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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-21] British Columbia. Supreme Court Jun 21, 1990

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 28819  Submission by Mr. Wolf        1  Vancouver, B.C.  2 June 21, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 21st day of June, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Mr. Adams.  8 MR. WOLF:  Mr. Wolf.  9 THE COURT:  Wolf.  I'm sorry.  10 MR. WOLF:  Thank you, my lord.  My lord, I'm going to be dealing  11 today with Part VIII and Part IX of our summary of  12 argument.  Miss Koenigsberg earlier in the week  13 addressed you on our position on the law of  14 abandonment, and I'm going to -- that's the first part  15 of this section VIII.  16 THE COURT:  Yes.  17 MR. WOLF:  And I'm going to continue into an examination of our  18 general evidence on abandonment in the claim area, and  19 then after that, perhaps later this morning and into  20 tomorrow, I'm going to be reviewing specific  21 territories and the evidence of use and occupation and  22 abandonment with respect to specific territories.  23 I've handed up to the registrar this morning a copy of  24 our amended Part VIII argument beginning at page 6.  25 Ms. Koenigsberg addressed you either yesterday or the  26 day before on pages 1 to 5.  2 7 THE COURT:  Yes.  28 MR. WOLF:  Which is the law of abandonment.  2 9 THE COURT:  All right.  Thank you.  30 MR. WOLF:  Beginning at page 6 of our argument at Part VIII,  31 which is titled "A.  Village Sites," I believe Ms.  32 Koenigsberg introduced the area on this subject when  33 she -- and described the types of uses and occupancy  34 sites that are recognized by the law, and village  35 sites are obviously one of those occupancies that  36 is -- that is or could be the subject of an aboriginal  37 right.  Mr. Macaulay addressed you in his review of  38 the Loring materials about Mr. Loring's time as Indian  39 Agent at Hazelton, and his reports, which you've heard  40 a lot about, describe a lot of village sites and  41 occupancy areas that the Gitksan and Wet'suwet'en used  42 in that early period soon after contact.  43 Beginning at page 6 of my submission, under  44 "Village Sites" I say the two villages which represent  45 the most dramatic factual abandonment in the claim  46 area are Kuldo and Kisgegas.  The migration of peoples  47 from Kuldo and Kisgegas is an important element in the 28820  Submission by Mr. Wolf        1 general abandonment by the  plaintiffs of their  2 traditional lifestyle.  Jeff Harris Sr. testified that  3 members of his house left Kuldo and moved to Kispiox  4 to be closer to supplies of flour and sugar.  I'll  5 pause at that point, my lord, and I'll refer you to a  6 binder which I will hand up to the registrar at this  7 time.  8 THE REGISTRAR:  Thank you.  9 MR. WOLF:  This binder is labelled "Part VIII General  10 Abandonment Evidence References," and these are the  11 references to this section that I'm now dealing with.  12 THE COURT:  Thank you.  13 MR. WOLF:  And just as an example, my lord, if you would turn to  14 the first tab, you will see there the reference to Mr.  15 Harris' evidence at pages 10058 and 10059 of his  16 cross-examination by Mr. Macaulay, at which time he  17 was asked about his grandparents and the fact Mr.  18 Harris testified that his grandparents had lived at  19 Kuldo but that they had moved down to Kispiox.  One of  20 the reasons was to be closer to supplies such as sugar  21 and flour, and Mr. Harris agreed with that question  22 put to him by Mr. Macaulay.  23 Returning to the text of our submission, both  24 Kuldo and Kisgegas, as you know, are portions of  25 Indian reserves that have been set aside by the  26 governments, and we make no submission as to any  27 question of whether abandonment has taken place with  28 respect to those Indian reserves, but we say that the  29 abandonment of those areas is representative of  30 something larger, of a migration of peoples from  31 remoter areas of the claim area towards the Hazelton  32 area.  33 At the second paragraph of my submission I say the  34 plaintiffs have abandoned in addition to Kuldo and  35 Kisgegas a large number of winter and fishing  36 villages.  The reference to "one permanent village (in  37 addition to Kuldo and Kisgegas)" is Ksun, K-s-u-n.  38 And we say that in general the plaintiffs have  39 abandoned all traditional occupancy sites that were  40 used as villages that are not on reserves.  By that I  41 mean that there are no sites off reserves that are  42 currently occupied as village sites in an aboriginal  43 right sense.  44 At paragraph 3 of my submission I refer to a  45 number of these villages, for example, Ksun and Upper  46 Ksun, and the references from Mr. Loring's reports are  47 set out in tab 2 of our references book.  Mr. Loring, 28821  Submission by Mr. Wolf        1 as you've heard before,  anticipated and predicted the  2 abandonment of the Ksun villages in some of his  3 reports, and although that didn't occur when he left  4 as Indian Agent in 1920, it obviously occurred  5 sometime soon thereafter.  6 THE COURT:  Are you able to make any or reach any conclusions  7 about the various villages along the Babine mentioned  8 by Trader Brown as to whether they all refer to  9 Kisgegas or do they refer to other villages, and if  10 so, what position do you take about those villages?  11 MR. WOLF:  Well, clearly there's evidence of a number of  12 villages in the Kisgegas area --  13 THE COURT:  Yes.  14 MR. WOLF:  -- that existed at one time, but there is no evidence  15 that there is any or has been any occupied village  16 outside of the confines of the Kisgegas Reserve for  17 many, many decades.  18 THE COURT:  All right.  19 MR. WOLF:  And so we say that with respect to those sites they  2 0 have been abandoned.  21 THE COURT:  All right.  22 MR. WOLF:  At page 9 of my submission at paragraph 7 I say that  23 Loring referred to other villages in addition to Ksun,  24 including Lach-an-dalgh, L-a-c-h-dash-a-n-dash-  25 d-a-1-g-h, which is described as a camp 34 miles from  26 Hazelton on the Skeena River, and another summer  27 fishing camp called Tsis-lee-tin, T-s-i-s-dash-1-e-e-  28 dash-t-i-n, which is described as 39 miles from  29 Hazelton up the Skeena River on its right bank.  These  30 villages or camps have obviously been abandoned as  31 well.  32 At paragraph 8 of my submission I say that Loring  33 referred to a number of winter camps resorted to for  34 shelter and ready access to firewood and to hunting  35 and trapping grounds, including Get-sop, G-e-t-dash-  36 s-o-p, a winter camp of the "Gol-Does," G-o-l-dash-  37 D-o-e-s, "and about 50 miles in a northeasterly  38 direction from Kispiox"; another place called  39 Andil-ghan, A-n-d-i-1-dash-g-h-a-n, a Kispiox winter  40 camp on the Kispiox River about 40 miles north of  41 Hazelton; lower and upper Dam-Olp, D-a-m-dash-O-l-p,  42 which were described as Hagwilget winter camps about  43 37 miles east of Hazelton.  I believe Mr. Macaulay  44 made earlier submissions about Dam-Olp.  And given Mr.  45 Loring's miles reference there is some basis to  46 believe that these may have been outside of the claim  47 area.  I believe that Loring referred to the 28822  Submission by Mr. Wolf        1 Hagwilgets.  When he  referred to the Hagwilgets, he  2 didn't distinguish between the Babine people and the  3 Wet'suwet'en people.  And lastly, Loring also  4 mentioned a winter camp called An-ghaik, A-n-dash-  5 g-h-a-i-k, which is described as a Rocher Deboule  6 Indians' camp 37 miles to the south-east of Hazelton.  7 I'm at page 10 of my submissions.  Loring in his  8 reports anticipated or predicted or made statements  9 that the old winter camps were slowly being used less  10 as the years went past.  In 1903 he stated that the  11 "old people soon will resort to their winter camps in  12 the timber" and that "not a few" Kuldo and Kisgegas  13 Indians have been "gravitating" towards Kispiox and  14 Hazelton.  And Loring said:  15  16 "If such practice should continue, a natural  17 process of concentration of those Indians,  18 nearer to here, will eventually come about, and  19 am inclined to the opinion, that for obvious  20 reasons the result become desirable.  The  21 facilities of profitable employment hereabout,  22 is the solution.  Hunting and trapping as an  23 occupation, no doubt, will ultimately become  24 such in the near future of a corresponding  25 lesser degree."  26  27 And that statement by Loring, my lord, has relevance  28 to our later submissions about abandonment of hunting  29 and trapping in the mid to latter part of the  30 twentieth century.  31 He goes on to refer to the winter camps which he  32 says the old people resort to.  33 At page 11, my lord, I deal with the or introduce  34 the subject of fishing sites, and I say that there is  35 strong evidence of abandonment in certain parts of the  36 claim area.  There is evidence, however, that the  37 plaintiffs have continuously fished the mainstem of  38 the Skeena River between Kitaneeda, that's  39 K-i-t-a-n-e-e-d-a, Indian Reserve No. 7, which, as I  40 understand it, is near the western edge of the claim  41 area in the vicinity of Leggett Creek or not far from  42 there, to a point approximately 15 miles north of  43 Kispiox.  Also they have fished continuously on the  44 mainstem of the Bulkley River upstream from its mouth  45 on the Skeena River to Trout Creek.  Trout Creek is  46 located a few miles south of Moricetown.  There is  47 also evidence that the plaintiffs have fished off and 323  Submissio  though that village  2  3  4  5  6  7  MR. GRANT  on at Kisgegas, even  n by Mr. Wolf        1  was primarily  abandoned in the 1940s.  With respect to these  stretches along the mainstems of the Skeena, Bulkley,  and Babine Rivers, we say that the plaintiffs have not  abandoned their fishing sites.  We say that although --  Just to be clear about the federal government's  8 position, is my friend conceding that there is an  9 aboriginal right in the plaintiffs to the fishery at  10 this -- at this place where there's no abandonment, or  11 does he come back to that in another context to say  12 there is no right?  13 MR. WOLF:  Well, what I'm saying here, my lord, is just that  14 there is evidence that they have continued to use  15 those areas and they haven't been abandoned, but we  16 will address Mr. Grant's question in another context  17 later.  18 I believe that you were referred by Mr. Macaulay  19 yesterday to Exhibit 358-22, which I don't have with  20 me right now, but if you recall, that's their fishing  21 sites map.  22 THE COURT:  Yes.  23 MR. WOLF:  And if you look at that map — I believe Mr. Macaulay  24 made submissions on this -- it shows that there are a  25 number of fishing sites claimed by the plaintiffs  26 outside of the mainstems of the rivers that I've just  27 described.  And we say, as Mr. Macaulay said  28 yesterday, that the plaintiffs' claims with respect to  29 these sites must fail because there is no evidence  30 that they've been used, or they have been abandoned.  31 THE COURT:  What was that exhibit number, please?  32 MR. WOLF:  358-22.  It's referred to in paragraph 2 of my  33 submission on page 11.  34 THE COURT:  Oh, yes.  All right.  35 MR. GRANT:  The map atlas.  36 MR. WOLF:  The Fisheries Reports Collection, my lord, Exhibits  37 1216B, C, and D, contain historical references to  38 Indian fishing outside of the mainstems of the Skeena,  39 Bulkley, and Babine Rivers, which are identified  40 above.  And for this I'll refer you to tab 9 of our  41 binder, tab 9 of the binder labelled "Part VIII  42 General Abandonment Evidence References."  4 3  THE COURT:  Yes.  44 MR. WOLF:  And the cover page should indicate that it's R.N.  45 Palmer's report.  You, of course, heard from Mr.  46 Palmer, an expert witness on fisheries called by the  47 Attorney-General of Canada last November.  In his 28824  Submission by Mr. Wolf        1 report Mr. Palmer reviewed  as many of the old  2 Fisheries reports that affected the claim area that  3 the Attorney-General of Canada had in its possession  4 or control, and he summarized in his report in this  5 section, pages 25 to 40, the references to Indian  6 fishing in the claim area.  For example, at the bottom  7 of page 25 he refers to the Damdochax, D-a-m-d-o-  8 c-h-a-x, Slamgeesh area, which your lordship may  9 recall is in the north central part of the claim area.  10 And the Fisheries inspectors used to patrol  11 various areas in the claim area, and one of the areas  12 they patrolled was the Damdochax area because there  13 was evidence of fish spawning at that area, and that  14 was one of the reasons they were interested in that  15 area.  Also they encountered Indian fishing there, and  16 they were concerned to monitor what was happening.  17 And from Mr. Palmer's review of the Fisheries reports,  18 which are part of Exhibit 1216, he found or the last  19 report of Indian fishing activity at the Damdochax  20 area was in 1924.  21 I won't go through the rest of this extract, my  22 lord, but there are various references here to fishing  23 at Kuldo in 1910, 1911, 1913, reports of fishing in  24 Kisgegas, reports of fishing at Bear Lake.  The  25 interesting thing about Bear Lake -- this is at page  26 28 of the extract, my lord -- the reports indicate  27 that fishing there continued through the '50s and  28 '60s, but it was not by the plaintiffs or people who  29 appear to have been plaintiffs.  