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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-02] British Columbia. Supreme Court Apr 2, 1990

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 23504  Submissions by Mr. Rush  1 APRIL 2, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 2nd day of April, 1990.  The matter of  6 Delgamuukw versus her Majesty The Queen at bar, my  7 lord.  8 THE COURT:  Thank you, Mr. Rush.  9 MR. RUSH:  Thank you, my lord.  My lord, I will begin the  10 argument for the plaintiffs.  And I will deal with  11 introduction to the plaintiffs' case as well as a  12 summary of the argument or propositions which the  13 plaintiffs urge upon your lordship.  14 The plaintiffs will be alternating in terms of  15 counsels' submission to you, and after I have made the  16 introductory comments and the summary of the  17 proposition, Mr. Grant will argue the history of the  18 Gitksan and and Wet'suwet'en in their homeland.  And  19 as I indicated to your lordship when we delivered the  20 summary of argument, we intended and will deliver a  21 final argument.  And the first portion of that final  22 argument, my lord, is in the maroon coloured binder  23 that is on your right hand.  24 Your lordship has enquired about discs.  We are in  25 the electronic age now, and it seems like hard copies  26 come with disc copies.  And I can tell your lordship  27 that this copy, this portion of the argument is on  28 Word Perfect 5, so we can breathe a deep sigh of  29 relief, and we could provide your lordship with a copy  30 of the diskette, and depending on your computer, my  31 lord, we can provide you with a three and-a-half size  32 disc as well, depending on Your Lordship's wishes.  33 THE COURT:  Three and-a-half is preferable.  34 MR. RUSH:  Now, my lord, I am going to begin with the  35 introduction to the plaintiffs' argument, and it is in  36 the first portion of the maroon binder.  37 Almost three years ago on May the 11th of 1987 in  38 Smithers, the centre of their territory, the  39 hereditary chiefs of the Gitksan and Wet'suwet'en made  40 an opening statement.  It was made through counsel to  41 this court, and the statement began with these words:  42  43 "The Gitksan and Wet'suwet'en, in asserting  44 their rights of ownership and jurisdiction over  45 their territory, are affirming the foundations  46 upon which their civilizations are based and  47 have been based for over 5,000 years.  In 23505  Submissions by Mr. Rush  1 denying that these rights exist, the Province  2 of British Columbia and the Federal Government  3 of Canada are denying the very existence of  4 those civilizations.  The foundations of  5 Gitksan and Wet'suwet'en societies are firmly  6 entrenched in their own laws.  But in the face  7 of provincial and federal disrespect for these  8 laws and the injustice this is brought, the  9 Gitksan and Wet'suwet'en have come to this  10 court to secure those foundations in Canadian  11 law, law which the Provincial and Federal  12 Governments can be compelled to respect.  Only  13 then will the Gitksan and Wet'suwet'en be able  14 to negotiate a just resolution of their  15 relationship with Canada.  This case is  16 therefore a search for the legal pathways to  17 justice."  18  19 The opening at that time, my lord, concluded with  20 this invitation to the Court:  21  22 "This case offers you an historic opportunity,  23 based on evidence no other court has ever  24 heard, to render judgment that will move Canada  25 closer to the achievement of a true  26 Confederation which includes its founding  27 Indian nations."  28  29 It is appropriate that you are now being called  30 upon to pass judgment about the Indian place in  31 Confederation at a time when the nation is struggling  32 to define the constitutional standing of the peoples  33 upon whose land this country was founded.  34 This is not rhetoric or grandstanding.  The  35 province stands on its "honour" in dealing with the  36 Gitksan and Wet'suwet'en and their ancestors.  The  37 province also invokes "equity" in claiming that the  38 Gitksan and Wet'suwet'en are estopped from asserting  39 their rights.  Canada says it has discharged its  40 "charge" and "trusteeship" to them.  Language that  41 resignates from the Terms of Union.  Nothing could be  42 farther from the truth.  43 In this case the defendants have stood on the  44 historical injustices done to the plaintiffs and their  45 ancestors as the basis for their defences.  This is  46 fully evident from their pleadings, their openings,  47 evidence and now argument, all of which deny the 23506  Submissions by Mr. Rush  1 existence of the Gitksan and Wet'suwet'en as distinct  2 societies and assert that the Crown by the force of  3 law or otherwise can simply steal their land.  4 In his opening to the Province's case, Mr. Goldie  5 clearly stated that the position of the provincial  6 defendant in this litigation was that the  7 reserve-making policy in the colonial era and later by  8 the province, was a humane and enlightened one, even  9 when judged by standards today.  This, we say, is the  10 justification of the land thief who comes to court  11 seeking ownership of your house when he first arrived  12 as a guest but decided to stay, and after being told  13 to leave confines you to a cupboard in the basement  14 and then tells you that the house isn't yours anymore,  15 because he has occupied it for a hundred years and you  16 are happy in the cellar.  17 Mr. Goldie suggested further that the Colony of  18 B.C. acted with "humanity" when it sought to protect  19 and preserve Indian lands for them.  He said it was  20 only the implementation of the policy which might have  21 been unpraiseworthy or lacking in generosity.  22 These were Mr. Goldie's words:  23  24 "... and I'm referring to evidence which calls  25 in question what I will call the honour of the  26 Crown, and that's a phrase that your lordship  27 has seen, and it relates not only to Crown of  2 8 the executive government of the colony and then  29 the Province of British Columbia, but also in  30 right of Canada and by extension the Imperial  31 Crown.  And in its broadest terms the issue  32 that is raised and has been raised is whether  33 the Indian peoples of this province have been  34 treated fairly."  35  36 He goes on in the opening.  37  38 "... Second, that the policy of the Colony of  39 British Columbia towards native people was in  4 0 its time and even now when viewed from the  41 perspective of the late 20th century  42 enlightened and humane."  43  44 The next point that he carries on with:  45  46 "The next point that the Colony of British  47 Columbia recognized that humanity require that 23507  Submissions by Mr. Rush  1 lands used and occupied by the Indians be  2 protected and preserved from them."  3  4 "For them" he meant to say.  5  6 "Now, my lord, it certainly can be argued that  7 the discharge of the obligations which were  8 undertaken in the name of the Crown were not  9 always attended by a praiseworthy or a generous  10 spirit, but nevertheless the obligation was  11 performed.  And I will ask your lordship to  12 reject what I will call the conspiracy theory  13 of history which appears to have been adopted  14 by the plaintiffs in support of the  15 far-reaching claims of present day ownership  16 and jurisdiction."  17  18 That was the Province's opening in July of 1989.  19 In this passage, my lord, counsel for the province  20 asserts that first the colony, then the province, up  21 to the present day treated the Indians of British  22 Columbia, including the plaintiffs and their ancestors  23 humanely and with a enlightened spirit.  He says that  24 those who unilaterally marked out reserves for them  25 were moved by a spirit of humanity.  The province has  26 staked its defence upon its just treatment of the  27 aboriginal peoples of the province.  28 Now, the province's position would be dismissable  29 if it weren't dressed up in the discourse of the court  30 room and the pretensions of the provincial crown.  31 This reserve policy was illegal if it was intended, as  32 argued after the fact, to deal with or extinguish the  33 aboriginal title of the plaintiffs' ancestors.  34  35 Mary Johnson spoke for all of the Gitksan and  36 Wet'suwet'en when she described the effect of being  37 confined to the "humane" reserves spoken of by the  38 province:  This is what she said:  39  40 "So the way I feel about it is we are fenced in,  41 the Indians, they just put up a fence around us  42 like they did to the pigs or animals.  And we  43 can't -- we can't go out on our territory and  44 do some farming or anything on the outside.  So  45 I am hoping and praying that the Queen will  4 6 know what they did to us in the olden days when  47 they took away our ter -- inheritance." 2350?  Submissions by Mr. Rush  1  2 In fact, My Lord, the policy towards Indians was  3 built on denial and deceit.  In the hands of Joseph  4 Trutch the colonies surpressed its obligation to deal  5 with the title of the Indian people of the province.  6 Officials in the colonial executive purposely lied  7 about the colony's policy towards Indians.  There was  8 a scheme of misinformation, perpetrated by Trutch and  9 Governor Musgrave, which led to a denial of aboriginal  10 title, a confinement of the land rights and an  11 impoverishment of the people.  Neither the colony nor  12 the province has dealt with the Indians honourably or  13 justly.  Any such claim is a perversion of history.  14 I will ask your lordship to refer to a few  15 historical documents at certain critical times to  16 assess what is said about humanity and to show why  17 honour must be restored to the Crown.  18 Joseph Trutch wrote to Sir John A. Macdonald on  19 October 14th, 1872 setting out his position on  20 aboriginal title, which position we say influenced the  21 colonial executive in the years prior to union and  22 which came to be the provincially-promoted version of  23 how the Indian peoples were treated in the colonial  24 era.  And this is what Trutch said:  25  2 6 "We have never bought out any Indian claims to  27 lands, nor do they expect we should, but we  28 reserve for their use and benefit from time to  29 time tracts of sufficient extent to fulfill all  30 their reasonable requirements for cultivation  31 or grazing.  If you now commence to buy out  32 Indian title to the lands of B.C., you would go  33 back of all that has been done here for 30  34 years and would be equitably bound to  35 compensate the tribes who inhabited the  36 districts now settled, farmed by white people,  37 equally with those in the more remote and  38 unsettled portions.  Our Indians are  39 sufficiently satisfied and had better be left  40 alone as far as the new system towards them is  41 concerned, only give us the means of educating  42 them by teachers employed directly by  43 government, as well as by the efforts of the  44 missionaries now working among them.  45  46 Trutch carries on with what he wishes to see, and  47 for him it's: 23509  Submissions by Mr. Rush  1  2 "To be rid of all concerns with our Indian  3 affairs would of course free me of a very  4 considerable part of the trouble and anxiety I  5 have had in the past year..."  6  7 Now, my lord, it was not true that the colony had  8 "never bought out any claims to land".  The fourteen  9 Douglas treaties were land purchases with the consent  10 of the Indians.  It was not true that the Indians did  11 not "expect we should".  The Cowichan Valley  12 controversy was about Indian demands for cession of  13 their lands, and government promises to do so, but  14 never fufilling those promises.  The land reservation  15 system employed by the colonial governments when they  16 ran out of money to buy the lands from the aboriginal  17 owners, was an expedient designed to protect both the  18 settlers and the Indians from each other at the  19 frontier.  But the reserve system was not to, and  20 could not, deal with the land title of the people.  21 The "tracts of land of sufficient extent" were  22 niggardly acreages which the colony grudgingly  23 conceded.  24 In this letter, my lord, Trutch urges Macdonald  25 not reverse the practise, he says falsely, was in  26 place for the previous 30 years.  That would have  27 taken him back before the time the colony had been  28 established.  He acknowledges paradoxically what he  29 had previously denied, namely, that there was "Indian  30 title" to "buy out" in the province and the colony.  31 But, he argues, "don't buy it because the government  32 would have to pay for the white-settled as well as the  33 unsettled lands of the Indians."  He says, "Leave the  34 Indians alone as they aren't complaining.  What a  35 generous spirit, my lord, the B.C. spirit.  36 Now, was this fair, just or honourable?  Trutch's  37 advice was built on a tissue of half-truths.  He  38 denied treating with the people in respect of their  39 aboriginal title and in so doing perverted the  40 historical experience which affected the treatment  41 received by the Indians of the province at the hands  42 of Canada.  His reserve-allocation scheme was an  43 unilateral one conveniently ignoring the need for  44 consent and the obligation of protection of the Indian  45 interest.  Trutch's reserve policy was to cut-off land  46 from the Douglas reserves, reducing even more what  47 little the Indian people had.  The aboriginal right to 23510  Submissions by Mr. Rush  1 title to the land was for him forever to be deferred.  2 What was done was to deny the Indian title; what was  3 said was the reserve policy was "fair".  Given the  4 extensive denials of the province in this litigation  5 and the position advanced in its opening, this  6 continues to be the province's stance today.  And we  7 say it is as unjust, dishonourable and illegal today  8 as it was in 1872.  9 Canada's position is no better.  It says that  10 extinguishment occurred when "sovereign authority was  11 exercised in a manner necessarily inconsistent with  12 the continued existence of aboriginal rights, whether  13 by legislation or otherwise."  That position they took  14 and expressed in Exhibit 1248.  Their statement on  15 their defence.  16 Without saying so directly, my lord, Canada takes  17 the position that extinguishment of the Gitksan and  18 Wet'suwet'en rights and title has already occurred,  19 having been brought about by acts taken or authorized  20 by the province in respect of the plaintiffs' land  21 since union.  This is the  22 creeping-erosion-of-your-rights-while-I-stand-idly-  23 argument.  What is inexplicable is that by taking this  24 position Canada not only disregards its own  25 constitutional duty to protect Indian land, but also  26 stands on its failure to protect as a legal basis for  27 arguing that extinguishment or diminishment has  28 occurred by the unlawful acts of the province.  29 Federal-provincial relations are clearly more  30 important to the federal government than  31 constitutional obligations to the Indian nations.  32 Canada says further that Indians have some rights, but  33 they don't amount to much; in fact, they are barely  34 worth talking about at all.  35 Now, my lord, after sitting through 250 trial days  36 listening to the hereditary chiefs, after hearing the  37 wealth of cultural and economic evidence in the  38 historical record, and after being an administrative  39 presence with constitutional responsibilities to  40 administer Indian affairs in the territory and  41 throughout this country since the turn of the century,  42 all that Canada can see of the Gitksan and  43 Wet'suwet'en is their pre-1900 hunting, trapping,  44 fishing and berry-picking activities.  At its core  45 this is a racist position deliberately blind or  46 refusing to give value to the way of life of the  47 people.  It makes a mockery out of the guarantees of 23511  Submissions by Mr. Rush  1 Section 35.  What the Federal government says is that  2 it created an empty box for the Indians in Section 35,  3 and the constitution doesn't really mean anything.  4 On August the 2nd, 1877, David Mills, the Minister of  5 the Interior (with responsibility over Indian Affairs)  6 wrote to the Indian Superintendent in Victoria  7 expressing the Dominions' views on aboriginal title in  8 B.C.  This is what he said:  9  10 "I do not know whether the Government of Canada  11 were fully aware of the condition of things at  12 the time British Columbia was admitted to the  13 union -- whether they were aware that the  14 government had undertaken to deal with the  15 public lands of that province without first  16 having extinguished the aboriginal title.  But,  17 however that may be, there can be no doubt  18 whatever that no arrangement between the  19 government of Canada and the government of  20 British Columbia could take away any rights  21 which the Crown has always recognized as  22 belonging to the Indian natives."  23  24 Only six years after Union, at a time when there  25 were fewer than a dozen non-Indian residents in the  26 whole of the Gitksan and Wet'suwet'en territory and  27 virtually no law which had direct impact on the lives  28 of the Gitksan and Wet'suwet'en residents, the highest  29 official in the Government of Canada with  30 responsibility for Indian Affairs firstly recognized  31 aboriginal title in the Indian peoples of British  32 Columbia.  33 Secondly, stated without qualification that  34 aboriginal title had to be extinguished before public  35 lands could be dealt with.  36 Thirdly, acknowledge that no bilateral agreement  37 between Canada and B.C. could remove the aboriginal  38 rights held by the Indian people, including the  39 ancestors of the plaintiffs.  112 years later Canada  40 asks this court to ignore the Crown obligations as  41 expressed by Mills, just as they have ignored the  42 Gitksan and Wet'suwet'en people over the century.  Is  43 that just?  Is that the honour of Canada?  44 My lord, let's take the federal and provincial  45 defences at their highest.  The province recognized a  46 "humane" reserve policy, the federal government was  47 duty-bound to protect the aboriginal people in their 23512  Submissions by Mr. Rush  1 village sites, berry grounds and cultivated fields.  2 Then, I say, how do they explain to Johnny David, to  3 Bazil Michell and Anna Michell and other Wet'suwet'en  4 people their forcible eviction from their homes to  5 replace their ancient ownership there with rights of  6 non-Indian settlers?  How do the provincial and  7 federal governments answer Bazil when asked how he  8 felt when his family was forced to leave Barrett Lake  9 and after the family home was burned to the ground?  10 Mr. Michell said this.  11  12 "Even though we were young we really hurt by  13 what was done to us.  Our people had cleared  14 the land and white people just moved in and  15 chased us off the land.  We weren't happy about  16 it.  The white people that worked for the  17 government just went home after we were chased  18 off our land and we were left to die because we  19 had to live in tents at 60 below weather.  It  20 wasn't right what they did to us."  21  22 The federal and provincial governments cannot  23 explain to Bazil Michell by what principle he was  24 forced off of his land, and there is no explanation  25 for it in the extinguishment defences of the  26 defendants.  Because in fact, my lord, their defences  27 on extinguishment are made up.  They are  28 rationalizations after the fact created to justify  29 their position in the case.  The extinguishment  30 defences have little, if anything, to do with what was  31 really going on or being said by the governments in  32 the colony or the province.  No colonial, provincial  33 or imperial authority ever said that the aboriginal  34 title of the Indian people in the Skeena/Bulkley  35 region had been extinguished by any legislation,  36 direct or indirect, conduct or agreement whatsoever.  37 No one even whispered that they intended to extinguish  38 or reduce the land title of the plaintiffs' ancestors.  39 None of this arose until the province filed its  40 defence in Calder.  41 The defences here, my lord, air-brush the real  42 history.  They are couched in the language of  43 fair-play, but they deny the existance of the Gitksan  44 and Wet'suwet'en and their right to exist in their  45 homeland as their ancestors have done for thousands of  46 years.  The governments have no obligations, according  47 to them, except to keep the Gitksan and Wet'suwet'en 23513  Submissions by Mr. Rush  1 confined to reserves and to proceed with the pace of  2 development for the benefit of the non-Indian economy  3 and the governments.  4 Now, I ask you, my lord, to juxtapose those  5 made-up defences with the richness of the evidence of  6 the way of life of the Gitksan and Wet'suwet'en  7 people, which you heard in this case, and which you  8 will hear about in argument.  Their identity and their  9 land-based culture has survived.  10 Now, my lord, this case is about the honour of the  11 Crown, because for the first time a court will  12 scrutinize that honour publicly.  The honour of the  13 Crown as given lip-service by the defendants in this  14 case must be carefully considered when evaluating the  15 private agreement reached in the Terms of Union  16 against the following exchange in the legislative  17 council of the United Colonies on March 25th, 1870  18 shortly before Mr. Joseph Trutch left for Ottawa to  19 negotiate the language for the union.  20 MR. GOLDIE:  My lord, there is no evidence of that.  21 MR. RUSH:  Well, it's in my friends' documents.  I read it  22 there.  23 MR. GOLDIE:  Well, my friend is busy replying to my argument  24 before he hears it, and my suggestion is that we hear  25 his case, then my case, and then he has the right of  26 reply.  27 THE COURT:  I am not sure that I understand what you're saying,  28 Mr. Goldie.  No evidence of what?  29 MR. GOLDIE:  That Trutch left for Ottawa to negotiate the  30 language for union, referring to Term 13, of course.  31 THE COURT: Well, this exchange that you are quoting here --  32 MR. RUSH:  My lord, that's the relevant part that I wish to  33 speak to.  34 THE COURT:  Is that in evidence?  35 MR. RUSH:  Oh, yes.  My friend put it in.  36 THE COURT:  So it's the soldier in Ottawa that's not —  37 MR. GOLDIE:  That's correct.  There was a delegation of three,  38 and Mr. Trutch had no authority, beyond what he was  39 instructed by the governor, and one of the items that  40 the governor held in his own hands was the negotiation  41 of Term 13.  That's all that evidence.  42 MR. RUSH:  Well, my lord, I am going to ask you to draw an  43 inference that it was Mr. Joseph Trutch that went down  44 there to Ottawa, and I think you are going to hear  45 lots of evidence of his role in this.  But let's hear  46 what was said in the legislative assembly, because I  47 think this is illuminating. 23514  Submissions by Mr. Rush  1 THE COURT:  I am not going to draw any inference right now  2 anyway.  3 MR. RUSH:  I am not asking you at this point, but we will ask  4 you.  5 My lord, this is what was said in an exchange of  6 the legislative council of the colonies on March the  7 25th, 1870.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "The Hon. Mr. Holbrook -- I have very great  pleasure in bringing this resolution forward  with reference to the Indian tribes.  Hon. Attorney General (Crease) --  I ask the  indulgence of the Hon. Member whilst I  interpose a few words.  On a former occasion a  very evil impression was introduced in the  Indian mind on the occasion of Sir James  Douglas' retirement.  I ask the Hon. gentlemen  to be cautious, for Indians do get information  of what is going on.  Hon. Mr. Holbrook -- My motion is to ask  protection for them under the change of  Government.  The Indians number four to one  white man, and they ought to be considered.  They should receive protection.  The Hon. Attorney General -- These are words  that do harm.  I would ask the Hon. Magisterial  member from New Westminster to consider.  Hon. Mr. Holbrook -- I say they shall be  protected.  I speak of Indians of my own  neighborhood on the Lower Fraser.  Hon. Mr. Robson -- I rise to a point of  privilege.  I think that the warning of the  Hon. Attorney General is necessary.  This is  the sort of discussion which does harm.  The Hon. Mr. DeCosmos — Don't report it."  Don't tell the Indians what we are going to do.  These were all honourable men, my lord.  The  resolution of Holbrook was lost by a vote of twenty to  one.  This is the honour in which the governments in  this case stand, and by which they ask you to judge  B.C.'s union with Canada.  The Indians went to the British courts before the  patriation of the constitution fearing that the Crown  would not act honourably towards them upon patriation.  In refusing to grant the declarations sought, Lord  Denning said that Section 35 of the Constitution Act 23515  Submissions by Mr. Rush  1 would provide the necessary protection.  