 THE COURT:  Oh, I see  9 MR. MACAULAY:  10  11 "now converted into an Epworth League."  12  13 What apparently happened is that the Old Salvationists  14 had become Methodists, and the Epworth League is a  15 division of the Methodists of those days.  And there  16 is a reference in the report to Leaguers,  17 Salvationists and Leaguers.  Well, the Leaguers were  18 the Epworth League.  That, of course, has got to do  19 with the ultimate explosion that led to the creation  20 of Glen Vowell.  21 73 refers to another fishery on the first page.  22 Sorry, my lord, can we go back to 72?  2 3    THE COURT:  Yes.  24 MR. MACAULAY:  The second page.  It's a description of Kitwanga.  25 The first paragraph, the last three and a half lines  2 6 which read:  27  28 "The dwellings of the village are, with the  29 exception of thirteen remaining big houses, all  30 of the modern pattern, and consisting of  31 fifty-five log and fifteen fram, and more of  32 the latter are being built."  33  34 And then he says:  35  36 "Left Kit-wan-gah for Hazelton on the 21st"  37  38 And so on.  So that the -- there are lodges at that  39 time remaining in the -- that village and of course in  40 others.  41 But in 73 there is another fishery referred to.  42 It's the report for October of 1896, and he reports  43 that he and Mrs. Loring and the usual packers and so  44 on went to Ilie-sans-dagh.  That's the best we can  45 make of it.  I-l-i-e hyphen s-a-n-s hyphen d-a-g-h  46 fisheries.  Called the Ilie-sans-dagh Fisheries.  47 22575  Opening by Mr. Macaulay  1 "About fifty-nine miles up the Skeena and  2 situate on its right and left banks.  There, of  3 late years, many contentions have arisen, after  4 heads of families dying, as to hereditary  5 rights to fishing stations, smoking, or curing  6 houses, implements, etc.  7 Many of the, up to then, existing  8 difficulties I arranged at the agency, but by  9 my deferred visit I obligated by appearing in  10 person and settling every matter brought before  11 me.  12 At Ilie-sans-dagh are nineteen fishing  13 stations and eleven smokehouses, the most of  14 the former considered the best on the Skeena,  15 and the latter are kept in good condition and  16 by the"  17  18 Something  19  20 "twenty-three families are depending on the use  21 of both."  22  23 And there is a word there that I haven't yet made out.  24 I will try to look at the original.  So there is  25 another important one.  Over the page, my lord, the  26 last paragraph --  27 MR. GRANT:  My friend's left that — it's just that I think  28 that's s-o-u-s, that middle word, Ilie-sous-dagh.  2 9 MR. MACAULAY:  Yes.  30 THE COURT:  S-o-u-s?  31 MR. GRANT:  It's s-o-u-s.  32 MR. MACAULAY:  Instead of s-a-n-s?  33 MR. GRANT:  Yes.  34 MR. MACAULAY:  It might be.  I don't quarrel with that.  35 MR. GRANT:  When you look at both versions, that's what it  36 appears to be.  37 MR. MACAULAY:  I don't quarrel with that.  38 THE COURT:  Yes.  Over the page?  39 MR. MACAULAY:  Same — yes.  Same, tab just over the page, the  40 last paragraph.  He says:  41  42 "In concluding I have the honor to advocate the  43 defining of the reserves of the villages of  44 Kal-dos"  45  46 K-a-1 hyphen d-o-s.  47 22576  Opening by Mr. Macaulay  1 "on the upper part of the Skeena, and of  2 Kis-go-gas"  3  4 K-i-s-g-o-g-a-s  5  6 "on the Babine River, four miles above the  7 forks of both.  About the latter's"  8  9 something,  10  11 "some prospects in mineral bearing quartz"  12  13 And there is another word I can't make out.  14  15 "and expect an influx prospectors there, of  16 whom some, we doubt, will also locate whatever  17 available land, in sight, for agricultural  18 purposes as well as in"  19  2 0 something  21  22 "Of either."  23  24 MR. GRANT:  That would be "no doubt."  25 THE COURT:  Yes.  "No doubt."  2 6    MR. MACAULAY:  "No doubt."  2 7    THE COURT:  Yes.  28 MR. MACAULAY:  What he is saying to his superiors is that they  29 better get going on the defining of a reserve for  30 those northern villages which wasn't up to them  31 necessary.  32 77, this is a description in the winter, so it's  33 not in the fishing season, but it's a thorough  34 description of Khsun or Upper Khsun.  It's February  35 1897.  He says:  36  37 "I have the honor to report to have left here  38 in the 1st instant on an official visit to  39 Ksun"  40  41 K-s-u-n.  42  43 "and its twelve lodges of Upper Ksun,  44 accompanied by Mrs. Loring as interpreter, an  45 Indian Ligis-nalgh"  46  47 L-i-g-i-s hyphen n-a-1-g-h. 22577  Opening by Mr. Macaulay  1  2 "employed with a toboggan and four dogs and his  3 boy Tom"  4  5 something  6  7 "to run ahead of the latter.  8 Travelled thither the distance of  9 twenty-nine miles, on the ice, up the Skeena."  10  11 So this is a little farther, my lord.  12  13 "The purpose of my visit was in compliance with  14 promises previously made to the Indians of that  15 locality to settle many contentions of minor  16 importance existing there.  17 The whole of Ksun consists of twenty-one  18 lodges, serving for smoking salmon in its  19 season and just half its number as a dwelling  20 during the winter.  Nine of them are below the  21 Ksun canyon, of which five on the right and  22 four on the left bank of the Skeena, and twelve  23 above the canyon of them seven on the right and  24 five on the left bank of the Skeena.  25 On the twenty-one lodges, on both sides of  2 6 the river, no improvements have been made since  27 my incumbancy as agent here.  In their  28 surroundings no tillable soil is to be found,  29 but on the slopes of both sides of the river  30 and at the bank of them is any amount of"  31  32 something  33  34 "for timber."  35  36 When I say "something," I can't make out that word.  37  38 "The time is not far off when Ksun will be  39 abandoned altogether.  The Indians are steadily  40 improving their ways of living in conformity  41 with the present"  42  43 I think it's:  44  45 "method of fishing and it will prove  46 inconsistent."  47 2257?  Opening by Mr. Macaulay  1 What I am submitting he is saying there, and we will  2 see what the method was, my lord, in a minute.  He's  3 talking -- he knows, of course he's been there a  4 number of times, and he's been there in the fishing  5 season, and what he appears to be saying is that the  6 method used at that very large fishery and village is  7 now obsolete.  It's going to be obsolete and it's  8 going to be abandoned.  9 At 79, tab 79, page one, in the first paragraph he  10              says:  11  12 "I have the honor to report that for reasons of  13 many disputes arising between the Indians at  14 Kitse-gukla and those of Kit-wan-gah, I  15 repaired to Kitse-gukla, on the 6th instant,  16 accompanied by Mrs. Loring.  Arrived there the  17 day following."  18  19 And in the next paragraph he refers to violence and  20 trouble over wood lots in circumstances where the  21 Indians are now cutting cord wood for the steamers.  22 The second volume -- that's all I propose to refer  23 to in the first volume.  I am going to refer to some  24 in the second and not many after that.  25 THE COURT:  Do you want to reserve a number for this series,  26 Mr. —  2 7 MR. MACAULAY:  Well, my lord —  2 8 THE COURT:  Or do you want to leave it?  29 MR. MACAULAY:  I submit they should be marked reserving to Mr.  30 Grant the right that he has to make objection to any  31 irrelevant material and his submission that the  32 offending pages ought to be removed.  33 THE COURT:  Well, I don't think there is any magic in it one way  34 or the other.  I think we will reserve the number.  35 The first volume will be 1208, I think.  36 THE REGISTRAR:  1209.  37 THE COURT:  1209.  38 THE REGISTRAR:  Yes.  39 MR. MACAULAY:  Should it be A, B, C, D, E, F?  There are six of  40 them.  41 THE COURT:  Yes, that will be all right, too.  What's 1208?  Oh,  42 yes, there is a letter, yes.  43 MR. MACAULAY:  Actually, my lord, we have a consecutive run of  44 tabs.  45 THE COURT:  Yes, that might be enough.  46 MR. MACAULAY:  That might be enough, yes.  47 THE COURT:  All right.  So we will reserve number 1209 then. 22579  Opening by Mr. Macaulay  1 MR. MACAULAY:  Thank you, my lord.  2 THE COURT:  And use the tab numbers.  3 MR. MACAULAY:  I am only going to be referring to ten of them in  4 this volume.  That's not to say that the others aren't  5 interesting and relevant, my lord, but it is the 299th  6 day.  I will refer to tab 81.  That's the first tab in  7 that volume.  On the first page I will be referring to  8 the first and second pages.  On the first page your  9 lordship may remember --  10 THE COURT:  I am sorry, Mr. Goldie — or Mr. Macaulay, you make  11 that 189 --  12 MR. MACAULAY:  Seven.  13 THE COURT:  1897.  14 MR. MACAULAY:  This is May 31, 1897, my lord.  15 THE COURT:  Yes.  All right.  Thank you.  16 MR. MACAULAY:  It's the monthly report for May.  And do you  17 remember, my lord, there was an earlier reference to  18 Lach-an-dagh.  And I don't know how -- I can't recall  19 exactly how it was spelled.  It was spelled very much  20 like it is on page one here, L-a-c-h hyphen a-n hyphen  21 d-a-g-h.  A village on the Skeena.  He says:  22  23 "On the 3rd instant, left here on foot  24 accompanied by Mrs. Loring as interpreter, and  25 two packers on official visit to Lach-an-dagh.  26 The latter, an Indian settlement consisting of  27 fishery and smokehouses, nine in number.  It is  28 situate on the right bank of the Skeena above  29 here, and distant thirty-four miles to the  30 north."  31  32 My friend, Mr. Grant, had corrected me when I said 30  33 in the previous reference and he said -- he quite  34 rightly said it was 34.  Here we are back to the same  35 place.  And then the author goes on, Loring goes on:  36  37 "Arrived there late the following day."  38  39 So it was a two-day trip.  40  41 "Remained over the 5th instant, settling  42 various complaints and disputes pertaining to  43 contentions to fishing stations and in some  44 cases as to claims for use in common of  45 smokehouses and again returned here late on the  46 7th instant."  47 22580  Opening by Mr. Macaulay  2 0    THE COURT  21 MR. GRANT  22 THE COURT  1 MR. GRANT:  I think that's "use in possession," my lord.  I  2 don't see that it's "common."  Looks like a "p" there.  3 MR. MACAULAY:  "In possession."  4 MR. GRANT:  "To claims for use in possession."  5 MR. MACAULAY: Yes, it might be.  6 THE COURT:  I am sorry, I haven't seen that.  7 MR. MACAULAY:  "Possession.  It might be "possession.  I agree  8 with my friend, actually.  9 THE COURT:  It says "arrived there the following day."  10 MR. MACAULAY:  Yes.  11  12 "Remained over the 5th instant, settling  13 various complaints and disputes pertaining to  14 contentions to fishing stations and in some  15 cases as to claims for use -- "  16  17 And I had rendered it as "in common," but I believe  18 Mr. Grant is right when he says that the word should  19 read "possession."  "Use and possession"?  It says "use" comma "in possession" comma.  It looks like an i-n.  2 3 MR. MACAULAY:  Yes, it does.  24 MR. GRANT:  Yes, it does.  "In."  "In possession."  25 THE COURT:  Yes.  All right.  "Use in possession."  26 MR. MACAULAY:  Is that "use" comma "in possession."  27 THE COURT:  Yes.  All right.  28 MR. MACAULAY:  It was -- he had an eccentric way of expressing  29 himself, but that's just part of it, but you get the  30 sense of it.  31 MR. GRANT:  What was the last part when you said after "in  32 possession"?  33 MR. MACAULAY:  "Of smokehouses," and there is a word I can't  34 make out, "and again returned here late on the 7th  35 instant."  And then he refers to --  36 THE COURT:  I am not sure that says "smokehouses," Mr. Macaulay.  37 MR. GRANT:  I don't think so.  I think that it seems like a dash  38 to that word that's hard to read or illegible, so I  39 don't think it says "smokehouses" and I don't have an  40 alternative suggestion for my friend.  41 THE COURT:  Well, you are going to be looking at a better source  42 and you might help us in that sometime.  43 MR. MACAULAY:  Well, I will make a special note of that one too  44 and see if I can't decipher it better.  