According to the  30 reports, the Indians that are described as fishing  31 there are said to be from Takla Landing.  32 He also reviews the reports or summarizes their  33 conclusions regarding the mainstem fisheries at places  34 like Kispiox, Glen Vowell, Hazelton, Kitsegukla, and  35 Kitwanga.  36 I'll just refer to one last reference, and that's  37 at page 38, in which he describes references to  38 fishing in the Francois Lake area.  And he reports  39 that there was Indian fishing at places like the  40 Nadina River, which is a tributary of Francois Lake,  41 prior to 1910.  There is little evidence of Indian  42 fishing in that area since that time.  43 MR. GRANT:  What page was that?  44 MR. WOLF:  That's page 39 of Palmer's reference.  One of the  45 reasons for the lack of fishing at Francois Lake, and  46 Mr. Palmer sets it out at page 40, is the fact that  47 the Hells Gate slide in 1912 or 1913 had a very 28825  Submission by Mr. Wolf        1 detrimental effect on  salmon right up to the upper  2 Fraser River system.  3 That deals with paragraph 4 of my submission on  4 page 11, my lord, and I'll refer you back now to page  5 12 of my submission.  This is a topic which Mr.  6 Macaulay addressed you on, so I'll just briefly  7 mention that you heard the evidence of Mr. Woloshyn  8 and Mr. Turnbull to the effect that they had observed  9 Indian fishing basically along the mainstems of the  10 Skeena, Bulkley, and Babine Rivers, which I've  11 described previously.  12 Paragraph 6 of my submission.  It is the  13 plaintiffs' own evidence that they currently fish for  14 salmon at sites along the mainstems of the Skeena and  15 Bulkley Rivers adjacent to their villages.  And I set  16 out there examples of the detailed testimony that you  17 heard from chiefs such as Olive Ryan, Art Matthews  18 Jr., Walter Wilson, Alfred Joseph, and Henry Alfred,  19 and what these extracts show is that they described  20 fishing and fishing sites in the vicinity of Kitwanga,  21 Kitsegukla, Hazelton, Hagwilget, and Moricetown, and  22 we say that the vast majority of the evidence about  23 Indian fishing is that that is the locations in which  24 it takes place.  25 MR. GRANT:  Is my friend saying that what he -- the argument is  26 adjacent, and then my friend has said in the vicinity,  27 my lord.  I just want to be clear of my friend's  28 position to see where we differ.  Is he saying that  29 the vast majority of fishing is on the reserve or  30 adjacent to the reserve or when he says in the  31 vicinity he agrees that it's upstream and downstream  32 several miles from the reserve?  33 THE COURT:  Where does it say vicinity?  34 MR. GRANT:  My friend said vicinity in oral submission, and he  35 says adjacent here, and I think those are two  36 different concepts.  I'd like my friend to be clear  37 whether he's focusing -- this evidence demonstrates  38 it's only on reserve or not.  39 MR. WOLF:  Well, at the beginning of my submission, my lord, I  40 believe I referred to --  41 THE COURT:  You said fishing all along the mainstem of the  42 Skeena.  43 MR. WOLF:  Yes, that's right.  And as will become apparent when  44 I get into the site specific evidence of use and  45 occupancy on things such as hunting and trapping, the  46 evidence is often very unclear as to where fishing  47 exactly took place, and whether a particular fishing 326  Submission by Mr. Wolf        1 site is on a reserve or  a  debatable question, and the plaintiffs certainly have  not led their evidence to help us in that regard.  I  don't think that Exhibit 358-22, which sets out their  fishing sites, even indicates Indian reserves, but we  would admit that there is evidence probably that there  is some fishing in those areas off reserves.  At paragraph 7 of my submission on page 13 I say  that with the exception of Moricetown, where gaffs and  dip-nets are used, the Gitksan/Wet'suwet'en food  fishery in the claim area today is almost exclusively  a setnet or driftnet fishery.  I say that, however,  gill nets are not a traditional Indian technology from  all accounts.  Indian Agent Loring reported in 1898  that the Indians primarily used two techniques to  catch salmon, which he described as dip-nets and  gaffs.  And I might just refer your lordship to that  reference, which should appear at tab 12 of your  volume.  It's the report dated February 11, 1898.  :  Yes.  At the third paragraph of his letter Mr. Loring says:  "Every family of the Kit-Ksun Indians, on  the Skeena, boasts of having one or more  fisheries, which exist in eddies back of  projecting points of rock on the river.  Again the fisheries used in common are the  perpendicular sides, or nearly so, of all the  canons on the river.  As regards the first, a large dip-net of  interwoven willow-wreaths to an oval shaped  frame terminating in a handle, is used.  Its  receptacle is in form like the larger half of a  pear cut longitudinally.  It is handled from a  platform fastened with ropes of twisted cedar-  bark fibre into crevices or onto points of  rock,"  etcetera.  The next paragraph he refers to gaffing of salmon  with long, slender poles.  And on to the next page, he  refers to gaffing in that context taking place in the  narrow confines of canyons.  I might just refer you also to page 4 of that  letter at the third full paragraph, in which he refers  to some fishing during the winter, which takes place  with small nets under the ice.  There's no description  ot on a  reserve is  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  THE COURT  21  MR. WOLF:  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 28827  Submission by Mr. Wolf        1 of what kind of nets those  were, but they appear to be  2 some form of traditional Indian net, perhaps a basket  3 or something like that.  4 I don't provide the reference in this particular  5 paragraph, but the Rob Palmer extract at tab 9 refers  6 to Hans Helgesen's report in the 1904-05 period in  7 which he described similar types of fishing technology  8 being used by the Indians.  9 At paragraph 8 I say it appears that nets were  10 introduced into the region, by that I mean gill nets,  11 for use in the mainstem fisheries soon after the turn  12 of the century.  The earliest reports of nets being  13 used for summer fishing by Indians in the area was  14 made by Hans Helgesen in 1905.  Helgesen, as I've  15 already described, was one of the first fishery  16 officers to visit the Upper Skeena River, and he  17 distributed nets to the Babine Lake Indians after he  18 and other officials removed the Babine Lake Indians'  19 weirs from the Babine River.  20 At paragraph 9 I say it is unclear when nets were  21 introduced into the Hazelton area.  However, Loring  22 reported that a net was given to five Indian families  23 as "just" compensation for the destruction of their  24 fishing point.  I'll just refer you to that reference,  25 my lord.  It's at tab 9.  I'm sorry, it's at tab 14.  26 It's a letter dated September 30 or a report dated  27 September 30, 1893.  One of the vouchers which he  28 submits for remittance is one for a salmon-net at a  29 cost of $17.73, and he says:  30  31 "On the trip mentioned I saw fit to promise  32 the material for a Salmon-Net in compensation  33 for a fishing point destroyed by blasting...  34  35 I thought the relief given...a just one, as  36 five families with their smokehouse, depended  37 on the existence of the point mentioned."  38  39 The implication from this letter, I say, is that  40 one net could adequately supply the fishing needs of  41 five families, and it is clear from the evidence that  42 nets are a much more efficient fishing technology than  43 traditional Indian fishing technology, such as gaffs  44 or the other types of devices that Loring and Helgesen  45 described, and I say that this submission is supported  46 by the fact that with the exception of Moricetown  47 setnets and driftnets are the preferred fishing Submission by Mr. Wolf        1 technology of the  plaintiffs today.  2 At paragraph 10 of my submission I say in his 1898  3 report on Indian fishing technology referred to above  4 in paragraph 7, that's the report of 1898 that I  5 referred you to before, Loring indicates that some of  6 the Indians' primary fisheries were in the "canons" of  7 the rivers.  It is submitted that the change in  8 fishing technology, from gaffs and dip-nets to setnets  9 and driftnets, allowed the Indians to exploit  10 stretches of the Skeena and Bulkley Rivers outside of  11 canyons that were previously unusable by them.  It is  12 also submitted that remote canyons such as Kuldo,  13 Kisgegas, and Ksun, with their excellent fisheries,  14 became less attractive fishing areas with the general  15 introduction of setnets and driftnets.  It was no  16 longer necessary to live at these remote canyons when  17 sufficient quantities of fish could be netted in the  18 rivers closer to the settled occupied villages today.  19 At page 15, my lord, I move on to our submission  20 with respect to trapping, and I say that it is our  21 position that the plaintiffs' aboriginal trapping  22 rights within the boundaries of the claim area have  23 generally been abandoned.  The evidence at trial is  24 that large portions of the claim area have not been  25 trapped by the plaintiffs or their ancestors for over  26 40 years.  We say, however, that there are a handful  27 of areas that the evidence shows have been used by  28 certain of the plaintiffs and their ancestors for  2 9 trapping up to the present day.  And the two examples  30 that are given there are Ben McKenzie Sr., who is  31 Luutkudziiwus.  The evidence indicates that he has  32 trapped continuously in his territory that he claims,  33 which is east of Hazelton on the north side of the  34 Suskwa River, and that's called the Madii Lii  35 territory.  The other example I give is Mabel Critch,  36 Khay Lah, who has given evidence that she has trapped  37 continuously near McBride Lake and Sunset Lake.  38 Our specific submissions with respect to these  39 territories are set out in my site specific analysis,  40 which I'll deal with later on tomorrow and/or later on  41 today and tomorrow.  42 It is submitted that aboriginal trapping rights  43 survive only with respect to those areas that have  44 been trapped on a relatively continuous basis by the  45 plaintiffs up to the present day.  I believe that you  46 heard from Ms. Koenigsberg on that subject in the last  47 day or two. 28829  Submission by Mr. Wolf        1 Paragraph 2.  The  evidence is that the plaintiffs  2 and their ancestors generally stopped trapping as the  3 exercise of an aboriginal right in approximately 1951.  4 I refer there to the testimony of Richard Benson,  5 which you've been referred to at least once before.  I  6 believe Mr. Macaulay did it earlier this week.  I  7 won't refer you to the text, but Mr. Benson said that  8 he stopped trapping in 1951 primarily because fur  9 prices dropped so much at that time.  10 I will, however, refer you to a second document  11 which is at that tab, which is tab 15 of our book of  12 references.  This is a document titled "A Proposal to  13 the Resource Development Project Planning Fund  14 Submitted by the Gitksan-Carrier Tribal Council  15 December 4, 1981."  And as I understand this proposal,  16 it was a request for funding to examine the effect of  17 resource development in the area that the Tribal  18 Council had an interest in.  And at page 16 of this  19 proposal it says --  2 0 THE COURT:  What page?  21 MR. WOLF:  Page 16.  It's the second page at the tab.  22 THE COURT:  Yes.  23 MR. WOLF:  It says:  24  25 "The 1950 base is chosen for two reasons.  26 First, it was the year that saw the start of  27 two major industrial projects in northwest  2 8 B.C., Mean's Kemano power plant and Kitimat  29 aluminum smelter and Columbia Cellulose's (now  30 B.C. Timber's) pulp mill and logging empire.  31 These companies still dominate the region and  32 their scale and methods have influenced  33 subsequent developments.  The second reason for  34 basing the maps on 1950 is that it was a  35 significant time in Gitksan-Carrier history.  36 The family centered bush economy of trapping,  37 fishing, logging and packing was breaking up to  38 be replaced by a welfare and wage economy."  39  40 We say that the general cessation of trapping  41 within the claim area by the plaintiffs and their  42 ancestors continued through the 1950s, '60s, and '70s.  43 And I refer to the testimony of Rae Mclntyre and John  44 Adams.  At this time, my lord, I'll just refer you to  45 the John Adams reference, which should be the second  46 document in tab 16 of our references binder.  47 THE COURT:  What are you referring me to, please? 28830  Submission by Mr. Wolf        1  MR. WOLF:  John Adams, the book  called "The Gitksan Potlatch."  It should be the second document at the tab.  :  Tab?  Tab 16.  It's about -- it should be the fifth page  in.  :  All right.  There's four pages of Mclntyre testimony.  It's  Exhibit 901-5.  :  Yes.  And I believe this was put to Mr. Daly in Ms.  Koenigsberg's cross-examination of him.  And at page  17 in the middle of the page Mr. Adams wrote:  "The main sources of employment recently  have been at the pole yards in Kitwanga and the  Hazeltons, construction work on the highways, a  few jobs with the railroad, in addition to the  fishing at the Coast in summer.  