And in this  2 case, The Queen v. The Secretary of State for Foreign  3 and Commonwealth Affairs, he said this:  4  5 "There is nothing, so far as I can see, to  6 warrant any distrust of the Indians of the  7 Government of Canada.  But, in case there  8 should be, the discussion in this case will  9 strengthen their hand so as to enable them to  10 withstand any onslaught.  They will be able to  11 say that their rights and freedoms have been  12 guaranteed to them by the Crown -- originally  13 by the Crown in respect of the United  14 Kingdom -- now by the Crown in respect of  15 Canada -- but, in any case, by the Crown.  No  16 Parliament should do anything to lessen the  17 worth of these guarantees.  They should be  18 honoured by the Crown in respect of Canada 'so  19 long as the son rises and the river flows'.  20 That promise must never be broken."  21  22 The Constitution of Canada guarantees the rights  23 of the plaintiffs.  Those rights are embedded in  24 history.  They must be respected by the Crown whether  25 provincial or federal.  Consider now what Stanley  26 Williams said in testimony about how he perceived the  27 treatment of the Gitksan by the government.  28  29 "When a grizzly bear gets into the provisions of  30 another person then he eats it up, when the  31 owner comes back and the grizzly gets mad  32 instead, gets mad at the owner.  And that's how  33 the government is treating us today concerning  34 our territories. "  35  36 The far reaching denials of the defendants coupled  37 with the negation of the defendants' historical  38 obligation to the Gitksan and Wet'suwet'en show  39 without doubt that the plaintiffs can expect no just  40 and honourable treatment at the hands of the  41 governments.  It is for this reason that the  42 plaintiffs now turn to Your Lordship's court for  43 protection in order to enforce the obligations of the  44 Crown and to safeguard the aboriginal rights of the  45 plaintiffs.  46 I will now turn, my lord, to the outline of our  47 argument, which I have set out here in summary form. 23516  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  I want to advise Your Lordship that the argument, as  it was contained in the table of contents of the  summary, that this argument, it attracts the Roman  headings that are set out in that table of contents.  So when we refer to a heading and a subsection, we are  tracting, except insofar as we introduce a new heading  "organized societies".  Firstly, my lord, "History of the Gitksan and  Wet'suwet'en in their Homeland".  Continuity with the past is an essential and  determining aspect of Gitksan social, political and  legal institutions.  The Gitksan chiefs repeatedly  emphasized the antiquity and persistence of these  institutions as evidence of their validity.  The oral histories describe the others of the  Gitksan and Wet'suwet'en, and their ownership and  jurisdiction over their territories from ancient  times.  The Kungax and oral history emphasize  Wet'suwet'en presence on the territories since the  very earliest times.  The Wet'suwet'en Kungax provide an historical  connection between the Chiefs and their territories.  The Gitksan and Wet'suwet'en peoples live in a  resource-rich area that is suitable for the seasonal  pursuit and harvest of a diversity of material  resources.  We will advance the position that the biophysical,  archaeological and linguistic evidence demonstrates  that there has been a remarkable degree of ecological  continuity through time in the territory.  Now, secondly in the subject of the development of  fundamental common law principles, we will assert  these propositions:  During the early colonial period from 1609 to  1763, a set of fundamental principles emerged  governing the legal and political relationships  between aboriginal peoples of North America and the  Crown.  :  What you refer to by 1609 --  We are going to take a date, my lord, an arbitrary --  in a sense an arbitrary date, but a date at which  treaty making, the process of making treaties  proceeded, and it is -- the particular date is the  date of the Virginia Charter.  :  Thank you.  These fundamental principles emerging from that  period to 1763 were these: 23517  Submissions by Mr. Rush  1 The aboriginal peoples were acknowledged as being  2 the original owners and proprietors of the soil with  3 jurisdiction over their territories and their people  4 as self-governing nations.  5 B.  Legal and political relationships between  6 Indian nations and the Crown were to be conducted by  7 treaty in accordance with both Indian and colonial  8 legal and diplomatic protocol.  9 C.  Lands within the ownership and jurisdiction of  10 Indian nations which were required by the colonial  11 authorities for settlement and development could only  12 be legally acquired with Indian consent given by  13 authorized representatives expressed in a public  14 council.  15 D.  The Crown asserted rights of sovereignty over  16 its colonial territories against other European  17 colonial powers.  These were limited as far as  18 jurisdiction was concerned to the establishment of  19 government and laws for British subjects, but involved  20 no intrusion into the jurisdiction and internal  21 self-government of Indian nations.  So far as  22 ownership of lands was concerned, Crown sovereignty  23 was limited to the right of preemption, the exclusive  24 right to acquire such lands and the possession of the  25 Indian nations as they were inclined to sell.  26 E.  In asserting this right of sovereignty, the  27 Crown assumed the obligation of protecting the Indian  28 nations from frauds and abuses committed by British  29 subjects in other colonial nations.  30 Now, our argument will be that these fundamental  31 principles ripened into well established rules of the  32 common law.  33 Next, my lord, regarding the jurisprudence of  34 aboriginal rights, we will assert these propositions.  35 The decisions of the U.S. Supreme Court in the  36 first part of the 19th century, building upon both  37 British colonial and American state practice, affirm  38 common law principles upon which the relative rights  39 of ownership and jurisdiction of colonial governments  40 and Indian nations are to be determined.  And these  41 principles are first:  42 In relation to rights of ownership, aboriginal  43 title was pre-existing right, and colonial governments  44 acquired by virtue of the doctrine of discovery only  45 the exclusive right to purchase such lands as the  46 Indians were prepared to sell.  47 Second, discovery vested in the discovering 2351?  Submissions by Mr. Rush  1 colonial government the ultimate fee in the lands in  2 the special sense that it had, as against other  3 European governments, the exclusive right to purchase  4 Indian lands.  The doctrine of discovery did not vest  5 a complete title to the lands of North America in the  6 discovery nation, but gave it the sole and exclusive  7 right of acquiring the soil from the native people.  8 Third, this ultimate fee was a sufficient title to  9 enable the colonial authority to make a grant of a  10 land, which grant was, however, subject to the  11 aboriginal title and could not take effect in  12 possession until aboriginal title had been lawfully  13 ceded by treaty.  14 Fourth, this aboriginal title encompasses full  15 rights to the beneficial enjoyment of tribal territory  16 in accordance with tribal land tenure.  17 Fifth, the sole limitation on the pre-existing  18 aboriginal title of Indian nations flowed from the  19 exclusive nature of the colonial authorities  2 0 pre-emptive right.  21 Six, in relation to rights of jurisdiction each  22 Indian nation had full powers of self-government  23 within its territories.  Colonial governments by  24 virtue of the doctrine of dicovery acquired the  25 exclusive right to negotiate political and trade  26 relationships with Indian Nations.  27 Seven, the language and process of treaty making  28 both signified and affirmed this nation-to-nation  29 relationship between Indian nations and the Crown.  30 Eight, in the course of the expansion of colonial  31 settlement and the consolidation of colonial political  32 authority, a common form of political relationship  33 between Indian nations and colonial governments  34 emerged in the form after protectorate.  While this  35 involved a restriction on the capacity of an Indian  36 nation to conduct legal relationships with any other  37 European sovereign, paralleling in this respect the  38 pre-emptive right in regard to land, it did not affect  39 an Indian Nation's power of self-government within  40 their tribal territory, save and except as this was  41 the subject after agreement by treaty.  42 And finally in return for this form of political  43 relationship, the colonial authorities undertook  44 responsibilities to prevent intrusion and incursion  45 into tribal territory.  46 Now, my lord, we say that at the time when British  47 claims to sovereignty over what is now British 23519  Submissions by Mr. Rush  1 Columbia were settled by the Treaty of Oregon in 1846,  2 the fundamental principles of the common law to  3 determine the rights of aboriginal peoples were the  4 principles articulated first in the Marshall decisions  5 of the U.S. Supreme Court which have their fullest  6 expression in the case of Worcester v. Georgia, (b) in  7 the Treaty of Waitangi and the decision of the New  8 Zealand Supreme Court in R. V. Symonds.  These  9 principles recognize the pre-existing rights of  10 aboriginal peoples to the ownership of their  11 territories and the right to exercise full authority  12 over those territories, limited only by a restriction  13 on alienation of their territories to persons other  14 than the Crown or persons authorized by the Crown.  15 These principles also recognize an underlying Crown  16 title in the colonies which so far as the pre-existing  17 rights of the aboriginal peoples was concerned was  18 limited to the right to acquire such lands as the  19 aboriginal peoples were willing to sell.  Underpinning  20 the legal relationship between aboriginal rights and  21 Crown rights was the principle of aboriginal people's  22 consent and a Crown protectorate.  This was the legal  23 framework which was applicable to the Colony of  24 Vancouver Island when it was established in 1849 and  25 the Colony of British Columbia when it was established  26 in 1858.  27 It will be the plaintiffs' submission that the  28 common law as it was received into British Columbia  29 recognized the right to internal self-government, and  30 that this recognition was paralleled and supported by  31 the Royal Proclamation.  32 The plaintiffs will argue that the plaintiffs'  33 right of jurisdiction or internal self-government is  34 an existing aboriginal right within the meaning of  35 Section 35 of the Constitution.  36 Now, turning to the Proclamation of 1763.  We will  37 make these submissions as to the propositions which  38 your lordship should apply.  The Royal Proclamation of  39 1763 is a founding constitutional instrument.  It has  40 the force of law and was binding like other  41 constitutional enactments, or alternatively it had the  42 force of the statute and it was never repealed.  43 Paragraph 4(a) of the Proclamation made Indian title  44 extinguishment only by voluntary cession to the Crown.  45 The Crown was bound by the purchase provisions of the  46 Proclamation in British Columbia, and therefore any  47 private purchases of land made contrary to the 23520  Submissions by Mr. Rush  1 Proclamation's provisions were invalid.  2 Those general provisions of the Royal Proclamation  3 which were strict land grants, settlement or private  4 purchase of lands reserved to the Indians were  5 intended to apply to all parts of North America over  6 which the British Crown claimed dominion as against  7 other European powers.  8 There was no western geographical limit placed  9 upon the Indian lands provisions of the Proclamation  10 and none was intended.  Nothing in the text of the  11 Proclamation precluded its geographical application to  12 what is now British Columbia, and it did so apply.  13 We will argue further that the category of Indians  14 living under the protection of the Crown in relation  15 to whom various provisions of the Proclamation were  16 directed, was not intended to be a frozen category  17 limited only to those Indians known to the Crown as of  18 1763.  Those provisions applied to Indians living in  19 what is now British Columbia.  20 The Proclamation we will argue apply to British  21 Columbia and Indians in British Columbia at the time  22 of the establishment of the Colony of Vancouver Island  23 in 1848.  The mischief that was to be remedied must be  24 identified so that a construction and interpretation  25 may follow which attain the Proclamation's legislative  26 purpose.  The purpose of Part IV of the Proclamation  27 was to recognize and protect the principle of  28 territorial integrity of Indian lands and to establish  29 a uniform procedure based upon Indian consent which  30 would strictly govern the Crown's purchase of such  31 lands.  The intention of the Crown is not to be  32 considered fixed as of 1763, but rather that the  33 provisions of Part IV are to apply to situations after  34 that date.  35 The Royal Proclamation, we will argue, is an  36 Imperial law within the meaning of the Colonial Laws  37 Validity Act in 1865, and thus the provisions of the  38 Proclamation operated as a restriction on the  39 legislative competence of the mainland colony and then  40 the united colonies of British Columbia.  Any colonial  41 enactment contrary to the Indian land provisions must  42 be read down to avoid the enactment being repugnant to  43 Imperial law.  44 The common law principles of recognition of  45 aboriginal rights reflected in the Royal Proclamation  46 of 1763 provided the legal framework in the post-1763  47 period within which the Crown negotiated for the 23521  Submissions by Mr. Rush  1 acquisition of lands in Canada in possession of the  2 aboriginal peoples which was required for settlement  3 and development.  This framework was applied in what  4 is now Quebec, and what is now Ontario, and is, as  5 colonial expansion pushed westward, is what is now  6 Manitoba, Saskatchewan, Alberta and in most parts of  7 British Columbia and the Northwest Territories.  Most  8 recently, this framework has been applied in Northern  9 Quebec, the Yukon and parts of the Northwest  10 Territories not hitherto covered by treaties of  11 cession.  The unifying principle on this acquisition  12 of aboriginal lands has been the principle of Indian  13 consent, and the unifying process has been one in  14 which that consent is expressed through treaties or  15 land claim agreements.  16 The Royal Proclamation of 1763 and the principles  17 of consent which it embodied is recognized in Sections  18 25 and 35 of the Constitution.  19 Now, my lord, turning now to the Gitksan and  20 Wet'suwet'en societies as they were and are.  The  21 propositions which the plaintiffs will advance are  22 these:  23 The plaintiffs have established a complex social  24 organization which goes well beyond the minimal  25 judicial test of organized society.  The Gitksan and  26 Wet'suwet'en define membership in a society according  27 to the matrilineal system of the house and clan.  28 Central to the societies are discreet territories  29 owned by houses and governed by hereditary chiefs.  30 The complexity of the social organization is  31 demonstrated through their spiritual world, the  32 Daxgyet -- power -- the fundamental law of respect,  33 the laws, the feast and the economic structure.  34 In dealing with the nature of the Gitksan and  35 Wet'suwet'en society at the time of first contact, my  36 lord, we will ask you to accept these propositions.  37 Upon contact with the Gitksan and Wet'suwet'en in the  38 early 1820's the Hudson's Bay Company traders  39 encountered organized Indian economies and societies  40 with long established systems of territorial ownership  41 and political authority in the hands of hereditary  42 chiefs.  43 The proposition that Gitksan and Wet'suwet'en  44 social and cultural phenomena of the present era had  45 been generated by outside external agencies rather  46 than by a complex of in situ physical, social and  47 historical factors is controverted by considerable 23522  Submissions by Mr. Rush  1 historical, linguistic and anthropological evidence  2 presented to the Court.  This evidence supports the  3 plaintiffs' assertion that concepts of Gitksan and  4 Wet'suwet'en ownership and jurisdiction long pre-date  5 both European fur trade and the assertion of  6 sovereignty by the Crown.  7 We will then ask your lordship to consider the  8 Gitksan and Wet'suwet'en claim to ownership and  9 jurisdiction, and with regard to the plaintiffs' right  10 to ownership, we will urge this proposition upon you.  11 The plaintiffs have sought to lay before this court a  12 detailed description of the precise nature and  13 contours of the distinctive Gitksan and Wet'suwet'en  14 system of land tenure.  This evidentiary basis goes  15 far beyond anything laid before any Canadian or U.S.  16 court, and it is submitted that it provides a basis  17 upon which this court can accurately characterize the  18 nature of the plaintiffs' interest in their  19 territories in the manner in which that interest is  20 described in the Statement of Claim.  In this way it  21 is submitted this court is in the unprecedent position  22 of being able to define the sui generis nature and  23 character of the plaintiffs' rights not "on abstract  24 principles fashioned a priori", but on evidence rooted  25 in the fundamental principles, laws and customs of the  26 plaintiffs.  27 And we will submit, my lord, that properly  28 analyzed and understood, the evidentiary record put  29 before this court demonstrates the plaintiffs' rights  30 to their territory are appropriately characterized as  31 rights of ownership and jurisdiction.  We will urge  32 these propositions in this respect:  33 House territories have clearly defined boundaries.  34 The rights of exclusive possession are vested in  35 hereditary chiefs on behalf of the house group.  36 The rights of the house to exclusive possession is  37 underpinned by strict laws of trespass.  38 House property is the subject of succession and  39 alienation.  The rights succeed from generation to  40 generation.  House territory may be alienated through  41 forfeiture or as compensation in peace settlements.  42 House territory is subject to grants of access.  43 The Gitksan and Wet'suwet'en maintain a system of  44 recording, registering and legitimizing the transfer  45 of and succession to right of ownership and the grant  46 of access rights.  47 In any system of rights of exclusive possession 23523  Submissions by Mr. Rush  1 and their correlative strict laws of trespass, there  2 must be a widely dispersed knowledge of the persons or  3 groups in whom those rights of possession reside and  4 of the boundaries of their territories.  Among the  5 Gitksan and Wet'suwet'en this announcement of rights  6 and territories is carried out, above all else, in the  7 feast hall.  It is one of the principle  8 responsibilities of the Gitksan and Wet'suwet'en  9 hereditary chiefs when they are invited to the feasts  10 of other houses and clans to perform the essential  11 role of witnesses and validators to the claims to  12 chiefly names and titles to territories made by other  13 chiefs and houses.  In order for chiefs to perform  14 their roles in this distinctive form of public  15 acknowledgement of land title, they are trained by  16 their predecessors in the boundaries of their own  17 house territories and the boundaries of the  18 territories of the neighbours.  19 Now, dealing with the plaintiffs' right to  20 jurisdiction, my lord, we will urge these  21 propositions.  The plaintiffs' assert -- excuse me.  22 The plaintiffs' asserted rights are not, as the  23 defendants have sought to characterize them, rights to  24 sovereignty.  The jurisdiction which the plaintiffs  25 assert is one exercised within the framework of  26 Canadian Confederation as part of Canadian law.  The  27 plaintiffs' jurisdiction is, however, sui generis, and  28 based upon the evidence before this court can be  29 analyzed under the following heads.  30 Firstly, to harvest, manage and conserve the  31 resources of the territory.  32 Secondly, to transfer the territory and to grant  33 rights of access to the territory in accordance with  34 Gitksan and Wet'suwet'en laws.  35 Thirdly, to determine Citizenship, including clan  36 and house membership.  37 Fourth, to regulate family relations, including  38 marriage and divorce.  39 Fifth, to supervise the internal affairs of the  40 house.  41 Sixth, to conduct feasts and carry out feast  42 obligations and responsibilities in accordance with  43 Gitksan and Wet'suwet'en laws.  44 Seven, to resolve disputes within the house and  45 between houses in accordance with Gitksan and  46 Wet'suwet'en law.  47 Eight, to enter into and conduct international 23524  Submissions by Mr. Rush  1 relations and settle disputes with other nations.  2 Nine, to protect and affirm the ownership of the  3 territory and the authority of the house.  4 To jointly maintain the Gitksan institutions and  5 laws and the Wet'suwet'en institutions and laws.  6 To make and enforce laws in relation to the above.  7 Now, what is the law applicable to aboriginal  8 title in British Columbia?  And we say that the  9 principles to be applied are these.  The fundamental  10 principles of aboriginal rights were embodied in the  11 common law, and these principles constituted the legal  12 framework which was applicable to the Colony of  13 Vancouver Island in 1849, and the Colony of British  14 Columbia in 1858.  15 The same principles applicable to the Crown and to  16 the Indians were confirmed in the Royal Proclamation  17 of 1763.  The Proclamation's provisions regarding  18 Indians applied prospectively to the British dominions  19 and territories as they were known and as they came to  20 be established.  These provisions followed the fur  21 trade westward and were incorporated in the law  22 presumed to be applied under the various jurisdiction  23 acts of Quebec and Upper Canada, referred to in this  24 case later, in the argument.  As such the Indian land  25 provisions operated to bind the governors of all  26 British colonies in North America at whatever period  27 they were established.  Hence these provisions applied  28 to the colonies of British Columbia.  29 The Royal Proclamation and the guarantees which it  30 afforded to Indian peoples was not an ordinary  31 statute, as I earlier referred to.  The principles  32 which it affirmed codified fundamental rights for  33 Indians.  These rights were of a higher order than  34 those created by simple enactment and took on  35 constitutional status.  It was an Imperial law which  36 operated as a restriction on the legislative  37 confidence of colonial legislatures.  Any colonial  38 enactment which could be read as being inconsistent  39 with the Indian land provisions of the Proclamation  40 had to be read to avoid repugnancy with the Imperial  41 law.  The Royal Proclamation of 1763 applied in this  42 way to what is known as British Columbia -- known as  43 British Columbia as at the time of the establishment  44 of the colonies of Vancouver's Island and British  45 Columbia.  Douglas was bound by the Proclamation  46 provisions when he took up his post in 1849.  47 Now we say that the Royal Proclamation was 23525  Submissions by Mr. Rush  1 encompassed within the Colonial Laws Validity Act upon  2 the latter's enactment in 1865.  3 We make another argument, my lord, in the  4 alternative.  If the common law and the Royal  5 Proclamation provisions regarding Indian land rights  6 and protections did not apply to and bind the colonial  7 authorities in British Columbia insofar as their  8 policy and local laws reflected, then we say that  9 there was a constitutional convention operative in the  10 colonies as of 1849 which acted as a guarantee of  11 Indian land rights and as a limitation on the colonial  12 statute-making power.  13 Now, we argue further in the alternative, my lord,  14 that if the principles of consent to which we have  15 made reference do not apply to British Columbia, then  16 extinguishment of aboriginal title could only be  17 affected by express legislative enactment  18 demonstrating a clear and plain intention to  19 extinguish title.  And the onus for that is on the  20 defendant Crown to prove extinguishment.  The onus is  21 on the defendant to prove the fact of extinguishment.  22 And we say that the defendants cannot show a clear  23 and plain intention by the sovereign to extinguish  24 aboriginal title in any of the legislative enactments  25 relied on in the Statement of Defence.  A clear and  26 plain intention to extinguish title must be expressed.  27 Mr. Justice Hall in Calder said:  28  29 "Aboriginal title to public lands in the colony  30 is hereby extinguished"  31  32 As being an example of the type of language that  33 would be necessary in order to effect a clear and  34 plain intention to extinguish.  