4 5 THE COURT:  Thank you.  46 MR. MACAULAY:  But the sense is there.  There are some words  47 that aren't.  And then he goes on: 22581  Opening by Mr. Macaulay  1  2 "The Hagwel-gets are soon to be expected in  3 wage earning and working contingency of the  4 Kit-ksuns has departed, aside of that of  5 Kis-ge-gas and Kul-do, the two most northerly  6 villages on the Skeena.  More than usual many  7 of the young men apart of those gone to the  8 coast, have betoken themselves to work in the  9 mines of Omenica.  There, a great many men are  10 required to do this auxiliary work pertaining  11 to two hydraulic plants on Slate and Manson  12 creeks, respectively."  13  14 That's an early reference to working -- actually  15 working at the mines.  We know that Indians packed up  16 the mines from the 1870s, early 1870s.  Over the page,  17 my lord, Loring comments in the second paragraph  18 starting with the words "the new houses."  On the  19 character --  20 MR. GRANT:  Just a second.  I just -- sorry, my lord, I can't  21 read that first line of what the last excerpt my  22 friend said.  And it says -- he said something on the  23 working, but I don't think it's legible what he's read  24 and he attributed the words to it.  I am not even sure  25 what he said, but I just think it's illegible where  26 it's the Hagwel-gets.  27 THE COURT:  The Hagwel-get —  28 MR. MACAULAY:  "Are soon to be expected in wage earning."  29 MR. GRANT:  Well, I don't see that "wage earning" in there.  3 0 MR. MACAULAY:  All right.  31 MR. GRANT:  And the -- and the two words that are indecipherable  32 there.  33 MR. MACAULAY:  Yes.  34 THE COURT:  Yes.  All right.  35 MR. MACAULAY:  "Expected in" and then — well, that's pretty —  36 very often he says that the Hagwel-gets are expected  37 in.  They -- apparently the Hagwel-gets were  38 essentially trappers and hunters at that time, and  39 they would appear in Hazelton twice a year.  And that  40 may be the reference.  There should be a comma maybe  41 there.  42 MR. GRANT:  Yeah, I think there is.  43 MR. MACAULAY:  "Expected in" comma and then something else about  44 the Gitksan.  4 5 MR. GRANT:  Right.  46 MR. MACAULAY:  The advantage of reading the set as a whole is  47 that you get a -- they -- that becomes familiar.  This 22582  Opening by Mr. Macaulay  1 is the yearly round still for the Hagwel-gets at the  2 time.  They would be -- the Hagwel-get and the  3 inhabitants of the two northern villages would come  4 into town, into Hazelton, to trade their furs.  And  5 that's -- one was mid-summer and the other was around  6 November or December, I think.  Early summer rather,  7 late spring.  8 Over the page he describes the new houses.  He  9 doesn't describe where it is and usually he's  10 referring to Git-an-max when he doesn't specify the  11 location.  He says:  12  13 "The new houses of the Indians contain all the  14 articles for comforts and convenience to be  15 wished for, such as stoves, tables, shelves,  16 coal oil lamps, chairs, bedsteads, overspread  17 with good blankets coverlets, etc.  The  18 outgrounds are animated by children playing  19 about well-behaved and comfortably dressed."  20  21 And at the bottom of the page one of his -- one of  22 Loring's objectives is referred to.  And it's often  23 referred to after this.  24  25 "One of the aims, constantly in view, to  26 inspire the Indians with the advantage of  27 cattle raising is yet somewhat inopportune as  28 long as dogs of the wolfish nature are allowed  29 to move about to form in bands for attack of  30 young animals of a herd, the calves and  31 sometimes a yearling are run down and eaten."  32  33 And then he says:  34  35 "next to an impossibility to raise a colt under  36 these circumstances."  37  38 Later on he will report, and I probably won't read it,  39 but I can tell your lordship later on he reported that  40 he organized a shooting party to deal with the leaders  41 of the dog packs.  He mentions on page three of this  42 report, near the end, that there is a problem that he  43 has, and he states as follows.  There are one or two  44 words that are difficult to make out, but he says:  45  46 Again, amongst the older of the Indians -- "  47 22583  Opening by Mr. Macaulay  1 It's halfway down in the middle of the third page "  2  3 "-- of the Indians the dog is regarded with a  4 certain amount of superstition and the killing  5 of one"  6  7 And then there is a blank, again there is  8 "superstition."  At any rate, he's referring to a  9 problem he was having.  10 MR. GRANT:  I can't — show me.  11 THE COURT:  I can't find that either.  Is it page 3139?  They  12 are all 3139.  13 MR. MACAULAY:  Yes.  14 THE COURT:  830.  And in that long paragraph?  15 MR. MACAULAY:  Well, there are two lines.  16 THE COURT:  It's that short paragraph.  17 MR. MACAULAY:  Yes.  It says "again, amongst the older of the  18 Indians."  19 THE COURT:  Yes, I see.  20 MR. GRANT:  What are you suggesting it says?  21 MR. MACAULAY:  "The dog is regarded with a portion, a — "  22 MR. GRANT:  "Certain amount."  23 MR. MACAULAY:  "Certain amount of — " it's either  24 "superstition" or "veneration."  25 MR. GRANT:  There is no —  26 MR. MACAULAY:  And something "and there is superstition" and  27 another word.  28 MR. GRANT:  Well, that first word certainly isn't  29 "superstition," my lord.  I am not sure that it's  30 "veneration," my lord, but it's certainly not  31 "superstition."  32 MR. MACAULAY:  The second last —  33 MR. GRANT:  The second last word says "superstition," but what's  34 said before or after that I don't think is  35 decipherable.  36 MR. MACAULAY:  84, we had a transcription of this.  It was a tab  37 207 in somebody else's exhibit.  Exhibit 1035, tab  38 207.  There is a lengthy paragraph dealing with the  39 potlatch, but we've heard a lot about that.  I would  40 like to draw your lordship's attention to 86 and in  41 tab 86 we have a finally a description of the kind of  42 fishing at Ksun.  On the second page tab 86, page two.  43 That's -- my lord, it's the report for July of 1897,  44 July 31, 1897.  He'd been in there in February, you  45 may recall he was there in February and he described  46 the houses and smokehouses, winter dwellings, and so  47 on at the 29 mile point, and now he's describing the 22584  Opening by Mr. Macaulay  1 fishing near -- the last paragraph, it is the last  2 paragraph.  3 MR. GRANT:  Second page?  4 MR. MACAULAY:  On the second page.  It says:  5  6 "On the 23rd instant, with Mrs. Loring and two  7 packers, I repaired, on foot, to Ksun, a  8 fishing village about twenty-three miles to the  9 north of here and situate on both sides of the  10 Skeena at the Ksun canyon.  The canyon is one  11 of the most important fishing localities on the  12 river; it's sides are very precipitous and  13 narrow.  All the fishing stations are platforms  14 held together by ropes twisted out of cedar  15 bark fibre and are suspended by the same  16 material.  The fishers are provided with a long  17 slender, well-seasoned and tough pole, to the  18 end of which a gaff-hook is attached.  They are  19 passed through the foaming"  20  21 Looks like:  22  23 "whirls of water and the vibrations in the pole  24 indicate when a salmon is fast.  The wriggling  25 fish is drawn up to the platform and is  26 dispatched by a -- "  27  2 8    THE COURT:  Club?  29 MR. MACAULAY:  "Well-directed blow."  30 THE COURT:  Oh, yes.  31 MR. MACAULAY:  32  33 "back of its head.  The fish thus accumulated,  34 on the platform, are taken by women and boys,  35 slung to their heads in cedar bark basket up an  36 almost"  37  38 That may be cedar mat basket.  39  40 "cedar mat basket up and almost perpendicular  41 placed and twisted timbers, at most only five  42 inches in width, in most instances at  43 astonishing heights.  And, I here may add, it  44 is surprising that not a single accident to the  45 climbers under these conditions has ever come  46 to my notice.  During my stay I advocated the  47 rigging up of windlasses where were to draw up 22585  Opening by Mr. Macaulay  1 the fish in boxes fitted on smoothened timbers.  2 This idea was readily taken up and will no  3 doubt be carried into practice.  4 The reason for making the trip, to Ksun,  5 was prompted by many difficulties existing  6 there on account of disputed rights to stations  7 amongst members of different crests.  In former  8 years these disputes frequently ended in  9 cutting down platforms, destroying smokehouses  10 and, often, in worse.  11 The result of my visit was satisfactory in  12 every respect."  13  14 At 92, tab 92, in the first page we have a reference  15 again to Dam-Olp, and now to Upper Dam-Olp.  He  16 says -- this is a December -- the December report for  17 1897.  He says:  18  19 "I have the honor to report to have left here,  20 on foot, with an Indian, his boy, four dogs and  21 toboggan for Dam-Olp, an Hagwel-gets winter  22 camp on the lake of like name and about  23 thirty-seven miles to the east of here.  24 Many complications concerning hunting and  25 trapping grounds, etc., there existing induced  2 6 me to make the trip.  27  28 THE COURT:  I am sorry, I am just making a note.  What do you  29 say that says again?  "Many."  30 MR. MACAULAY:  "Complications."  31 THE COURT:  Yes.  32 MR. MACAULAY:  "Concerning hunting and trapping grounds, etc."  33 THE COURT:  Yes.  34 MR. MACAULAY:  35  36 "there existing induced me to make the trip.  37 Arrived at lower Dam-Olp on the 4th  38 instant, remained over Sunday the 5th, Monday  39 the 6th and whence I repaired to Upper Dam-Olp,  40 six miles up the lake, and returned to the  41 former camp, late, on the same day.  42 I found good many of the young men of both  43 camps off after cariboo, and after attending to  44 everything appertaining to my considerations,  45 left there on the 8th, returning here on the  46 10th instant."  47 22586  Opening by Mr. Macaulay  1 And he adds:  2  3 "The Kit-ksuns, to whom separate holdings  4 approportioned, are busily engaged whip-sawing,  5 hauling lumber and logs."  6  7 MR. GRANT:  It just says "separate — " "to whom separate  8 holdings apportioned."  9 MR. MACAULAY:  Yes, that's what I thought I said.  94, tab 94,  10 refers again to -- now, this is a document that's  11 already been marked, my lord.  It's Exhibit 1055, tab  12 99.  Loring was asked to advise his superiors of the  13 Indian fisheries and Indian fishing rights and  14 requirements.  And this is a long letter in which he  15 gives a great deal of detail about Indian fishing and  16 detail that we get nowhere else.  This is the best  17 description of various kinds.  I see it's 12:30 and I  18 might spend a minute or two on this.  19 THE COURT:  All right.  20 MR. MACAULAY:  To finish that if I may.  21 THE COURT:  We will continue on this at 2 o'clock.  Thank you.  22  2 3 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  2 4 ADJOURNMENT)  25  26 I hereby certify the foregoing to be  27 a true and accurate transcript of the  28 proceedings herein to the best of my  29 skill and ability.  30  31  32  33  34 Laara Yardley, Official Reporter,  35 United Reporting Service Ltd.  36  37  38  39  40  41  42  43  44  45  46  47 22587  Opening by Mr. Macaulay  1 (PROCEEDINGS RECONVENED AT 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, at the adjournment, I was about to draw  6 your attention to tab 94.  It was a letter, a long  7 letter, and this is one of these letters, those  8 special letters that is outside the ordinary reporting  9 process.  In response to inquiries from Loring's  10 superiors, he was asked about the fisheries and he  11 made a very interesting and full reply, and of course  12 that has been -- for that reason, that has been made  13 an exhibit, I believe, by Mr. Galois, if not --  14 perhaps Mr. Morrell.  It's dated February 11th, 1898.  15 There are a number of other bits and pieces that  16 are -- bear the same date, but this is the important  17 one.  On page 1, Loring reports first that, and I  18 quote him:  19  20 Every family of the [Gitksan] Indians on  21 the Skeena boasts of having one or more  22 fisheries, which existed eddies back of  23 projecting points of rock on the river.  