Other  occupations include school janitors, store-  keeping (both as proprietors and as clerks),  taxi-drivers, telephone operators, hospital  orderlies and practical nurses, garage  mechanic, electrician, plumber, as well as  clerical work in the Indian Agency.  Trapping,  though still prestigious, is a source of income  for no more than half a dozen men because of  the depressed market for fur.  It is 'no better  than being on welfare.'  Nevertheless, family  allowance, unemployment, disability, old age,  and welfare payments make up a large portion of  Indian income."  Mr. or Dr. Adams, as you will recall, was in the  Hazelton area in the 1960s doing a study of their  culture.  :  Do you know what year this was written?  The data appears to have been collected in 1966 or  '67, and I believe the date of the document is 1973.  He's writing at a critical time, from our point of  view, because this is a time just before land claims  was becoming the central focus of the plaintiffs at  that time.  :  Of course, his focus wasn't on this area.  This is  from the preface, my lord.  This is just his overview.  This wasn't the focus of his research, what my friend  is referring to.  That's right, my lord.  At page 16 I continue with my  2  3  THE  COURT  4  MR.  WOLF:  5  6  THE  COURT  7  MR.  WOLF:  8  9  THE  COURT  10  MR.  WOLF:  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  THE  COURT  37  MR.  WOLF:  38  39  40  41  42  43  MR.  GRANT  44  45  46  47  MR.  WOLF: 28831  Submission by Mr. Wolf 1            submission.  Further, it  submitted that the  2 proposition that trapping was generally abandoned  3 after 1950 is supported by the evidence at trial that  4 beaver populations in the claim area increased after  5 that time and became a concern to federal fisheries  6 officers.  7 I will refer, my lord, to this reference.  It's at  8 tab 17.  This first reference is from the commission  9 evidence of Victor Giraud, who was called by the  10 federal defendant as a witness in 1987.  And on page  11 31 he's being referred by Ms. Koenigsberg to a number  12 of his annual reports in which he deals with the  13 question of stream clearing, and he refers to the  14 problem of beaver dams.  That's at line 42, 43, 44.  15 And then at the bottom of page 31 he says -- the  16 question was:  17  18 "Q   As you came across them?  Were beaver dams  19 an increasing problem at certain periods?  20 A  Well, it depends what the prices of fur  21 were down well nobody trapped them; didn't  22 keep them down and they increased then, but  23 we say, 'Remove beaver dams.'"  24  25 And then he goes on to describe how the beaver dams  2 6 were removed.  27 At the same page he's referred to another passage  28 in one of his reports referring to beaver dams, and he  29 says:  30  31 "A   Yes, that's right, as I say, I put it in  32 there, 'Beaver are increasing as trappers  33 will not go after them due to low fur  34 prices.'"  35  36 At the next page of that tab, my lord, is the  37 evidence of Terry Turnbull.  He was the Fisheries  38 officer in Hazelton from -- or pardon me -- in  39 Moricetown -- pardon me -- in Smithers from 1979 to  40 the present, and he testified that beaver populations  41 are a concern from a habitat management point of view,  42 and he describes at page 22624 of his testimony some  43 of the creeks and rivers which were a concern to him  44 for that reason.  45 Likewise, at the next page, Peter Woloshyn, who  46 was called as a witness for Canada.  He's currently  47 the Fisheries officer in Hazelton with responsibility 28832  Submission by Mr. Wolf        1 for the mid-Skeena area,  and he described that beaver  2 dams and their effect on salmon were a concern of his.  3 And he stated at page 22663 of his testimony at line  4 2:  5  6 "A   I mainly concentrate on the tributaries of  7 the Kispiox because that is one of our  8 major salmon producers in the Hazelton  9 subdistrict."  10  11 And that answer was in reference or in answer to a  12 question about beaver populations and his concern.  13 At paragraph 5 of my submission on page 17 I say  14 that an analysis of the plaintiffs' witnesses'  15 testimony at trial demonstrates that few, if any, rely  16 on trapping for their livelihood.  And the references  17 that I give for that submission are my site specific  18 analysis, which I hope will show that few Indians trap  19 for a living today and many areas have not been  20 trapped for many years, and the site specific analysis  21 of the territories will demonstrate that.  And I also  22 refer to our submission concerning employment  23 histories of the plaintiffs' witnesses at trial, who  24 by and large do not rely on trapping for their living  25 today, although a number of them do engage in week-end  26 or recreational trapping in some areas.  27 At paragraph 6 of my submission on page 17 I say  28 the cessation or abandonment of trapping by the  29 plaintiffs continues to the present day and is a  30 feature of the local economy within the claim area.  31 At this point I think I will refer, my lord, to  32 the testimony of Richard Benson, which is the first  33 document at tab 18.  Mr. Benson, as you've heard, was  34 an important witness for the plaintiffs.  He was a man  35 who up until 1951 was engaged in almost continuous  36 hunting and trapping and fishing activities.  And I'll  37 refer you to -- unfortunately, the margin of the page  38 169 has been cut off, but I believe it's line 20 where  39 he was asked:  40  41 "Q   Has the price of marten furs improved in  42 the last ten years?"  43  44 And he said:  45  46 "A   Yes.  It does improve.  But I still work,  47 though." 28833  Submission by Mr. Wolf        1  THE COURT:  I haven't found that.  What page are you on?  I'm sorry.  It's page 169.  The first page at tab 18.  :  At line 20?  Line 20, middle of the page.  Do you see:  "Has the price for marten furs improved..."?  :  No, I don't see that.  Do you have page 169?  :  Yes.  Line 20?  It is line 20.  :  I'm sorry.  Yes.  Thank you.  I have it.  Okay.  The question was:  "Q   Has the price for marten furs improved in  the last ten years?  A   Yes.  It does improve.  But I still work,  though.  Q   Are there many trappers working out of  Kispiox now or out of Glen Vowell?  A   Yes.  They all work in that mill.  Q   Oh, they are not working as trappers?  A   No.  Q   Are there many people trapping now in along  the Nass or the Skeena?  A   No.  I hardly think.  Just a very few.  The  prices are good, but I don't know why they  don't go out."  And then he goes on to describe how prices have  improved, particularly for wolverine.  The next document at that tab, my lord, is an  interview note of Moses Brown.  :  Your lordship will note the rest of the next  question and answer in that reference my friend had on  Mr. Benson in which he does indicate that there are  not many people -- my friend didn't read it.  I just  ask you to note it.  The next document, my lord --  :  Yes, I have.  -- is an interview of Moses Brown by Violet Smith  dated June 7, 1982.  As best as I have been able to  identify, Moses Brown appears on the genealogy of  Wiigyet, and his name was T-s-'-o-k, and he died in  1987, he was born in 1903.  And just below the middle  of the page --  :  Died in what year?  2  MR.  WOLF:  3  THE  COURT  4  MR.  WOLF:  5  6  7  8  THE  COURT  9  MR.  WOLF:  10  THE  COURT  11  MR.  WOLF:  12  THE  COURT  13  MR.  WOLF:  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  MR.  GRANT  35  36  37  38  39  MR.  WOLF:  40  THE  COURT  41  MR.  WOLF:  42  43  44  45  46  47  THE  COURT 28834  Submission by Mr. Wolf 1  MR. WOLF:  Pardon me?  He died in  1987, born in 1903.  2 THE COURT:  Thank you.  3 MR. WOLF:  So he was an elderly man at the time of this  4 interview.  And Violet Smith asked him just below the  5 middle of the page:  6  7 "V.S.   Does Frank Benson use the territory,"  8  9 of Moses Brown.  10  11 "M.B.   Yes, he uses it, he's there most of the  12 time.  He traps beaver there.  Some non-  13 Indian wanted to build a house near the  14 lake, he was from Prince George and he  15 didn't know anything about our traditional  16 territories but Frank told him it was his  17 traditional territory.  The man left  18 without any further trouble.  19 V.S.   Who can use this territory besides Frank  20 Benson?  21 M.B.   My nephew Roy Wesley can trap there but he  22 doesn't know how to trap.  Also my brother  23 Miles Gogag can go there if he wants to.  24 Any clan member can go there to trap.  But  25 no one traps that much anymore.  All they  2 6 want to do is travel around.  I was twelve  27 years old when my father taught me to  2 8 trap."  29  30 The area that he is referring to, my lord, is just  31 above the passage which I started reading from, and  32 he's referring to the Brown Bear Lake and Brown Bear  33 Creek area, which, as I understand it, is just outside  34 the claim area.  And I believe that he's referring to  35 a Kitwancool trapline here.  Frank Benson was on a  36 Kitwancool trapline just on the western border of the  37 Gitksan claim area in this action, just west of Swan  38 Lake.  39 The other reference at that paragraph of my  40 submission, my lord, is the testimony of Rae Mclntyre.  41 You've already heard Mr. Macaulay talk about Mr.  42 Mclntyre's evidence.  The extract that I have included  43 at this tab is Mr. Mclntyre's evidence with respect to  44 the Special ARDA programme which he administered from  45 Prince George in the early 1980s.  46 And if you'll recall, the Special ARDA programme  47 was a programme of the federal government to provide 28835  Submission by Mr. Wolf        1 funding to aboriginal  businesses, and it included  2 trapping projects, and the government invited native  3 people to make applications for funding assistance,  4 and Mr. Mclntyre received a number of applications for  5 funding assistance from people in the claim area.  A  6 number of these people -- I'm not going to go through  7 the testimony with you.  This extract indicates that  8 there were a number of people who were applying for  9 funding who indicated that they hadn't been trapping  10 in recent years.  At the same time he did mention that  11 there were some applicants who were steady trappers.  12 One of them he mentioned was James Morrison, who you  13 heard evidence from.  Another man he mentioned was  14 Delbert Turner.  But other people who he mentioned had  15 not been trapping recently included Eddie Morris; Jeff  16 Harris Sr. or Jr. on the Luus territory up near Kuldo;  17 Simon Muldoe Sr., who has a trapline at the western  18 border of the Luutkudziiwus territory that I described  19 to you earlier; and also Doris Morrison, who appears  20 to be the successor to Chief David Wells, who has a  21 registered trapline at the Fiddler Creek area, which  22 is a territory claimed by Sakxum higookx.  23 I say at the bottom of page 17 of my submissions,  24 my lord, paragraph 7, that many of the plaintiffs have  25 lost their trapping skills -- I'm sorry, it's page  26 18 -- that many of the plaintiffs have lost their  27 trapping skills as a result of their abandonment of  28 trapping as an occupation.  There is evidence that  29 beginning in the late 1940s women and children no  30 longer travelled with adult males on the traplines  31 because of the implementation of the family allowance  32 system and the enforcement of a school attendance  33 requirement for Indian children.  34 The references for this submission appear at tab  35 19 of our book.  The first reference is Mr. Mclntyre's  36 evidence, in which he was directed to a document that  37 he wrote.  Mr. Grant at the time of his evidence  38 objected to the admission of this document, but Mr.  39 Mclntyre said with respect to the subject of lifestyle  40 changes of people in his agency, and you may recall  41 that Mr. Mclntyre was the Indian Superintendent at the  42 Burns Lake Agency, which took in or had responsibility  43 for reserves in the southeastern part of the claim  44 area and for the Babine Lake area, and he says with  45 respect to this, the statement in his report which  46 said:  47 28836  Submission by Mr. Wolf 1                  "Lifestyle changes,  Mandatory enrollment of  2 children in school removed the family from the  3 trapline,"  4  5 and he was asked whether that was a factor, and he  6 says at line 16:  7  8 "A   Because during the years previous it was --  9 it was well-known that Indian children  10 often -- many Indian children did not  11 attend school, and so therefore they were  12 free to join their parents out on the  13 trapline.  But with increasing emphasis and  14 determination that Indian children should  15 receive a formal education that it  16 obviously took them off the trapline.  17 Q   And what effect did that have on trapping?  18 A   I think in some cases it may have -- well,  19 I think it did two things.  It denied -- it  20 denied Indian children of an opportunity to  21 learn trapping, because they obviously  22 couldn't attend school and trap at the same  23 time.  Particularly those children who  24 were -- who were required to attend an  25 Indian residential school.  And I don't  26 know what else I can say."  27  28 Jeff Boys also gave evidence on this subject, and  29 that's at the next page of this tab.  Do you have  30 that, my lord?  31 THE COURT:  Yes.  32 MR. WOLF:  Page 57, and he was asked by Ms. Koenigsberg:  33  34 "Q   Were residential schools still a part of  35 the education scene --"  36  37 And he says yes.  