35 Alternatively, even if a clear and plain intention  36 could be implied from legislation, the statutes relied  37 on by the Crown do not lead to the conclusion that the  38 aboriginal title of the plaintiffs or their ancestors  39 was extinguished.  40 Now, the Indian land policy in British Columbia,  41 up to the time that British Columbia joined  42 Confederation, can be seen as consistent in two parts.  43 Firstly, to purchase aboriginal title and secure  44 surrender of lands not required by the Indians, and  45 secondly, to reserve to the Indians adequate land for  46 their use and occupation.  This remained in place  47 throughout the colonial era.  Implementation of the 23526  Submissions by Mr. Rush  1 policy after 1859 was affected only in part.  2 Government continued to reserve lands for Indians as  3 settlement proceeded.  Formal arrangements for the  4 extinguishment of aboriginal title and payment for  5 lands not reserved were postponed to be dealt with at  6 a later time.  7 As to Union, my lord, it's our proposition that  8 Article 13 of the Terms of Union of 1871 does not have  9 the legal effect of extinguishing aboriginal title.  10 The Terms of Union having constitutional status  11 imposes constitutional obligation on both the Dominion  12 and the British Columbia governments in relation to  13 setting aside lands reserved for Indians.  When the  14 obligation to protect Indians was assumed by the  15 Federal Government in 1871, Indian title did not pass  16 to them, but remained in the plaintiffs as a burden on  17 Provincial Crown title.  18 After 1871 the Crown in right of British Columbia  19 could not extinguish aboriginal title.  Furthermore,  20 the constitutional impediments upon the province's  21 powers constrained its ability to impair or otherwise  22 interfere with aboriginal title or the exercise of  23 aboriginal rights.  24 We will urge this proposition, that while the  25 underlying legal title to lands subject to  26 unextinguished aboriginal title lies in the province,  27 that provincial interest is a contingent and pending  28 one which includes no right to the use or benefit of  29 the land prior to the surrender of the Indian  30 interest.  31 The Federal Crown, by the terms of Confederation,  32 obtained no title to or property in Indian lands.  It  33 was, however, given exclusive jurisdiction to  34 legislate with respect to the lands and to administer  35 them.  It was empowered to accept surrender of  36 aboriginal title, and assumed the corollary burden of  37 the fiduciary duty to deal with surrendered lands in  38 the interests of the Indians.  39 Now, while provincial legislation may to a very  40 limited extent incidentally affect matters under  41 federal jurisdiction, such legislation may not destroy  42 the subject matter of the federal jurisdiction.  43 Aboriginal title is a matter of federal common  44 law.  Aboriginal title and rights protected by federal  45 common law are no more vulnerable to provincial  46 statutory extinguishment, impairment, diminishment or  47 reduction by provincial legislation than are statutory 23527  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  reserve lands.  The evidence and the law establish that the  consent of the Indians is necessary before their lands  and authority can be dealt with by the Crown,  including the Federal Government.  Any unilateral act  by the Federal Crown purporting to bind the plaintiffs  or their ancestors in respect of their territory or  jurisdiction is invalid as against them.  Since the Terms of Union of 1871, neither the  Federal Crown or Federal legislation has intended or  effected extinguishment of the plaintiffs' aboriginal  title.  This proposition is correct, we say, as a  matter of fact, and based on the evidence in the case  at bar is correct as a matter of law.  Now, we'll also refer your lordship to Treaty 8  and the significance of Treaty 8.  Treaty 8  demonstrates three things we say.  Firstly it provides  further documentation that the Dominion Government  recognized the existence of unextinguished aboriginal  title in British Columbia after the province joined  Confederation.  Second, it provides an example of Crown purchase  with Indian consent to extinguish aboriginal title  well after the date of which the Crown asserted  jurisdiction over the area, and well after a large  body of colonial and provincial legislation had been  enacted to regulate land and any other matters.  Third, the history of Treaty no. 8 shows that the  Government of British Columbia has actively cooperated  in carrying out the terms of Treaty 8 by conveying  lands to Her Majesty in Right of Canada for the  purpose of fufilling land obligations to the Indians  under that treaty.  The defendant Province alleges that aboriginal  title was extinguished by Federal provincial  agreements and legislation providing for the  establishment of Indian reserves in B.C.  It will be  our proposition that neither the agreements nor the  legislation show the requisite clear and plain  intention to extinguish, and furthermore that case law  does not support the defendants' position in this  regard.  :  Mr. Rush, can you remind me of the date of Treaty 8.  It was 18 99, my lord.  :  Is it convenient to take the morning adjournment,  Mr. Rush?  Yes. 2352?  Submissions by Mr. Rush  1 THE REGISTRAR:  Order in court.  Court stands adjourned for a  2 short recess.  3  4 (PROCEEDINGS ADJOURNED)  5  6  7 I HEREBY CERTIFY THE FOREGOING TO BE  8 A TRUE AND ACCURATE TRANSCRIPT OF THE  9 PROCEEDINGS HEREIN TO THE BEST OF MY  10 SKILL AND ABILITY.  11  12  13 LORI OXLEY  14 OFFICIAL REPORTER  15 UNITED REPORTING SERVICE LTD.  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 23529  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  THE REGISTRAR  THE COURT  MR. RUSH:  Order in court.  Mr. Rush.  Regarding the heading under Roman IX, my lord, in the  administrative actions and alienations to third  parties, our proposition is simply that administrative  actions pursuant to statutory authority cannot  extinguish aboriginal title.  Regarding the acts of plaintiffs as the assertion  of, surrender of, or estoppel against raising  aboriginal title, ownership and jurisdiction, we have  these propositions.  We will urge on the court that  the historical evidence establishes two crucial facts  with regard to the reserves.  The first is this, that  the plaintiffs and their ancestors resisted the  establishment of reserves; and second, to the extent  that the plaintiffs or their ancestors requested or  accepted reserves, they did so on the strength of  explicit assurances from representatives of the  Provincial and Dominion governments that such request  or acceptance would not be taken as surrender of their  aboriginal title, or prejudice their opportunity to  have the existence and extent of that title judicially  determined.  The historical evidence we will urge on the court  establishes essentially four relevant propositions  under this heading relevant to the assertion of the  plaintiffs' rights.  Firstly, that from contact on the  plaintiffs and their ancestors asserted their  aboriginal title, ownership, and jurisdiction, by  engaging in direct speech and action, by posting  notices, by writing petitions and letters, by forming  and participating in political organizations, by  resisting Colonial, Provincial, and Dominion laws, and  by continuing to operate their own legal, political,  and economic systems.  Secondly, that from contact on  the plaintiffs and their ancestors resisted acts of  the Crown in right of the United Kingdom, the colony  of British Columbia and the province of British  Columbia, when those acts were understood by the  plaintiffs to challenge their aboriginal title,  ownership, and jurisdiction.  Third, that any apparent  acquiescence by the plaintiffs to provincial authority  was induced on the one hand by promises of protection  for Indian rights, and on the other by duress in the  form of disease, legal disabilities, threats of 23530  Submission by Mr. Rush  1 violence, prosecution and dispossession; and fourth,  2 that the plaintiffs and their ancestors never  3 represented that they would not rely on their legal  4 rights to aboriginal title, ownership, and  5 jurisdiction.  The province never relied on any such  6 representation, and the province never suffered any  7 detriment in consequence of such reliance, with the  8 result that the doctrines of estoppel by acquiescence,  9 laches, and delay raised by the provincial defendant  10 have no application to this case.  11 The resolutions of the House of Commons and the  12 Senate concurring in the final report of the Special  13 Joint Committee we will argue are not laws and have no  14 legal force or effect, nor do they define or alter the  15 law of Canada in any way.  As to the Special Joint  16 Committee, we will urge upon your lordship that no act  17 of the plaintiffs or Canada in response to the 1927  18 Special Joint Committee report was intended to nor did  19 it have any legal effect on the plaintiffs' aboriginal  20 title, ownership, and jurisdiction.  21 As to statutory limitations raised in defence by  22 the defendants it will be our proposition that all the  23 declarations sought in this action are declarations  24 which are constitutional in both substance and form  25 and therefore the province cannot either through its  26 Crown Proceedings Act or Limitations Act preclude this  27 court from granting any such declarations.  Provincial  28 limitation statutes we will argue are constitutionally  29 incapable of barring actions relying upon aboriginal  30 rights and title and cannot extinguish aboriginal  31 title and rights.  These are matters solely within the  32 jurisdiction of the federal crown.  There is no  33 jurisdiction in the provincial crown which provides it  34 with the constitutional ability to unilaterally  35 terminate rights which are subject to exclusive  36 federal jurisdiction.  Limitation periods which  37 destroy by extinguishment the subject matter of  38 federal jurisdiction cannot be read down so as to  39 apply and cannot be read to only incidentally affect  40 matters under federal jurisdiction.  41 And, finally, my lord, regarding remedies, the  42 propositions that we will assert, the broad  43 propositions that we will assert here, are these.  The  44 discretion to issue declaratory relief should be  45 exercised to resolve questions of rights and  46 obligations between these parties.  The considerations  47 arising in exercise of that discretion are firstly the 23531  Submission by Mr. Rush  1 utility of the declaration, if granted, and secondly  2 whether such a remedy will settle questions in dispute  3 between the parties.  It is precisely the unswerving  4 history of denial and infringement by the defendant  5 province which compel exercise of that discretion in  6 favour of the plaintiffs.  7 The essence of the plaintiffs' claim in relief is  8 for affirmation and preservation of ownership and  9 jurisdiction over the land base upon which they have  10 existed since time immemorial. The land base is  11 essential to survival of their society and culture  12 into the future.  It is appropriate here to question  13 whether remedies geared solely to solutions of the  14 problems raised, solutions you've heard in reference  15 to employment, education, housing, alcohol, drugs,  16 health, and gambling, whether those solutions would  17 amount to an effective resolution.  Those problems are  18 symptoms of a society under seige.  The solution is  19 not to simply address the symptoms, but to halt the  20 seige and protection the foundation of the society.  21 This is what the plaintiffs seek.  22 Taken as a whole, my lord, the declarations sought  23 judicially ratify the continuity and existence of the  24 plaintiffs' aboriginal rights, including ownership and  25 jurisdiction as defined by the evidence, recognize and  26 define the content of those rights, and affirm the  27 constitutional position and status thereof, assert the  28 consequent inhibition on the province's jurisdiction,  29 and act in restraint of further wrongful interference  30 with the continued exercise of those rights.  These  31 declarations, we will urge upon your lordship, form  32 the minimal necessary basis for cultural and societal  33 survival and rehabilitation.  34 Now, my lord, that in broad stroke represents the  35 propositions that the plaintiffs will urge upon your  36 lordship throughout the course of the argument that  37 you're about to hear.  For the most part, the argument  38 will track the sections of the summary of argument  39 which we have submitted to your lordship, although  40 there will be some alterations.  I will now turn the  41 argument over to my learned friend Mr. Grant.  42 THE COURT: Thank you.   Mr. Grant.  43 MR. GOLDIE: My lord, before my friend Mr. Grant starts, it will  44 be apparent to your lordship that the introduction and  45 outline which my friend handed up this morning was not  4 6 included in the summary of his argument that we  47 received and we didn't see it until this morning when 23532  Submission by Mr. Rush  1 it was handed up, therefore, there is no reply to some  2 of the more rhetorical language in the introduction in  3 the summary that has been filed with your lordship of  4 our argument.  I wouldn't like my silence to indicate  5 that we will not answer some of those more extravagant  6 remarks fully.  7 THE COURT:  Thank you.  8 MR. RUSH:  My lord, I want to advise my friend and the court, as  9 I indicated in the letter, which I would have thought  10 was obvious, and that is the argument we submitted was  11 a summary of argument and we intend to expand upon  12 portions of it and perhaps delete portions of it.  But  13 I want it to be clearly understood that we will make  14 further submissions and round out and develop  15 arguments that are contained in the summary.  And my  16 friend has already notified the court that he reserves  17 the right in his written argument to make further  18 responses, and I suspected that he will do so, but I  19 can tell your lordship that we will present, as I  20 indicated, arguments by sections as we move through  21 the general content of the description of that  22 argument.  23 THE COURT: Thank you.  Mr. Rush and Mr. Grant, before we change  24 gears, have counsel given any thought to the question  25 I raised about sitting hours or hours of sitting?  26 MR. RUSH:  We have, my lord, and we would like to reserve on the  27 question in order to determine the length of time that  28 our submissions are taking.  We have a very tight  29 agenda for our argument, conscious of the 18 days that  30 we have to present it in, and at this point we're not  31 entirely clear how long portions of the argument are  32 going to take, but we have scheduled them and we'll  33 present them within the time frames that we've  34 allotted.  But what I'd like to do is reserve on that  35 question, my lord, for until perhaps tomorrow or the  36 next day to determine how we get along in the  37 argument.  38 THE COURT:  All right.  Perhaps it might be convenient to notify  39 counsel now that, subject to anything else that might  40 arise, it would be my plan to start a little bit late  41 on Monday morning and sit later in the day if  42 necessary so that I might have the extra day in the  43 garden, if that's possible.  It's that time of year  44 you know, or it soon will be.  45 MR. RUSH:  Although my garden of choice.  46 THE COURT:  Yes, in the garden of choice.  All right. I'll be  47 glad to hear from you whenever it's convenient.  I 23533  Submission by Mr. Grant  1  2  3  MR.  GRANT  4  THE  COURT  5  6  MR.  GRANT  7  THE  COURT  8  9  MR.  GRANT  10  11  12  13  THE  COURT  14  MR.  GRANT  15  16  17  THE  COURT  18  MR.  GRANT  19  THE  COURT  20  MR.  GRANT  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  COURT  won't mention that matter again.  Thank you.  Mr. Grant.  Thank you, my lord.  Mr. Grant, do I understand that this part that  you're going to be dealing with starting --  Tab 1 of the maroon binder.  That is the same as what I've already seen is it  not?  It is in substance the same, but it starts at --  what you've already seen commences at page 35, and I  should say there are two, three inserts that are  relatively short, so --  All right.  I would -- the floppy disc that you will get will be  of this version and it's complete and my friends now  have the complete version as well.  I haven't seen pages 1 to 35?  You have not seen pages 1 to 35, no.  Thank you.  All right.  My lord, it's fitting, before I commence, it is  fitting to say that we are commencing this legal  argument in the heart of the territory of Wah tah  k'eght -- of Woos I should say, yes, that we're  commencing this in the heart of Woos' territory,  Gitdumden of the Wet'suwet'en people.  You recall the  evidence of Dr. Matthews who drilled in Seeley Lake  and discovered an epic event 3500 years ago.  If we  took the core of what Dr. -- of Dr. Matthews and  drilled it here, under this building, we would find,  if there's -- if that core could tell the story,  hardly an inch or even less of white presence  non-Indian people here and over 5000 years of the  Wet'suwet'en people here.  The evidence of the  histories of the Gitksan and Wet'suwet'en demonstrates  this time depth.  The evidence respecting the adaawk  and the kungax of the Wet'suwet'en and the Gitksan  chiefs were effectively unchallenged in  cross-examination.  What they said is not merely their  belief, what they said was this is true.  The system  of the proprietary rights that you're being asked to  recognize here is a system that is very old.  The  Gitksan history that I will review demonstrates that  well over 5000 years ago the clan system, the crests,  and the feast institutions were well established.  By  3500 years ago the houses -- this, my lord, is not in  the written, this is --  No, I understand that. 23534  Submission by Mr. Grant  1 MR. GRANT:  The houses, the poles, and the distinct house  2 territories were in place with both the Gitksan and  3 the Wet'suwet'en, and it is demonstrated through the  4 history at Temlaxam and at Dizkle.  By 2500 to 3000  5 years ago whatever vacant lands remained within the  6 territory was taken up by the Gitksan and  7 Wet'suwet'en.  In the context of this case, my lord,  8 in which the Gitksan and the Wet'suwet'en are seeking  9 recognition of jurisdiction and ownership, this  10 antiquity is important and an important aspect of the  11 recognition of the understanding of those societies.  12 I'd like to start at page 1 of the argument, part 1.  13 As I have said, this history of these peoples goes  14 back long before the time of Greek civilization in our  15 context.  The histories demonstrate that the Gitksan  16 acquired territories either when nobody was there or  17 they joined people who were on the territory.  The  18 Wet'suwet'en history, on the other hand, demonstrates  19 that in conjunction with the linguistics and the  20 archaeology the Wet'suwet'en have been on their  21 territory for as long ago as memory and as some period  22 relatively shortly after the last Ice Age.  23 In order to appreciate the complex civilizations  24 that existed at the time of contact among the Gitksan  25 and Wet'suwet'en, it is essential to understand their  26 history.  A careful analysis of this history  27 demonstrates how fleeting has been the history since  28 contact with the Europeans.  Secondly, an  29 understanding of the Gitksan and Wet'suwet'en history  30 explains and clarifies certain apparently complex and  31 confusing features of the societies.  An obvious one  32 is the concept of wilnat'ahl, which was explained by  33 Miss Harris in her evidence and also by a number of  34 the witnesses.  35 This, you may recall, if I may step aside for a  36 moment, is the concept that wilnat'ahl in some cases  37 can refer to one house, in other cases refers to a  38 group of houses who have an ancient origin, and in the  39 broadest context can refer to all of the Gitksan  40 houses of one clan.  And Miss Harris prepared a chart  41 of Kliiyemlaxha's wilnat'ahl to explain that, which we  42 will refer to later in argument.  But an understanding  43 of the wilnat'ahl assists the court to understand the  44 characteristics of certain plaintiffs in the action.  45 Why does one house represent more than one house?  46 Thirdly, the history of the Gitksan and the  47 Wet'suwet'en also demonstrates the foundation for the 23535  Submission by Mr. Grant  1 fundamental principle of respect and the antiquity of  2 that principle within Gitksan and Wet'suwet'en  3 societies.  As we shall demonstrate, my lord, the  4 constitutional underpinning of the Gitksan and  5 Wet'suwet'en legal system is this law of respect, and  6 from it flows all other laws of the Gitksan and  7 Wet'suwet'en.  Of course, you, in dealing with the  8 issues in this case, will be concerned of particularly  9 relevance to the foundation of laws relating to  10 territory and jurisdiction.  11 Fourthly, the history of the Gitksan and  12 Wet'suwet'en explains why certain houses have several  13 territories while other houses have only one.  In two  14 examples among the Gitksan there are houses who are  15 plaintiffs without a territory, but only a fishery.  16 This is explained through the ancient histories.  17 Now, my lord, it is only recently that non-oral  18 societies such as the Euro-Canadian Society have begun  19 to accept the validity of the history of oral  20 societies.  The validity and veracity of the oral  21 history and the passage of that oral history through  22 centuries is difficult for those of us trained from a  23 written record.  However, it was -- we must remember  24 that it was only a few centuries ago that the European  25 societies passed down histories orally.  Of course, it  26 has been very convenient for the European societies to  27 reject the validity of oral history of the aboriginal  28 nations of North America.  Once the historical  29 foundation for the aboriginal peoples' presence and  30 ownership of their territory has been dismissed as  31 fictions or fables, the theft of the land is very easy  32 to justify.  33 And here I will refer for a moment to page 56  34 because John Brown, a leading chief in the house of  35 Gwiiyeehl spoke to Barbeau and Beynon in 1920, and  36 it's quoted on page 56, and this is from the  37 Barbeau-Beynon accounts:  38  39 "It was customary..."  40  41 Half-way down:  42  43 " transmit the adaawk so that they may  44 be preserved.  A group that could not tell  45 their adaawk would be ridiculed with the  46 remark, 'What is your adaawk?'  And if you  47 could not give it you were laughed at. 23536  Submission by Mr. Grant  1 'What is your grandfather's name? And where  2 is your crest?  How do you know of your  3 past, where you have lived?  You have no  4 grandfather.  You cannot speak to me because  5 I have one.  You have no ancestral home.  6 You are like a wild animal, you have no  7 abode.'  Niiye'e..."  8  9 Which means the forefathers.  10  11 "...and adaawk, grandfather and history are  12 practically the same thing."  13  14 What John Brown was saying there, my lord, is that  15 people must have a history to have a place, and of  16 course it was -- this is why we must recognize the  17 history of these people.  18 Going back to page 3, the Gitksan and Wet'suwet'en  19 history is much more than bedtime stories and morality  20 lessons.  It does include morality.  They are told at  21 bedtime, but it includes much more than that.  The  22 utilization of metaphoric description is a recognized  23 pneumonic device.  It is no justification to dismiss  24 the authenticity of the history of these people on  25 their land.  To describe events metaphorically, like  26 poetry, is to give meaning in images and assist to  27 remember key events of the history.  It is phenomenal  28 that when one analyses the hundreds of adaawk filed in  29 evidence and kungax there is a remarkable parallel  30 between the same historical events described by chiefs  31 at places like Kitkatla and Hartley Bay, all the way  32 to Kuldo'o, between a period of time from 1915 with  33 the first Beynon account up to 1989 when you hear  34 different descriptions.  To suggest that the oral  35 history is hard to verify and should therefore be  36 discounted is to ignore the care with which Wil  37 Robinson, a trained -- a person that worked in the  38 courts, recorded the Men of Madiik and the Wars of  39 Madiik.  It also ignores the willingness of these  40 chiefs to be cross-examined in the court about their  41 oral histories, and it ignores the tremendous volumes  42 of recorded oral histories of the north-west coast,  43 probably one of the largest records of oral histories  44 in the world for one group of societies.  45 Finally, it ignores the accepted fact that all  46 history, my lord, is subject to revision, based on the  47 learning of new facts.  