24 Again the fisheries used in common are the  25 perpendicular sides or nearly so, of all the  26 canyons on the river.  27  28 He distinguishes between the individual eddies and  29 the canyon fishing in common, as he puts it.  Then he  30 describes -- describes the method of fishing in the  31 eddies and he refers to dip-nets and gives a -- and  32 the platforms that were used and gives an account of  33 that.  And then he describes the canyon fishing, and  34 over on page 2 -- he starts at the bottom of page 1:  35 "In respect to the second," that is the canyon, "the  36 salmon are gaffed."  He is talking about the Gitksan  37 now.  38  39 The gaff, attached to a long, well-seasoned,  40 slender pole, is let down into the seething and  41 foaming waters and is passed down with the  42 current.  The narrow confines of the canyon  43 causes a large spread of salmon coverage into a  44 dense mass, thus leaving little probability of  45 missing one.  46 The re-vibrations received through the  47 medium of the slender pole, indicate the salmon 225?  Opening by Mr. Macaulay  1 fastened.  On the salmon becoming hooked, of  2 its own weight and resistance, the gaff is  3 caused to be detached from the pole.  The  4 intermediate connection of both to each other  5 consists of braided pieces of sinew of about  6 six or eight inches in length.  7 The salmon are drawn up to the platforms,  8 suspended in like manner as before mentioned  9 but at greater heights --  10  11 "Before mentioned" was the earlier kind, the eddy  12 fishing.  13  14 -- and, as it were, in a compromise of its  15 intents and that of an [eyoy (phonetics)] and  16 are killed with the blows of a stone club and  17 kept nicely arranged thereon.  18 Thence the fish are packed in cedar-bark  19 baskets by women and girls, on a continuous  20 line of notched sticks, in almost perpendicular  21 positions, frequently at distances of forty  22 feet and more to the top of the bank, whereupon  23 the smoke and curing houses are situated.  One  24 of the latter in many cases suffices in common  25 for several families as co-owners, whereas one  26 being in the possession of a single family,  27 same is readily shared with those less  28 fortunate than any in either respect.  29 As in regard to the converging the salmon  30 from a platform to the top, I advocated the use  31 of a windlass where circumstances will allow.  32  33 And then he goes on to talk about the eddies, the  34 fishing in the eddies.  35 MR. GRANT:  My lord, where my friend referred to "a stone club",  36 it's "a short club".  I think it's quite clear.  37 THE COURT:  Yes.  38 MR. GRANT:  And where he referred to one of the latter in  39 using -- that last paragraph where it says the  40 "families as co-owners, whereas one being --"  41 MR. MACAULAY:  "Being in the possession of a single family."  42 MR. GRANT:  Yes.  That "being in", I don't know how my friend  43 has interpreted that.  I can't read that part of that  44 at all unless my friend has a better copy than we have  45 here.  But I presume he just took it from the same  4 6 copy.  4 7    MR. MACAULAY:  Yes. 22589  Opening by Mr. Macaulay  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:  And I think that that better be verified before my  friend -- I'm just not sure.  THE COURT:  Well, all these readings are subject to revision.  MR. GRANT:  Yes.  THE COURT:  And I think it's —  MR. GRANT:  I'm just alerting Mr. Macaulay.  THE COURT:  -- instruction of these words just attracts my  attention to them.  MR. MACAULAY:  I'm trying to give it sense rather than, in some  cases, a difficult word.  THE COURT:  Yes.  MR. MACAULAY:  Now on page 3, after a great deal of detail in  which he gives the names of many fisheries on the  lower Skeena, on the Skeena below Hazelton that is,  he -- he says at the bottom:  Thence of the most principal fishing  centres in the latter direction, ought to be,  by all means, apportioned to the Indians, to  wit:  1. The little canyon, three miles above  Hazelton, both banks of the Skeena;  2. The canyons of Ksan.  THE COURT:  Sorry.  I have a problem following this.  Are you at  the top of page 3?  MR. MACAULAY:  Bottom of page 3, my lord.  THE COURT:  Oh, bottom.  MR. MACAULAY:  He gave a whole lot of names of fisheries at the  top, the Gost, the Wasp, the Rutt, the Crow's Roost  and so on.  THE COURT:  Now where do you start again?  MR. MACAULAY:  These are by Gitsegukla down below.  Then at the  very bottom he says:  Thence of the most principal fishing  centres in the latter direction --  That is, going north --  THE COURT:  Yes.  MR. MACAULAY:  — from Hazelton.  THE COURT:  Yes.  MR. MACAULAY:  -- ought to be, by all means, apportioned to  the Indians, to wit:  1. The little canyon, three miles above  Hazelton, both banks of the Skeena. 22590  Opening by Mr. Macaulay  1 THE COURT:  Um-hmm.  2 MR. MACAULAY:  3 2. The canyons of Ksun, twenty-three miles, do.  4  5 That means both banks of the Skeena presumably, the  6 D-O.  7 MR. GRANT:  That's K-S-U-N.  8 MR. MACAULAY:  K-S-U-N, yes, Ksun.  And:  9  10 3. The canyons of [Kisgagas] about seventy-two  11 do.  12  13 Meaning both banks of the Skeena.  14  15 -- and both banks of the Babine River and four  16 miles above its confluence to the Skeena.  17  18 So that -- and then he talks about the fishery's  19 regulations which he says they are not strictly  20 observed in his bit of it, and gives other  21 information.  22 He talks about Lach-al-sop which is Moricetown,  23 the fishery there, and also the Hagwilget fishery.  24 They are both at the bottom of page 4.  25 And on page 5, he deals with the -- with  26 Kitwancool and tells the reader about the traps used  27 at Kitwancool and on the trail to the Nass.  And he  28 describes there how the traps do not block the fish  29 from swimming up the river, he has seen this himself.  30 There is later some contention about that, but he  31 certifies that that --  32 THE COURT:  Where is this?  33 MR. MACAULAY:  Page 5, my lord.  34 THE COURT:  Yes.  35 MR. MACAULAY:  And the particular thing he says about the traps  36 is, "The baskets being placed --"  37 THE COURT:  Oh yes.  3 8 MR. MACAULAY:  39 -- in no instance, entirely obstructed the  40 passage of the fish, as same cannot be made  41 efficient any distance from shore.  42 I often chanced to see them filled and  43 found fish going under, over, and by the flanks  44 of them, and the general supposition that they  45 shut off their passage is a matter whereof the  46 imagination plays the greater and observation  47 the lesser part, in my opinion. 22591  Opening by Mr. Macaulay  1 And that's a very important point made in 1898.  2 And of course he was observing the fishery as it must  3 have been for generations at that time.  Oddly enough,  4 there is very little other -- other record of that  5 careful record of the fishery, of any other source.  6 Now, if I may refer to just a few more and not  7 many.  In tab -- in this -- before the turn of the  8 century, tab 95, for the -- this is the report for  9 February 1898, on the first page, he speaks of the --  10 at the middle of the page, of the difficulties at the  11 cord-wood cutting sites.  In the middle of the page he  12 says:  "These inviting qualities" -- he is talking  13 about the qualities of the sites now:  14  15 -- induce others to trespass, hence causing in  16 some cases, violent quarrels for contention.  I  17 visited several camps, where the latter  18 mentioned circumstances existed and settled all  19 matters satisfactorily.  20  21 They were, my lord, they were cutting wood for the  22 steamer Caledonia which is the only one on the river  23 at that time  24 And then over the page -- no, I think I will skip  25 that, my lord.  We've got enough of the detail.  Could  26 I turn to tab 96.  And here is a comparatively new  27 note.  The report for March of 1898, he went to  28 Kispiox.  29 THE COURT:  That looks like '89.  3 0 MR. MACAULAY:  Well, we have it as —  31 THE COURT:  No, I'm sorry, that's a 189.  '89, yes.  189, I  32 can't read the last.  33 MR. MACAULAY:  Yes, 1898.  34 THE COURT:  '98, all right.  35 MR. MACAULAY:  As I'm instructed.  36 THE COURT:  Yes, all right.  37 MR. MACAULAY:  He visited Kispiox and he visited the day school,  38 and you'll see after the turn of the century, the  39 government instituted schools at this early date on  40 the reserves.  They paid the teacher $25 a month, and  41 Mr. Loring was in charge of the payment and also,  42 apparently, of the inspection of the schools.  He says  43 at this early date:  44  45 Visited the day school there and found same in  46 very good condition.  Considering the short  47 time of that school's existence, I observed the 22592  Opening by Mr. Macaulay  1 pupils well washed, cleanly dressed, and well  2 advanced in their studies.  3  4 And towards the bottom of the page, he talks about  5 another visit to Lach-al-sop, L-A-C-H, A-L, S-O-P, or  6 otherwise known as Moricetown.  And he says:  7  8 Prompted by a promise to see the Indians  9 there, principally in connection with some  10 fishing-rights and hunting-ground disputes, I  11 hastened thither to settle complications among  12 the Indians previous to their departure for the  13 latter and various other vocations.  14  15 And since it's March, he would have been, of  16 course, been talking about the spring hunt, the late  17 hunting season.  18 Over the page, that same report, page 2, he  19 makes -- he notes that -- about an inch down or so  20 from the top of the page:  21  22 The younger population of the Kitsuns have  23 departed for Omineca and with them all the  24 miners/whites and Chinese/, having wintered  25 here.  26  27 The tab 101 is a report for August 1898.  On page  2 8 2, he talks about employment.  At the bottom of page 2  29 he says:  30  31 And, especially those of the Skeena are  32 receiving the largest pay, combined with the  33 best of treatment at a rate unprecedented to  34 any of former seasons.  35 The demand for their services in packing,  36 canoeing and guiding have been ceaselessly  37 sought after by the thousands of strangers  38 passing through this district in every  39 direction.  40  41 Tab 102 records on the first page another trip to  42 Ksun which he identifies as the village -- fishing  43 village about 23 miles to the north.  44 And on the second page, he says -- about a visit  45 to, amongst other places, Agu-din, A-G-U, hyphen,  46 D-I-N.  My lord, that was a winter village for the  47 Kispiox, and he says: 22593  Opening by Mr. Macaulay  1 In the latter named localities arranged  2 locations for some Indians intending to settle  3 therein and to fishery-disputes concerning  4 others.  5 He refers to vaccination.  He was busy in his  6 vaccination duties and that appears in a lot of those  7 reports.  8 One interesting one, speaking of vaccination,  9 that the early -- he gives a list of over a hundred  10 names in one report, of people he vaccinated.  They --  11 all of them, every single one had an Indian name at  12 the time, whereas, as the reports progress, the names  13 change.  14 Tab 106 is the last report for 1898.  He says:  15  16 I have the honour herewith to state [page  17 1] that nearly all the [Kitsun] and Hagwilget  18 Indians are in; many of both in winter camps.  19 These camps are resorted to for reasons of  20 shelter in the timber, and their ready access  21 to firewood.  22 The custom of living therein --  23  24 And there is a word I can't make out.  25  26 -- is not as prevalent of late years than  27 formerly, and is becoming almost obsolete  28 amongst the [Kitsuns].  29 The majority of the latter are out  30 whip-sawing and getting out timber.  In those  31 instances the men are accompanied by their  32 families, and under those circumstances the  33 more idly keeping season --  34  35 Which is -- was the feasting season I think he was  36 referring to.  37  38 -- has formerly become varied by work of  39 healthy exercise, combined with hunting when  40 conditions for the latter are best suited.  41  42 And then he reports going again to Dam-Olp, O-L-P,  43 the Hagwilget winter camp, and he refers to hunting.  