And then he was asked about what use  38 was made of them, and he answered:  39  40 "A  Well, if there were some families  41 possibly -- possibly the families who were  42 likely to be away from their home village  43 for a long time, who would make application  44 to have their children sent to one.  Then  45 there were children -- then there were  4 6 children who came perhaps from broken  47 families, who often were orphaned and for 28837  Submission by Mr. Wolf        1 whom no  satisfactory guardian could be  found, and these children were sent to  residential schools.  Q   During your time in Hazelton was there an  impact of the policy of the Department of  Indian Affairs with regard to education on  the -- on trapping, for instance, as a way  of life?  A   Yes.  Obviously when a trapper went out and  his wife went with him and assisted him,  they took the children with them, and the  children didn't get any schooling, so this  was discouraged because it was -- it was  hoped that all the children would get a  reasonably good education.  It was  certainly not feasible to send them all to  a residential school, but as I said, some  did go.  But during my tenure in Hazelton  the" --  :  Well, I object.  I don't think that this next part  talking about the family allowance legislation is  properly admissible evidence, my lord, if my friend  now in argument is going to rely on it.  He's talking  about something that was done in the legislature and  suggestions made at the time of legislation.  I don't  think Mr. Boys was ever qualified to give that kind of  evidence.  :  But isn't he just reporting on what happened in the  district when he was there?  :  Well, up to what my friend has read now, yes, he  was, and that's no difficulty, but what he talks about  afterwards is about the effect of what he understands  family allowances were doing and things like that.  I think Mr. Boys was just reporting on his  observations, and it appears likely that he had some  role in the --  :  Well, he mentions there a suggestion.  He doesn't  say whose it was or where it was made, but then he  launched immediately back into his own observations.  :  His observations I have no difficulty with, my lord,  if that's what my friend's referring to.  :  Go ahead, Mr. Wolf.  At page 255 of that tab, my lord, if you skip over  page 58 of Mr. Boys' evidence and go to page 255 --  :  Yes.  -- he was also asked about fur prices.  This was  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  MR.  GRANT  22  23  24  25  26  27  28  29  THE  COURT  30  31  MR.  GRANT  32  33  34  35  MR.  WOLF:  36  37  38  THE  COURT  39  40  41  MR.  GRANT  42  43  THE  COURT  44  MR.  WOLF:  45  46  THE  COURT  47  MR.  WOLF: Submission by Mr. Wolf 1            during his commission by  Mr. Plant for the province,  2 and he was asked:  3  4 "Q   Did you become familiar with fur prices  5 during your time in Hazelton?  6 A   Yes.  7 Q   What relationship, what were the fur prices  8 in Hazelton like compared with fur prices  9 in Telegraph Creek?"  10  11 I'll just interject there to say that Mr. Boys gave  12 evidence that he was the government agent and I  13 believe a police constable at Telegraph Creek during  14 the 1930s and that he joined the Department of Indian  15 Affairs in 1946 after he returned from the war.  His  16 answer to that question was:  17  18 "A  Well, they were not as high as when I was  19 in Telegraph Creek generally.  Some furs  20 may have been equally as high, but by and  21 large prices were disappointing.  22 Q   They were disappointing in the Babine  23 Agency?  24 A   Yes.  25 Q   Did you consider that that had any effect  26 on the amount of Native trapping that took  27 place in the Babine Agency?"  28  29 Then he goes in and discusses the family allowance  30 system, which I say probably comprises observations of  31 what happened.  He said that it was the practice of an  32 Indian trapper to take his whole family, his wife and  33 children, out on the trapline.  I think given Mr.  34 Boys' experience in the area that probably also  35 resulted from his observation.  And then he states:  36  37 "...But when the family allowance came into  38 effect there was a tendency to leave the  39 children in school and to receive family  40 allowance."  41  42 And I say that certainly Mr. Boys was aware of the  43 increase in school attendance during his time, and  44 that's one observation that he can make note of at  45 least.  46 Just to return to my submissions, my lord, at the  47 bottom of paragraph 7 of this section I say many 28839  Submission by Mr. Wolf 1            members of the last two  generations of the plaintiffs  2 have grown up without any knowledge of "bush skills"  3 or their houses' territories.  4 I'd like you to -- I'd like to refer you now to  5 the testimony of Gerald Gunanoot, which is at the same  6 tab.  It's just after that page we just looked at.  At  7 page 18 he was being asked about or cross-examined on  8 the territory of Skiik'm lax ha, which is the  9 territory around Bowser Lake in the very northwestern  10 portion of the claim area, and he was talking about  11 his use of the territory and Johnny Wilson's use of  12 the territory.  And at line 25 he says:  13  14 "A  Well, Johnny is not -- well, I'll put it  15 this way, is not up there as often as I  16 was, and I'm more familiar because I was  17 born out there and I was raised amongst the  18 elders.  I didn't go running round like a  19 bunch of kids did at any time.  I was more  20 or less stuck with the elders.  And I had  21 to learn from the elders.  And so as far as  22 I can see Johnny said go ahead when we  23 talked."  24  25 Over to the next page, my lord, this issue was  26 raised again by Mr. Frey in his cross-examination of  27 Mr. Gunanoot.  At page -- or pardon me -- at line 43  28 he says:  29  30 "A  As you see children nowadays they're all  31 over the place and very few of them are  32 ever at home attending to the ranch,  33 helping the father or grandfather or  34 whatever."  35  36 Over to the next page, Mr. Gunanoot says:  37  38 "A   So you find that children in town is just  39 like children in the city, they don't have  40 a clue of how to put a saddle on let alone  41 shoe a horse.  Where we learned to shoe a  42 horse and put a saddle on a horse or the  43 harness, because that was our main source  44 of power."  45  46 Then he was asked:  47 28840  Submission by Mr. Wolf        1 "Q   All right.  So  when you grew up almost all  2 of the children stayed in Hazelton and went  3 to school there and lived in Hazelton, and  4 you were the exception because you went out  5 on the trapline and you did all these  6 things?"  7  8 Then there's an interjection based on Mr. Rush's  9 objection.  And at line 24 Mr. Gunanoot says:  10  11 "A   Like I phrased it, there is very few that  12 are insisted on various things.  Okay, they  13 will be attending to those various things,  14 attend as compared to the others.  Very few  15 of us I know of on my own group that was  16 into trapping and hunting, learning the  17 areas around us, which we were curious of,  18 and testing our own skills, which was  19 always a challenge from day-to-day when we  20 were out setting up camp and making it as  21 comfortable as possible, and seeing that  22 the animals that we have with us such as  23 horses or dogs, hunting dogs which they  24 were."  25  26 And then he goes on and he says in answer to the  27 question:  28  29 "Q   So the children that you knew, there were  30 very few that were doing that?  31 A  Very few."  32  33 At the next page in the references materials, my  34 lord, is an extract from the commission of Martha  35 Brown.  She was being asked about the territory of  36 Kliiyem lax haa.  Mrs. Brown was Kliiyem lax haa  37 before she died.  And line 21 she was asked:  38  39 "Q   Who owns the territory of the house of  40 Xhliimlaxha?"  41  42 And she responds:  43  44 "A   Xhliimlaxha."  45  46 At line 27:  47 28841  Submission by Mr. Wolf  1  "A  It's the same  today unt  il such ti:  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  MR.  GRANT  23  MR.  WOLF:  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  family of Xhliimlaxha either extincts but  will probably, but will go on to another  family.  Q   I'm sorry, the family of Xhliimlaxha will,  you mean die out is what she said?  A   Yes.  Q   Are there young people in the house of  Xhliimlaxha today?  A   Too many.  There are about twenty.  Twenty.  Twenty young people.  Most of them don't  pack up their blankets and go.  Today they  just jump in their cars and go to  Smithers."  And I say that with respect to this testimony that  Mrs. Brown is referring to the fact that young people  in her house are not going out on the territory.  And  she predicts rather dire consequences will occur as  far as the House of Kliiyem lax haa is concerned as a  result.  :  Well, I don't think that follows.  Well, that's our submission.  Returning now to the text of my submission, my  lord, paragraph 8, I say that the causes of the  general abandonment by the plaintiffs and their  ancestors of trapping include the following:  (1) a  steep decline in fur prices in 1951.  One of the  references there is Richard Benson's testimony.  Antoine Tom gave similar type of evidence that fur  prices fell about that time.  I will refer you to this tab.  It's tab 20 in our  references, and I'll ask you to turn to five pages in,  past the testimony of Mr. Mclntyre and Mr. Tom --  sorry, Mr. Benson and Mr. Tom, to Stanley Morris'  evidence at page 7 of his cross-examination on a  territorial affidavit.  Mr. Morris is Kaspit in the  House of Goohlaht, and he was being cross-examined  about the Nanika Lake territory of Goohlaht in the  southeastern -- pardon me -- the southwestern  extremity of the claim area.  And at line 6 he's  asked:  "Q   Well, Nanika Lake is in the Goohlaht  territory described in Jimmy Morris'  affidavit?  A   Yes. 28842  Submission by Mr. Wolf        1 Q   And does any  member of your house trap  2 there now around Nanika Lake?  3 A   No.  4 Q   And why is that?  5 A   I don't know why they didn't go up there  6 anymore, but during the 1950's my father  7 and them all -- they all didn't go out  8 anymore because the price of fur was low at  9 the time."  10  11 One of the other reasons perhaps why Indians in  12 the claim area were not trapping as much after the  13 Second World War is the availability of alternate  14 sources of employment, especially in the forest  15 industry.  I've already read you that extract from  16 Richard Benson in which he describes how people are  17 working in the mills these days, and I've also read  18 you John Adams' statements about the employment  19 opportunities or characteristics of people in the  20 area.  You've also heard from Rae Mclntyre and Cyril  21 Shelford about the rise of small independent logging  22 operations, especially in the southern part of the  23 claim area, in the 1950s.  Mr. Shelford at this  24 reference stated that there was something like 81 or  25 84 new forest or new mills in the Francois Lake area  26 after the Second World War.  27 Paragraph 9 of my submission I say finally it is  28 submitted that the sale of a registered trapline by a  29 plaintiff or his ancestor is conclusive proof of  30 abandonment of an aboriginal trapping right.  And  31 there are some examples in evidence of plaintiffs  32 and/or their ancestors who sold or tried to sell their  33 registered traplines to non-Indians or to Indians who  34 are not plaintiffs.  35 And I should refer you to tab 21 in this respect.  36 And the first document at tab 21 is a July 19, 1948  37 letter of Arthur Seymour and Harold Hagman.  I'm not  38 sure.  He's writing to the Indian Agent, who was Jeff  39 Boys at that time, in which he says that he sold his  40 trapline at Morris Lake to Ross Morchie.  And the  41 second example, it's not particularly clear from the  42 documentation, but it has to do with a trapline in the  43 very, very southeastern corner of the claim area near  44 Burns Lake.  And the last page of that tab is a note  45 of Rae Mclntyre's in which he notes that this trapline  46 was sold to the Burns Lake Band in 1960.  47 And we say that those are two examples of 28843  partly or  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  Submission by Mr. Wolf        1 traplines that are either  entirely in the  claim area that were sold to Indians who are not  plaintiffs or to non-Indians altogether.  THE COURT:  This is sold to the Burns Lake Band?  MR. WOLF:  Yes.  MR. GRANT:  The name of the band — and I think I objected  because I think there was a failure of evidence as to  whether Mr. Isaac was a named plaintiff.  My friend  has put that particular reference in at least.  MR. WOLF:  Well —  THE COURT:  You don't know —  MR. GRANT:  The point of that is, my question, is my friend  saying that if an Indian, whether -- even if he's not  a plaintiff, sells a registered trapline in the claim  area the plaintiffs have lost their aboriginal right  to the trapping?  Is that my friend's proposition?  MR. WOLF:  This matter was argued at the time that Mr. Mclntyre  gave evidence about these documents, and we were  unable to distinguish or establish whether Mr. Isaac  was a plaintiff or not, but he was purporting to deal  with a trapline which is in the claim area or at least  partly in the claim area, and that was the basis on  which this evidence was led.  