The facts and the context of 23537  Submission by Mr. Grant  1 history must always be weighed against other evidence,  2 the values of the speaker, the methods of recording  3 and transmitting the information, the drama of the  4 event, the importance to the recorder of the record in  5 terms of his world view, the weight of the history and  6 teaching methods of the culture.  All of these factors  7 have been established in evidence.  Indeed, the  8 Barbeau-Beynon account and its care with respect to  9 those factors is one of the reasons that that record  10 is so invaluable.  11 Similarly, my lord, it is a culturally bound  12 perception to assume that the only reliable history is  13 written history.  Surely today in 1990 we are beyond  14 the simplistic ethnocentric belief that for the  15 Gitksan and Wet'suwet'en, as Roper said of Africa,  16 "There was no history there until the white man  17 arrived."  18 My lord, you have had the first opportunity to  19 hear not only the oral histories, but also a unique  20 analysis of them in the context of entirely  21 independent geological, paleo-biological,  22 archaeological and historical evidence.  The  23 defendants are asking this court to close its eyes to  24 the history of the plaintiffs just as Joseph Trutch  25 and other early colonialists closed their eyes to the  26 richness of the civilizations which they encountered  27 in British Columbia.  My lord, this court should not  28 unequivocally reject -- this court should  29 unequivocally reject such an ethnocentric, myopic, and  30 ultimately racist approach to the Gitksan and  31 Wet'suwet'en people.  32 Now, there are many features that have  33 demonstrated the veracity of the oral history through  34 the course of this action.  It's been demonstrated in  35 the following ways.  The geological and  36 paleo-biological evidence corroborates major events at  37 Temlaxam.  And here of course I'm referring to Dr.  38 Matthews and Dr. Gottesfeld's entirely independent  39 work.  The detailed method of training the oral  40 histories as described by the chiefs and the witnesses  41 and the preparation of specialists of preservers of  42 the history, many of whom you have heard, but you,  43 through the test of the court process, have been able  44 to observe it.  The spontaneous descriptions that have  45 been given in evidence in response to questions, for  46 example, Stanley Williams, Gwis Gyen, time and again  47 described detailed boundaries from memory while giving 2353?  Submission by Mr. Grant  1 evidence and a summary form of the adaawk regarding  2 those territories.  Olive Ryan, Gwans, described the  3 names and the meaning and history of several fishing  4 sites, and once again she would refer to an adaawk or  5 in sometimes as she said these stories, the  6 trickster's stories which were not adaawk, but she  7 would know them.  Madeline Alfred, Johnny David,  8 Alfred Joseph, describing the names and history of  9 many of the Wet'suwet'en places and fishing sites, and  10 spontaneously coming forth in cross-examination with a  11 kungax.  12 The archaeological evidence at Hagwilget, at  13 Moricetown, at Gitangaat, and Kitselas, are all  14 consistent with the oral histories and the time depth  15 of those oral histories.  The repetition from widely  16 disparate oral histories at the time of the Beynon  17 recordings; and finally, the four years of analysis of  18 the Barbeau-Beynon adaawk by Miss Marsden and the  19 critical review and interconnection of the adaawk as  20 demonstrated by key elements and repetition of  21 particular narratives.  Each of these aspects of the  22 veracity of the oral history shall be reviewed in the  23 context of the actual histories that have been  24 described and the time depth of the Gitksan and  25 Wet'suwet'en.  I will come to each of them at  26 junctures of the history.  27 I'd like to review the oral history as history in  28 this next part.  As I've already said, they are  29 different.  The adaawk are different than morality  30 lessons or bedtime stories.  They are the historical  31 record of the Gitksan and they record actual  32 historical events.  A careful analysis of the adaawk  33 that have been presented in this case demonstrates  34 that they are a recording of significant historical  35 events and not such personal histories or anecdotes.  36 Yes, there may have been some examples of a person  37 telling a personal history or anecdote, but they did  38 not say this was the adaawk.  Kungax are the  39 Wet'suwet'en performances and oral accounts of  40 significant historical events.  The evidence  41 demonstrates that kungax include dance, song, and  42 performance, as well as oral accounts.  Nevertheless,  43 significant events in the peoples' history are  44 recorded and encoded in their oral tradition in the  45 same way.  I shall generally refer to both adaawk and  46 kungax hereafter as oral history.  47 The accuracy of the oral history of the north-west 23539  Submission by Mr. Grant  1 coast has been attested to in evidence and by the  2 scholarly writers.  Phillip Drucker, a recognized  3 scholar by witnesses for both the plaintiffs and the  4 defendants, has stated, regarding the north-west  5 coast:  6  7 "In connection with these traditions it must  8 be pointed out that while the Indians had no  9 written records and had to rely on oral  10 transmission of their clan and family  11 histories, the traditions of all the groups  12 from Vancouver Island northward are so  13 specific and consistent and, insofar as they  14 can be checked, so correct that there is  15 little doubt that for the most part they are  16 historically accurate.  17 Levi-Strauss notes that the recorded  18 oral tradition of the Gitksan and the  19 Tsimshian and other north-west coast peoples  20 deserves to be seen as a tradition every bit  21 as rich and detailed as the mythology and  22 oral tradition of the ancient Greeks.  The  23 oral tradition of the Greeks and the Old  24 Testament have inspired a great deal of  25 archaeological and historical research.  It  26 was Schliemann's fascination with the oral  27 tradition of the Greeks preserved in the  28 Iliad and the Odyssey that led him to  29 unearth the settlement of Mycenae; and it is  30 the record preserved in the Old Testament,  31 itself originally an oral history, that has  32 led to the excavation of Jericho."  33  34 And I may say, my lord, it is Dr. Albright's  35 review of the oral history that led her to digging the  36 house site at Gitangaat.  37 Dr. Daly expanded on the validity of oral  38 tradition as history in his report.  He reviewed that  39 oral tradition is both history and social reality in  40 the eyes of the Gitksan and Wet'suwet'en people.  I'll  41 go to the bottom of that page.  Dr. Daly explained by  42 a parallel with the Iroquois cultural history, which  43 he had researched, the experience of William Fenton.  44  45 "William Fenton, who has devoted his career  46 to studying Iroquois history and culture,  47 has found that the versions of these 23540  Submission by Mr. Grant  1 narratives which he recorded at Iroquois  2 ceremonial sessions on the period from the  3 1930's to the recent decades have shown a  4 remarkable fidelity to the earlier recorded  5 versions.  He explains that present-day  6 Iroquois culture focuses upon three epics,  7 from three different periods in the people's  8 history."  9  10 Dr. Daly in his report at this part explains the  11 three oral epics and then continues.  And, as you  12 recall, Dr. Daly himself did his doctoral work with  13 the Iroquois.  14  15 "Fenton points out that while nineteenth  16 century Iroquois philosphers' explanations  17 of their culture and its history were  18 subject to nineteenth century ideological  19 colouring, the actual ritual tellings of  20 historical/spiritual events continue to be  21 told, free of ideological colouring.  They  22 were, and are, history of a different  23 official order.  The Handsome Lake  24 prophecies occurred in post-contact times  25 and the tellings have been documented since  26 their first occurrence.  They offer a  27 control model for the accuracy of official  28 oral accounts much as do the proto-contact  29 and early contact events in the Gitksan and  30 Wet'suwet'en oral history - as discussed  31 above.  Fenton continues:  32 ...the Code of Handsome Lake affords a  33 reasonable check on the accuracy of native  34 tradition.  The striking resemblance between  35 modern versions and contemporary diary  36 accounts of Handsome Lake's revelation does  37 endorse the value of Iroquois tradition as a  38 vehicle of history."  39  40 Dr. Daly then went on to consider the oral  41 tradition of the Gitksan and Wet'suwet'en more  42 specifically.  He stated:  43  44 "...the oral history of the Gitksan and  45 Wet'suwet'en is an important source for the  46 reconstruction of pre-contact history.  In  47 my view, Gitksan and Wet'suwet'en oral 23541  Submission by Mr. Grant  1 history comprises useful and important  2 material for gaining an understanding of  3 pre-contact social structure as well as  4 recounting those historical events which  5 have been deemed to be crucial to the  6 historical identity of specific kinship  7 groups.  These events are presented from the  8 perspective of specific groups.  Other  9 houses, other clans, will tell them  10 differently and stress their own role  11 therein.  The oral tradition is a worthy  12 historical source material when it is  13 treated as a whole, a corpus of linked and  14 overlapping records of events that have been  15 reiterated down through the generations.  16 Individual tellings of one chief's history  17 must be compared with one another and then  18 with the accounts of the same or related  19 events from the viewpoint of other chiefs.  20 When this is done carefully the oral  21 tradition can be treated as a valid  22 historical source."  23  24 As the evidence demonstrated, the adaawk and the  25 kungax explain who the teller is, why the teller has a  26 right to speak  and to live and interact in the  27 community and hold land and fishing sites. The  28 Wet'suwet'en kungax explains the chief's attachment to  29 the territory where the Wet'suwet'en say they have  30 always lived.  The Gitksan adaawk explain how the  31 people have come to settle a specific river fishery  32 and how their ancestors obtained the territories.  In  33 both Gitksan and Wet'suwet'en society the oral history  34 situates the group, gives it identity and pedigree by  35 virtue of experiences of the house ancestors on the  36 territory, and this is what John Brown, the former  37 member of the house of Gwiiyeehl, was describing.  38 Dr. Daly noted that oral history when told within  39 the house group and in conjunction with daily life at  40 the smokehouse, berry patches and hunting grounds, the  41 chiefs' histories can be presented with full and  42 graphic detail. These histories contain sequences of  43 events set out in a linear fashion familiar to  44 historians of the European tradition.  They also  45 contain detailed knowledge regarding economic and  46 practical skills and practical wisdom, a philosophical  47 outlook, meditative techniques, knowledge pertaining 23542  Submission by Mr. Grant  1 to health care.  Unfortunately for scholars this  2 elaborated form of the oral history has rarely been  3 presented for the written record.  Always it has been  4 passed from one speaker directly to the next.  For  5 example, when told to researchers or to the court it  6 is necessarily abbreviated.  The adaawk of Gyologyet  7 was told in approximately one half hour at trial, yet  8 Mrs. MacKenzie testified the telling usually takes in  9 more than one sitting.  10 Mrs. MacKenzie explained that the adaawk are told  11 with a greater degree of precision depending on the  12 occasion.  The raising of a totem pole is one occasion  13 for detailed rendering:  14  15 "In a feasting of a burial of a chief, these  16 adaawks are not told deeply, it's just a  17 changing of a successor, it is a burial  18 feast.  But when a totem pole is erected  19 that's when these adaawks come out of the  20 creation of a totem pole and they these  21 questions tell the adaawk of the family and  22 the erecting of a totem pole, the chiefs  23 gather at an erection, the chiefs tales  24 illustrates or tells the story of the adaawk  25 of these crests.  Now there is a pause there  26 somewhere, if one person thinks that one  27 crest is not supposed to be on that totem  28 pole, they say it right then.  So if  29 everything's all the crests are on there,  30 everybody says it's all right, that's when  31 these chiefs come with their speeches,  32 putting their power and the blessing of this  33 totem pole of the adaawk that this totem  34 represents.  This is the kinds of feasting,  35 and this is done in a feasting house where  36 the chiefs give their blessing and their  37 power to the chief that erects the totem  38 pole."  39  40 Now, my lord, just as in the 1920's as when  41 Barbeau attended a feast in the 1920's and heard this,  42 so in 1945 at the Kitsegukla pole raising by Beynon  43 and so in 1987 at the pole raising observed by Dr.  44 Daly, in all of those events the adaawk or the kungax  45 were being told.  46 Dr. Daly concluded that:  47 23543  Submission by Mr. Grant  1 "The oral histories provide a framework for  2 understanding of people's social realities  3 at two levels; first, through individual  4 house histories and, second, through the  5 broader scope of all these individual  6 histories viewed together.  When this  7 information is supplemented with other  8 available data a generally reliable view of  9 pre-contact history can be established.  10 In other words, taken as a whole, the  11 oral tradition provides an extensive text  12 which the ethnologist can use to gain  13 insights into the culture and society of the  14 past.  This was not possible before the many  15 separate but often overlapping histories  16 were recorded and compiled.  This recorded  17 oral history contains the sequence of  18 historical events such as migration, war,  19 raiding, taking hostages, retribution and  20 peace settlements.  These events occurred in  21 a number of individual but interlinked  22 strands.  Taken as a whole, these strands of  23 migration and interaction provide  24 researchers with a broad understanding of  25 the early, unwritten history of the upper  26 Skeena, Nass and Stikine drainage systems  27 and the adjacent coast.  28 To a certain degree this is the work  29 that Barbeau and Beynon began and which  30 others follow today.  The task of plotting  31 the distribution and time sequence of these  32 narratives and locating the social  33 institutions referred to in the texts, such  34 as matrilineal inheritance, the spiritual  35 observances associated with hunting and  36 salmon fishing, property ownership, and  37 political alliances established or renewed  38 by marriage and consanguinity, often over  39 great distances."  40  41 Now, my lord, in this case Miss Marsden  42 has undertaken the completion of the task  43 commenced by William Beynon and Mr.  44 Wilson-Duff.  Miss Marsden explained the  45 process of sequence ing the historical  46 events and the adaawk of each wilnat'ahl:  47 23544  Submission by Mr. Grant  1 "When adaawk are formally told, the correct  2 sequence of events is included in the  3 telling.  Given the time involved, it is  4 understandable that few complete adaawk were  5 recorded in writing.  Most of the written  6 record consists of discrete historical  7 events, incomplete sequences of such events,  8 or complete chronological events, in which  9 each event is a quick synopsis, that brings  10 to mind the event as it is otherwise known."  11  12 She described her methodology as follows.  13  14 "It is through the re-sequencing of the  15 historical events in the adaawk of each  16 wilnat'ahl, the comparison of these  17 sequences and the dating of events within  18 them, that a framework for the history of  19 the Gitksan is possible."  20  21 Miss Marsden began this process by familiarizing  22 herself with the adaawk of the Gitksan, Nisga'a and  23 Tsimshian in the Barbeau-Beynon collection and in  24 other sources.  She says:  25  26 "I also familiarized myself with the  27 histories of the neighbours of the Gitksan,  28 the Tlingit, Haida, tsetsaut, Gitamaat and  29 Wet'suwet'en through a number of  30 publications by Swanton, Boas, Jenness,  31 Robinson..."  32  33 That's Michael Robinson, not Sheila Robinson.  34  35 "...and De Laguna.  And, finally, I examined  36 all the origin accounts and personal names  37 and crest in the Duff files based on Barbeau  38 and Beynon's work among the Gitksan, Nisga'a  39 and Tsimshian, and in Swanton, and De Laguna  40 on the Tlingit, in Emmons on the Tahltan,  41 and in Jenness on the Wet'suwet'en.  42 I had already lived among the Gitksan,  43 attended feasts and heard adaawk being told  44 for ten years prior to this.  I was familiar  45 with the poles on which the Gitksan adaawk  46 are recorded, having photographed and  47 catalogued them.  I had also compiled an 23545  Submission by Mr. Grant  1 overview of the Gitksan houses, clans and  2 wilnat'ahl based on Barbeau and Halpin and  3 was familiar with the present members of  4 these houses as they participated in feasts  5 and other formal events."  6  7 Using these sources, Miss Marsden examined the  8 commonalities between groups, in adaawk, crests,  9 personal names, migration routes, village membership  10 and origins.  These she compiled into charts which  11 show the relationships between houses indicating their  12 membership in a wilnat'ahl.  13  14 "The wilnat'ahl can be defined in this broad  15 historical context as that group which  16 shares ancient common origins.  Once I had  17 traced each house to its place in this  18 larger group I was then able to map their  19 movements and expansion over time as they  20 split off to different peoples, areas and  21 villages across the Northcoast area, to  22 their locations as recorded in 1920 by  23 Barbeau and Beynon."  24  25 Now, my lord, you have heard evidence that the  26 oral history is taught and is likely to be told  27 accurately if it is recited by someone trained in that  28 aspect of it, who has been authorized to tell it.  29 When the court heard the adaawk, the most reliable  30 informants told the adaawk.  Several of the witnesses  31 described in detail in their evidence that they were  32 trained in a particular way.  As I have already said,  33 the spontaneous statements of Stanley Williams, Olive  34 Ryan, Madeline Alfred, Johnny David, Henry Alfred, and  35 Art Matthews Junior attest to the success of the  36 proper training in oral history for an oral society.  37 It is noteworthy that none of these witnesses trained  38 in the adaawk were cross-examined on their knowledge  39 of the adaawk or its accuracy.  40 Dr. Mills testified that the issue of  41 authorization may be somewhat differently understood  42 by the Gitksan and Wet'suwet'en.  She stated:  43  44 "The Wet'suwet'en share some of the Gitksan  45 concern about who is authorized to tell a  46 story, but for them it is less important  47 that it be a member of a particular house or 23546  Submission by Mr. Grant  1 clan associated with the kungax than it be  2 someone that knows the kungax well.  3 Thus Johnny David, Chief Maxlaxlex,  4 suggested in his Commission Evidence that  5 Peter Alfred, Chief Kanots, tell the story  6 of Kweese' war on the Kitimat, which Chief  7 Maxlaxlex said was the source of his otter  8 crest (in the tradition of the Wet'suwet'en  9 ascribing many crests to this major  10 Wet'suwet'en victory) because he thought  11 Kanots knew the story well, as the son of  12 Namox, a high chief in Kweese' clan.  Kanots  13 confirmed that he had learned it as his  14 father told the kungax in the evening in the  15 winter when they were out in the territory.  16 Having learned kungax well from his father  17 authorized Kanots to recount it, as  18 Maxlaxlex recognized."  19  20 The question of the authority to speak about  21 various aspects of the adaawk was the subject of  22 considerable testimony by the chiefs, and I submit, my  23 lord, that several principles emerge from the  24 evidence.  Firstly, permission to testify to matters  25 which belong to the adaawk of more than one house  26 requires permission from all the houses who had an  27 ownership interest in that adaawk.  This is the  28 context for the statement made by Mrs. MacKenzie that  29 she was not able to speak about the laws of other  30 houses and other clans so when she was -- talked about  31 in her evidence about Gitksan law, she says she's  32 really telling us about the law of the house of  33 Gyologyet.  34 Dr. Daly pointed out that:  35  36 "Oral histories are for the ears of the  37 chiefs, of the main actors in a specific  38 social system.  Their telling is generally  39 confined to the house group or wider group  40 of kin with a common origin or long term  41 common proximity in a village.  Apart from  42 this internal telling the oral history is  43 only revealed publicly at appropriate and  44 formal events; that is, at certain feasts."  45  46 My lord, I'd like to make an aside here that you  47 may recall that Stanley Williams described exactly 23547  Submission by Mr. Grant  1 this kind of event.  He corrected a chief from  2 Kitwancool who he understood mischaracterized the  3 adaawk which was also part of Gwis Gyen's adaawk, and  4 he did it in a feast after this man spoke and he  5 corrected him there and his correction was accepted.  6 That was also attested to by Art Matthews Junior who  7 witnessed that event at that feast.  8  9 "...within the community the narration of  10 the oral histories is subject to the  11 constant judgment of other chiefly  12 narrators.  A number of the witnesses at  13 each telling will have a clear knowledge of  14 the places, events, crests and songs that  15 are recited in the telling.  If the teller  16 is inaccurate he or she diminishes the  17 luster of the house, and does so in public.  18 Such behaviour can also court psychic  19 retribution, especially, if an unauthorized  20 person attempts a telling,  because the  21 psychic power of the crest, which are  22 central to telling, can be dangerous and  23 even malevolent toward the unauthorized."  24  25 Dr. Daly explained, I'm on page 17, that in his  26 research for his doctoral thesis with respect to the  27 Iroquois, he relied on the oral history and referred  28 to Fenton's work.  He explained that Fenton was  29 concerned with particular oral histories which are  30 passed down generation after generation in public  31 ways, public gatherings.  32 Dr. Daly explained in his oral evidence how Fenton  33 relied on the Handsome Lake revelation to analyse the  34 validity of the oral history and this is what he  35 testified to:  36  37 "...He", that is Fenton, "says since it  38 occurred in historic times, there are other  39 documents that back it up.  These  40 revelations of this prophet came into being  41 in upper New York state.  And they  42 are...they have been told the same way and  43 they have been recounted by white men ever  44 since then.  And they have been told in the  45 same way today as they were being told as  46 early as 1820, I think is when they first  47 began to do this.  So he", that is Fenton, 2354?  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  "goes back to the earlier period, the  formation of the League of the Iroquois,  which people seem to think was about a  hundred years before the coming of the  Europeans. And he reaches back through the  kinship links of the grandparents of the old  people at the earliest point of contact,  what they said about it, and finds a  consistency there as well.  And then they go  back to the more ancient myths of origin of  the very people themselves."  In the case of the Gitksan, my lord, there are  certain parallels.  The events described in an adaawk  of Mr. Ross at Fort Babine are events that are also  recorded in the Hudson Bay records.  Furthermore, the  court has had an opportunity to compare the  contemporary accounts with those accounts described by  grandparents and great-grandparents of witnesses to  Beynon and Barbeau as early as 1915.  This consistency  of those accounts reflects on the reliability of the  oral histories themselves.  Similarly, my lord, the co-relation between the  major cataclysmic event at Seeley Lake 3500 years ago  and the Madiik adaawk is another indicator of the  veracity of these events.  The co-relation between the  archaeological finds at Hagwilget and Kitselas and the  adaawk is further evidence of the veracity of those  events.  Those archaeological finds demonstrate a  major change occurred around 3500 years ago in respect  to the utilization of those areas.  Now, Dr.  Cruickshank in her annotated bibliography of  approaches to the analysis of oral tradition dealt in  a separate section with oral history.  She referred to  recent students of oral history from a Keith Basso and  Renato Rosaldo.  And that document is Exhibit 1051-2,  Dr. Cruickshank's.  1051-2.  Yes.  Thank you.  It's tendered by the provincial defendants in  cross-examination.  