44 And in the last line:  45  46 ...trapping-ground disputes at the upper and  47 lower camps, five miles apart. 22594  Opening by Mr. Macaulay  1 He reports:  2  3 Since occupation of the camps from about  4 the 21st of the month, the Indians of both  5 camps, fifty-eight in all, had killed only six  6 caribou.  7  8 The caribou, to be assumed, were disappearing.  He  9 records later on deer appearing.  That was a report  10 made in 1907, actually, that he starts reporting deer.  11 It would take too long to read all the interesting  12 portions of all the reports, and I don't intend to in  13 my opening, my lord, and I may or may not get an  14 opportunity to go back to this in argument.  I do want  15 to say, though, that the later reports show a number  16 of interesting things.  By the way, Mr. Loring got a  17 typewriter in 1904, which is a blessing to us all.  18 And even so, the microfilm in a few cases produces a  19 disappointing result.  20 The building of new houses and barns is a feature  21 of almost every report after the turning -- turn of  22 the century.  I can just give some dates.  The monthly  23 reports for August 1904 and October 1905 and December  24 1905.  Perhaps we should look at 1905, December 1905.  25 We finally got them -- put these volumes into  26 their final form last night, so I haven't got as  27 convenient a reference as I would like to have to the  28 actual volumes.  But I see 1905, I was looking for  29 December 1905, it would be in volume 4.  30 THE COURT:  I don't have — I only have volumes 1 and 2 at the  31 moment.  32 MR. MACAULAY:  Could I hand up volume 4 now.  And I'll hand up  33 the others as I refer to them.  It's at tab 116.  34 THE COURT:  That would be two or 316 I think, wouldn't it?  35 We've got into -- we got into the 200 series.  3 6    MR. MACAULAY:  216.  You are right, my lord, 216.  37 This is a typed report, and on the first page he  38 says:  39  40 It is gratifying to note the general  41 progress developing amongst the Indians from  42 year to year.  On the locations in severalty,  43 the condition is especially marked.  Though, to  44 begin with, the Indians were very partial to  45 favour the small cabin, they are now vying with  46 each other, who can erect the roomiest of  47 houses. 22595  Opening by Mr. Macaulay  1  2 And then a little farther down, he refers to the  3 particularly important role that women played in that.  4 Over the page too, he refers to the schools, and  5 he refers in almost every report to the schools.  And  6 I'll -- from the turn of the century on.  He just --  7 in that case, towards the top of page 2, he says:  8  9 The schools of this district are doing well.  10 That of Glen Vowell is the best attended and  11 the farthest advanced.  12  13 And he reports visiting the Hazelton Indian day school  14 as well.  15 The question of building new homes gave them  16 particular satisfaction, but of course it changed the  17 life of the Gitksan in the profoundest way.  The  18 difference between the social system that would be  19 well adapted to life in the long-house was a very  20 different thing than the system in the single-family  21 dwelling that the Indians were now rapidly adopting.  22 On the 31st of May, 1907, he reported — that  23 would be in volume 4 at tab 242, he reports -- and  24 this is reported often in other reports -- at the  25 middle of the first page:  26  27 On the old villages, continued efforts have  2 8 thus far been rewarded by the removal of many  29 of the unsightly shacks, sorely out of the  30 perpendicular, dankish of surroundings and most  31 dangerous in creating an uncontrollable  32 conflagration on the occurrence of a fire.  33  34 He used the pejorative word for the old lodges and  35 he seemed to refer to them as "shacks".  Interestingly  36 enough, in the same page he reports, as still was the  37 case:  38  39 Many of the Indians, north of here, came in  40 to trade, and the results of the fur catch  41 proved very good, which likewise generally  42 obtains.  The prices of fur, especially such of  43 marten, are very high.  Only the pelts of bear  44 seem very low.  45  46 He records the prices of furs.  The most  47 astonishing rise occurs in 1917 and 1918 when he 22596  Opening by Mr. Macaulay  1 records over 300 percent rise in the price of furs.  2 And then at the bottom of the page, of course, he  3 notes that:  4  5 A good number of the younger Indians are  6 yet employed on the Grand Trunk Pacific railway  7 survey.  Since the surveyors thereof have  8 passed here and gone into the Bulkley valley,  9 lesser of the Kitsuns and more of the  10 Hagwilgets are being employed thereon.  11  12 You will note, my lord, that in the middle of the  13 second page, he says:  14  15 On the 25th instant, I repaired to the Ksun  16 and Upper Ksun canyon fisheries, and returned  17 to my office on the 30th.  18  19 There is the spelling that he gives it at that time.  20 By that time, I don't recall whether after he started  21 typing, he is spelling it any other way.  Because he  22 was in Ksun at least once a year, with maybe one  23 exception, sometimes twice a year.  24 The decline -- not decline.  His description of  25 hunting and trapping in these records is -- emphasizes  26 that the hunting and trapping was being done by the  27 Hagwilgets and by the northern villages, that's Kuldoe  28 and Kisgegas.  And he does mention that some of the  29 older Indians from elsewhere went trapping as well.  30 He keeps on mentioning the habit of going into winter  31 quarters but in -- after the turn of the century it  32 was only the older people who were doing that.  He  33 mentions that in December 1904 and November 1905 and  34 January 1907 and December 1907 and January 1908, for  35 instance, in a five-year period.  36 An interesting observation he made in 1904 and '05  37 had to do with the changing status of women, and he  38 mentions that frequently enough.  It's December 1904,  39 it is in volume 3, and if I may hand up volume 3, it  40 would be tab 198.  41 THE COURT:  198?  42 MR. MACAULAY:  Yes, my lord.  43 It's on page 2 that he mentioned something about  44 women that attracted my attention.  He says at first:  45  46 The [Hagwilget] are also gradually falling  47 into the wake of other channels, but, of 22597  Opening by Mr. Macaulay  1 course, in a slower degree.  But be it said of  2 both tribes, that in comparison with former  3 ways and usages, now it is exceedingly rare to  4 find a woman engaged in the packing of freight.  5 And when such occurs, the act is sure to abate  6 by the well-applied ridicule, the impropriety  7 deserves.  8  9 There had been -- and I think it's already in  10 evidence -- evidence earlier that on the grease trail,  11 oolichan time, that it was -- that women were the  12 chief packers of the boxes of oolichan grease on the  13 trail.  14 On the first page of that same report, he makes  15 the usual observation about the whip-sawing of lumber  16 and getting out cord wood and taking freight into the  17 interior, and fishing through the ice.  And he  18 mentions again, and I quote him:  19  20 Many of the old people have gone into  21 winter-camps.  These are resorted to for  22 shelter in the timber where there is fire-wood  23 ready at hand.  Formally this custom, of living  24 through the winter, had been more general, but  25 is being practiced of much lesser degree as  26 years go by.  27  28 In December 1905, and that would be in volume 4.  2 9 THE COURT:  What tab number?  3 0 MR. MACAULAY:  I am looking for it, my lord.  31 MR. GRANT:  Which volume?  32 MR. MACAULAY:  1905, it's tab 216 again.  I've already referred  33 to it.  34 THE COURT:  What was it?  In the bottom paragraph on the first  35 page?  3 6 MR. MACAULAY:  Yes, my lord.  37 THE COURT:  Yes.  38 MR. MACAULAY:  Other references to schools, my lord, are the  39 monthly reports for November 1905, December 1905,  40 January 1908, but those just happen to be in a  41 selection of -- five-year selection, that I went  42 through recently.  43 And increasingly, since 1906 on through -- right  44 up to 1911 and 1912, the very central position of the  45 railway, or railway construction as the employer of  46 Gitksan and of Wet'suwet'en is a feature.  47 And after the -- as you get on into the war years, 2259?  Opening by Mr. Macaulay  1 after the railroad was completed, there was a great  2 demand for the Gitksan particularly in -- as the road  3 crew.  It wasn't so much the problem of snow as of  4 rock slides, and because of their -- and he -- and  5 Loring stresses this over and over again, how hard  6 working they were, and obviously, how fit they were.  7 The young Gitksan were particularly sought after for  8 those and other jobs.  9 And then towards the end of this period, he  10 remarks -- and apparently it came as a surprise to  11 him.  It was, I think, in 1917 or 1918, the Hudson's  12 Bay Company store burnt down and it was rebuilt by  13 Indians, and that may be the one that we see today.  14 And he goes on at some length about their skill as  15 carpenters, which came as a great surprise to --  16 apparently to local people.  17 There are interesting notes about a diet that  18 must have disappeared in April -- I'm sorry, August  19 1905.  He mentions -- and this is one of his comments  20 about the Wet'suwet'en, he reports that they were  21 smoking marmot.  That's something we hadn't heard of  22 in evidence before.  23 He records, of course, the foundation of Glen  24 Vowell arising out of the religious confrontations  25 that continued in Kispiox.  He mentions also the  26 founding of Andimaul.  And he reports that -- without  27 anybody having realized it and without any land having  28 been set aside, 75 houses were taken down and  29 re-erected at Andimaul in a comparatively short time.  30 I'll give you the reference to the Andimaul.  31 That's the report of November 3rd, 1905.  So that  32 would be in volume 4, I guess, tab 212.  I'm sorry, my  33 lord, that's not the one.  I can find that and I will.  34 And later, perhaps, I could give your lordship the  35 citation -- oh, November the 3rd -- sorry.  3 6    MR. GRANT:  Tab 211.  37 MR. MACAULAY:  Tab 211.  This is a special report.  It's not a  38 monthly report.  It says:  "Regarding the  39 foregoing" -- this is to do with a dispute between the  40 Kitsegukla and Kitwanga bands over the fishery at  41 Andimaul.  It says:  42  43 Regarding the foregoing I beg leave to  44 state that I am aware that the locality  45 referred to is not reserve and was not promised  46 to be allotted either, at least not in so far  47 as I am aware of; and further would mention 22599  Opening by Mr. Macaulay  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  that any argument to the right of Andimaul  proves in favour of Kitsegukla rather than  Kitwanga.  But, be that as it may, I have  forbidden anyone of moving there unless it  became reserved.  Also appointed constables for  carrying out the purpose.  At any time when the  latter were not at home, and I happened to be  on a prolonged trip, houses were taken apart at  Kitsegukla and rafted down to Andimaul.  The  proceeding continued under I know not what evil  prompting.  Thus by degrees a population of 75,  all told, accumulated there, inclusive of some  from [Kitwancool].  In summer they disappear by  going to the coast; and to remove them, with  their families, during winter would prove a  cruel measure, especially where no means can be  contrived towards assisting them to go back.  That is the beginning of Andima  Kitsegukla to Andimaul.  THE COURT:  I must say, I thought Andimau  MR. MACAULAY:  Across the river.  THE COURT:  From?  MR. MACAULAY:  From Kitsegukla.  THE COURT:  From Kitsegukla.  MR. GRANT:  Andimaul is down  upstream --  THE COURT:  Yes.  MR. GRANT:  — of Kitsegukla.  THE COURT:  All right.  MR. GRANT:  And that was — Carnaby is al  Kitsegukla.  THE COURT:  Right.  MR. GRANT:  And Andimaul is downstream.  between Kitsegukla and Kitwanga  THE COURT:  I thought Olive Johnson descr  other side of the river between  but I may be wrong.  MR. GRANT:  That's right.  If you are goi  it would be opposite, the oppos  THE COURT:  Yes.  