THE COURT:  But we don't know -- do I know anything about the  Burns Lake Band?  I don't know whether they're -- the  Burns Lake Band is comprised entirely of plaintiffs or  part plaintiffs or any plaintiffs.  MR. GRANT:  I think that the evidence, as I recall, would be  that there are some plaintiffs in the Burns Lake Band  and some non-plaintiffs in the Burns Lake Band, but my  friend -- the question I'm asking my friend now goes  to his argument because I want to know if he's saying  that if a non-plaintiff sells a registered trapline in  the territory is my friend saying that's abandonment  by the plaintiffs.  That's my question.  I'd like him  to clarify that now or later before he finishes  argument.  MR. WOLF:  Well, my lord, it's difficult at times to determine  who a plaintiff is in this case, whether a particular  individual is a plaintiff or not.  It may be that this  trapline sale is a better example of extinguishment  than abandonment.  In our submission, it doesn't make  any difference whether it's abandonment or  extinguishment.  They've lost all rights with respect  to that area.  And with respect to the Burns Lake Band, my lord,  Mr. Macaulay addressed you to some extent about that 28844  Submission by Mr. Wolf        1 the other day.  He was  mentioning the Tibbetts family  2 and that the Tibbetts family is the primary family, as  3 I understand it, of the Burns Lake Band, and to the  4 best of my knowledge they're not plaintiffs, and I  5 have no information that any of the Burns Lake Band  6 are plaintiffs.  There are a few plaintiffs among the  7 Omineca Band or the -- it's now the former Omineca  8 Band -- Neetahbuhn Band or the Broman Lake Band, but  9 not the Burns Lake Band.  10 THE COURT:  All right.  Thank you.  11 MR. WOLF:  Would it be convenient to take the morning  12 adjournment?  13 THE COURT:  Yes.  All right.  14 THE REGISTRAR:  Order in court.  Court stands adjourned for a  15 short recess.  16  17 (PROCEEDINGS ADJOURNED PURSUANT TO THE MORNING BREAK)  18  19 I hereby certify the foregoing to  20 be a true and accurate transcript  21 of the proceedings transcribed to  22 the best of my skill and ability.  23  24  25  26  27  2 8 Leanna Smith  29 Official Reporter  30 UNITED REPORTING SERVICE LTD.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28845  Submissions by Mr. Wolf        1 (PROCEEDINGS RESUMED  PURSUANT TO MORNING RECESS)  2 THE COURT:  Mr. Wolf.  3 MR. GRANT:  My lord, before my friend starts and given we are  4 not sitting in the afternoon, I just wanted to get  5 some clarification.  I raised this with Miss  6 Koenigsberg before this morning.  Mr. Macaulay had  7 indicated earlier this week and late a last week that  8 they had anticipated that the counterclaim argument  9 would be delivered to us prior to this weekend.  Miss  10 Koenigsberg said she would make her best efforts, but  11 does not appear to be able to advise of that.  It's  12 very important that the plaintiffs get -- given that  13 what's happening is we are getting new argument --  14 what my friend has just done this morning is we are  15 getting new argument every day, that we get this  16 counterclaim argument that my friends are actually  17 going to rely on and argue, before the weekend so we  18 can deal with it in terms of reply, although my  19 friends are presenting it Monday and Tuesday.  And I  20 am quite concerned by what's happening and as are all  21 plaintiffs' counsel in terms of how to get our reply  22 when the arguments are trickling as they are.  These  23 are arguments -- these documents that were delivered  24 to Professor Jackson yesterday and this supplementary  25 material that my friend is going to go into today was  26 delivered on Monday, but the arguments yesterday were  27 clearly something that didn't just happen.  They were  28 something that was obviously many, many months in  29 preparation.  And I would ask that my friends be  30 directed or guided or urged or whatever can be done to  31 get the counterclaim argument delivered to us by the  32 end of tomorrow so we will have the weekend to prepare  33 our reply to it.  34 THE COURT:  Well, is there a problem with that, Miss  35 Koenigsberg?  36 MS. KOENIGSBERG:  Only that I am unaware that my friend has the  37 right of reply to our response to the Province's  38 counterclaim.  We happen to be, strange as it may  39 seem, the same side of that issue with the plaintiffs.  40 But be that as it may, we can do no more than say we  41 will do our best.  Our friends do have and have had  42 for a long time the first half of the full argument  43 and a ten-page outline of the points of the second  44 part and it's only the second part that still has to  45 be delivered.  And I really don't understand my  46 friend's concern in terms of reply.  I can understand  47 they would like to so see it and we'll get it to them 28846  Submissions by Mr. Wolf        1 as soon as possible, but  they don't actually have a  2 right of reply.  3 THE COURT:  Well, I am not sure that I would preclude a right of  4 reply if they want to use their time up that way.  5 They may -- they may have the view that that is the  6 best way to reply to the cases, argument generally.  7 I'm guessing now on how -- or I am constructing a  8 tentative scenario of how one might want to argue a  9 reply generally.  I am not sure that I am being very  10 precise, but I am not sure that I am going be all that  11 difficult about what they want to reply to during the  12 limited time they have for the reply.  But in the same  13 position that Mr. Goldie was pleading for diskettes,  14 Mr. Grant was saying we'll do the best we can.  I  15 think I can't do anything better than leave it at  16 that.  When argument develops this way there is no  17 provision for these sort of outlines of argument in  18 the rules.  And if we didn't have the written outlines  19 and counsel were just free-wheeling their argument as  20 counsel can do in conventional litigations, they  21 wouldn't have this kind of advance notice anyway.  So  22 I can't force -- I can't make an order, Mr. Grant.  23 Your friend says they will do the best they can.  I  24 urge them to do the best they can and I am confident  25 that they will.  That's as far as I can go.  Mr. Wolf?  26 MR. WOLF:  My lord, before the break I was just dealing with the  27 issue of the sale of traplines.  Before I conclude my  28 submission on general evidence with respect to  29 trapping, I just want to say that our submissions with  30 respect to individual traplines or individual trapping  31 on individual territories is set out in the site  32 specific or territory specific analysis which I am  33 about to launch into.  34 THE COURT:  All right.  35 MR. WOLF:  The next section of my submission deals with hunting  36 rights.  37 THE COURT:  You are into nine now?  38 MR. WOLF:  Yes.  39 THE COURT:  Roman IX?  40 MR. WOLF:  No.  Sorry it's still at Roman VIII, Part VIII, and  41 it's page 20 of the previous section that I was  42 dealing with before.  43 THE COURT:  Oh, yes, all right.  Thank you.  44 MR. WOLF:  It's just a couple of pages left.  45 THE COURT:  Yes.  All right.  46 MR. WOLF:  And we say with respect to hunting rights that  47 exclusive aboriginal hunting rights in the claim area 28847  Submissions by Mr. Wolf        1 had been extinguished.  And you have heard our  2 argument on that point.  In the alternative, we submit  3 that the plaintiffs have abandoned their aboriginal  4 hunting rights with respect to various parts of the  5 claim area, which the evidence at trial demonstrates  6 had not been hunted over for several decades.  There  7 is, however, evidence that the plaintiffs and their  8 ancestors have continuously hunted over lands close to  9 the seven occupied villages and nearby roads.  In  10 respect of these areas it is submitted that aboriginal  11 hunting rights may not have been abandoned to the  12 extent that such rights have not been extinguished at  13 specific locations, and whether the plaintiffs have  14 proved that they have continuously exercised their  15 hunting rights on specific territories is, as I said,  16 with respect to trapping examined in our site specific  17 analysis set out in Part IX below.  Just one or two  18 last general remarks about trapping -- pardon me, with  19 respect to hunting, is that we say that a review of  20 the plaintiffs' evidence indicates that they or their  21 ancestors have not hunted over certain remote and  22 inaccessible portions of the claim area for many  23 years.  And the examples that I cite there include the  24 Mosque Mountain/ Sustut River territory claimed by Wii  25 Gaak, which is discussed in Section 12B of our site  26 specific analysis in Part IX, and the Whitesail Lake  27 territory claimed by Goohlaht, which is discussed in  28 detail in our site specific analysis at Section 56C.  29 And I say the last submission with respect to  30 hunting is that the only non-Indian witness at trial  31 who had experience of the remote portions of claim  32 area north of Kisgegas did not observe any Indian  33 hunting in those regions.  And I provide the reference  34 for that at tab 22.  35 We have a very sort submission with respect to  36 berry-picking, my lord.  The evidence appears to  37 indicate that traditionally berry-picking occurred  38 around village sites and fishing camps.  We say that  39 where villages or camps have been abandoned, the  40 plaintiffs' aboriginal right to pick berries in those  41 areas has also be an abandoned.  Again, berries will  42 be -- or evidence regarding individual berry-picking  43 sites will be discussed in our site specific analysis  44 which I am about to enter into.  45 THE COURT:  I am trying to remember where the Sustut River  46 rises.  47 MR. WOLF:  It rises outside the claim area to the northeast, my 28848  Submissio:  2  THE  COURT  3  4  MR.  WOLF:  5  THE  COURT  6  MR.  WOLF:  7  8  9  10  THE  COURT  11  MR.  WOLF:  12  13  14  THE  COURT  15  MR.  WOLF:  16  THE  COURT  17  18  MR.  WOLF:  19  THE  COURT  20  MR.  WOLF:  21  THE  COURT  22  23  24  MR.  WOLF:  25  THE  COURT  26  MR.  WOLF:  27  28  THE  COURT  29  30  MR.  WOLF:  31  THE  COURT  32  MR.  WOLF:  33  34  35  36  THE  COURT  37  MR.  WOLF:  38  39  THE  COURT  40  MR.  WOLF:  41  42  43  44  45  46  47  THE  COURT  ns by Mr. Wolf        1 lord  :  Yes.  All right.  And the Bear River flows out of  the -- out of Bear Lake into the Sustut?  That's right.  :  Yes.  All right.  The Sustut rises up in this area over here and it  joins the Skeena.  It flows through the Wii Gaak  territory I mentioned and it joins the Skeena at about  this point here.  :  Yes.  All right.  The other territory I mentioned, the Goohlaht  territory or Whitesail Lake territory is the one in  the extreme southeast corner of the claim area.  :  Oh, yes.  The southwest claim area.  :  You are saying the Sustut rises outside the claim  area?  I believe it does, my lord.  :  The Sustut peak is outside the claim area.  There is a Sustut Lake and a Johanson Lake.  :  It seems that on -- that the boundary, the external  boundary runs for some distance in a northeast,  southwesterly direction along the Sustut.  Yes, I believe that's accurate.  :  Yes.  But Sustut Lake, which appears on this map, Exhibit  646, is indicated as being outside the claim area.  :  Oh, all right.  So it flows north and then makes a  big bend and comes down the bottom?  Yes.  :  All right.  Thank you.  You can also see that on our desk-sized version of  the same area, my lord.  You can see that Sustut Lake  is just to the east of Sustut peak, and that's outside  the —  :  Yes.  That's right.  -- claim area.  And I believe that that is the head  of Sustut River.  :  All right.  Yes.  Thank you.  And I am now going to begin, my lord, our submissions  in Part IX of our summary.  This is an expanded, very  much expanded part of our summary.  We delivered the  analysis of the Gitksan territories to the plaintiffs  on Monday, and we have today delivered a corrected  version of that argument, and I will just ask Madam  Registrar to hand that up to you.  :  All right.  And where does it go? 28849  our  binder on  argum  2  3  THE  COURT  4  MR.  WOLF:  5  6  7  8  9  10  11  MR.  GRANT  12  13  14  MR.  WOLF:  15  16  17  18  19  20  21  22  THE  COURT  23  MR.  WOLF:  24  25  26  27  THE  COURT  28  MR.  WOLF:  29  THE  COURT  30  31  32  33  34  MR.  WOLF:  35  THE  COURT  36  MR.  WOLF:  37  38  THE  COURT  39  MR.  WOLF:  40  41  THE  COURT  42  43  MR.  WOLF:  44  45  46  THE  COURT  47  MR.  WOLF:  Submissions by Mr. Wolf        1  MR. WOLF:  It should be inserted in  nt at  Part IX, tab 9.  Does it replace what's there now under nine?  Yes, it does.  We have also supplied an index.  It's  just a partial index for the time being.  We are  completed the index, and we will deliver -- we have  delivered to the plaintiffs our expanded version of  the Wet'suwet'en territories and I expect tomorrow to  deliver our submissions with respect to those  territories.  And I might just --  My friend indicated he's going to deliver a revised  Wet'suwet'en, I gather the same magnitude or similar  to this one.  That's correct, my lord.  After we received the  plaintiffs' argument, or summary of argument, we began  an extensive analysis of their evidence, basically a  line by line review of the evidence as set out in  their argument and this evidence is, in part, a reply  to that.  