Dr. Cruickshank stated:  "Recent students of oral history, like Basso  and Rosaldo argue that informants'  statements about themselves, their 23549  Submission by Mr. Grant  1 environment, their history have to be taken  2 seriously.  They propose to make theoretical  3 contributions to cultural ecology (Basso)  4 and to anthropological theory generally  5 (Rosaldo) by demonstrating that how people  6 think about their landscape and their  7 history has a significant impact on how they  8 interact with their environment.  They  9 demonstrate their positions by meticulous  10 analysis of oral tradition and pay  11 particular attention to place names."  12  13 Now, Miss Marsden was extensively cross-examined  14 with respect to her approach to oral history.  Unlike  15 Vansina she had extensive knowledge of the kinship  16 relations of the Gitksan system prior to analysing the  17 oral history.  She agreed in cross-examination that  18 the informant statements about themselves, their  19 environment and history have to be taken seriously.  20 The concept of exercising care --  21 THE COURT:  I'm sorry, I'm not sure I understand your context  22 there, Mr. Grant.  Is the next paragraph the condition  23 that follows the "if" at the start of that?  24 MR. GRANT:  I'm sorry.  I'm sorry.  I see I marked it out.  25 There should be no "if".  I'm sorry.  2 6    THE COURT:  Thank you.  27 MR. GRANT:  I had marked mine out, my lord.  28 The concept of exercising care when relying on  29 oral histories cited by Trigger was put to Miss  30 Marsden.  And you may recall Mr. Trigger, who studied  31 the Huron, his asides about oral history were put to  32 many witnesses.  But she responded:  33  34 "I know that there are other aboriginal  35 societies that have oral histories that they  36 do not put forth as history.  There are  37 other oral traditions, oral narratives that  38 are passed on and that are important to  39 aboriginal societies that are not historical  40 accounts and they don't claim that they are.  41 And I haven't done a survey of all the  42 so-called tribal societies so I don't know  43 how many of them have historical accounts.  44 But I feel that from what I have looked at,  45 that the north coast historical accounts are  46 the wealth and richness of what has been  47 collected on them is unique probably 23550  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  anywhere."  Now, as an aside, in Dr. Cruickshank's annotated  bibliography, she corroborates what Miss Marsden says  because she delineates three or four or five different  categories of oral tradition and oral history is only  one of them.  Now, in further cross-examination the following  exchange occurred regarding the wealth of the oral  history of the north coast.  "The recording of oral tradition as well may  be suspect."  This is Trigger's comments, and the first part of this  is the question, my lord, it actually should have --  :  Starting "The recording" is from Trigger.  :  That is, yes, and this is Mr. Willms' question, and  he reads this section to her.  :  Thank you.  "The recording of oral tradition as well may  be suspect.  The few committed to writing in  eastern Canada prior to the late 19th  century were done in extremely cursory  fashion and from poorly identified sources.  At least some of these oral traditions  appeared to be heavily influenced by white  historical narratives, missionary propaganda  and even anthropological publications.  They  also frequently reflect knowledge of periods  later than those to which they are alleged  to refer."  Mr. Willms then questions Miss Marsden.  "Just pausing there, in respect of the oral  traditions that you reviewed, you're  satisfied, I take it, about Barbeau and  Beynon's recording as being not suspect,  identified sources and not heavily  influenced, is that fair?"  Miss Marsden:  "Yes, I think that even in the north coast 23551  Submission by Mr. Grant  1 body of oral literature they stand out as  2 such.  Boas' transcriber of oral histories,  3 his name was Tate, he felt that he had to  4 clean them up, he had to take out references  5 that would offend white people and make them  6 acceptable to Christian thinking and I don't  7 use those in the same way as I use the  8 Barbeau-Beynon account."  9  10 Miss Marsden was further examined as to the  11 verification of the oral histories and explained the  12 internal verification as well.  13  14 "So it's your view..."  15  16 This is the question, my lord, I'm sorry.  17  18 "...that even in the absence of independent  19 verification, that you can say that  20 traditions can be accepted as accurate  21 historical accounts.  22 A   I think there are internal, there are ways  23 of analysing them internally.  If you have a  24 version collected in 1898, another one  25 collected in 1915, another one collected in  26 1970, and in different parts of the north  27 coast area, and if they all have the  28 essential elements, you have to begin to  29 assess them as something other than figments  30 of people's imagination.  31 Q   So if they are all this century, if you have  32 got a consistent pattern this century, you  33 say that that's your independent  34 verification?  35 A   They have of the things that  36 started convincing me, and this has started  37 convincing me that these could be used in a  38 meaningful way and not be subject to this  39 kind of criticism was the fact that the  40 informants obviously didn't know each other  41 and probably their ancestors, their  42 immediate ancestors, didn't know each other.  43 So the fact that a tradition can be passed  44 on in different locations over a long period  45 of time accurately, indicates its value to  46 the people and indicates that there are  47 methods there of transmitting it where it 23552  Submission by Mr. Grant  1 doesn't end up, as he says here, basically  2 changed around to suit people's purposes."  3  4 Miss Marsden went on to agree with the methodology  5 of Vancina, but explained her own methodology as  6 follows:  7  8 "My methodology is extremely complex and I am  9 at a disadvantage if you ask me individual  10 aspects of it.  I don't think Vancina..."  11  12 And that should be with "a", my lord.  13  14 " into the same kind of analysis  15 because I don't think he had the same kind  16 of sources.  However, there are things that  17 he said that I agree with.  For example, the  18 ones that you quote, that you have to look  19 at the informant, you have to look at the  20 different versions and you have to consider  21 it as a historical source, but not as a  22 historical document in the sense that we  23 westerners consider documents.  In other  24 words, having been written down at the time  25 by a person involved in this situation."  26 "...I felt comfortable with my  27 methodology when I was doing it.  I did not  2 8 have the time to do a study on other  29 people's opinions on oral history while I  30 was doing this and I made sure that I had...  31 I asked as many people as possible whenever  32 there were anthropologists or linguists  33 coming through the area if there is anything  34 on this in print and I saw Vancina as a  35 result of that.  I didn't see this..."  36  37 referring to the Cruickshank annotation,  38  39 "...but when I did see it I looked through it  40 and the people working on oral histories are  41 not working on them in the same way that I  42 am, except Vancina.  And he hasn't done it  43 the same way."  44  45 In summary, my lord, Miss Marsden shows a  46 meticulous analysis of adaawk consistent with a  47 growing tendency within the field of anthropology to 23553  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  analyse oral histories carefully and consider them as  history when appropriate.  Now, what's even more important and more credible  in this case is the evidence of the chiefs themselves  that adds in, which they explain, the teaching of the  adaawk and the kungax.  Mr. Grant, do you think you should start another  subject or another heading before we adjourn for  lunch?  We can adjourn now.  It's satisfactory.  All right.  Thank you.  Two o'clock, please.  Court stands adjourned until two  MR. GRANT  THE COURT  THE REGISTRAR: Order in court  o'clock.  (PROCEEDINGS ADJOURNED FOR LUNCH RECESS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Tanita S. French  Official Reporter 23554  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  THE COURT  MR. GRANT  Mr. Grant?  Thank you, my lord.  I am still dealing with the basis upon which you  should receive the oral histories of the people.  In  this part I will deal with the method of teaching the  oral history, the passage of the oral history.  On  page 22 of my argument, the Adaawk and Kungax are  reliable sources of history because of the very  careful and systematic way in which they are taught.  The teaching methods of repetition and slow  elaboration are well-recognized learning tools.  The  instruction of the young by the chiefs and the elders  is an essential part of the training into Gitksan  society.  Dr. Daly said:  "In earlier times, before the intervention of  government agencies and other institutions in  the Gitksan and Wet'suwet'en communities, the  grandparents taught all the children the  narratives of their origin."  And goes on to explain that.  Then he talks  about today in the last paragraph on 23.  "The elders expect such young people to develop  accurate and detailed memories as to the  territories of their house, of those nearby,  and those of their father's side.  They are  expected to know their crest histories in  detail and to remember those of other local  chiefs as told in the feast hall.  They must  also learn to remember the elaborate system of  rank names and positions in each house group in  the feast hall, such that they themselves are  able to seat without the embarassment of error.  All members of the community according to the  house, the wilnat'ahl and clan affiliation and  keep abreast of changing incumbents to these  names."  Dr. Daly was of the opinion that:  "The contemplation of oral instructions,  history, morality, practical techniques needed  in in daily life is a part of the ongoing  education of Gitksan and Wet'suwet'en people. 23555  Submissions by Mr.Grant  1 These teachings are provided in the context of  2 giving the young people a personal goal."  3  4 And he continues on and at the end he says:  5  6 "The acquisition and transmission of family  7 crest histories is an integral part of this  8 process."  9  10 And you, of course, my lord, have had the  11 opportunity to see the effect of that, not only on  12 elders such as Gwis gyen, Stanley Williams, Solomon  13 Marsden, Mrs. Ryan, Madeline Alfred, but also on the  14 younger people, the evidence of Henry Alfred, Art  15 Mathews junior, Glen Williams, for example.  16 At the bottom of page 24, I continue.  Dr. Mills  17 comments in terms of the Kungax as well and then it  18 goes on.  Many chiefs have testified that this  19 training and the training which they continue to do  20 with their children in the oral history occurs  21 formally and informally inside and outside of the  22 feast.  Alfred Joseph, Gisday'wa, testified to the  23 very many ways and places a person is trained in the  24 oral history.  You have to get your training from --  25 he stated in evidence:  26  27  28 "You have to get your training first from your  29 parents and then the grandparents, but the main  30 part of your training comes from your  31 grandparents because they are the people that  32 lecture the house members.  They lecture their  33 sons, daughters-in-law every day.  It starts in  34 the morning and you can't help but listen to  35 all these things and if you happen to be a bit  36 noisy, you are told that this advice giving is  37 directed at you also.  So you have to listen  38 and there is visitors, elders visiting at our  39 house, visiting my grandparents and they are  40 also there as advisors.  They get together and  41 there are always these songs and whenever they  42 are finished with a song they say that where  43 the song came from, where the song was  44 originated and what the occasion was.  And  45 that's an ongoing thing with the Wet'suwet'en  46 and if you try to get away from listening to  47 the lecture and move over to your friend's 23556  Submissions by Mr.Grant  1 house the same thing will be happening there.  2 So it is taking place at all houses and you are  3 told to respect your elders.  You are told to  4 respect all living things so that is the things  5 that a young person has to go through.  And you  6 are also told that in the future you will be  7 dependent upon to do the things if you live the  8 right way."  9  10 Then he goes on to describe the method of teaching  11 and preparation for a feast.  And on the next page  12 Gisday'wa describes the training of the chiefs' names  13 and crests, songs and totem poles at the feast and  14 within the community.  And he stated:  15  16 "There is a crest, like boundary, would have a  17 marking, a marking on the boundary and then  18 there you have the totem poles and songs and  19 the personal crest relate to the land -  20 whatever happened on the land so there is  21 always some reminder of different feasts that  22 have happened.  If an elder two or three of  23 them is visiting and they would sing these  24 songs and when one quits they say, 'do you  25 remember where this came from?'  If you don't,  26 while they say they tell them this was that  27 feast when this chief died or when this chief  28 erected his totem pole.  And that was going on  29 at every community.  Discussions going on, how  30 names, songs, and crests were acquired."  31  32 Now, of course, my lord, you saw with Gisday'wa  33 with the depth of knowledge that he had, and he  34 described and explained his own Kungax as well as the  35 territories of his house and others, the effectiveness  36 of that training.  It is through this process of  37 living the oral history as it is made, taught and  38 expressed that Alfred Joseph learned about crests and  39 how to carve totem poles.  And he goes on on that page  40 to describe how he saw the totem poles at Hagwilget  41 Canyon and became interested in the crests and learned  42 of them.  43 Now, let's go back, is this different than what  44 was being done at the turn of the century?  Johnny  45 David, one of the oldest voices that you have heard  46 here, described how he learned his song.  47 23557  Submissions by Mr.Grant  1 "Abraham and I were playing in my dad's house.  2 My dad would sing his song and through  3 listening to my dad, both Abraham and I learned  4 the song that goes with Smogelgem."  5  6 This teaching, my lord, is also deliberate and  7 repetitious and forms part of day-to-day home life.  8 This was the testimony of many chiefs.  For example,  9 the former Hanmuxw, Fanny Johnson, taught Gwans, Olive  10 Ryan adaawk of Hanmuxw, the territory and fishing  11 sites of her house and many houses, the laws, the  12 songs, the history of her house including the history  13 of the crest, pole and also the adaawk of Guxsan's  14 house, including the territory which was given to  15 Guxsan for assistance in the burial of Yal.  Guxsan,  16 of course, is a different house but in the same clan,  17 the same village, the same origin, in other words, the  18 same wilnat'ahl as Hanmuxw.  And she said:  19  20 "Every morning... tell me every day, that's how I  21 know."  22  23 And the test, the test of veracity for you, my  24 lord, is the way in which Mrs. Ryan could go on and  25 describe these sites just from memory, without any  26 reference to a map, because she didn't read maps.  27 Mrs. McKenzie:  28  29 "At feast, at mealtime - it's an everyday  30 thing."  31  32 David Gunanoot learned from his grandmother before  33 he fell asleep.  Sometimes training in the adaawk may  34 be stimulated by a special event in the adaawk of the  35 house.  Mary Johnson described how she was trained in  36 learning the adaawk and songs of her house when her  37 house raised the one horned goat in marblestone and  38 "they got together for a whole month to learn the  39 song."  This was at a headstone feast put up by her  40 uncle George Williams in 1916, when George Williams  41 took the name Tsibasaa and gave Emily Latz the name  42 Anthgulibix.  So you have the evidence of such  43 training going on very early on.  4 4 And then we have Art Matthews, how he was taught  45 the teachings of the adaawk occurring mostly at meal  46 time and when you go to bed.  The chiefs also  47 explained that it's not just of interest, it's not 2355?  Submissions by Mr.Grant  1 just a common practice or interest for the children,  2 but they have an obligation to teach the adaawk.  Mary  3 McKenzie explained that while the adaawk belongs to  4 the house, the head chief has the responsibility of  5 telling is it.  6  7 "The adaawk always belongs to the head chief and  8 house and they are responsible of telling it  9 themselves."  10  11 The chiefs have the obligation of both teaching  12 the adaawk and continuing to learn more about the  13 adaawk throughout their lives from those who are more  14 knowledgeable.  15 And Mary McKenzie testified:  16  17  18 "Every Gitksan, every chief now young or old, we  19 have the adaawks that are told, repeated to us  20 through oral way, and the chief have to repeat  21 those things more often because it's oral.  22 It's not written or anything, so when the feast  23 thing or something, a head chief would gather  24 all his wil'naa't'ahl and this is when these  25 events are told to the wilnat'ahl."  26  27 This process began when Mary McKenzie was small and  28 continued until after she had grown and it still goes  29 on today.  Mary McKenzie has recently learned from  30 Delgamuukw who died in January.  Those last two  31 sentences, my lord, appear not to be in the quotation  32 of Mrs. McKenzie but appear to be a synopsis of it.  33 Mary McKenzie continues to teach the adaawk to her own  34 children and grandchildren, and she goes on in this  35 quote to describe that teaching and how now they are  36 saying "This is what my granny told me."  And she goes  37 on to say, "So I have to continue with the knowledge I  38 have today, I have to pass it on to them and my  39 grandchildren."  40 My lord, as an aside, you can see how from the  41 generation of Johnny David, who is close to 100 years  42 of age, through the generation of Alfred Joseph and  43 even to those younger, this is passed on.  So we now  44 have literally before the court a transmittal that has  45 gone on for the better part of this century, from  46 living witnesses.  47 The adaawk are told in greater detail and 23559  Submissions by Mr.Grant  1 elaboration as the people mature.  This is what I mean  2 by the repetition and elaboration as a teaching  3 method.  And Tenimgyet, Art Matthews, explained his  4 training and of course you recall he gave one of the  5 fullest accounts of the adaawk and described four  6 adaawks which related to his house and his territory.  7 He stated:  8  9 "I would say I would be trained from a young  10 age; these ada'oxs being told to me in short  11 form, in medium form...when you're just a young  12 kid they just give you the general outline of  13 an ada'ox and as you get older more detailed...  14 until the full form of the ada'ox is fulfilled,  15 and the yuuhlxamtxw, gan didils, everything  16 that's in it, you have to understand."  17  18  19 He then explained yuuhlxamtxw and gan didils:  20  21 "Yuuhlxamtxw is wisdom, to give me wisdom, the  22 understanding, the various spirituality of our  23 land. Gan didils is the way of life, how to  24 react, how not to react.  In other words, it's  25 a doctrine of one's ada'ox, it's a realism,  26 it's philosophy, and it's epics, both life and  27 death."  28  29 I want to be clear here, my lord, I am not  30 suggesting or urging upon you that everything that  31 said in the adaawk is merely history.  As Tenimgyet  32 said, there is the philosophy, there are lessons, it's  33 combined, but it is founded, just as we use our  34 tradition, the Iliad or the Odyssy, it's founded on  35 historical reality, and it's those principal  36 historical facts that demonstrate the time depth.  37 Later, Art Matthews stopped while telling the Bear  38 Mother adaawk  of Biis Hoont, and explained, this was  39 an aside he made in the middle of the telling of it.  40  41 "Now, if we were telling this in a longer  42 version, we would stop there and go back and  43 break it down.  Then the yuuhlxamstxw takes  44 over.  The yuuhlxamstxw and the adaawk go hand  45 in hand.  The person who's telling the simoogit  46 or my mother, whoever, they stop here and start  47 breaking this adaawk down.  Okay.  They say 23560  Submissions by Mr.Grant  1 that that is the reason that we cannot be too  2 proud.  The bent box that I talk about  3 symbolizes what you are trying to be told  4 before.  You are wise, you collect these and  5 gather inside these bent boxes as collections  6 for your thoughts, or the bent box symbolizes  7 these things that are told to you.  So you see  8 the problem here is you are to try and make an  9 adaawk, it stretches and you fill out all those  10 things and that's why it's called an adaawk and  11 these things were done."  12  13  14 Art Matthews, Tenimgyet, elaborated on the question  15 of question of telling the adaawk with different  16 degrees of complexity and completeness in this brief  17 exchange:  18  19  20 "Q say that you were taught a short version  21 of the adaawk?  22 A   Yes.  23 Q   Can you explain that to the court?  24 A   Short versions would be similar to Barbeau's  25 stuff."  26  27 Now here, of course, we are looking at the  28 Barbeau, for example, The Totem Poles of the Gitksan,  29 in this context which has these one paragraph or two  30 paragraph versions.  31  32  33 "Q   You are referring to the type of notes that  34 Barbeau would have taken?  35 A   Yes.  36 Q   Are there... different version of adaawk?  37 A   Yes.  Like  I said this morning, that as you  38 grow older the adaawk expands in detail."  39  40  41 He then went on to describe the sesatxw  42 purification procedures that are included in the  43 detailed adaawk.  And he connects those as, again, in  44 teaching the adaawk and the history, they are also  45 taught the sesatxw.  46 And he stated that the -- at the bottom, that the  47 Bear Mother adaawk would take up to four months.  But 23561  Submissions by Mr.Grant  1 he explained that it is fitted into the daily life of  2 those four months, it's not an unrealistic teaching  3 method, he said:  4  5 "It's like I described, all these material  6 things, and nobody is allowed to hear this  7 because wisdom leaking out about our sesatxw,  8 how we do it and how we realize things, hunting  9 signs, all other things they say belong to the  10 house itself.  The actual adaawk itself  11 publicly is told in the feast halls, but not  12 the secret parts of it.  That belongs to the  13 house itself."  14  15 It makes it a slightly more difficult but I say,  16 my lord, don't be confused if this statement of  17 Tenimgyet is put to say, well, you see, there is no  18 reputation.  The public parts, the historical events  19 are told in the feast hall.  The secrets are the  20 methods of hunt, other types of special practices  21 within a house.  And, of course, it's not necessary  22 for you in the findings to find specific hunting  23 methods, for example, or specific purification and  24 preparations, except as part of the system of the  25 people.  26 Now, then, the other factor in terms of teaching,  27 is that many witnesses testified the oral history was  28 passed on by a chief from their house.  Mary  29 McKenzie's adaawk was taught to her by her  30 grandmother, as I said Fanny Johnson's was taught by  31 her grandmother, Oive Ryan's was taught to her by her  32 grandmother, Fanny Johnson and now, of course, gwans  33 explained that she is teaching these to her children  34 and her grandchildren.  Florence Hall, holder of the  35 name Gwis, was taught by Mooseskin Johnny, and by Alec  36 Tiljoe, Mooseskin Johnny, the former Gwis.  37 Going to the next page, the adaawk are told at the  38 feasts, and then it explains and the evidence was very  39 clear, that the chiefs must be taught the adaawk  40 because of the obligation to tell the adaawk formally  41 at certain feasts, such as a feast where there is a  42 passing of a name or the raising of a pole.  43 Mary McKenzie testified the telling of the adaawk  44 at feasts was important,  45  46 "...because the adaawk tells in a feast hall who  47 are the holders of fishing places, creeks and 23562  Submissions by Mr.Grant  1 mountains that belong to each house of the  2 chiefs, where they get food like berry picking,  3 they have -- they tell the owner and location  4 in the feast house.  So, through this, this is  5 how I have my knowledge now is by attending the  6 feasting of any chief, even though it is my own  7 chief, even if it is my own feasting, I hear  8 chiefs repeat or tell the adaawk of theirs and  9 ours.  