MR. GRANT:  Between Kitsegukla and Kitwan  THE COURT:  All right.  MR. MACAULAY:  The Gunanoot affair, which  earlier, prompted a special rep  It's at tab 227, my lord.  Actu  it's dated July 9th, it's the r  ul, the move from  1 was between --  there is Carnaby that is  so known as New  It's the one -- it's  ibed it as being on the  Kispiox and Hazelton,  ng on the highway side,  ite bank of the river.  ga.  I had mentioned  ort in July of 1906.  ally, it is, although  eport for June and they 22600  Opening by Mr. Macaulay  1 refer to the killing of Mcintosh and Le Claire.  That  2 story is well known.  The -- but it's page 2 that I  3 want to draw your lordship's attention to.  4 In the middle of the page where the -- Loring  5 says:  6  7 All the Indians abhor the occurrence and  8 console themselves with the thought that the  9 murderers are of the so called Stick variety.  10 These are the first instances of the kind  11 transpiring in the district for over eighteen  12 years.  13 Which I think is a significant comment.  Significant  14 and, I expect, accurate comment.  15 Any time there was any unusual death, Loring  16 reported it.  If there was a report that somebody had  17 been -- died by foul play, he made an investigation.  18 And when he was satisfied that it wasn't foul play,  19 then he reported that.  If somebody was seriously  20 injured or drowned in the river, he tended to report  21 it when he heard it.  22 THE COURT:  What is this on the second page, the first line in  23 the second paragraph of the supposed murderers.  24 Simon, what is that name?  Is that an H?  25 MR. MACAULAY:  It's N-A-G-H-A-N.  That was Gunanoot's name, my  26 lord, as I understand.  27 THE COURT:  All right.  Thank you.  28 MR. MACAULAY:  And there is a reference to Mr. Hymadam too.  29 On the 30th of March, 1907, which is in the same  30 volume, at 239, the very last paragraph on the second  31 page, refers to the same thing he says requesting the  32 matter referred to -- first he gives an account  33 farther up the page of the attempt he made to get Mr.  34 Gunanoot to come in and give himself up by three  35 knocks on the back door at midnight, but that didn't  36 work.  And he says at the bottom:  37  38 The matter referred to, I am strenuously  39 endeavouring by all means to have disposed of,  40 since it forms the only blot upon the district  41 in so far as the Indians thereof can be  42 connected in these many years of the past.  43  44 Land claims are referred to in 1908, on May 4th  45 and again on November 30th.  But I think those are  46 both exhibits proven by other witnesses.  That's the  47 Joe Kapelano affair. 22601  Opening by Mr. Macaulay  1 The -- there isn't anything of any considerable  2 significance that seems to have escaped Mr. Loring's  3 attention.  At one point -- and I'll find that  4 reference again, because I can't find my note of it  5 just now.  This is well on into the 20th century,  6 perhaps after 1910, he reports, of course, this  7 enormous opportunity for employment, and the Indians'  8 preference for that employment to agriculture.  There  9 is one reference to the preference of the Indians for  10 wages, on the 30th of November, 1904.  But he says at  11 one point that the -- what we call now the food  12 fishery, had decreased by -- he estimated 80 percent.  13 MR. GRANT:  Does my friend have a year when that --  14 MR. MACAULAY:  I'll get the reference and I'll inform your  15 lordship and my friend of the date and tab number.  16 And he describes also in the latter years the  17 commencement of the withdrawal from Kisgegas and  18 Kuldoe.  It didn't -- the momentum was just a  19 gathering.  When he arrived, Kisgegas was the largest  20 Gitksan village, and the annual reports which gives  21 the actual -- give the actual populations show that.  22 His annual reports stopped being printed in detail  23 around 1910.  But although Hazelton -- Gitanmaax  24 became the largest village, it wasn't by that much  25 while we have those ready statistics.  And the reason  26 must have been because of the great fisheries that  27 were there.  Some commission evidence that was taken  28 of another Indian agent, Mr. Boys, shows that Kisgegas  29 was abandoned by the time he took office in 1946, and  30 so was Kuldoe.  31 Now, I should refer now to some other -- some of  32 the other evidence, other than this very important  33 evidence, in my submission, of Loring.  We will be  34 introducing in evidence a series of four maps.  They  35 are maps of the federal presence.  The most important  36 of them, the maps of the -- of the Indian reserves,  37 and we will show in evidence that the reserves are for  38 a number of bands around Bear Lake, there are several  39 reserves for the Takla Lake Band.  Those are not  40 plaintiffs.  In the south end of the extreme southeast  41 end of the claim area, there is the Stilako  42 (phonetics) reserve.  And in the southern area there  43 are a number of Cheslatta reserves, and they are not  44 plaintiffs by and large.  There are a number of Neh  45 tah bun reserves.  And the Neh tah bun are by and  46 large not plaintiffs, although there are exceptions.  47 Some of them turn up on the genealogies. 22602  Opening by Mr. Macaulay  1 There are Lake Babine reserves and they are not  2 plaintiffs.  There are Burns Lake reserves -- there is  3 a Burns Lake reserve.  I think there is only one.  4 There may be more.  They are not -- it's a small band  5 although an influential one, and they are not  6 plaintiffs.  There is the Broman Lake Band, there are  7 reserves for them, and they are not plaintiffs.  There  8 is one reserve on the west side -- west side for the  9 Kitselas Band.  They are Tsimshians, of course.  10 Because of the time I've taken in my opening, I am  11 not going to recite all the documents dealing with the  12 proof of those maps.  Those -- the documents that were  13 chosen were chosen by our map maker, Mr. McKinnon, who  14 considered that he needed all that material, and there  15 is an awful lot of it, in order to justify the drawing  16 of the map that he produced.  17 Another map is the map showing railways, and  18 again, there are enormous numbers of binders of Land  19 Title Office documents, certificates of title, there  20 are roll plans, there are Crown grants, there is  21 everything a conveyance could -- that could possibly  22 dream up.  23 They cover the interests of the Grand Trunk  24 Pacific Railway which still lives, and of the CNR to a  25 strip about 220 miles long through the claim area.  I  26 mean just in the claim area alone, 220 miles.  Now,  27 that isn't Federal Crown land, it is land used by the  2 8 railway for which the federal government has a  29 responsibility, and we deemed it appropriate to map  30 it, to show the federal presence in that regard.  31 Of course, the reserve land is Federal Crown  32 land.  And there is another map -- well, there are two  33 maps, really, they are numbered 31-A and 31-B  34 respectively.  They show the federal presence in other  35 respects, other than railways and reserves, as of  36 October 23rd, 1984, the date on which the writ -- this  37 action was started, and April 17th, 1982, the date the  38 relevant -- the construing of Section 35 of the  39 Constitution Act of 1982.  They are very much the  40 same.  There is not much difference.  41 The main properties are the airports, and we have  42 a little book of documents showing their origin.  43 Little binder of documents.  They were taken in war  44 time for RCAF Stations.  They were a part of the link  45 provided for transportation towards the defences on  46 the Westcoast.  They were established in 1942 and they  47 were manned until the end of the war.  After the war, 22603  Opening by Mr. Macaulay  1 the one of them, Woodcock, became what I think is  2 called an emergency landing field.  There is a  3 photograph of it in evidence.  It's a gravel strip not  4 that far from Kitwanga and Kitsegukla.  The other one  5 your lordship has seen many times.  6 We have a large collection of documents relating  7 to that, including the air zoning.  There are special  8 building regulations of various kind.  You can't build  9 silos at the end of the runway and that kind of thing.  10 That, in a general way, is a description of the  11 federal mapping project.  12 There is another set of documents, the ONC  13 documents.  That means Office of Native Claims.  They  14 deal with the comprehensive claims in British Columbia  15 and various tribal councils, and in some cases, band  16 councils have made claims from time to time and they  17 have been -- already been the subject of some evidence  18 led by the province.  We are -- we were going to  19 produce a map of it, but somebody else did, so we  20 don't have to.  But we have the documents.  They are,  21 of course, in our possession and we have a custodial  22 affidavit of Shirley La Douceur, who is the secretary  23 at the office of the ONC.  One of the documents is  24 interesting:  It's the Kitwanga Band Council  25 comprehensive claim which was filed in 1978.  Since  26 then, as I understand it -- I don't know if it's been  27 withdrawn or not, but it was filed then.  28 The -- I mentioned Mr. Boys.  29 THE COURT:  You are going on to something new?  Shall we take  30 the afternoon adjournment?  31 MR. MACAULAY:  Yes.  Describing the witnesses in the documents,  32 my lord.  33 THE COURT:  Yes.  We will take the afternoon adjournment.  Thank  34 you.  35 THE REGISTRAR:  Order in court.  Court stands adjourned for an  36 afternoon recess.  37  3 8 (PROCEEDINGS ADJOURNED AT 3:00 P.M.)  39  40  41  42  43  44  45  46  47 22604  Opening by Mr. Macaulay  1  2 I hereby certify the foregoing to be  3 a true and accurate transcript of the  4 proceedings herein transcribed to the  5 best of my skill and ability.  6  7  8  9  10    11 Toni Kerekes, O.R.  12 United Reporting Service Ltd.  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 22605  Opening by Mr. Macaulay  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  Yes, my lord.  I was about to deal with some of  5 the evidence that we led.  We have taken the  6 commission evidence of Mr. Jeffrey Vincent Boys.  7 That's J-e-f-f-r-e-y.  And his last named is spelled  8 B-o-y-s.  Mr. Boys is an elderly gentleman who was the  9 Indian agent at Hazelton from 1946 to 1951.  He was  10 later Indian Commissioner for British Columbia from  11 1961 to 1969.  And in his commission evidence --  12 THE COURT:  I am sorry, years when he was Indian agent was 1946  13 to — ?  14 MR. MACAULAY:  '51.  15 THE COURT:  '51.  Yes.  And then?  16 MR. MACAULAY:  He was the Indian Commissioner for all of British  17 Columbia.  That was from 1961 to 1969.  18 THE COURT:  Yes.  19 MR. MACAULAY:  He describes in his commission evidence his  20 duties as the Indian agent and his dealings with the  21 predecessors of the plaintiffs, with particular  22 reference to the administration of estates under the  23 Indian Act and his responsibilities regarding the  24 registration of traplines on behalf of Indians and the  25 then D.I.A., a policy of preserving Indian traplines.  26 He addresses the situation where there was a conflict  27 between traditional rights under the crest system and  28 rights given by the Indian Act in regard to estates  29 and devolution of estates.  He said that the Indian  30 Act requirements where he had to observe in the cases  31 of those conflicts, he identified important documents  32 and a sample of -- sample of the estate files and he  33 identified a typical or sample trapline file  34 maintained by the Hazelton D.I.A. office in his time.  35 He gave evidence about the kind of employment held by  36 Indians in his agency.  He mentioned the importance of  37 the coastal commercial fishery for the Gitksan and of  38 logging for the Wet'suwet'en.  He testified about the  39 introduction of the family allowance legislation and  40 the resulting growth in school attendance, which in  41 turn affected the traditional family trapping group.  42 And he gave evidence that in his time no totem poles  43 were raised in his bailiwick.  