And it covers much of the same ground as the  plaintiffs covered in their argument on the  territories.  Thank you.  The submissions or written submissions are set up on  the same format as the plaintiffs' argument which is  set out in Volume 6 of their argument, the same order  of territories.  I think you have a punch that --  It doesn't punch very well?  Lines up a half a millimetre to the right.  Herman  had a cartoon yesterday morning where a man took a  hammer back to the hardware saying that this hammer  hits two inches to the left every time.  I have it  now.  Thank you.  Well, we'll check out our hole punch.  No.  I am sure it's all right.  I was just explaining to you, do you have the index  at the front?  Yes.  Yes.  I am not going to go through each of these  territories, you will be glad to hear.  Is that the order the plaintiffs had their  territories?  Yes.  That's what I was about to say.  It's also in  the same order as Miss Russell presented our site  specific extinguishment submission.  Yes.  So you'll be able to sit down and compare the 350  beginning  with thei  2  3  THE  COURT  4  MR.  WOLF:  5  6  7  THE  COURT  8  9  MR.  WOLF:  10  THE  COURT  11  MR.  WOLF:  12  THE  COURT  13  MR.  WOLF:  14  THE  COURT  15  MR.  WOLF:  16  17  18  19  20  21  22  23  24  25  26  THE  COURT  27  28  MR.  WOLF:  29  THE  COURT  30  MR.  WOLF:  31  32  33  34  THE  COURT  35  MR.  WOLF:  36  37  38  39  40  THE  COURT  41  MR.  WOLF:  42  43  THE  COURT  44  MR.  WOLF:  45  46  47  Submissions by Mr. Wolf        1 plaintiffs' argument  Volume 6  with our submissions with respect to abandonment.  If I do I will be seated for a long time.  Well, I am not going to keep you here all day today  and all day tomorrow going through these, my lord, you  will be glad to hear.  And this is really territory by territory analysis  of the evidence of occupation?  Occupation and use.  And abandonment.  And —  It says.  And we have submissions with respect to --  Yes.  -- abandonment.  One of our submissions in my  introduction, my lord, is that we say that the burden  is on the plaintiffs in this case to establish that  they have aboriginal title or aboriginal rights and in  that respect we adopt the Province's submission at  Part 2, Section 4, page 12 of their argument, that it  is on the plaintiffs' to show that they have use and  occupancy rights or that they have any use and  occupancy rights.  And our submissions deal with that  issue and then they also deal with the issue of  abandonment as well which is the flip side.  These use and occupation items of evidence you are  analysing here, are they dated?  To the extent that it's possible.  Yes.  Prehistoric, proto-historic and historic?  No, no, my lord.  That was one of the major problems  facing an examination of this kind of evidence is that  there is not that territory by territory or site  specific evidence dating from earlier periods.  Yes.  So this is historical?  Well, by and large it relates to the period since  Loring actually.  It is based on an analysis of the  plaintiffs' own evidence.  The evidence at trial, some  documentary evidence, but basically their own  evidence --  Yes.  -- about what they were doing in the last 60 or 80  years.  Yes.  All right.  As one other introductory remark, I'd like to say  that one of the problems in examining the great bulk  of lands at trial is that we say that large portions  of it are based on hearsay.  This is the type of 28851  Submissions by Mr. Wolf 1            hearsay which you  described in your draft reasons for  2 judgment in July -- or June of 1987 as evidence of  3 user and the -- and the specific example that you gave  4 at that time, if you may recall, is Mrs. McKenzie's,  5 Mary McKenzie's statement that her husband, Ben  6 McKenzie, had tracked on her territory.  And you  7 decided at that time that you thought that that type  8 of evidence was inadmissible because it was just -- it  9 was a hearsay statement.  Mrs. McKenzie had never been  10 to her own territory and she could not give evidence  11 of the use of that territory by repeating to her  12 statements of what her husband told her.  You did,  13 however, say that you thought -- this is at page 17 of  14 your draft reasons, which as I understand it you  15 didn't change when you wrote your final reasons on  16 this subject a month later.  You said that:  17  18 "...  this is not to say that a witness could  19 not give evidence about a reputation for user  20 as a historical fact subject of course to the  21 considerations which accompany and qualify the  22 admissibility of such kinds of evidence."  23  24 But throughout my submission on the territory by  25 territory analysis I say that the court must weigh and  26 consider whether specific statements or types of  27 evidence is in fact inadmissible hearsay or not, and  28 we say that large portions of it are.  It could only  29 be statements -- the individuals give evidence which  30 could only be based on statements made to them by  31 other people because they have never been to that  32 territory, or they hadn't been to that territory at  33 the particular time they are describing.  34 THE COURT:  Well, if it's not admissible to prove the truth of  35 the statement made by Mr. McKenzie, I guess you would  36 say that it's only evidence of the fact that he left  37 home and he came back, and he was gone for awhile.  38 MR. WOLF:  That's all that Mrs. McKenzie could say.  He might  39 have brought some furs home with him.  4 0  THE COURT:  Which would prove he trapped somewhere.  41 MR. WOLF:  Yes.  Or acquired them somehow, but presumably  42 trapped somewhere, and we know that he was an active  43 trapper in another area and she did give evidence  44 about her trips with him to his territory to trap.  I  45 might just read to your lordship what you said on this  46 particular point, and this appears at page 17 of your  47 draft reasons which were appended to your final 28852  Submissions by Mr. Wolf        1 reasons which were dated  July 27, 1987.  And you say:  2  3 "Inso far as user is concerned, however, I have  4 considered many authorities including R. v.  5 Baron Von Lindberg and others but I cannot find  6 support for the admissibility of declarations  7 made by living or deceased persons about  8 specific use made of the territories claimed by  9 the Plaintiffs.  For example, Mrs. McKenzie's  10 husband, who is still alive, told her he went  11 trapping on her territory.  It appears to me  12 that such declarations would not be admissible  13 even if he were deceased.  But this is not to  14 say that a witness could not give evidence  15 about a reputation for user as a historical  16 fact subject of course to the considerations  17 which accompany and qualify the admissibility  18 of such kinds of evidence."  19  20 And I say that most of the evidence of use is not  21 reputation type of evidence.  It's statements that my  22 father went to such and such a place, and there is no  23 basis in which that person would know that unless he  24 had been told by his father or someone else.  I think  25 we will come in cross-examples of this, my lord, as we  26 go through some of these territories.  27 THE COURT:  All right.  Thank you.  28 MR. WOLF:  As I said, the submission that I have delivered to  29 you, the written submission, concerns the Gitksan  30 territories.  We will be making -- or I will be making  31 submissions tomorrow concerning the Wet'suwet'en  32 territories, and there are approximately about another  33 hundred pages of written submissions.  Again, on a  34 territory by territory basis.  35 THE COURT:  These 25 territories in this index -- no, I'm sorry.  36 They are not in numerical sequence.  But these two and  37 a half pages of indexes that I have now are all  38 Gitksan territories, are they not?  39 MR. WOLF:  That's correct.  And it's not a comprehensive list or  40 index, my lord.  There are a few more Gitksan  41 territories which we haven't included.  We didn't have  42 time to prepare the index.  But we will not get  43 through all of these today and I will deliver a  44 completed index of all the Gitksan and all the  45 Wet'suwet'en territories --  4 6 THE COURT:  Yes.  All right.  47 MR. WOLF:  — tomorrow. 353  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr  MR. WOLF  Wolf  1  THE COURT:  THE COURT  MR. WOLF:  THE COURT  MR. WOLF:  THE COURT  MR. WOLF:  THE COURT  MR. WOLF:  Thank you.  The books of references, my lord -- we are providing  to you copies of all of the references which we cite  in this section so that you'll have an opportunity to  consider the -- or have for use of reference the  actual testimony and evidence.  I will just ask Madam  Registrar to hand up to you our first volume which is  labelled Part IX Gitksan-Wet'suwet'en Territories  references Volume 1.  How many volumes of that will there be?  Three or four.  Oh.  That's not bad.  Thank you.  I will just say that these references are set up in  the same way that the Province's references were set  up, set up on a paragraph by paragraph basis.  Yes.  So if the first territory is Gitludahl or Twin Lakes  territory, if you would turn to the binder, that will  be referred to as -- the first tab will be 1.1, that's  paragraph one of section one.  Yes.  And so on.  The number two -- 2A is the first Delgam  Uukw territory and so on.  But I will take your  lordship through at least one of the territories or a  few of the territories and we'll use the references so  you become accumstomed to it.  The first three  territories that I am going to ask your lordship to  consider are the three Delgam Uukw territories.  These  territories are all located in or near the Kispiox  Valley.  The furthest or the most remote Delgam Uukw  territory is the one located at Kwinageese Lake in the  northwest border of the claim area.  The second  territory is known as the Willi Wakw or Ironsides  Creek territory and it's located in the middle of the  Kispiox Valley.  And the third territory claimed by  Delgam Uukw is a territory between the Skeena and  Kispiox River directly north of the Village of  Kispiox.  So I am going to ask your lordship to turn over or  turn past the Gitludahl territory analysis, which is  section one, and go to page three of my submission.  And I say with respect to these three Delgam Uukw  territories that they are representative of the types  of territories that are found in the claim area.  And  when I say representative I mean representative in  regard of the type of use that were made of them by  the plaintiffs and the patterns of use and occupation 28854  Submissions by Mr. Wolf        1 and in some cases  abandonment are repeated throughout  2 the entire entire submission.  The Tenas Hill  3 territory, which is located directly north of Kispiox,  4 is a territory for which the plaintiffs have provided  5 virtually no evidence of use.  The Ironsides Creek  6 territory in the middle of Kispiox Valley is one which  7 they had provided quite detailed evidence of use.  And  8 the Kwinageese territory is a relatively remote  9 territory and there is no evidence that that territory  10 was used for a period of about 40 years, although in  11 the last 15 years or so there is evidence that members  12 of Delgam Uukw's family have gone out and are using  13 that territory.  But that's the type of conclusions  14 that one comes to if you look at the evidence on all  15 of the 140 odd territories that are claimed by the  16 plaintiffs in this action.  17 Now, beginning at page three of my submission,  18 section 2(A), Delgam Uukw, Xsu Willi Wakw, or  19 Ironsides Creek territory.  As I have said, this  20 territory is located approximately 25 miles northwest  21 of the village of Kispiox in the Kispiox River Valley.  22 The Kispiox River and Ironsides Creek are important  23 topographical features of the territory.  The  24 territory is described in the affidavit of Peter  25 Muldoe.  Peter Muldoe, Ken Muldoe, Richard Benson and  26 Jeff Harris Sr. all gave evidence about the use of  27 this territory.  And then I give a reference to the  28 plaintiffs' submission on this territory.  And this is  29 the format that I adopt with respect to all of the  30 territories, my lord.  I introduce you to the area.  I  31 then give you a conclusion about the evidence or what  32 we say the evidence says, and then I set out in  33 paragraph form what was said of this particular  34 territory.  And of course the vast majority of the  35 evidence is through the mouths of the plaintiffs' own  36 witnesses.  We say that with respect to the evidence  37 presented regarding the Ironsides Creek territory,  38 that it appears that parts of this territory have been  39 used for hunting and trapping on a relatively  40 continuous basis since the 1930's.  The only area  41 about which there is no evidence of use since Peter  42 Muldoe's trapping trip in the mid 1930's is the area  43 west of Mitten Lake.  The plaintiffs have not  44 established that they used this western part of the  45 territory, we say.  However, there is evidence that  46 hunting and trapping has continued in varying levels  47 of intensity up to the present time on that part of 28855  Submissions by Mr. Wolf        1 the territory east of the  Kispiox River and around  2 Mitten Lake.  Now, we say that the plaintiffs' have  3 established that they continuously used and have  4 aboriginal rights to hunt and trap on this eastern  5 part of the territory.  