This is the importance of the feasting,  10 that these adaawk are told."  11  12 Of course you may remember that Mary McKenzie  13 explained that her -- that Gwamoon and others were  14 related to her, Gwamoon was her daughter, but of  15 course their adaawk there was variation.  16 Mary McKenzie testified in the telling of an adaawk  17 that the chiefs tell:  18  19 "every one of them and they know what the  20 chief's boundary is.  That's what he tell and  21 which mountain where they get their main food  22 and which berry patch they own and each fishing  23 ground."  24  25 And Alfred Joseph, Gisday'wa, testified that  26 witnessing chiefs also must formally affirm the  27 adaawk.  The witnessing chief always talks about the  28 passing of the crest of the chief, the high chief  29 taking the name.  This is, of course, the host chief.  30 That is, of course, told at the end of the feast and  31 they are told how the crests had been acquired by  32 previous chiefs and they are always reminded they are  33 responsible to their house and to their father's clan.  34 Of course the father's clan would be the -- included  35 among the guests.  36 My lord, it's in this process of telling the  37 adaawk by the chiefs and listening to it being told,  38 that the children and other young people are trained  39 in this aspect of the oral tradition.  And the  40 ultimate credibility and veracity, I say, is this  41 method of training which has been very carefully  42 demonstrated and explained to the court.  43 And implied in that is, of course, the concept of  44 specialists, which will be discussed later in the  45 evidence -- in the argument, I should say, but the  46 concept of specialists, is something you are quite  47 familiar with, where specialists were trained. 23563  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Having dealt with the method of training and the  passage of oral history and the concept of the oral  history being recognized in academic terms as well as  being recognized and understood by the people, I can  only say in conclusion that the adaawk, the history of  the people, is true and that there are elements, there  is certainly elements that are essential or that you  can find are true.  And that are relevant to finding  ownership and jurisdiction.  I am now moving into the history of the Gitksan  and the next part of the argument is a focus on the  Gitksan society and then the Wet'suwet'en.  But I will  say here, of course, that something that is probably  apparent to your lordship, in the flow of these two  pieces.  The Gitksan migrated, the Gitksan moved, the  Wet'suwet'en were always there.  This is a significant  difference between the histories of these two  civilizations.  The Wet'suwet'en were always here, I  should say.  And so the Gitksan history, through the  adaawk, describes the migrations and the joining and  the movement.  The Wet'suwet'en describe their place  at Dizkle, which is up between the area between  Moricetown, on the Bulkley River between Moricetown  and Hagwilget.  :  I am sure you will come to it, Mr. Grant, but didn't  I read in your material that the Wet'suwet'en had  arrived here just after the last Ice Age or was that  this morning I read that?  :  The Wet'suwet'en -- the Wet'suwet'en in terms of --  this is in terms in which I am putting that with  reference to the map, is that in Exhibit 358-1 and  Exhibit 105-2.  This map of the recent ice sheet in  British Columbia, if you look with reference to the  Skeena River that we have this area here where the ice  receded first and, of course, you have heard Dr.  Kari's linguistic evidence that the people were very  close to there.  So the reference there was a general  reference that at the time of the Ice Age, or shortly  thereafter, the people were there.  They came from --  they were from this refusium and this is, of course,  very close to this refusium, as opposed to somewhere  in the northeast.  When we move back to the mists of time to that Ice  Age with respect to the Wet'suwet'en, it's my  submission that the linguistic evidence combined with  the people's history, demonstrates that they were here  for a very long time. 23564  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  I was just troubled by your statement a moment ago,  always.  I think -- yes, I think that always I don't mean in  an eternal sense but certainly eternal for practical  purposes, since man was in this area.  All right.  Now, what I intend to do in the next section of the  argument is to highlight certain features of it, my  lord, in terms of the -- the material is there but to  highlight what I submit is essential elements.  And  the way this part of the argument on the Gitksan works  is that I am going to take to a certain time, and then  look at what has happened and what's essential about  the -- that aspect of history for what you are  considering.  Continuity with the past is an essential and  determining aspect of Gitksan social, political and  legal institutions.  The Gitksan chiefs repeatedly  emphasize the antiquity and persistence of these  institutions as evidence of their validity.  In other  words, as John Brown had said in 1920, "Our history  is --" "We must have a history."  Gwis gyen again,  Stanley Williams, explained it, I believe, in a very  vivid way when he said:  "This is the law...all the Gitksan people use...  This is like an ancient tree that has grown the  roots right deep...into the ground.  It's...  sunk.  This big tree's roots are sunk deep into  the ground and that's how our law is.  The  strength of our law is passed on from  generation to generation and each generation  makes it stronger and stronger right to this  day where I am today.  Every time we put this  law into action it becomes stronger and  stronger.  Each time our people use our laws  they make it stronger and it still goes on  today.  We never deserted our grandfather's  seat and we never deserted our land, our  territories.  It's still the same today.  Today  the government wants to take all this away from  us and they want to take the laws of our  people, of our ancestors and they want to break  our laws today.  I don't think they could do  this because I has been passed on from  generation to generation and we have had this  law for thousands of years." 23565  Submissions by Mr.Grant  1 The roots of the people and their land.  That's  2 what he was referring to.  And the two additional  3 quotes on page 36 from Stanley Williams, Gwisgyen, was  4 referring was the depth of the roots of the people in  5 their land, the depth, that same depth.  And the  6 Wet'suwet'en, particularly, here I am dealing with the  7 Gitksan, the principle of daxgyet, is essential.  It  8 is based on the maintenance of the ancestral  9 institutions.  As Solomon Marsden, the reference to  10 Xamlaxyeltxw is Solomon Marsden, described in  11 evidence, what we call daxgyet is the person who will  12 pass the name and the territories on from generation  13 to generation.  It is their daxgyet that gives the  14 Gitksan chiefs their authority.  15 "I could talk about my own territory and when I  16 mention my territory, this is where the basis,  17 the foundation of my strength comes from.  So  18 in order to show the court that I do have  19 strength with the other Gitksan people with the  20 territories, I have to describe my land, my  21 territory where my power is and my authority  22 is."  23  24 The power and authority or jurisdiction of a house  25 is called the daxgyet.  The daxgyet includes the  26 territory, the adaawk, the songs and crests and  27 authority of the house to govern the territory for  28 future generations.  It encompasses the spiritual  29 power upon which the house was founded and continues  30 to exist.  And I may say, my lord, that this reference  31 is an addition to what was said in the summary.  The  32 concept reflects the power and authority of the chief  33 which derives from the territory of the chief.  This  34 is a central component of the whole Gitksan society.  35 The chief must be able to describe his territory to  36 establish where his power and authority is and where  37 it arises from.  Daxgyet is a concept recognized by  38 the Gitksan and Wet'suwet'en which connects the people  39 to the territory, their authority and the feast hall.  40 The concept of daxgyet among the Gitksan and  41 Wet'suwet'en is an essential component of the  42 organized society.  The daxgyet of the chiefs connects  43 them intimately into their territory and into their  44 relationships with other people.  45 There is two references of Solomon Marsden and then  46 Mary Johnson, a chief from Kispiox, described daxgyet  47 in a similar way when she said: 23566  Submissions by Mr.Grant  1  2 "You asked me about Wil Masxwit and they said  3 it's Antxgulilbix whose hunting grounds and  4 covers the whole mountain, that's where you get  5 the mountain goats, that's their main food and  6 groundhog.  So that'a all those territory  7 covers my daxgyet, that's Antgulibix."  8  9 Glen Williams referred to daxgyet as the authority  10 of the house and the head chiefs over the territory.  11 You may recall the adaawk described by Mary McKenzie,  12 Gyolugyet, of Baskeylaxha, Bill Blackwater, and how he  13 obtained his nax nox.  Baskeylaxha is Bill Blackwater,  14 one of the chiefs.  A supernatural event occurred on  15 the territory.  Through that event Baskeylaxha has  16 obtained power which he demonstrates in the feast.  17 This is part of his daxgyet.  That power, my lord,  18 related to him seeing an event on his territory in  19 which he had a vision from the sky and the name  20 Baskeylaxha refers to the fear of the sky and Mary  21 McKenzie vividly described how he performed that nax  22 nox performance in the feast hall.  The power and  23 authority exercised by chiefs to protect and affirm  24 their ownership of the territory and the authority of  25 the house is related to spiritual power.  This was  26 described by Mary McKenzie.  27  28 "...a Gitksan law we start our procedures with  29 a nax nox.  Nax nox is used in starting a feast  30 house.  When there is a death of a chief,  31 raising of a pole, a headstone, and then the  32 feast is put on and the first thing that  33 appears in the feast house is for the chief to  34 act out out their nax nox, which is a living  35 thing to us and you can call it a spiritual  36 thing which gives the strength of what the  37 proceedings of the feast would be -- we will  38 start heavy feasting by acting out the nax  39 nox."  40  41 When she is referring there to heavy feasting, she  42 is referring to those large feasts such as the pole  43 raising.  Daxgyet is here shown to be connected to the  44 authority to the chief, the territory of the chief,  45 the territory of the house and the spiritual power of  46 the chief that arises through the chief on behalf of  47 the house along with the nax nox. 23567  Submissions by Mr.Grant  1 Now, again, Tenimgyet, a young chief explained Art  2 Matthews, the integration of daxgyet and the context  3 of explaining it:  4  5 "The actual name of sewing your nax nox is in  6 our language, Luu hetxw halayt.. which means  7 you are going to sew the power which I  8 described as daxgyet - is going to be  9 transferred to another person, to exact its  10 rightful line of that name.  So, therefore,  11 this had to take place."  12  13  14 And the daxgyet connects this chief's name with the  15 spiritual power of the house.  Mary Johnson explained  16 the importance of songs:  17  18 "They were so important because it's about their  19 hunting ground and all their crests and their  20 names, all the crests are their power,  21 everything is their power, daxgyet.  22  23 Daxgyet is rooted in their territory, the crests  24 and the names.  It is the foundation for the authority  25 of the chiefs to represent their houses.  And it's,  26 Mary Johnson says, it will be passed from generation  27 to generation, it won't be forgotten until the end of  28 the world.  29 Now, my lord, the reason why I made this reference  30 to the daxgyet here is that, as you can see, the  31 evidence demonstrates this connects to the histories  32 and the acquisition of territory, and for the Gitksan,  33 a very important component of the historyies is the  34 acquisition of their territories.  The maintenance of  35 territorial ownership.  The importance to the Gitksan  36 of continuity with the past is further shown in the  37 maintenance of territorial ownership and boundaries.  38 And I will just take one of several statements here  39 where Xamlaxyeltxw, Solomon Marsden, said:  40  41 "It's ever since the beginning of time the  42 boundaries have always been the same.  What --  43 the ancient times the people know where the  44 boundaries are.  They are still there day and  45 there are no gaps between them.  And it's still  46 like this today."  47 2356?  Submissions by Mr.Grant  1 The next section of the argument deals with  2 education and training and this, I have in terms of  3 the training of adaawk, I have already spoken about,  4 this section, I -- is important to be here but I am  5 not going to review it in oral argument because the  6 concept of education and training is a concept that we  7 will deal with in organized society.  8 So if you turn to page 49, in this second part of  9 the introduction and this is the introduction to the  10 actual histories.  In the Gitksan socio-political,  11 legal and territorial system, the strength of the  12 house or wilnat'ahl, its powers and identity are  13 directly related (a) to that group's antiquity and  14 persistence through time and, secondly, to its ability  15 to properly record and ceremonially display and  16 validate this continuity with the past.  Raised totem  17 poles, feasts and the ceremonial events related to  18 them together constitute the validation of the legal,  19 socio-political and territorial record as perpetuated  20 in a house's adaawk, limx'ooy', crests and names, as  21 well as the legitimacy of the house within Gitksan  22 society and its ownership of its territory.  23 The Gitksan chiefs over generations and in the  24 present, have repeatedly validated ownership of the  25 territory and their place in Gitksan society through  26 the feast.  The acknowledgement of a house adaawk and  27 territory in contemporary feasts, proves its proper  28 perpetuation in the past.  29 Here I will refer to Lelt, the former Lelt, Fred  30 Johnson, and he was asked a question:  31  32 "Mr. Johnson, you sang another song and you  33 clapped your hands when you sang the song.  34 What did the song mean?  What relation does the  35 song have to the rattle?  36 A   Showing the other high chiefs that I am now  37 Simooget and they would acknowledge whatever I  38 say.  And the law will never be lost.  And that  39 our nephews will learn that they will follow  40 our traditions, take over our names. The law  41 still exists today, still good today."  42  43 Another component of this is, and feasts will be  44 dealt with later in more detail, is the pole.  On page  45 52, the proposition is that the existence of standing  46 poles belonging to chiefs and their houses and the  47 raising of new ones proves the ownership of the land 23569  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  has been validated in the modern era and in the many  generations preceding.  As Solomon Marsden explained:  "The pole represents the power and ownership of  the territory.  The totem poles that you see  standing have these, and they're not just  standing there for nothing."  And the description of crest poles, my lord,  whether they stand alone or form part of a house, may  be a debate, but crest poles were at Temlaham, they  are described in the adaawk at Temlaham.  The crests  were -- the crest system was already in existence  then.  THE COURT:  The statement you are going to have to explain to me  what you want me to understand by the term crest or  crest systems.  I don't recall very much specific  evidence about crests, but the sense I got, that I  want to be corrected if I haven't got it right, is  that the various components of the pole and the  regalia, are indicia or evidence of a crest system.  But I did not understand, and I want you to correct  me, that there are, apart from that, individual or  specific crests.  MR. GRANT:  In the house?  THE COURT:  Yes.  MR. GRANT:  Well, yes, there are, and I think that there are  crests within the house that reflect to the  territories, for example.  THE COURT:  Well, I understood, for example, that in some poles  having a bear on the pole would be an indication of a  connection with a location or an event, and that that  was described as by somebody as part of the crest  system.  MR. GRANT:  Yes.  THE COURT:  But that there wasn't a crest in the sense of an  insignia as such.  MR. GRANT:  The crest would be for example.  THE COURT:  I thought it was a collection of things at first but  I want to make sure I have got it right.  MR. GRANT:  The crest and the reference to the crest system  which we will deal with further, but I can respond to  you now as I am dealing with the poles, for example,  on Tenimgyet's fish site, his smokehouse, one of the  exhibits shows his smokehouse, we saw that there was  the crest of the Haiwas or the lion and the adaawk 23570  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  which he referred to relates to that event occurring  at that place.  The portrayal of that Haiwa or that  crest, can only be done by the house who is entitled  to that.  There was a -- Stanley Williams described  how out of the Madiik, the grizzly at Seeley Lake,  that you recall, that out of that there was a bear  hide that went with the Gisgaas or the Fireweed Clan  and he held it.  When Wiget came up from Kitselas, he  cut the bear hide in half and gave part of that crest  to Wiget but he only had part of it.  And that is  actually the situation in which it was mis-described  and he corrected the description.  So in that sense,  when Wiget was given a crest moving into the village  it gave him more authority than he had, but Wiget of  course is an example of a chief that doesn't have a  land territory.  So, it's a unique -- so a crest, in  all cases, would -- or a crest should relate to the  territory and the history generally.  But I do not understand there to be a specific crest  other than a drawing or a carving or hide or  something, that forms part of a collection which  evidence the crest system.  Now, for example, if the Vancouver Police  Department have a crest, what they put on their hat, I  don't understand that there is a specific crest for  each house.  That could be narrowed down to one  specific pictoral representation.  Because I don't  recall any evidence that this item here is the crest  of our house.  I took it, you will correct me if I am  wrong, it doesn't have to be right now, that the crest  is a much broader concept than a specific insignia.  The crests are, to the trained observer, are  specific, but I may want to respond to you after some  consideration because the crests are used differently  with both systems, the Gitksan and the Wet'suwet'en,  and also there is a broader crest and a narrow one.  Thank you.  The raising of the pole, I am on.  Page 52?  Page 53.  I will be referring to certain of the  quotes but I am not going to -- they are here as the  supporting propositions.  Through the raising of their poles the Gitksan  chiefs have repeatedly validated the ownership of the  territory by bringing together their history, their  crests, their respect for their laws and their land  and the wealth of their territory.  This is witnessed 23571  Submissions by Mr.Grant  1 in the baxmaga, or pole-raising feast, and by all who  2 view the poles.  3  4 "The naming, in the baxmaga of the mountains,  5 lakes and rivers of the territories of the  6 wilnat'ahl recreates and thereby validated once  7 again the original act of naming that first  8 established their ownership of the territory.  9 The present chief recreates the time long ago  10 when the ancestor walked the land and put his  11 powers into the land."  12  13 Now, Fred -- Solomon Marsden at the bottom  14 described that:  15  16 "When a chief is planning to raise the pole, it  17 is very important because he thinks back of his  18 territory where he would put all -- on this  19 pole he would put all the power and authority  20 that he has and he will put all the crest and  21 his adaawk on this pole.  And even around this  22 area we see totem poles and the Indians know  23 how important it is to our people, because it  24 shows where our power and authority and  25 jurisdiction is.  This this is what these poles  26 show where it lies and this pole is called  27 Xwtsaan."  28  29 Now here, of course, I believe you recall Glen  30 Williams gave evidence of growing up with his  31 grandfather and his grandfather explaining to him the  32 different crests of the set of poles that Glen  33 Williams grew up looking at in Kitwanga.  And he would  34 sit on his grandfather's porch which was right across  35 from the poles, and would be told of the crests and  36 the houses that owned the individual poles.  37 You also may recall there was the first cut  38 ceremony described by Mrs. Ryan, Gwans, and the video  39 of it, and it was explained that the father's side  40 crest would go on the bottom and, therefore, that  41 crest would change.  So these poles aren't something  42 that are totally duplicated but are modified, the  43 crests of the father certainly is modified on them.  44 I would like to move to section one, this first  45 section of the ancient history demonstrates that the  46 adaawk, the limx 'ooy or the songs and the crests  47 together, constitute the indigenous, legal, socio- 23572  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  political and territorial record of the Gitksan.  The bottom, the founding groups.  The adaawk of a  Gitksan house or wilnat'ahl begins with an account of  the arrival of their ancestors into their territory  and an account of the acquisition of this territory or  with a statement of the location of their ancestral  village within the territory.  The first group that we  consider is the Frog Raven Clan.  According to this,  the adaawk of the Frog Raven Clan, and here we are  talking about early times so we are focussing on  clans, but all of their contemporary Gitksan houses  can be traced to one or more of three original groups  who migrated into this area in ancient times.  The  first of these, the northern group, eventually span  the full length of the Skeena River in their  migrations.  This migration included the ancestors of  Wii Minoosik, Miluulak, Lelt, Luulak, Haakw,  Delgamuukw, Delgamuukw and Lutkutsiiwus, all  plaintiffs in this action.  They arrived in the northern regions of the  Stikine, Nass and Skeena rivers and they settled there  and some of their number then moved toward the coast  settling in ice-free areas along these river valleys.  If I may refer to the 10 -- 358-one, the large  version of it, 105-2.  The people of the Raven were  the people that migrated in this area.  :  Locate me on the map, if you will be good enough, a  landmark somewhere.  :  This is the Skeena, the mouth of the Skeena River,  and it goes up this way roughly.  Okay?  The people of the Raven are the blue, and you will  see the migration of these people dispersing out from  this area.  :  Where do you say that is?  :  That would be in the area of what's known as  Lakwiiyip, it would be -- just a moment, it would be  up the Skeena is here, I just want to be sure if it's  between the Skeena and the Nass where this is.  It  would be near the headwaters of the Skeena between  roughly in the area between the Skeena and the Nass.  :  Thank you.  :  And they were the first people, they migrated  through the deglaciated northern areas, arrived at the  headwaters of the the Stikine, Nass and Skeena and  some of their number then moved toward the coast  settling in ice-free areas along the river valleys and  you see this migratory movement.  What is relevant for 23573  Submissions by Mr.Grant  1 the the territory is that you will find when you  2 examine Exhibit 646, 9-A and B, you will find that  3 Wiiminoosikx and Luulak territory, they have  4 territories in that area.  These people, as the  5 argument proceeds, some groups stayed in these areas  6 and some moved further south, such as in the Gitangasx  7 and Blackwater areas, and that's where you have the  8 sources of the Wiiminoosikx and Luulak group.  The map  9 of the Gitksan territories show that others migrated  10 south and then west and established themselves in the  11 Kispiox, Hagwilget and Kitwanga areas.  Some groups  12 proceeded further to the Kitselas area know as  13 Andudoon, and from there at a later date spread  14 downriver, where they are consistently the earliest  15 group in the accounts of the founding of the villages  16 among the Tsimshian.  17 Fred Johnson, Lelt, the former Lelt, described  18 part of this migration from Blackwater to Andudoon, in  19 accounting for the origins of his wilnat'ahl, his  2 0 group:  21  22 "They drifted down from somewhere around  23 Blackwater when they were starting to search  24 for land.  