He gave evidence that  44 members of the Kisgegas band had ceased by then to  45 live in that village and that the band itself was  46 amalgamated with the Hazelton band.  And finally, he  47 described his responsibilities as the Indian 22606  Opening by Mr. Macaulay  1 Commissioner for British Columbia, and the duties of  2 the agents and others reporting to him.  3 I don't propose to put the transcript of that  4 commission evidence in.  The reason is this:  There  5 was the cross-examination by my friends as counsel for  6 the plaintiffs, but there was also a cross-examination  7 by counsel for the Attorney General -- for Her Majesty  8 the Queen in right of British Columbia, and there is  9 objection to the admission in evidence of that latter  10 cross-examination.  That will be a matter that Mr.  11 Grant will want to make submissions about and also I  12 expect Mr. Plant.  The — I dealt with the O.N.C.  13 documents.  14 MR. GRANT:  That would apply as well to the commission of Mr.  15 Giraud my friend referred to, the same.  16 MR. MACAULAY:  I will come to that now.  17 MR. GRANT:  Oh, I'm sorry.  18 MR. MACAULAY:  The fisheries —  19 THE COURT:  I am not sure I understood your position, Mr.  20 Macaulay.  You are saying you are not going to put it  21 in or you are not going to put it in just now?  22 MR. MACAULAY:  Just now.  23 THE COURT:  Yes.  Thank you.  24 MR. MACAULAY:  Oh, yes, we are going to put it in.  25 THE COURT:  I assumed so when you told me that was in it, but  26 you said you weren't going to put it in because there  27 was this problem.  28 MR. MACAULAY:  No, no.  The only difficulty with regard to the  29 Province is cross-examination.  30 THE COURT:  Yes.  All right.  31 MR. MACAULAY:  We will be calling another Indian agent and  32 perhaps I should deal with him before I come to the  33 fisheries -- fisheries evidence.  That is a Mr. Ray  34 Mclntyre.  Mr. Mclntyre had a long career with D.I.A.  35 from 1956 to 1982.  That year he went on to join  36 D.R.I.E., the Department of Regional Industrial  37 Expansion, or some such name, known under various  38 names and continues to the present time.  He is still  39 with that latter department.  He worked as an officer  40 of the special ARTA program since 1982 and in that  41 capacity he dealt with the many plaintiffs in  42 connection with their applications for grants in aid  43 of -- in connection with their traplines.  He will  44 describe his duties as superintendent of the Burns  45 Lake agency.  By this time the Indian agent was being  46 called a superintendent, but it was the same job, that  47 is in the late '60s he was at Burns Lake. 22607  Opening by Mr. Macaulay  1 Now, Burns Lake covered the southern part of the  2 claim area, south of the Jean Baptiste Indian reserve,  3 not including that Indian reserve, but including areas  4 like Burns Lake and the surrounding area.  Also he had  5 under his charge Lake Babine and other areas that are  6 not in the claim area.  He had the Burns Lake band and  7 the Cheslatta band and the Lake Babine band and  8 various other bands in his area.  At that time in his  9 time what's now known as the Kneehabun (phonetic) band  10 and the Broman Lake band were all called the Omineca  11 band.  They were together then.  He'll give  12 evidence -- he will be referring to his reports.  I  13 should say that it wasn't a common practice for Indian  14 agents in the latter part of the twentieth century or  15 after 1920 to make these regular reports that Loring  16 made.  But Mr. Mclntyre did for some years make  17 semi-annual reports, and we will prove those reports  18 through him and they will give a very good idea of  19 what was going on in the -- in that agency including  20 the band council meetings and the administration of  21 estates and so on.  He will give evidence about  22 particular estates that he had a particular -- he  23 himself dealt with, two in particular.  Two samples I  24 should say.  They are just two types of estates.  He  25 will give evidence about the traplines in the southern  26 claim area and he will also give evidence about his  27 dealings with traplines when he was working later in  28 the Prince George D.I.A. office in a sort of  29 supervisory role regarding, amongst other things,  30 traplines.  And then the special ARTA program in which  31 he has been engaged in the last few years.  That's Mr.  32 Mclntyre.  And that will complete the Indian agent  33 type evidence.  34 There are -- there are reports, but they are by no  35 means as complete as the Loring report, they are  36 nothing as complete as the Loring report, of other  37 agents and we will put in evidence as part of our  38 historical material some of those to the extent that  39 they may seem important and relevant to the issues.  40 Now to the fisheries evidence.  We will be calling  41 some fisheries officers starting today, if I manage to  42 end before the day is out, with an officer stationed  43 at Smithers, and then an officer stationed at  44 Hazelton, both for the -- I'm talking about Mr.  45 Turnbull and Mr. Woloshyn, Terry Turnbull and Peter  46 Woloshyn.  Mr. Turnbull is stationed at Smithers, Mr.  47 Woloshyn at Hazelton, each for ten years. 2260?  Opening by Mr. Macaulay  1 We had taken commission evidence of Victor Giraud,  2 who is in very precarious health, and declining.  He  3 could not have given evidence at trial, which is too  4 bad, because he was a fisheries officer in the claim  5 area for 23 years, from 1947 to 1960.  And similarly  6 his evidence will not be tendered.  His commission  7 evidence will not be tendered as an exhibit just now  8 for the same reason as Mr. Boys, and that is that  9 there was a Provincial cross-examination in that case  10 too.  The fisheries evidence will be limited -- our  11 jurisdiction in that regard is not -- is not  12 challenged.  But it's part of the -- what in the law  13 of evidence you might call the res gestae.  It's very  14 much part of the circumstances in which the Indian  15 society finds itself and has found itself for most of  16 the twentieth century.  17 We -- there will be evidence as to where fishing  18 took place, that's Indian food fishing took place, in  19 a general way, and how many were involved.  There is a  20 series of fisheries reports, too.  Oh, I might say  21 that the fisheries officers will give evidence about  22 fisheries regulation in the past, that is, when it was  23 done in the past, up to 1984, and also where sports  24 fishing takes place in the claim area.  The  25 fisheries -- the fisheries document collection, it's  26 approximately 155 documents.  They are mostly annual  27 reports, although there are a few concerning  28 individual events.  The first report in this  29 collection is the report of the inspector of  30 fisheries, the year 1976 -- 1876, I am sorry, and the  31 last two are the annual narrative reports for 1983/84  32 for the Babine and -- Babine/Morice subdistrict and  33 for the Hazelton subdistrict.  Beginning in 1905, the  34 collection includes reports of both Dominion and  35 Provincial fisheries inspectors.  And that starts with  36 the reports of Mr. Helgason, who was the first  37 fisheries officer on the spot in 1904.  The report  38 shows that the Fisheries Act was extended to B.C. in  39 1876.  And then in 1904 the department of fisheries  40 extended its regulatory and its enforcement  41 jurisdiction into the claim area.  That's when  42 Helgason appeared.  And to deal with an incident  43 sometimes called the Babine Lake barricades incident.  44 These documents do have a bearing on the location of  45 fishing and fishing activity.  The reports will show,  46 for instance, that food fishing activity at the  47 headwaters of the Skeena and the Damdachack (phonetic) 22609  Opening by Mr. Macaulay  1 and Slamgeesh systems ended in the 1920s.  That's in  2 the north.  And the reports also show that in the case  3 of Bear Lake, it's the Takla Lake band that fishes  4 there in the Bear Lake and the Bear River.  Indian  5 fishing methods have dealt with in the reports  6 starting with a description of barricades and traps  7 which had been prohibited by 1905.  The report show  8 that the Gitksan started using set nets and drift nets  9 instead of traditional fishing technologies like gaffs  10 and dip nets, about that time.  The reports of the  11 late nineteenth century show the upper Skeena -- Upper  12 Skeena, that means the Gitksan Indians began  13 participating in the coastal commercial fishery during  14 the last 12 years or so of the nineteenth century.  15 And reports since 1948 include quite detailed material  16 about the effects of the economic development of the  17 claim area.  For instance, in the Babine/Morice  18 subdistrict reports of the 1950s, there is mention of  19 a booming forest industry employing many Indians as  20 well as others.  And the reports chronicle the very  21 considerable increase in beaver damming on salmon  22 streams which is from the fisheries point of view a  23 very bad thing.  It blocks the spawning channels and  24 the fish can't get up above the dams.  25 We will be leading evidence from Mr. Rodney  26 Palmer.  He is a retired and former officer of the  27 Department of Fisheries and Oceans.  He is a fisheries  28 biologist with a considerable amount of experience in  29 actual management at a senior level.  He will -- his  30 report has been in the hands of my friends for over  31 two years.  It's much smaller than the original  32 report, because when the report was drawn, it was not  33 clear just to what extent the jurisdiction of the --  34 of Canada was being challenged in regard to fisheries.  35 After that had been determined it was possible to  36 shrink the report to a much smaller and more  37 convenient size.  It covers still, though, the history  38 of the regulation of the Indian food fishery and  39 Indian participation in the commercial fishery.  40 My lord, I think I've covered, and I hope I  41 haven't missed any of the series of reports.  I have  42 mentioned earlier the supplements to the historical  43 material that will be put in evidence and that it will  44 have a bearing particularly on the native social  45 structure then and now and the changes and the impact  4 6 of European settlement and the changing economy. And  47 it will be the basis for submissions on a variety of 22610  Opening by Mr. Macaulay  1 things, of topics, when we get to argument.  I hadn't  2 said much about missionaries, but our material will  3 cover that and we will be making submissions about  4 missionaries and their effect and we will be  5 submitting that the missionaries were really the  6 authors of the -- originators, rather, of the idea of  7 the comprehensive claim sounding very much like the  8 ownership and jurisdiction claim being made today, in  9 addition to the other effects that your lordship has  10 heard about.  11 The -- I want to say a word, and only a word,  12 about -- a very brief word about the so-called  13 counterclaim.  It's really -- I made reference to the  14 fact that no claim is made against us on the  15 pleadings, but we are aware that the Province is  16 trying to construe historical material in such a  17 fashion that it will escape any liability for any  18 finding that your lordship may have to make.  They  19 base their case apparently -- I speak -- I have to be  20 careful what I say, because I haven't heard their  21 argument, but I know enough about it, I think, now to  22 say that it centres on their modern or current  23 interpretation of the meaning and scope of the terms  24 of union.  All the evidence that your lordship will be  25 invited to consider is already in evidence.  It's all  26 historical material.  And it's interesting the Federal  27 Government, the same -- the same negotiator for the  28 Federal Government dealt with British Columbia with  29 the Imperial government at the same time, as your  30 lordship knows, concerning Rupert's Land and  31 concerning British Columbia.  Cartier was well aware  32 of aboriginal rights and dealt specifically with them  33 and in the case of Rupert's Land, of course, assumed  34 certain obligations.  