The evidence that Jeff Harris  6 Sr. has stopped trapping as a result of logging is not  7 evidence of abandonment but of extinguishment.  And  8 I'll ask your lordship to turn to our book of  9 references.  It will be to the tab which is 2A-1.  Do  10 you have that, my lord?  11 THE COURT:  Not yet.  Yes, I do.  12 MR. WOLF:  This is the affidavit that I referred to in paragraph  13 one and the 2A-3 refers to paragraph one of the  14 section.  The next tab is 2A-3 and that is the tab  15 which provides the references to the submissions set  16 out in paragraph three of our written argument.  And  17 the first document, I hope, at that tab is a map.  Is  18 there a map at that tab?  19 THE COURT:  Yes.  20 MR. WOLF:  That map is Exhibit 486 and it is, or it was the map  21 by which much of Peter Muldoe's evidence was  22 introduced, and the territories which are outlined on  23 this map are the territories in which he -- about  24 which he swore an affidavit and gave evidence about.  25 And if you look toward the middle of the map you'll  26 see on slightly askew north/south line the worth  27 Delgam Uukw.  And it's an odd-shaped territory.  It's  28 difficult to describe.  But that's the Ironsides Creek  29 territory.  Does your lordship see that?  3 0 THE COURT:  Yes.  31 MR. WOLF:  And as I say, Mr. Muldoe's evidence with respect to  32 this territory was introduced with the aid of this map  33 and it is said that the triangles on the map represent  34 cabins or cabin sites on this territory.  And if you  35 look down at the middle lower part of the map you'll  36 see two or three black triangles and those are said to  37 be cabins or cabin sites.  Mr. Muldoe, that is Peter  38 Muldoe, testified that the triangle on the map in the  39 south central part of the territory at Elizabeth Lake  40 depicts a cabin that still stands.  It's very  41 difficult, my lord, to see Elizabeth Lake on this map.  42 It's not as far as I can tell depicted by that name.  43 And I am not sure whether it's easier to see, but I  44 believe that it is one of these two or three lakes in  45 this area here and the triangles on the map are  46 depicted in this area here.  47 THE COURT:  Just off the highway? 356  Submissions by Mr. Wolf        1  MR. WOLF:  That's right.  :  Yes.  He also testified that a triangle in the same area  but close to the Kispiox River represents a site where  a cabin used to stand.  Mr. Muldoe also testified that  he has hunted on the territory between Corral and  Ironsides Creek around Elizabeth Lake.  In this area  he was hunting beaver or moose.  Unfortunately,  Ironsides Creek and Corral Creek I do not believe are  depicted on our judge's series map or desk-size series  map by those names, my lord.  It may appear on this  exhibit.  :  I believe it does.  This is Ironsides Creek which goes down into the  Skeena River there.  :  Kispiox, isn't it?  Pardon me.  Into the Kispiox River.  You are right.  Corral Creek is this creek on the western border of  the territory.  I just point out that Cullon Creek is  on the eastern side of the territory and Mitten Lake,  which Mr. Muldoe gave some evidence, is located on  west side of the Kispiox River.  :  Is there a road from the Kispiox Valley Road  across -- across the Kispiox River at or near Mitten  Lake?  The map --  :  Or is that Cullon Creek where the bridge is?  Pardon me?  :  Or is Cullon Creek where the bridge is?  I am not sure, my lord, where the bridge is.  Are you  referring to 17 Mile Bridge, is it?  I am not sure.  :  I have forgotten.  It doesn't matter.  The road, I understand, is on the northeast side of  the river and there are logging roads on the west side  of the river.  That's my understanding.  :  Yes.  :  There are roads on both sides at this point,  although not depicted on the map, my lord, and I think  the 17 Mile Bridge is much further south.  :  There is a logging road with a bridge across  Kispiox.  :  Yes.  And I just can't recall the creek, but it's up  in that area.  :  All right.  Thank you.  I haven't had the advantage of being up in that area,  my lord.  :  Oh, you have missed a treat.  2  THE  COURT  3  MR.  WOLF:  4  5  6  7  8  9  10  11  12  13  MR.  GRANT  14  MR.  WOLF:  15  16  THE  COURT  17  MR.  WOLF:  18  19  20  21  22  23  THE  COURT  24  25  26  MR.  WOLF:  27  THE  COURT  28  MR.  WOLF:  29  THE  COURT  30  MR.  WOLF:  31  32  THE  COURT  33  MR.  WOLF:  34  35  36  THE  COURT  37  MR.  GRANT  38  39  40  THE  COURT  41  42  MR.  GRANT  43  44  THE  COURT  45  MR.  WOLF:  46  47  THE  COURT 28857  Submissions by Mr. Wolf        1  MR. WOLF:  At paragraph four of my  submission I say that Mr.  2 Muldoe testified that he had trapped on the western  3 portion of the Delgam Uukw territory in the vicinity  4 of the asterisk which is depicted on Exhibit 486.  A  5 copy of 486 is either at tab 3 or tab 4 of this  6 binder.  And if you look at the western end of this  7 territory on the west side of the Kispiox River you'll  8 see an asterisk.  It's not that important to find that  9 particular mark at the moment.  Mr. Muldoe stated that  10 the asterisk represents a site that he had been told  11 was used long ago as a barrier as a snare for caribou.  12 He also testified that he went trapping in 1937 or  13 1938 with Albert Tait, the former Luus -- pardon me,  14 the former Delgam Uukw, in the vicinity of Dead Horse  15 Lake and Deep Canoe Creek.  Dead Horse Lake and Deep  16 Canoe Creek are towards the north end of that  17 territory and are in fact in the adjacent Wiigyet  18 territory.  The plaintiffs in their argument at page  19 13 state that this trapping took place on Delgam  20 Uukw's territory, but we say that from Mr. Muldoe's  21 remarks he was speaking about the adjacent Wiigyet  22 territory.  There is no evidence that Mr. Muldoe  23 trapped on the territory after 1938.  Mr. Muldoe also  24 testified that he had been up at the north end of the  25 territory along Deep Canoe Creek and that he had  26 hunted there.  It appears from the question asked of  27 Mr. Muldoe that he was hunting groundhog.  On the same  28 page he stated that "there's good moose hunting" along  29 Cullon Creek, at Elizabeth Lake, and at Mitten Lake.  30 Paragraph five my submission.  Peter Muldoe's son  31 Ken Muldoe, who was Delgam Uukw, gave evidence in 1988  32 that he had trapped on this territory for each of the  33 last 15 years except two most recent winters.  It is  34 not clear from his evidence where exactly on the  35 territory he trapped.  However, Pete Muldoe testified  36 that his son had a trapline north of Burnt Hill.  37 Provincial Trapline No. 630T016 is in fact registered  38 to Ken Muldoe.  This registration takes in the eastern  39 part of the territory along Cullon Creek but it lies  40 primarily within the adjacent territory claimed by  41 Gwiyeehl.  And we say that it's probable that Mr.  42 Muldoe's trapping activities were restricted to the  43 area of this registered trapline.  And one of the  44 reasons we say that is set out in our submission in  45 paragraph six, and that is in relation to the largest  46 registered trapline from this territory which takes in  47 the watershed of Ironsides Creek.  Richard Benson arris Sr  . used to  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  THE  COURT  24  MR.  WOLF:  25  26  27  28  THE  COURT  29  MR.  WOLF:  30  THE  COURT  31  MR.  WOLF:  32  THE  COURT  33  MR.  WOLF:  34  35  THE  COURT  36  37  MR.  WOLF:  38  39  40  41  THE  COURT  42  MR.  WOLF:  43  44  THE  COURT  45  MR.  WOLF:  46  47  Submissions by Mr. Wolf        1 testified that Jeff  trap this area  and that at one time the trapline was held by Jeff  Harris' father, Fritz Harris.  Jeff Harris Sr. stated  that he first went to Iron -- went to the Ironsides  Creek trapline of his father, Fritz, when he was 12  years old.  He also stated that his brothers, Chris  and Ambrose Harris, went out to the territory or  trapline more often than he did.  When Fritz Harris  died in 1952, Chris and Jeff Harris took over their  father's registration.  At some point in the past Jeff  Harris stopped trapping this line because of the  effects of logging in the territory.  And the source  of that statement, or evidence, is a letter that Mr.  Harris wrote to Ray Mclntyre in relation to the  special ARDA application he made.  Paragraph seven I make a submission with respect  to a fishing site which is depicted on Exhibit 358-22.  I am not sure -- yes, it is at tab 7.  You'll see the  part of map 22 of the plaintiffs' map index and at the  next page there is a photocopy of part of a map in the  vicinity of the Kispiox River Valley and Hazelton.  And -- do you see Kispiox River on that, my lord?  :  Yes.  To the left of that are a number of fishing sites  that are depicted, and one of them is Wiluuwak,  W-i-1-u-u-w-a-k, and T'elgamuux spelled  T-'-e-1-g-a-m-u-u-x.  :  Are you looking at the inset or on the main map?  I'm looking at page two.  :  Yes.  Of the tab.  It's the main map.  :  The main map.  Not the inset?  All right.  That's right.  Sorry.  I am not looking at the inset,  my lord.  :  All right.  Just a minute now.  I am having trouble  with this one.  To the right of the three-hole punch you go over  about two or three inches and then down about an inch.  And there are a number of names of sites and house  names --  :  Yes.  -- that marked for fishing sites along the Kispiox  River, and one of them is Wiluuwak, W-i-1-u-u-w-a-k.  :  Yes.  Wiluuwak appears to be the name Ironsides Creek.  Ironsides Creek is known as Xsu Wiluuwak. And so  presumably that site is at or near the mouth of 28859  Submissions by Mr. Wolf        1 Ironsides Creek on the  Kispiox River.  And we say that  2 there is no evidence that that particular site has  3 been used by the plaintiffs.  It's claimed but there  4 is no evidence that it's been used.  It -- and I might  5 just go back to our conclusion for a second with  6 respect to this territory, and we say that there is  7 quite a bit of detail of hunting and trapping  8 activities on this territory for at least the last 60  9 years.  But we also say that there is not evidence  10 that all parts of the territory have been used.  And  11 as I think you heard from Miss Koenigsberg, we submit  12 that only those areas which the plaintiffs have shown  13 that they have used can be the subject of an  14 aboriginal right.  And in this particular territory  15 the area west of Mitten Lake, which is the smaller  16 part of the territory, there is very little evidence  17 of use of that portion.  And as I mentioned in our  18 conclusion, our submission with respect to this  19 territory only deals with the issue of whether the  20 plaintiffs have established that they used the  21 territory or whether it's been abandoned.  But we have  22 other submissions with respect to whether rights have  23 been extinguished on this territory.  And there is  24 evidence through Jeff Harris that logging has occurred  25 on this territory and trapping is no longer possible.  26 The way the evidence has been presented in this case,  27 my lord, is that the plaintiffs allege that they own  28 territories, and that these territories have  29 boundaries, and you have been presented with various  30 maps depicting these boundaries and to some extent the  31 evidence has been led that various activities have  32 taken place on particular territories.  But this  33 evidence is organized according to those territories  34 as claimed by the plaintiffs, but that doesn't mean  35 that they -- just by claiming those territories, that  36 they have used all of them.  And so we say that they  37 have to show which particular areas they used in order  38 to establish any rights to those areas.  39 If I may, my lord, I'll turn over to the next  40 territory which is section 2(B), which is the section  41 at page seven of my submission.  It's the Delgam Uukw  42 Kwinageese territory, and that territory is located in  43 the Nass River watershed just beyond the headwaters of  44 the Kispiox River, which I have pointed out to you on  45 Exhibit 646, I believe.  647.  Major features of the  46 territory include the Nass River, Kwinageese River,  47 Kwinageese Lake and Fred Wright Lake.  This territory a  ffidavit  of Ken Mu  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  THE  COURT  21  22  MR.  WOLF:  23  THE  COURT  24  MR.  WOLF:  25  THE  COURT  26  MR.  WOLF:  27  28  THE  COURT  29  30  MR.  WOLF:  31  THE  COURT  32  33  MR.  WOLF:  34  THE  COURT  35  MR.  WOLF:  36  THE  COURT  37  MR.  WOLF:  38  39  THE  COURT  40  MR.  WOLF:  41  THE  COURT  42  MR.  WOLF:  43  44  45  46  47  560  Submissions by Mr. Wolf        1 was described in the  doe.  Ken  Muldoe and Pete Muldoe both testified about the  territory.  Our conclusion with respect to the evidence on  this territory is that it is clear that there was very  little, if any, use of the territory by the plaintiffs  from the 1930's until the early 1970's.  From the  early 1970's the Muldoe family has made a concerted  effort to establish a presence on this territory.  However, it is our submission that the evidence that  this territory was not used for at least 40 years  constitutes abandonment.  In other words, the  plaintiffs have not established that they continuously  use in territory.  Furthermore, the resumption of  hunting, trapping and fishing activities on this  territory during a period when the plaintiffs were  researching and preparing for their land claim we say  is self-serving evidence and should be disregarded by  the court.  