They knew what was going to happen.  25 They heard of other lands, other places.  26 That's why they set out to put their power into  27 other lands.  Wilnat'ahl travelled together,  28 not too many, not too few, a strong, healthy  29 group.  Later others followed.  They left  30 Blackwater.  Delgamuukw settled at Kispiox,  31 Lelt, Haaxw, Luulak and Taxts'ox, settled at  32 what is now Gitwingax.  Others went further to  33 Andudoon.  34  35 That would be in the area of Kitselas.  36  37 "When they came to this land and found food they  38 had to make a totem pole.  Lelt and others were  39 first there.  Axti Hix...he's Gitwingax as  40 well.  He came here a long  time ago as well.  41 They came here the same as Lelt, after the  42 flood.  It was open just like in the spring  43 time.  They looked for a good place to grow,  44 looking for good land."  45  46 These comments "searching for the land", "looking  47 for the good land", "it was open just like in the 23574  Submissions by Mr.Grant  1 springtime" are triggerts in adaawk, my lord, triggers  2 to demonstrate the tremendous antiquity of the  3 particular time frame that he is describing.  4 Now Guuhadakxw, this is Thomas Wright, who is of  5 the Wolf Clan, not the Frog/Raven, but he spoke of his  6 father's wilnat'ahl which remained at Blackwater,  7 T'amt'uuts'xwm'aks, establishing the Raven clan there.  8 And Guuhadakxw said:  9  10 "Wiiminoosikx has a lot of land because he  11 surveyed the area himself.  That's why he's got  12 such a big area."  13  14 This is the kind of terminology that Ms. Marsden  15 after her four year review of the adaawk, concluded  16 that terms such as "survey the area" refers to when  17 the land was first being found by the Gitksan.  18 Thomas Wright then goes on to describe his  19 grandfather on his father's side and the former  20 Wiiminoosikx.  21 Now, I want to pause here, because I won't refer  22 you to the quote but at page 60, my lord, there seems  23 to be a misconception that when a Gitksan says "my  24 grandfather" a Gitksan is talking about one  25 generation.  That's not the way it is.  Niiye'e,  26 ancestors or grandfather, that's what is being --  27 that's what is meant.  Thomas Wright, Fred Johnson,  28 Stanley Williams, all used these terms.  All of these  29 elders were translated.  It's acceptable within the  30 Gitksan to translate it as grandfather.  But it is  31 not, it is not, I repeat, literally one's mother's or  32 father's father.  33 Now, this is why that quote is there, because when  34 he says he saw three Wiiminoosik, "your grandfather  35 what was one of the Wiiminoosik; is that right?"  His  36 answer, this is on 59:  37  38 "Whoever got Wiiminoosik, that is my  39 grandfather.  That's the Indian law.  A lot of  40 Wiiminoosik died before the time he was  41 mentioning.  And now it's the new generation.  42 There are still Wiiminoosik."  43  44 Gwis Gyen, Stanley Williams, described very  45 poignantly in his commission that Stanley Williams  46 that name will go, but Gwis Gyen will not go, and of  47 course there is Gwis Gyen here in court today, Lome 23575  Submissions by Mr.Grant  1 Campbell.  2 This demonstration, and then Thomas Wright refers  3 on page 60 to the the relationship between Wiiminoosik  4 and Miluulak.  5  6 "Miluulak moved out of Wiiminoosik's house.  7 Once he moved out of Wiiminoosik's house it was  8 different."  9  10 This indicates that Miluulak and Wiiminoosik are  11 in the same wilnat'ahl.  In this context, Miluulak's  12 ancestors would have been part of the same migration  13 of the Frog/Ravens from the north and this, of course,  14 my lord, is consistent with the territorial evidence  15 on Exhibit 646, 9A, which demonstrates Miluulak  16 holding large territories in the northeast of the  17 Gitksan territory, as does Wiiminoosik, in the area of  18 the origin.  19 Now, Lelt's wilnat'ahl, Lelt, of course you will  20 recall, Fred Johnson gave evidence, and he is a Frog  21 from Kitwanga.  But he described how others moved  22 south.  And he gives the description on page 61 in  23 that quote and at the bottom, when asked what  24 territory Lelt ownd, Fred Johnson named Gwinilxl,  25 Gisga'ooxs and Ansimlaan.  These are three fishing  26 sites of Lelt and Haaxw that are shown on Exhibit 31,  27 and they were described by Mrs. Ryan.  Then he went on  28 to say:  29  30 "This is where the high chiefs got their food.  31 And they speak for these territories.  That is  32 why they speak for these territories and that  33 is why they have a longer life."  34  35 And then he described the location.  36 And then as Lelt stated above:  37  38 "Others went further to Andudoon.  This was the  39 Satsan/Gubihlgan group that established itself  40 below Gitsalasxw.  Others continued toward the  41 coast from there and arefound to be  42 'consisstently the earliest group in the  43 accounts of the founding of the villages among  44 the Tsimshian."  45  46 Now, my lord, I haven't asked to have the 469-A put  47 out, but I see you have the overlay and if you look 23576  Submissions by Mr.Grant  1 that territory and you will recall, and we may come  2 back to it, the territory of Luulak, it would be on  3 the southeast corner of that western portion in that  4 area, it would just be beside Sakamago.  5 THE COURT:  Is Luulak, L-U-U-L-A-K?  6 MR. GRANT:  Yes, Luulak.  That's the territory.  That territory  7 is on the border with the Kitselas and both Lelt, Fred  8 Johnson, and Stanley Williams describe an incident in  9 which Guubagon had died and in which Luulak, who is in  10 the same group as Lelt, when I say that, as a closely  11 related house, Luulak acquired that because they  12 buried read Guubagon.  This happened from the  13 description given by Stanley Williams in much more  14 recent, relatively recent times.  But what we find  15 here that's of interest is that it wasn't an accident,  16 even though Guubagon was from Kitselas and Luulak from  17 Kitwanga, they were from the same ancestral group,  18 they were the same relations if you go far enough  19 back.  20 Now to deal with the Wolves and the Eagles.  A  21 number of the groups combined in the early eras to  22 form the present Wolf/Eagle clans among the Gitksan.  23 One of these is referred to the the evidence we have  24 just seen where Lelt spoke of Axtii Hiikw being in  25 Kitwanga at the same time as lelt.  This group, the  26 ancestors of Axtii Hiikw and Tenimgyet, had ancient  27 villages at Ango'ohlhon and Xsigwinekstaat, Woodcock  28 and Wilson Creek respectively.  29 Now you may recall, it's not reflected here, it's  30 discussed under Art Matthews western territory that he  31 describes how he actually moved over from the western  32 territory at Cedar River into this area.  33 Tenimgyet's smoke house stands on this location  34 today.  And, of course, your lordship had the  35 opportunity of viewing it.  The ancestors of this Wolf  36 Clan wilnat'ahl were also the earliest founding group  37 of the Gitksan Eagles.  38 As Simediik, the leading Eagle chief in Gitwangax  39 in 1923 explained, and this is an extract from his  40 statement in the -- that's referred to by Ms. Marsden  41 in her report, but it's from the Barbeau-Beynon  42 interview, of course.  43  44 "The family of Lax Gibuu (Wolf) of Tenimgyet,  45 joined with the Eagles.  They were only a few.  46 They helped each other.  The Lax Gibuu could  47 not marry a Lax Xskiik here, only theGaneda or 23577  Submissions by Mr.Grant  1 frog.  That family was not quite Lax Gibuu,  2 only half.  The Lax Xskiik and Lax Gibuu  3 herewere named differently: Lax 'nadze, only  4 one name for the two. This term is in the old  5 language, it has the same meaning as Lax  6 Xskiik, in the old Gitksan language long ago.  7 Lax 'nadze meant Lax Xskiik."  8  9  10 To translate that is what Simediik is saying here  11 is that the clan, the rule of clan exogemy, you cannot  12 marry within your clan, applied to the Eagles and the  13 Wolves.  So that the Eagles and the Wolves are colsely  14 related.  He is explaining something about long ago,  15 and he is describing it in 1923.  You heard Art  16 Matthews junior describe the same thing, that the  17 Wolves and the Eagles worked together at the feasts,  18 for example, in Kitwanga.  19 Now, the next group was the people of the Ts'ooda  20 and this is a group, a coastal group that helped to  21 form a clan in the Gitksan, this case the Wolf Clan.  22 Now what you can see is in these very ancient  23 times, the development of the clans is what is  24 occurring.  25 I will go to the next page and he, I will just  26 refer to Thomas Wright's statement or words.  He is  27 the Guuhadakxw.  He talks about Wiik'aax, Neil  28 Sterritt senior is of the Wolf Clan,  29  30 "Came from Skeena City, it's beside Prince  31 Rupert and then travelled all the way up to the  32 Yukon.  It's about ten miles down river from  33 the Tyee Station.  It was long before the white  34 man came to the city.  That bird sent Ts'ooda  35 up the Skeena River.  Ts'ooda, the big bird  36 from the sky told him to come up the Skeena  37 River and there will be seven houses and they  38 will be called villages."  39  40 Firstly you will recall in Mrs. Marsden's evidence,  41 it was shown in fact that there was a railway station  42 labled Skeena River and so Thomas Wright was speaking  43 from his experience when he was younger, but nobody,  44 not many people today even knew where that Skeena City  45 was.  But he is talking here about this group here,  46 the dark, the dark arrows, and that they migrated up  47 through here, and up into here, right up into the 2357?  Submissions by Mr.Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  headwaters of the Skeena. This is the group where he  describes them going up to Kisgegas and helping to  builds the houses at Kisgegas.  There are in these very ancient adaawk, there are  supernatural components.  It's not, of course,  necessary to find with respect to those supernatural  components, but there are also very, very concrete  descriptions of locations.  Here we find some description relating to the  places and, of course, Wiigaak's territory is in the  area of Kisgegas.  In cross-examination on page 66, my lord,  Guuhadakxw was asked if his forefathers from Skeena  City marked their lands in any way so that non-Gitksan  people could tell that it was Gitksan land.  He  replied, yes they did.  They used the names of the  waters, the creeks, the mountains.  They used those to  mark their lands and they named them.  And what he is  here talking about is that from the time of the  settlement, they named these places and of course  these are the names that we see on some government  maps where they have adopted Indian names and you have  heard many of them.  A fishing site, a creek, a lake,  all of these names you have heard testified to the  placement of the people here.  Now, on page 66, and this series of this very  ancient time, there is a number of ways of determining  antiquity.  Are you starting item three, Antiquity of the  Origins?  Yes.  Should we take the afternoon adjournment?  Certainly, my lord.  (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 23579  Submissions by Mr. Grant  1 THE REGISTRAR: Order in court.  2 THE COURT:  Mr. Grant.  3 MR. GRANT:  Thank you.  Thank you, my lord.  Now, having covered  4 this ancient period in a very summary form and  5 reflected on the evidence of it, I would like to deal  6 with two principle points.  One is how do we consider  7 this as of such great antiquity.  And there are three  8 main ways that are reflected.  9 Firstly by direct statements of the chiefs,  10 statements like Thomas Wright, Guuhadakxw's  11 statements:  12  13 "Q...Were the people of the House of 'Wiik'aax  14 living at Kisgagas long before the time of your  15 grandfather?...  16 A...Kisgagas was there for about I don't know  17 how many thousands of years.  It was just  18 recently that the United States came and took  19 it."  20  21 That comment, my lord, I think reflects a couple  22 of points.  The antiquity and as far as an elder, a  23 person raised as Thomas Wright was, the concept of it  24 being the Government in Victoria, the Government in  25 Ottawa, the Government in Washington, the Government  26 in London, was of equal relevance or irrelevance, and  27 it was the outsider that came.  So what he is talking  28 about there is the arrival of course of the non-Indian  29 people.  30 Such statements, though, of antiquity of many  31 thousands of years were made on several occasions by  32 chiefs who gave evidence of this era.  33 There are other statements, almost equally direct,  34 to the effect that the ancestor of the wilnat'ahl was  35 the first, or one of the first, to arrive at a place.  36 Again just the example here was Thomas Wright's  37 speaking of Kisgegas.  38  39 "A...The big bird that is from the heaven sent  40 my grandfathers up here.  And it told them to  41 follow the river up to here until they get to  42 the glacier and they had to come back from this  43 glacier because they shouldn't live where it's  44 too cold.  That's what the big bird told  45 that time there was nobody that lived  4 6 up there..."  47 23580  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  THE  COURT  21  22  MR.  GRANT  23  THE  COURT  24  MR.  GRANT  25  THE  COURT  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  30  31  32  33  THE  COURT  34  MR.  GRANT  35  THE  COURT  36  37  MR.  GRANT  38  39  THE  COURT  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  45  46  47  This description of a very ancient time when it  was very cold and nobody else was living there.  The  third reference or type of reference is surveying the  land, putting their mark on it, naming it, putting  their power into the land, all speak of a period when  areas of land were unclaimed, and are usually made in  conjunction with statements of being there first or of  joining others already there.  These references,  especially when they are contained in the formal  telling of an adaawk, constitute the validation of  territorial ownership and are not made lightly.  References are also made to the "time when they  were first claiming the land", as an early period  thousands of years ago, during which such claims were  still possible.  Stanley Williams, Solomon Marsden and  James Morrison, those references are only a few of  several where this kind of description was given over  and over again when talking of this ancient time.  Accounts of claiming land --  I'm sorry, Mr. Grant, Stanley Williams Exhibit 446C,  that's a commission?  Yes.  That's volume three of the commission.  Volume three.  C means volume three, does it?  Yes.  But S. Marsden V. 94, that means volume 94?  Yes, of the transcript.  Of the transcript?  Yes.  The references we used were to volume numbers.  And the volume 94, there may be references of course  in this section about Solomon Marsden and Susan  Marsden, but volume 94 is Solomon Marsden, and around  that volume number and Susan Marsden is around 234.  Did Solomon Marsden give evidence around volume 94?  Yes.  All right.  I don't remember that.  There is lots I  don't remember.  If you're suggesting it seems just like yesterday  or --  Yes.  Yes, Solomon Marsden's evidence commenced at volume  92 to 96.  All right.  Thank you.  And that was in May of 1988.  Accounts of claiming land are not restricted to  the very earliest period, however, since some areas  remained unclaimed until the dispersal from Temlaxam.  So there is still some unclaimed lands afterwards, 23581  Submissions by Mr. Grant  1 but the area I have talked about, we have now put the  2 larger version of Exhibit 646 on the wall, and you can  3 just see the names there on that north central area,  4 for example, of Miluulak, Wii Minosik and the others.  5 They are nevertheless accounts of "surveying" land in  6 combination with accounts of travel over large areas  7 without mention of other people or villages, sharply  8 contrast with alter accounts in which mention is made  9 of passing by or temporarily joining other villages or  10 settlement areas.  In these later accounts there are  11 often statements of disputes resulting from  12 overcrowding or clear statements of land subdivided  13 for clan relatives, or made available to another clan.  14 And of course here we are talking about -- we are  15 talking about here the migration from -- or the  16 dispersal from Temlaxam where you have account after  17 account of meeting others, whereas this dispersal here  18 from the Skeena -- this migration of the people of  19 Ts'ooda and these migration of the people of the  20 Raven, there is widespread dissemination of the  21 peoples from this source here and coming up from the  22 coast, and there is no mention of the meeting other  23 peoples enroute.  So that is another indicator of the  24 antiquity.  25 Now, then there is the references to land as an  26 indicator of antiquity.  27 Adaawk accounts of the origins or early villages  28 of a wilnat'ahl sometimes include references to a  29 landscape different from today's.  These descriptions  30 are sometimes cryptic as, "when it was like spring",  31 "when the land was still young and they believed  32 themselves to be alone".  They are sometimes more  33 detailed as when they describe large lakes where there  34 are now none, or the Skeena River and the Gitwingax  35 area as "a small river" that grew bigger over time.  36 These are sometimes remarkably explicit as in the  37 description of the Kitimat valley as "Kaklaleesala,  38 meaning gravel banks".  39 And this is from one of the adaawk from that area  40 at the time when Waamis first settled there, the  41 Kitimat valley was all gravel banks along the river,  42 which was visible far up the valley.  The references  43 are there given.  44 Now, before moving to the next era, I would like  45 to just recount or reiterate what we have found has  46 occurred in this ancient time regarding the Gitksan.  47 The socio-cultural institutions in these accounts, 23582  Submissions by Mr. Grant  1 these early founding groups of Frog, Raven, Wolf and  2 Eagle originated either at the headwaters of the  3 Skeena or on the coast.  The adaawk indicate the  4 cultural institutions at this time, but they differ  5 according to their origins.  Ms. Marsden summarized  6 these institutions.  7 The essential cultural features that arose at this  8 time included:  9 The very early pairing of exogamous matrilineal  10 clan groupings.  The description that the Wolves and  11 Eagles of Kitwanga would not inter-marry, for example.  12 And she goes on to explain it.  And this is from her  13 report.  14 Secondly, the early merging of coastal groups,  15 identified by spirit ancestor, and northern clan  16 groups, that indicated the importance to the society  17 of maintaining this early form of socio-political  18 organization.  19 And I am not here in any suggestion suggesting  20 primitive, but an ancient form where you would have  21 the clan groups and the development of clan.  22 The importance of maintaining group identity from  23 the earliest times, either by spirit-ancestor or by  24 clan designation.  25 The presence of the limx'ooy in the earliest  26 accounts as an encoding of an event and place  27 important in the early history of the group.  28 The importance of land ownership, of "claiming"  29 land in the earliest time.  30 And of course the concept of the adaawk itself  31 dating back to this early period.  32 So we have here certain of the key components of  33 what you have now heard is the contemporary, the  34 modern Gitksan and Wet'suwet'en society or Gitksan  35 society are reflective in these ancient, ancient  36 stories.  37 The second section I wish to deal with is the  38 founding of Temlaxam.  I am sorry, the founding of the  39 Fireweed.  40  41 "The ancestors of the Fireweed were present in  42 the northern area paired with the Frog/Raven  43 clan probably in the earliest times.  Unlike  44 the Wolves, Eagles and Ravens, whose ultimate  45 clan origins may well go back beyond memory,  46 the Fireweed place their creation as a clan in  47 a historical context recording an account of 23583  Submissions by Mr. Grant  1 their origins in one of the most famous adaawk  2 in northcoast histories.  3 The ancestors of the Fireweed appear to  4 have been coastal in origin, and like other  5 such groups they moved inland during  6 deglaciation and formed alliances with the  7 people they encountered there.  One of these  8 encounters with a group of the Raven people,  9 that's the Raven/Frog, took place near the  10 headwaters of the Nass and Skeena Rivers.  11 There they settled together in villages across  12 the river from each other, allied by ties of  13 marriage, but divided by intense rivalry over  14 wealth, which often took the form of ritual  15 gambling.  Quite early in this period, however,  16 the alliance became strained, violence erupted  17 and the ancestral village of the Fireweed, and  18 almost all of its inhabitants were destroyed at  19 the hands of the Raven people."  20  21 Now, there is a couple of points there that -- one  22 is that in this description, as I said, the  23 Wet'suwet'en say they were always there.  So we have  24 the Wolf and the Raven, not a description of origin,  25 but in this inset of Exhibit 358-1 you have the  26 creation of the Fireweed, and of course where we were  27 talking, my lord, is up in this area, up in a similar  28 area between the Nass and the Skeena at the area  29 around Lakwiiyip where these events occurred.  30 And then we have the dispersal after these events  31 occur.  This situation occurred and was described in  32 evidence by several witnesses, principally by Gwaans,  33 Mrs. Ryan.  But -- and the creation of the Fireweed in  34 her evidence in volume 17 is cited there for your  35 reference.  This is the account of the young women who  36 survived the defeat of her people and married the  37 spirit and her children became known as the Sky  38 children, returned to earth bringing their adaawk and  39 crest as their grandfather had instructed.  40 In this excerpt and in Ms. Marsden's report in  41 which it's not her words, but it's the words of  42 earlier informants, for example, Herbert Wallace, the  43 description is given in substantially the same way.  44 And just as an aside, my lord, if you look at an  45 adaawk and you see the name Gispewudwada, as on page  46 73, Gispewudwada is the same as Fireweed.  It's the  47 coastal name for the Fireweed, and their origin is 23584  Submissions by Mr. Grant  1 described as the same.  That's why coastal groups also  2 give this adaawk.  But in any event, Gwaans described  3 after describing this adaawk the crests of her house,  4 including the rainbow and the stars and also the  5 crests of Guxsan, the moon crest, and of course the  6 name Guxsan is gambler.  That name is traced back to  7 this Ska'wo adaawk.  8 Now, if you go over to page 74 or refer to the  9 founding of Temlaxam.  It appears from the analysis of  10 all of the adaawk and what the chiefs have said in  11 evidence that the -- there were groups in the Temlaxam  12 area already, but it appears also that the Fireweed  13 are often referred to as the founders of Temlaxam.  14 Now, let's be clear about Temlaxam.  On page 75,  15 as Ms. Marsden explains from her review of all of the  16 adaawk, it's that Temlaxam is a broad area, variously  17 described, but it ranges some people say as far as  18 Kispiox to Kitsegukla and in between, but focused  19 primarily to the west of Gitanmaax.  And of course  20 your lordship flew over that area and recalls the flat  21 in the area west of Gitanmaax, but it is spread wider  22 than that.  23 THE COURT:  We did more than that.  We drove through it as well.  24 MR. GRANT:  And we drove through it.  That's right.  That's  25 right.  But the concept includes going up as far as  26 Kispiox on that road, as well as down as far as across  27 from Kitsegukla.  28 Now, these on page -- Emma Wright, this is a --  29 gave a description of this adaawk in which the four  30 brothers built -- the last of that quote:  31  32 "... built four houses exactly like the houses  33 they had left on the Nass River.  As they  34 became larger and powerful, also the other  35 clans began to grow."  36  37 Now, the villages or settlement areas, joined or  38 founded at by these two groups, are graphically  39 displayed in Exhibit 358-1, and that's the overlay map  40 and on the inset.  41 And you see, my lord, if you have it, you see in  42 the inset, you can see Temlaxam.  I'll show it on  43 this.  You can see Temlaxam here, which is a -- the  44 Fireweed clan being the red dispersed, and came down  45 there.  Also the Raven clan dispersed down there.  But  46 you can also see Gitangasx, you can also see  47 Baskyats'inhlikit near where Kuldoe is now.  It's just 23585  Submissions by Mr. Grant  1 up of Kuldoe, Kisgegas, Dizkle.  And this map is a  2 reflection of those communties, those places that  3 became more apparent in this era of the descriptions  4 of adaawk.  And these people migrated, of course, down  5 to the Nass as well.  6 Now, these descriptions in this migration, there  7 is many references to the antiquity of Temlaxam.  