The circumstances were that it  35 was Canada and not any Province that was taking over  36 the Crown lands and there the Crown lands remained  37 Federal Crown lands, I think, until the 1930s when  38 they were transferred to the New Provinces of  39 Saskatchewan and Alberta.  That wasn't the case with  40 the Colony of British Columbia.  It was always a term  41 of the proposed deal and became a term of the union  42 that British Columbia would take the title to the  43 unoccupied Crown lands, all lands and the  44 constitutional provision, the statutory provision  45 regarding the Provincial Crown's title to those lands  46 need not bear repeating.  They are -- it's trite law.  47 We will be submitting that Section 13 of the terms 22611  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  1 of union, that is the section dealing with Indians,  2 dealt with only one situation and that is the  3 continued process of creating reserves, an obligation  4 that the Province had undertaken in colonial times,  5 the colonial government had undertaken.  The new deal  6 required both levels of government to undertake the  7 completion of the setting aside of reserves and that  8 process wasn't completed until 1938, at which time  9 Canada agreed that British Columbia had done all it  10 was required to do under the terms of union.  None of  11 that touched on aboriginal rights and its affects and  12 the burden of those aboriginal rights will be perhaps  13 a matter to look at after your lordship has decided  14 the important issues, the primary issues concerning  15 what are they and where are they and who owns them and  16 are they extinguished and if not what is the status  17 now and who should attend to it.  My lord, we have a  18 few more minutes and I think that it will be -- I  19 suggest we start with our first witness.  20 THE COURT:  Certainly.  21 MR. MACAULAY:  So that we can — and then perhaps  22 cross-examination by Mr. Grant can be undertaken  23 tomorrow.  Miss Koenigsberg will lead the first  24 witness.  25 THE COURT:  Mr. Macaulay, I said yesterday, and no doubt you  26 have been informed, that I will leave it to you to let  27 me know if you think the timing is such that we should  28 sit on Saturday.  2 9 MR. MACAULAY:  Yes, my lord.  3 0 THE COURT:  Thank you.  31 MR. MACAULAY:  We will be able to tell that probably by  32 tomorrow.  33 THE COURT:  Well, whenever it's convenient.  Thank you.  Miss  34 Koenigsberg.  35 MS. KOENIGSBERG:  First witness is Mr. Terry Turnbull, fisheries  36 officer.  37 THE REGISTRAR:  Will you come forward, please, sir, and stand in  38 the witness box.  39  40 TERRENCE DONALD TURNBULL, a witness  41 called on behalf of the Defendant  42 Canada, having first been duly sworn  43 testified as follows:  44  45 THE REGISTRAR:  Would you state your full name and spell your  46 last name, please, sir?  47 A   Terrence Donald Turnbull.  Turnbull. 22612  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  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  THE REGISTRAR:  Thank you, sir.  KOENIGSBERG:  are a fisheries officer?  EXAMINATION IN CHIEF BY MS.  Q   Mr. Turnbull, you  A   Yes, I am.  Q   And you were the fisheries officer in charge of the  office in the Smithers subdivision, or subdistrict,  sorry?  A   Yes.  Q   The province, if you will, is divided into districts  and subdistricts for fisheries administration  purposes?  A   Yes.  Q   And Smithers is one of the subdistricts?  A   That's correct.  Q   How long have you been a fisheries officer in  Smithers?  A   Since 1979.  Q   And you were a fisheries officer with the department  before you went to Smithers?  A   Yes.  Q   For how long?  A   Since 1971.  Q   Could you describe what the Smithers subdistrict  includes for fisheries administration?  A   Geographically?  Q   Yes, please.  A   It includes the drainage of the Nannakit (phonetic),  Price, Morice, Bulkley system.  THE COURT:  Just a moment.  I got three there Nannakit, Price,  Bulkley?  A   The Morice Bulkley system.  THE COURT:  Morice, yes.  A   That portion of the Babine River drainage above  Kitsegas and the Skeena drainage above the Babine  River including the major systems, the Sustut and Bear  Lake.  MS. KOENIGSBERG:  Q   And is Slamgeesh included in the Sustut area or is  that —  A   Slamgeesh is a tributary of the Upper Skeena and  included in our subdistrict.  Q   And that is included?  A   Yes.  Q   Since approximately 1985 or '86 has your territory or  the area over which you have patroled altered at all,  in particular in relation to the Bulkley? 22613  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  1 A   Yes.  Since 1985 and '86 we include the Village of  2 Moricetown for the Indian food fishery into the  3 Smithers subdistrict business.  4 Q   Okay.  Before that, before 1985, '86, who would have  5 patroled or had jurisdiction over that particular area  6 in the north?  7 A   It was the responsibility of the Hazelton subdistrict.  8 Q   And who is the fishery officer in Hazelton?  9 A   Peter Woloshyn.  10 Q   Now, the districts and the subdistricts that we've  11 talked about are administratively drawn lines, is that  12 correct?  13 A   Yes, that's correct.  14 Q   And do you share or help each other out across those  15 boundaries?  16 A   Yes.  17 Q   So sometimes you might be in what would otherwise be  18 known as the Hazelton subdistrict assisting Mr.  19 Woloshyn with fisheries officer duties?  20 A   Yes.  21 Q   And likewise, he might be in your area?  22 A   Yes.  23 Q   And you might do that with persons who are fisheries  24 officers in adjacent areas to yours other than  25 Hazelton?  26 A   That's correct.  27 Q   Could you describe what the general duties of a  28 fisheries officer are?  29 A  Well, we work in the field of what we call habitat,  30 which is businesses or people who wish to do  31 environmental projects that might affect water quality  32 or cause deleterious effects to fish habitat.  These  33 projects are generally referred to agencies in the  34 Provincial Government and they refer them to us for  35 comments in areas that might affect salmon.  We work  36 on counting fish, spawning fish in the various  37 streams.  We patrol sports fisheries.  We patrol  38 Indian food fisheries.  39 Q   Okay.  And in your patrol and jurisdiction in relation  40 to the Indian food fish fishery, what is it that you  41 are -- what kind of regulations do you enforce or look  42 after?  43 A  We issue licences for Indian food fisheries and there  44 are certain sections of the British Columbia fishery,  45 general regulations regarding Indian food fisheries.  46 MR. GRANT:  Well, my lord, I — I object to the extent, if this  47 witness is going to be doing a summary or synopsis of 22614  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  1 the law, I don't think that's appropriate for --  2 THE COURT:  All he was asked is what regulations do you enforce.  3 MR. GRANT:  I thought that he was getting into a description of  4 the regulating power.  This is certainly what's  5 suggested in the summary, and if that's what my friend  6 is leading into, I would object to it.  7 THE COURT:  I haven't heard that yet.  If we get to that I will  8 keep that objection in mind.  9 MS. KOENIGSBERG:  I certainly wasn't asking the witness to tell  10 us what the law is except to the extent that it's  11 necessary if he enforces a regulation, if he is going  12 to tell us what he's doing just descriptively, he is  13 probably going to have to make reference to that.  14 THE COURT:  Yes.  15 MS. KOENIGSBERG:  16 Q   Would you just describe that?  17 A   In conservation matters we have to judge -- the fish  18 is not fished for conservation and therefore we look  19 at Indian fisheries and other fisheries to determine  20 that we get enough fish in the spawning grounds.  We  21 do enforce the provision where there is no sale of  22 fish in Indian fisheries.  23 THE COURT:  I am sorry, enforce — ?  24 A   The Indian food fish are not allowed to be sold.  We  25 enforce that.  2 6 MS. KOENIGSBERG:  27 Q   Okay.  Do you concern yourself with -- as a fisheries  28 officer with where Indians food fish?  29 A   Yes.  Under the -- under the Fishery Act.  30 Q   Okay.  And do you concern yourself with when Indians  31 food fish?  32 A   Yes.  33 Q   And do you concern yourself with how Indians food  34 fish?  35 A   Yes.  36 Q   And are there regulations or policies under the  37 Fisheries Act which you have reference to to do all of  38 those things?  39 A   Yes.  40 Q   Now, in pursuance of the duties that you have outlined  41 dealing with habitat, or impact on waterways, of  42 businesses, or anything that would impact on the  43 quality of water, concerning yourself with where  44 sports fishing takes place and monitoring that and  45 monitoring the Indian food fishery, do you patrol the  46 districts that you've described or the district areas  47 that you described? 22615  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  1 A   Yes, we patrol the districts.  2 Q   And how do you patrol it, just generally?  3 A  We travel by truck, by boat and by helicopter.  4 Q   All right.  Could you describe briefly the  5 relationship between what you do under the Fisheries  6 Act, which is Federal legislation, and the Provincial  7 jurisdiction?  8 A   The Provincial jurisdiction in fish, they manage fresh  9 water species, such as rainbow trout, steelhead,  10 cutthroat trout and other lake species, and Federal  11 fishery officers participate in the management of  12 salmon.  13 Q   Okay.  And are you authorized or do you act in  14 relation to Provincial legislation?  Do you -- are you  15 constituted a conservation officer?  16 A   Yes, we are made ex-officio fish and wildlife or  17 conservation officers.  18 Q   And you would patrol the area pursuant to that?  19 A   Yes.  20 Q   Okay.  Where in the Smithers subdistrict, where you  21 have particular jurisdiction, is the Indian food  22 fishery permitted under the act?  23 A   Is that since 1985 or —?  24 Q   Well, let's do before 1985.  25 A   Before 1985 there was no Indian food fisheries on the  26 Bulkley/Morice that we issued licences for.  27 Q   Okay.  And after 1985?  28 A  After 1985 we issued licences to Indian fishermen at  29 Moricetown.  30 Q   Yes.  To your knowledge the food fishery at Moricetown  31 was administered before 1985 out of the Hazelton  32 office?  33 A   That's correct.  34 Q   Are there are areas to your knowledge in which Indians  35 in the district that you've described do not fish?  36 A   I am sorry, I don't understand that question.  37 Q   Maybe I will ask it in a different way.  Are there  38 areas either in relation to any of the drainages that  39 you have described as being within your district where  40 to your knowledge Indians do not fish for food?  41 A   Yes, there are areas where Indians don't fish.  42 Q   And is -- and where is that?  43 A  Well, in the upstream of Trout Creek on the Bulkley  44 River.  45 Q   Okay.  And where is Trout Creek?  46 A   Trout Creek is downstream from Smithers and upstream  47 from Moricetown. 22616  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  Submissions by Mr. Grant  1 Q   Is there a policy which you follow or which you  2 understand you are to follow which tells you where  3 Indian food fishing is permitted?  4 A  Well, I inherited a policy, the licence from the  5 Hazelton subdistrict and I followed it.  6 Q   Okay.  I am just going to show you a document.  It's  7 the June '78 document which I sent.  8 MR. GRANT:  My lord, with respect to this particular document,  9 before my friend tenders it, which I anticipate that  10 she will do, it's a document that my friend delivered  11 to me -- it was delivered on November 20.  Yesterday  12 we received this particular document for the first  13 time and it's a document entitled "Policy on Indian  14 Food Fisheries" and it is not -- it is a document that  15 predates this officer's involvement in the Smithers  16 area.  There is no reference at all to this particular  17 author on this.  It is an unlisted document.  I think  18 that he's given the answer that he's followed a policy  19 and that he's issued licences with respect to  20 Moricetown and I think that it need go no further than  21 that.  