Well, when did Pete Muldoe take the name Delgam  Uukw?  I am sorry.  Ken Muldoe.  I am sorry.  I am sorry.  Peter Muldoe was Gitludahl or is Gitludahl.  I am sorry.  I got the two families mixed up, sorry.  Ken Muldoe didn't take the name until Albert Tait  died in 1987.  Yes.  Well, Pete Muldoe was in the house of Wiigyet  and took the name Gitludahl.  That's right.  That's my understanding, my lord.  Was his son Ken in the house of Delgam Uukw from  birth?  Yes.  He was?  Yes.  All right.  And Ken's brothers and sisters were also in the  house.  They have always been in that house?  Yes.  Yes.  All right.  Thank you.  At page eight of my submission I begin the review of  the evidence on the territory.  Peter Muldoe testified  that he hunted beaver on this territory with Abel  Tait, who was Luus, sometime after 1933.  The only  other evidence of the presence of the plaintiffs in  this territory at this early period comes from the 28861  Submissions by Mr. Wolf        1 Commission of Richard  Benson.  It appears from his  2 testimony that he travelled through this territory in  3 1935 with Mary Anne, Jasper and Tommy Jack and David  4 on their way to the Taylor River north of the Nass  5 River.  Peter Muldoe admitted in cross-examination  6 that no one trapped on this territory for 40 years  7 prior to 1973.  In re-examination, however, he  8 testified that Albert Tait may have "trapped out there  9 sometime in the last part of the 40's somewhere."  Mr.  10 Muldoe also stated that he visited the territory by  11 helicopter with Albert Tait 15 years ago or in 1963.  12 His evidence is not clear on that.  But it doesn't  13 appear that they were there for any particular reason  14 other than just looking at the territory.  15 Paragraph four of my submission.  Peter Muldoe  16 testified that in the 1970's he returned to the  17 Kwinageese territory.  The first time he visited the  18 area along or during this period was when "the boys",  19 Lloyd Muldoe, Earl Muldoe, Albert Tait and others,  20 hired a plane and flew in.  Upon their arrival they  21 found a cabin built by "one of the white guys in  22 there."  They also found a trail built by "the  23 fishery", which I assume is the Department of  24 Fisheries and Oceans in the area from the main road.  25 Mr. Muldoe stated that over the past 15 years his  26 family built a cabin on the shores of Fred Wright  27 Lake, which he calls in his evidence Kwinageese Lake,  28 and rebuilt a bridge over the Kwinageese River that  29 Fisheries had constructed, maintained the trail into  30 the lake, and built another cabin five miles northeast  31 of "Kwinageese Lake."  That's what he calls Kwinageese  32 Lake, but it appears to be Fred Wright Lake on the  33 map.  Mr. Muldoe also testified that he trapped on  34 this territory for a few years in the mid 1970s and  35 again in the winter of 1987, '88.  36 Mr. Muldoe identified photographs taken in January  37 of 1988 of Ken Muldoe's family travelling to and  38 living at the cabin at Fred Wright Lake.  The cabin  39 shows marten skins -- pardon me, the photographs show  40 marten skins.  Peter Muldoe also testified that there  41 was fishing at the territory and that the family keeps  42 a boat on the lake.  Exhibit 358-22 depicts one  43 fishing site at Kwinageese Lake and two sets on the  44 Kwinageese River.  There is no evidence that any of  45 these sites have been used by the plaintiffs.  The  46 lake which is referred to in that paragraph in the  47 second line, my lord, is probably Fred Wright Lake is 28862  Submissions by Mr. Wolf        1 where they keep the boat.  2 Paragraph seven.  Ken Muldoe testified that his  3 brothers have trapped on the Kwinageese territory for  4 the past 12 years.  This evidence appears to be based  5 at least in part on inadmissible hearsay.  Muldoe  6 himself first trapped on this territory only six years  7 ago and was trapping the Kwinageese at the time he was  8 called in to give evidence in 1988.  Therefore it is  9 improbable that he had personal knowledge of his  10 brothers' activities during their first six years on  11 this territory.  12 Paragraph eight.  The only evidence identifying  13 the locations on this territory which have been  14 trapped was given by Peter Muldoe who referred to  15 trapping around "Kwinageese Lake" or Fred Wright Lake  16 on the government map.  Therefore, the only evidence  17 before the court is that trapping has occurred around  18 the lake known as Fred Wright Lake.  19 The plaintiffs, we say, have not established that  20 they utilized the territory outside of this area for  21 trapping.  There is no evidence of hunting on this  22 territory prior to 1984.  The Kwinageese territory is  23 a good example of a territory where the plaintiffs  24 have not provided any kind of evidence with respect to  25 where on the territory they trapped.  There is some  26 very sketchy evidence that there was some trapping in  27 the vicinity of Fred Wright Lake, but they don't say  28 in which direction they were going, nor -- or which  29 features they were trapping close to, which creeks.  30 And we say that it's impossible in those kinds of  31 circumstances for the court to make a finding that the  32 plaintiffs were trapping in any particular area.  33 I will move to our third territory on Delgam Uukw,  34 and that will be my last territory I will deal with  35 this morning, my lord.  That is the Delgam Uukw Sax  36 Ge'en or Tenas Hill territory, which is located  37 immediately north of the Village of Kispiox.  The  38 major features of the territory are the two rivers,  39 that is the Skeena and Kispiox rivers, and Tenas Hill  40 or Mountain.  41 Mr. Muldoe described the territory in his  42 affidavit and both he and Ken Muldoe gave evidence  43 about the territory.  Our conclusion with respect to  44 the evidence of the plaintiffs' use of this territory  45 is that it does not appear to have been used for  46 hunting, trapping or berry-picking for many decades.  47 There is evidence that parts of the territory have 363  Submissions by Mr. Wolf        1 been logged or taken up  probable,  therefore, that the absence of evidence of aboriginal  uses of this territory stems more from activities that  constitute extinguishment as opposed to abandonment.  Since this area is located so close to the village of  Kispiox there has been quite a lot of development  either in the form of alienation of land or logging,  and it's probably not too much that you can hunt and  trap on there any more.  :  Do those facts show up on the analysis that Miss  Koenigsberg did of the alienation project?  Miss Russell?  :  Was it Miss Russell?  Yes, I guess it was.  I am not sure, my lord.  I'll have to -- I will  double check on that.  :  All right.  I believe it probably does.  If it's referred to --  yes, I am sure it does, because if we move into our  evidence regarding this territory, you will see that  Peter Muldoe at the bottom of paragraph three said  that farmer had moved into that area.  He said that  Delgam Uukw's family used to trap in the area before  the farmers moved in.  Ken Muldoe testified that he  had not trapped in this area but his family had.  However, Pete Muldoe testified that there is no  hunting or trapping currently taking place on the  territory but Wa'a, a Chief in the House of Delgam  Uukw, used to trap there.  Peter Muldoe also testified  about a berry patch on the territory near a fishing  site, but it appears from his evidence that this  fishing site is no longer used.  Pardon me, the berry  patch is no longer used.  And, my lord, that's all the  evidence there is about that territory.  :  All right.  And there is very little for the court to go on in  terms of saying whether the plaintiffs ever used that  area.  But we say that the area was clearly either  abandoned or their rights in the area have been  extinguished by various alienations such as logging  and the selling of land to farmers.  And I will  conclude my submissions for today, my lord.  :  All right.  I will -- tomorrow I will take up a good part of  tomorrow reviewing a few more of the Gitksan  territories and then moving on to the Wet'suwet'en  territories.  :  All right.  I think perhaps Mr. Grant already knows  as  farms.  2  3  4  5  6  7  8  9  It  seems  10  THE  COURT  11  12  MR.  WOLF:  13  THE  COURT  14  MR.  WOLF:  15  16  THE  COURT  17  MR.  WOLF:  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  THE  COURT  35  MR.  WOLF:  36  37  38  39  40  41  42  THE  COURT  43  MR.  WOLF:  44  45  46  47  THE  COURT 28864  Submissions by Mr. Wolf        1 this, but it might be  useful to know what your  2 schedule is.  3 MR. WOLF:  Well, I am not going to take up all of tomorrow.  4 THE COURT:  Yes.  5 MR. WOLF:  But it's anticipated that we'll start our  6 counterclaim argument on Monday.  7 THE COURT:  You are not seeking to sit on Saturday then?  8 MR. WOLF:  No.  I will not take up all of tomorrow and we will  9 not have on sit Saturday.  10 THE COURT:  All right.  And then your counterclaim argument will  11 take you think how long?  12 MS. KOENIGSBERG:  Perhaps, my lord, I could speak to that.  We  13 anticipate taking approximately the full two days, and  14 then we have some concluding arguments that will be  15 brief, our submissions on section 35, the effect of  16 section 35 and the Sparrow decision.  And conclusory  17 remarks, trying to -- in the form, I suppose, of the  18 draft order, discussing that, will be either the end  19 of Tuesday or, at worst, beginning of Wednesday, but  20 we don't anticipate being longer than an hour with  21 that material.  22 THE COURT:  Are you going to be ready to start as soon as your  23 friends finish, Mr. Grant?  24 MR. GRANT:  Well —  25 THE COURT:  It was planned you had Thursday, Friday and  26 Saturday, I think.  27 MR. GRANT:  Yes.  We have three days and we had anticipated that  28 my friends may take to the end of Wednesday.  This  2 9 comment about Sparrow, I presume -- I presume given  30 the practice that they are not in this and we don't  31 have them yet and I didn't even know that my  32 friends -- I knew they had done one submission on  33 Sparrow and extinguishment, and we thought that's what  34 they were doing.  And if they have more, we'd like to  35 have that.  36 Our problem, and I can maybe speak to you  37 tomorrow, I have discussed it with other counsel, the  38 plaintiffs' counsel, is that the problem is having  39 caught up being ready, we want to start as soon as  40 they are finished.  The question is can we?  And if we  41 start as soon as they are finished, then we anticipate  42 we have three days from when we start.  We are  43 concerned with these -- with this material that we may  44 need to have a day, to have the balance of Wednesday,  45 so we can be ready to go Thursday morning.  4 6 THE COURT:  Yes.  47 MR. GRANT:  If your lordship has no problem. 28865  Submissions by Mr. Wolf        1  THE COURT:  I am not going to  insist you start the moment they  2 finish.  If you would rather wait until the next day  3 and use Thursday, Friday, Saturday, that's acceptable  4 I'm sure.  5 MR. GRANT:  That's not our preference, but it depends how  6 quickly we get this material.  7 MS. SIGURDSON:  Excuse me, could I ask, would there be any  8 objection to the defendants bringing in their personal  9 computer in for reply?  It may assist in avoiding  10 delays.  11 THE COURT:  Oh, I don't think so.  It's a quiet one, is it?  12 MS. SIGURDSON:  Yes.  13 THE COURT:  You are thinking of -- you are thinking of doing  14 what, keeping notes?  15 MS. SIGURDSON:  We had anticipated using it for finding  16 references from argument or from the transcript to  17 see -- considering whether it's proper reply or what  18 it replies to.  19 MR. GRANT:  I mean, we are of course endeavouring in our reply  20 to focus on reply as the rules deal with reply.  I  21 certainly hope it's not --  22 THE COURT:  That will be a refreshing change, Mr. Grant.  We  23 don't usually do our replies in that form.  24 MR. GRANT:  But given that as your lordship has indicated, we  25 appreciate that because of the trilogy of Supreme  26 Court cases, how that impinges on different areas and  27 other factors raised by my friends, including  28 credibility of our expert witnesses, we hope that we  29 are not going to spend a lot of the three days arguing  30 with them as to whether we can say A or B.  But we  31 don't want to do that.  We want to get in and say what  32 we have to say and be out.  33 THE COURT:  Yes.  34 MR. GRANT:  And I appreciate your lordship's comments this  35 morning regarding that.  3 6 THE COURT  37 MR. GRANT  3 8 THE COURT  3 9 MR. GRANT  4 0 THE COURT  Yes.  All right.  Well, just as long as it's --  It will be in a written form as well, my lord.  Yes.  The reply.  Well, my only real priority is to walk out of here  41 at four o'clock on Saturday afternoon and wish you all  42 a pleasant summer.  All right.  And what time do you  43 want to start tomorrow, Mr. Wolf?  44 MR. WOLF:  10 o'clock.  45 THE COURT:  Yes.  Thank you.  46 (PROCEEDINGS ADJOURNED UNTIL FRIDAY, JUNE 22, 1990 AT  47 10:00 A.M.) 28866  1  2 I hereby certify the foregoing to  3 be a true and accurate transcript  4 of the proceedings transcribed to  5 the best of my skill and ability.  6  7  8  9  10  11 Laara Yardley,  12 Official Reporter,  13 UNITED REPORTING SERVICE LTD.  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

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