At this point in time I submit that this  22 document should not be marked as an exhibit.  I do not  23 know why -- this is, as I say, a Federal Fisheries  24 policy.  I don't know why my friends came upon it so  25 late in the day, but whatever the reason, and this is  26 a similar situation that occurred at the time that Mr.  27 Morrell gave evidence and I tendered a document from  28 the Department of Fisheries and Oceans upon which Mr.  29 Morrell relied and which had been cited on his map and  30 disclosed, but had not been listed, and Mr. Goldie  31 objected to it and in that case your lordship -- and I  32 have the transcript reference for you or the  33 transcript for you.  But in that case your lordship  34 found that it was not necessary that the document be  35 put in.  The witness gave the evidence.  And I would  36 object to the admissibility of this document.  I see  37 absolutely no reason why we -- for that reason, for  38 non-disclosure, for the fact that the witness has  39 described the policy and also it goes to the issue of  4 0 relevance.  The Federal Crown has not made any  41 affirmative defences in their pleadings, in no place.  42 The issue of the involvement of Federal policy with  43 respect to fisheries was one that Mr. Morrell's report  44 was excluded precisely because it dealt with that.  It  45 dealt with the issue of Federal management of  46 fisheries.  And in many occasions Mr. Goldie and Mr.  47 Macaulay objected when I tried to lead evidence from 22617  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  Submission by Ms. Koenigsberg  1 Mr. Morrell which they said touched on that turf.  And  2 now my friend at this late stage, after making those  3 objections, is introducing a document which I received  4 for the first time yesterday, which is a policy of the  5 Federal Government, and with all due respect so what?  6 As I believe Mr. Goldie said at that time.  And I  7 would submit that the document should not be admitted  8 into evidence and that there is no need for this  9 witness to go any further with respect to this.  The  10 importance, the relevance of this witness' evidence,  11 and I think this witness, what he's observed, what  12 he's seen and what he can describe about the Indian  13 fishery and I have no objection to that, but does it  14 matter what the policy of the Federal Crown is with  15 respect to the Indian food fishery?  It may well  16 matter in the case of Sparrow that's been argued  17 before the Supreme Court of Canada.  It may well  18 matter in cases between the Indian people and the  19 Federal Crown with respect to the Indian fishery.  20 With all due respect, my lord, you as long ago as  21 February 12, 1988 and again in Mr. Morrell's evidence  22 made it very clear that unless the plaintiffs amended  23 to challenge Federal jurisdiction to the fishery, the  24 issue of Federal policy and Federal management of  25 fishery was not relevant.  And I ask that this  26 document not be admitted or put to the witness.  27 THE COURT:  Miss Koenigsberg?  28 MS. KOENIGSBERG:  Well, I agree with the main thrust of my  29 friend's submissions, but I don't agree with the  30 result.  The main thrust is that the issue of the  31 management of the fishery is not an issue and that we  32 should not be allowed to lead any evidence on it and  33 we don't intend to.  34 THE COURT:  Your friend didn't say that.  He said you shouldn't  35 bother -- you shouldn't descend to such details.  You  36 can describe what he does, what he sees, but there is  37 no reason to become enmeshed in a minutiae of  38 regulations.  39 MS. KOENIGSBERG:  Yes.  And my lord, the difficulty is, of  40 course, you don't know yet, and it hasn't been  41 explained yet, what the purpose of putting this  42 document in is to the witness, but I can tell you that  43 this document has one paragraph in it which explains  44 where -- why Indians are fishing in Moricetown in his  45 district and no place else, from the fisheries' point  46 of view.  And that is the sole purpose of putting it  47 in. 22618  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  Ruling  1 THE COURT:  Does it matter, if the fact is that that's the only  2 place they fish?  3 MS. KOENIGSBERG:  Well, I think it is of assistance.  I think  4 for the particular reason that is set out here and the  5 understanding of this witness' knowledge about where  6 the food fisheries are.  It has some limited  7 usefulness.  It explains why from the fisheries' point  8 of view.  It doesn't prove a lot, but it explains why.  9 THE COURT:  Well, I'm at a disadvantage.  I want to be — I want  10 to be fair and I want to be consistent.  I did  11 preclude Mr. Morrell from giving any evidence about  12 the subjects that are closely related to this.  I must  13 confess that a lot of the nuiances of that evidence  14 and of my ruling are -- have left the room for a  15 moment, but why should -- why should I get into it  16 through this witness when I didn't get into it with  17 Mr. Morrell?  18 MS. KOENIGSBERG:  Well, my lord, I wasn't — I don't know the  19 specific instance that my friend referred to where a  20 document that wasn't disclosed or listed that he tried  21 to put in through Mr. Morrell, why exactly it wasn't  22 allowed in, although my friends advise me that it was  23 on the issue of relevance and if that's --  24 THE COURT:  That's your friend's objection right now too.  25 MS. KOENIGSBERG:  Well, my submission is that if the purpose of  26 this document was to lead evidence with regard to  27 management of the fishery, then I agree with him.  28 That's not the purpose.  There is a policy which  29 simply explains why food fisheries are permitted to be  30 and the basis for that.  It's one paragraph.  And  31 that's the only purpose.  32 MR. GRANT:  Well —  33 THE COURT:  Well, I don't understand what difference it makes  34 what the reason is.  He can tell me where a food  35 fishing is permitted within his district and he can  36 tell me where it is around the province if he knows.  37 Why do we have to go beyond that?  38 MS. KOENIGSBERG:  Well, I don't think it adds — I have to admit  39 I don't think it adds a tremendous amount.  4 0 THE COURT:  Let's leave it there then.  41 MS. KOENIGSBERG:  It's an interesting —  42 THE COURT:  I am the only one in the room that doesn't know, but  43 I suppose that's fair too.  Your friend doesn't want  44 me to know and it seems to me that there may be a  45 reason why I shouldn't.  I didn't get a lot of the  46 information that Mr. Morrell could have given me and I  47 think I'll treat this as one of those pleasures of 22619  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  1 life that have been denied me.  2 MS. KOENIGSBERG:  Thank you, my lord.  3 THE COURT:  At the moment, as I understand it, is that the only  4 food fishing in your district is at Moricetown, is it?  5 A   It's actually just below Trout Creek down to  6 Moricetown to Porphry Creek.  7 THE COURT:  Porphry Creek is in which side of Moricetown?  8 A   It's on the Bulkley River downstream from Moricetown.  9 THE COURT:  Downstream, and Trout Creek is upstream?  10 A   That's correct.  11 THE COURT:  All right.  And the gorge is in between?  12 A   Yes.  13 THE COURT:  Yes.  All right.  14 MS. KOENIGSBERG:  15 Q   Have you had anyone apply for food fish licences in  16 the Smithers subdistrict other than for what we think  17 of as the Moricetown fishery?  18 A   There was a -- I can recall in the -- what we refer to  19 as the Upper Bulkley River above Houston, a native  20 family of Perreau (phonetic) wanting to fish for  21 Chinook, and that system has very few Chinook.  It has  22 very few Chinook and we are on a conservation program  23 to rebuild the Chinook stocks.  And we would -- we  24 didn't issue a licence to food fish there.  25 Q   Now, in the course of your duties in carrying out your  26 duties, do you write reports to your supervisor?  27 A   Yes.  28 Q   And are these reports done regularly?  29 A   Yes.  30 Q   And I'd like to put a binder of fisheries reports in  31 front of you which contains an index.  32 My lord, I see it's after four.  I don't know if I  33 should embark on this.  I would say I've got another  34 possibly 10 to 12 minutes with this witness.  35 THE COURT:  Are you all right, Madam Reporter?  36 THE REPORTER:  Yes, my lord.  37 THE COURT:  Well, if it's only going to go another 12 or 15  38 minutes, by all means let's finish.  39 MS. KOENIGSBERG:  Perhaps I should then explain about this  40 collection of documents.  41 THE COURT:  Yes.  All right.  42 MS. KOENIGSBERG:  We have three volumes of fisheries reports.  43 It's called the Fisheries Reports Collection.  It is  44 the collection of fishery reports that Mr. Macaulay  45 described and we thought it convenient to put them all  46 in a collection.  This witness will prove those which  47 come from -- are either his or come from his office 22620  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  Submission by Mr. Grant  1 and no others.  The others are either ancient and  2 archival or will be proved by other witnesses.  So  3 that I would intend to simply ask this witness to  4 identify those in these three volumes by reference to  5 the index.  6 THE COURT:  Yes.  All right.  7 MS. KOENIGSBERG:  Which are from his office or of which he is  8 the author, and leave the balance to be submitted by  9 other means.  I guess my friend has something he wants  10 to say about that.  11 MR. GRANT:  I think so.  I think I do.  This is something that  12 my friend now has explained to the court and to myself  13 for the first time.  These documents were given to us  14 this morning along with the Loring books.  It may well  15 be that I don't have any objection.  There is three  16 volumes and now that I understand what my friend is  17 looking at I will have an opportunity to look at those  18 volumes, those tabs which I anticipate this witness is  19 going to identify.  It's not a situation like happened  20 with the Provincial defendant where they gave us  21 notice, an affidavit of certification that documents  22 were from a certain file and said this is what we're  23 going to do.  I have now just found out exactly what  24 my friend intends to do with respect to these and I  25 would like to be able to look at the files.  I don't  26 mind if she asks him which ones are from his files if  27 it's not obvious from the source.  I take it Smithers  28 dormant files and Smithers current files are the ones  29 that she's going having him identify.  30 MS. KOENIGSBERG:  That's a good guess.  31 MR. GRANT:  And she said that's a good guess.  So given that I  32 don't even need to hear the witness on that, I can  33 operate on that assumption, but it's something that  34 I'd like to have an opportunity to look at these  35 particular reports and to see whether or not --  36 because there may be an issue of relevance and there  37 may be other issues and I just want to look at the  38 reports with respect to this witness and I may have no  39 objection whatsoever.  40 THE COURT:  Sounds like an application to adjourn, Mr. Grant.  41 MR. GRANT:  Well, I don't want her to mark it as an exhibit.  If  42 she wants to ask him a few more questions about  43 this —  4 4 THE COURT  4 5 MR. GRANT  4 6 THE COURT  Why don't we adjourn.  Then I can look at them.  You can look at them overnight and proceed with the  47 matter tomorrow morning. 22621  T. Turnbull (for Canada)  In Chief by Ms. Koenigsberg  Submission by Mr. Grant  1 MS. KOENIGSBERG:  I trust Mr. Grant will have read all the  2 Loring's documents by tomorrow morning.  3 MR. GRANT:  I am sure that I will, my lord.  I have nothing else  4 to do this evening.  5 THE COURT:  I am sure he will.  6  7 (PROCEEDINGS ADJOURNED UNTIL NOVEMBER 22, 1989 AT  8 10:00 A.M.)  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings herein to the best of my  13 skill and ability.  14  15  16  17 Laara Yardley, Official Reporter,  18 United Reporting Service Ltd.  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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