It  8 was a large and ancient village or settlement area, as  9 Antgulilibiksxw described it on page 76.  10  11 "A   It's a village and I was told it was on  12 both sides of the Skeena River.  It was so big  13 until it gets to the Hazelton where the  14 junction of the Bulkley and Skeena River is ...  15 It almost get to Kispiox too.  16 Q   Do you know where Carnaby is on the Skeena  17 River?...  18 A   That's part of the -- they call it a city  19 it's so big."  20  21 Carnaby is of course downriver, just upstream of  22 Kitsegukla.  23 When asked about the time period of Temlaxam, Mary  24 Johnson -- Mrs. Johnson replied:  25  26 "A...1 was told it was happened what they call  27 la'ooy.  Grandmother, great-great grandmother  28 used to pronounce it whenever she talks about  29 things...Ahla oo'y, that means thousands and  30 thousands of years ago.  That's the reason why  31 they also call the dirge song Limx'ooy.  See  32 how the word is the same...these songs are  33 composed thousands and thousands of years, and  34 passed onto many generations."  35  36 Now, what's significant at Temlaxam is the  37 evolution of the socio-political and cultural  38 institutions resulting from the creation of the  39 Fireweed and the establishment of Temlaxam.  And this  40 was reviewed extensively.  41 I am just going to go over to page 77 for one  42 part.  And this is a synopsis of what the adaawk  43 reflects.  44  45 "At Temlaxam a people was founded in the fullest  46 southern coastal sense,"  47 23586  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Who is it --  This would be out of the report of Mrs. Marsden.  Yes, thank you.  Exhibit 1050 is the Marsden report.  Thank you.  "Here we find the wedding of two cultures.  As  the Fireweed clan, the southern coastal culture  comes into its own right within the overarching  northern inland system.  Here not a single  semi-divine ancestor, but several, established  houses embodying the powers o the Sky itself to  protect and sustain their people.  Here the  crests painted on the house fronts not only  marked a supernatural power and a moment of  cultural creation but did so within a span of  history that was already begun.  With the  creation of the Fireweed no new cultural  elements were created, but previously latent or  underveloped elements combined in such a way as  to create a new and powerful integration of  elements which were to make them a major factor  in Northcoast history."  So what you have at Temlaxam, prior to, of course,  the dispersal, is you have the clans, all of these  features we have already had.  Also what you find is  the crests and the division of the Fireweed into the  house groups with their own crests.  And that was  reflective in Hanamuxw differentiated between her  crests or Gwaans and Hanamuxw crests and Guxsan's  crests .  Section 2 deals with the adaawk, that the adaawk  record in a chronological order of the wilnat'ahl.  These often involve in one way or another the  relationship of the wilnat'ahl with their lands.  Adaawk also record historical events that result in  significant societal and cultural change.  This is one of the easiest aspects of the adaawk  for us to understand, is that it is major, major  events they record.  Of course if there is hundreds or  thousands of years of stability, as in the chronology  of the Men of Mediik and Wars of Mediik becomes  apparent, there is not a lot to talk about in a  conventional historical sense.  So there is not a  large adaawk about those periods of stability.  It may 23587  Submissions by Mr. Grant  1 be in one line.  Similar to our society of the hundred  2 year war described as a hundred year war, and the fact  3 that there would have been peaces in between, of  4 course a lot isn't made of that when you look at  5 history in that sense.  6 The law of respect, and this is the foundation of  7 course for what we say is the fundamental  8 constitutional or underlying principle of the Gitksan  9 and Wet'suwet'en system.  The law of respect for the  10 animal world is a fundamental law for the Gitksan and  11 underlies their relationship with their territory and  12 animal species there.  The adaawk of the Fireweed clan  13 chronicle three events that occur over the span of  14 many generation of Temlaxam in which the laws are  15 broken and a natural disaster follows.  In each case,  16 it says Temlaxam, the Temlaxam people it should be,  17 learn new rituals of respect and new hunting or  18 fishing practises, and in each case a crest and  19 limx'ooy commemorate the event.  The first of these  20 events was described in evidence by Xhliimlaxha,  21 Martha Brown, and the extract from her evidence is  22 described there.  This, of course, is the famous  23 mountain goat adaawk that happened on Stekyooden  24 mountain.  25 And I am not going to at this point review that,  26 but it is present, and of course, my lord, it's also  27 referred to in Ms. Marsden's report at pages 111 to  28 113, where she gives other references to the mountain  29 goat adaawk, and there are many of the Beynon accounts  30 that are of this mountain goat adaawk.  And of course  31 Gwaans, Olive Ryan, also testified to this adaawk.  32 What I would like to spend a few minutes with  33 though is the Mediik adaawk.  And here I say this  34 adaawk happened approximately 3,500 years before the  35 present.  This adaawk of the Mediik or the  36 Mediigemtsa'wee'aks is about the young maidens at  37 Seeley Lake showing the disrespect for the fish there,  38 and it was described in evidence by Mary Johnson and  39 Antgulilbix and Gwisgyen, Stanley Williams.  40 The Mediik crest and limx'ooy both of which are  41 referred to -- I'm on page 81, my lord.  42 By Gwisgyen in his evidence were given as a result  43 of this adaawk.  44 In considering this evidence there are a number of  45 features that should be taken into account.  Firstly,  46 the oral histories, as given in evidence by the  47 Hereditary Chiefs.  Mary Johnson described the Mediik 235?  Submissions by Mr. Grant  1 Adaawk:  2  3 "After all the fishing is finished and all  4 hunting for -- mountain goats and groundhogs,  5 and the mountains and all the berry-picking is  6 finished, then they got nothing to do, so the  7 maidens would go and make the camp at the lake,  8 at the foot of Stekyooden..."  9  10 She identifyed the lake at which these events  11 occurred at Seeley Lake.  12 And she then goes on to describe the event of the  13 Mediik.  14  15 "They left the lake and the people watched where  16 the noise comes from, and they've seen some  17 great trees were throwing about the top of the  18 rest of the tall trees, and they just stood  19 there wondering what happened, until it comes -  20 there is a little stream that runs from the  21 lake and goes into the Skeena River, and  22 that's - and this thing followed the little  23 stream, tramping down the trees.  And finally  24 they see this great, huge bear, grizzly bear  25 that they have never seeen before.  And the  26 chiefs send messengers throught village to -  27 after warriors, to have the warrior ready,  28 which they did.  And not long after the  29 messenger went out, all the warriors came out  30 with their spears and arrows and bow and arrow,  31 and hammers that are made with stone, all those  32 from weapons that strong young men use.  They  33 all come out barely to meet this grizzly bear.  34 And he gets to the water and swam across and -  35 and they went in front, they all went in front  36 of him, but he is, he is a supernatural grizzly  37 bear.  They call him Mediik, and whenever they  38 are shot him with an arrow, the arrow flies way  39 up high instead and fall back down again and it  4 0 hit the warriors, and they were wounded.  And  41 this grizzly bear tramped them until they were  42 crushed to the ground, and goes throuh the  43 village and kills a lot of people.  And after  44 that he - he came - he turned and go into the  45 water again, follow the stream where he came  46 from the first place.  So the brave warriors  47 went to - to see where he went, and it goes 23589  Submissions by Mr. Grant  into the lake, disappeared into the lake."  Walter Wright in the Men of Mediik describes the  same adaawk, and the Men of Mediik I will come back  to, because of the interesting way in which the Men  of Mediik came to be, that is the written book.  But  he says, and just that middle paragraph:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  "On the far shore a creek emptied into the  river, the creek that ran from the Lake of the  Summer Pavilions.  On the south bank the giant  cottonwoods made a fringe of brilliant green.  Behind them the primeval forest of conifers of  a more sombre hue stood rank on rank.  Fear  came into this peaceful scene one day.  Ominous  events were taking place far back in the  forest.  These soon attracted the atention of  the people.  As they watched they saw great  trees thrown high above the top of the forest.  The disturbance came nearer.  Some gigantic  fore was coming down the valley of the creek.  As it came the forest was torn apart, trees  uprooted, trampled down.  A wide gash in the  greenery told of its passing.  Closer and still closer to the river came  the turmoil.  At last a bear came out on the  river's margin.  A bear - but it was unlike any  bear the people had ever seen.  A giant grizzly  bear; one capable of uprooting trees; of  snaping giant trunks as though they were blades  of grass.  The bear paused and glared at  Tum-L-Hama.  Then he moved down the bank and  into the river..."  And then he goes on to describe the battle and the  bear returning to the forest.  Isaac Tens, adaawk number 25 from the --  it's Exhibit 1047. I believe it's the Raven clans  adaawk.  They got back to Temlaxam.  This is the maidens.  Whose adaawk is this please?  This is Isaac Tens.  Isaac Tens was Nikadeen.  Thank you.  Tens is a name of Nikadeen.  And this is reflected  in the Temlaxam, the land of plenty, which is the 23590  Submissions by Mr. Grant  1 collection of the Fireweed clan adaawks by Beynon.  2 And when it says number 25, it's in that -- it is the  3 25th adaawk in that sequence.  And this of course  4 isn't the summary by Barbeau, this is what Isaac Tens  5 said.  6  7 "They got back to Temlaxam which was now a  8 village four miles long.  It was the home of  9 all the people who were saved from the flood.  10 The berries were again growing and the women  11 went to gather them.  These women were the  12 sisters of several brothers."  13  14 And he names then.  15  16 "Among these women were members of their houses.  17 The women, the sisters of these men, got lost.  18 So the men went in search for them.  They  19 arrived at a lake, and found the place where  20 they had been picking berries.  But the lake  21 had risen considerably, and they felt sure that  22 their sisters were drowned."  23  24 And then this version of the adaawk, that is Isaac  25 Tens, describes how the Mediik engages in battle in  26 the lake which rises again when the Mediik is slain.  27 Now, in order to assist Your Lordship in analyzing  28 the adaawk and appreciating the historical component  29 of the adaawk, something was done in this case that  30 has never been done before.  Dr. Rolf Mathewes, one of  31 Canada's leading paleocologists and fossil pollen  32 analysts, gave evidence of analyzing what, if  33 anything, had occurred in the Seeley Lake area.  34 The events recorded in the Gitksan adaawk  35 pertaining to the Mediik can be interpreted as related  36 to a momentous physical event which occurred during  37 and in the aftermath of the Chicago Creek debris  38 avalanche, adjacent to Seeley Lake southwest of  39 Hazelton.  40 Modern accounts of debris avalanche and debris  41 flows attest to the impressive, often overwhelming  42 aspects of these events.  If the Mediik adaawk do  43 record the Chicago Creek avalanche and torrent as part  44 of what happened, then they are testament to events  45 which occurred about 3,600 B.P.  46 Dr. Mathewes and Dr. Gottesfeld independently of  47 each other presented evidence which strongly suggested 23591  Submissions by Mr. Grant  1 debris avalanche occurred, which blocked the outflow  2 of Seeley Lake, caused a large rock and mud  3 disturbance down Chicago Creek and caused a distinct  4 inflow of clay sediment and a disturbance of plant  5 life in Seeley Lake.  Organic matter relating to this  6 event was radiocarbon-dated by Beta Analytic Inc. for  7 both experts.  The dates -3380 +/-90 B.P. and 3580  8 +/-150 B.P., both within the range of carbon 14 error,  9 are in effect contemporaneous.  10 Now, I refer to and review Dr. Mathewes' sources  11 and Dr. Mathewes' explanation on page 85.  But on page  12 86 Dr. Mathewes concludes as follows:  13  14 "...I would feel very strongly that this clay  15 band was formed by a sudden rise in water level  16 at the time of around 3,380 years ago, which  17 caused mineral matter to be washed into the  18 lake and deposited as part of clay one."  19  20 At the time of the deposition of this clay band  21 there was the greatest residue of terrestrial plant  22 debris of the whole core.  Dr. Mathewes concludes in  23 his evidence:  24  25 "This suggests that something was bringing a lot  26 of plant debris and detritus into the lake,  27 which settled to the bottom, and that again is  28 consistent with a landslide disturbance of the  29 water."  30  31 He found that there was the highest occurrence of  32 alder immediately following the clay deposit one.  33 This is consistent with the landslide because alder  34 grows on the type of disturbed soil surface that a  35 landslide would generate.  36 He also concluded there was probably no ice  37 covering the lake when this disturbance occurred, as a  38 disturbance appears to have cut loose shoreline  39 acquatic plant life.  If the surface had ice  40 protection at the time of the landslide, this would  41 not have occurred.  42 That statement, of course, is consistent with the  43 visual description of the women going up either after  44 the berry picking or -- and of course they were  45 misusing the trout, the bones of the trout that they  46 had caught, or at the time of the berry-picking in the  47 Tens version.  It's consistent with the time of the 23592  Submissions by Mr. Grant  1 year that it would have been at the time when there  2 would have been plant life there.  3 Dr. Mathewes concluded why there was an abundance  4 of acquatic plant life immediately above the clay  5 deposit:  6  7 "One of these could be the question we were  8 discussing about the possibility of plants  9 breaking up from the shallow waters and moving  10 into the middle of the lake.  And another  11 possibility is that the clay itself, or this  12 mineral matter washed in to form this clay band  13 one, had a fertiizing effect on the lake."  14  15 Dr. Gottesfeld, a geologist, soils analyst and  16 geomorphologist also gave evidence.  And he was  17 qualified to talk about the nature, age and size of  18 landslides in the Stekyooden region and in particular  19 the nature, age and size of the debris lobe at Seeley  20 Lake.  21 He concluded that the western lobe of the Chicago  22 Creek landslide dams Seeley Lake.  The soil on this  23 slide is Mid, Holocene, which means it is between  24 3,000 and 8,000 years before the present.  25 He then took from a test pit 14, a sample which  26 was dated at 3,580 years before the present.  27 Dr. Gottesfeld concluded:  28  29 "I believe that the date from the edge of the  30 Seeley Marsh, that is one at No. 14, is more  31 accurate, and that that date of 3,580 dates a  32 time within a few years of the occurrence of  33 the landslide, I think within a few years."  34  35 This was the largest single event in the map area.  36 That is the area of his study.  And he concluded the  37 event dammed the outline of Seeley Lake and raised the  38 water level two to three meters.  39 And of course Dr. Gottesfeld gave you his  40 description of what he perceives he would have seen if  41 he was standing at a safe point watching this debris  42 fall.  And of course his description is very similar  43 to the type of description given by the other -- given  44 by the adaawk.  45 My lord, I want to make a note for Your Lordship,  46 that at the end of Dr. Gottesfeld's evidence, at  47 volume 145, page 9241. 23593  Submissions by Mr. Grant  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Line 45?  Yes.  Page?  Page 9241.  Thank you.  Your Lordship, after Dr. Gottesfeld evidence was  completed, asked some questions, and you asked:  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  "Q   Is it your evidence that part of the Chicago  Creek slide took place 3,500 years ago?  A   I believe that it did very shortly before that  date of 3580.  Q   And this was based largely, or entirely, upon  the radiocarbon analysis of organic material  taken from -- well, I'm sorry, from radiocarbon  analysis of two samples?  A   Correct.  Well, the physical presence is based  on looking at it on the ground.  Q   Yes.  A   The dating is based on two samples which both  provide minimum dates.  Q   Yeah.  A   But I believe the older date by the nature of  the context, that is the nature of the sediment  that's enclosed in it, looks like the material  washed out at the end of the debris slide.  I  think it's very close within a year or two or  three of the age of the slide.  Q   You think the older date is the more reliable  one than the newer date?  A   Yes.  I have a strong feeling that that date,  that from the context of the older date that it  should be very close to the true age, and that  the other material could well be thousands of  years younger.  Q   And is it your evidence that the slide caused a  damming or backing up Chicago Creek and that  that in some way brought the clay deposit to  the underbed of Seeley lake?  A   I think it's very likely.  As I read Dr.  Mathewes' report the lithology of his clay pan  one match the lithology of the clay deposit  that I dated from among the boulders at the  edge of the Seeley swamp.  I think it is the  same layer.  Q   What is the mechanism that causes -- that  explains the presence of clay pan from damming 23594  Submissions by Mr. Grant  1 of the creek and the possible raising of the  2 water level?  3 A  Well, what I would imagine happened was there  4 was this great bulge, this big massive deposit  5 came in and filled the valley, that Chicago  6 Creek was then running all over the deposit, or  7 quite disorganized fashion aross the top of the  8 deposit, numerous channels washing out the fine  9 crushed rock material from among the boulders  10 and making the lake white with white ground up  11 granite material that came from the debris --  12 from the debris flow and placement, and then  13 that clay and silt would be distributed  14 throughout the lake and gradually settle down  15 and be incorporated in sediments throughout the  16 lake.  17 Q   That theory then depends upon Seeley Lake and  18 the blockage being relatively at the same  19 elevation?  20 A   Yes, but that was certainly so.  21 Q   And you say that is so, is it?  22 A   That is so.  That debris material now forms the  23 edge of the lake.  And you can see the present  24 Seeley Creek cuts through several meters; two,  25 three, four meters of the little ravine cutting  26 across that debris lobe.  27 Q   So you say the back-up from Seeley Lake, that  28 the back-up at the dam site spread back  29 upstream, as it were, to Seeley Lake?  30 A   Right.  So Seeley Lake may well have extended  31 to that place in the past.  I don't have a  32 record of the swamp -- the antiquity of the  33 swamp right there.  If it did not already exist  34 at the moment the slide was in place or within  35 a few weeks the lake level would have filled up  36 and flooded and started overtopping the debris  37 deposits and then Seeley Lake would have been  38 considerably enlarged both on the east side and  39 on the west side.  40 Q   And on that theory I suppose one should expect  41 to find a clay band not just under Seeley Lake,  42 but throughout the whole floodplain area?  43 A   Yes.  Yeah, if it was not removed by some  44 subsequent erosion or event it should be a  45 marker horizon to the interface."  46  47 Now, Dr. Gottesfeld and Dr. Mathewes, their 23595  Submissions by Mr. Grant  description, and Dr. Gottesfeld refers to his dating,  and his event being the date as Dr. Mathewes.  But  they did independent research.  You couldn't, as I  believe Your Lordship commented at the time, you  couldn't get further removed from an anthropological  analysis of an adaawk, than to have this kind of  scientific dating.  The final reference is:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  Q   Did you find clean pan in any of your test  holes?  A   There was more than one -- well, I mean,  this deposit which this piece of wood came from  which is dated is a silty gray clay, and I  think that is the band.  I also made another  hole within a few metres of it looking around  for a sample, perhaps two other holes, and that  layer was present there too.  Q   A concave band?  A   Oh, yes, right at the interface of the  debris slide and any overlying lake sediment."  My lord, those questions from Your Lordship at  that time crystallized the conjunction between  Mathewes' and Gottesfeld's work, in terms of the  dating, and of course it's consistent with the adaawk.  It's consistent with the Mediik adaawk given by Mary  Johnson, Walter Wright, Isaac Tens and Stanley  Williams.  It was of significant event in the history  of the Gitksan at the village of Temlaxam.  This  analysis was done not from some doubt that what the  Gitksan chiefs were saying was true, but as  corroboration of the adaawk in a way that the Court  could appreciate the veracity of the history of the  adaawk.  The third event at Temlaxam took place at the  close of this era of peace, and it is referred to  further below, but it is the -- described by Mary  Johnson, Martha Brown and Stanley Williams, and it  deals with the great snowfall.  I am moving into section three now, my lord.  I  don't know what you --  :  Well, I am in your hands, Mr. Grant.  Whatever you  want to do.  :  I'll deal with the first part and get up to the  Temlaxam area.  That's fine.  :  Thank you.  As you know, I am quite content to sit  longer if you wish. 23596  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  :  Yes.  I think that we'll be -- we wanted to see some  sense of flow, and we'll come back to you tomorrow  with that.  :  Yes.  :  The events recorded in the adaawk that take place in  the same era, if taken together, can depict settlement  patterns and intra and the inter-group relations.  At  this time the Temlaxam era we are calling, there were  three main areas inhabited by the Gitksan, the  northern area, Temlaxam, in its broadest sense, and  the west.  And of course there was also Dizkle in this period  of time among the Wet'suwet'en, which I'll come back  to later.  The summary with respect to the west and the north  is reflective of the evidence, but in the north at  this era they ranged over large territorial areas.  Like the ancestral Tahltan, among others, they appear  to have had a centralized location where they  regrouped annually after which they named themselves.  For the northern Gitksan it was Gitangasx.  Unlike the  Tahltan, however, the northern Gitksan had significant  and stable villages elsewhere in the north, at  Blackwater, Kisgegas, Galdo ' o and Ts'imanluuskeexs.  Luuxoon and his relatives are from Gitangasx.  Luuxoon, of course, is a Frog chief at Kitwancool  today.  And the summary there refers to, among other  chiefs who are plaintiffs from Gitangasx, Miluulak,  Wii Minoosik, Haiwas, are connected or the same house  group today.  "The Wolves said to be from Gitangasx are now  considered the Kisgegas and Galdo'o Wolves,  such as, for example, Gyolugyet, while the  Fireweed from there, Wiigyet, Geel, Dawamuux,  Xkyadet are those who remain in the north after  the war there between the Sky Children and the  Raven people.  That these groups are often identified with  two places of origin indicates one or both of  two situations.  Gitangasx would well have been  originally like Dehldan, a central or meeting  place where groups that spent much of their  time hunting and fishing on their territories  gathered seasonally.  In another era, Gitangasx  was probably a village, perhaps very large and 23597  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  centralized, spread out along the flat there.  This village site lies halfway, almost exactly,  between the central fishing and hunting  villages of the Blackwater Frog clan, and that  of the Galdo'o Wolves to the east.  The  Fireweed were both somewhat to the south of the  wolves and to the north of the Frog clan is  presently owned territory is an accurate  indication."  Whose --  This is the Marsden report.  This is Marsden again?  Yes, this is Marsden.  Sorry, but when we were --  now, John Brown, Kwiiyeehl, who said in the 1920's  that Gitangasx was a Gitksan village even older than  Temlaxam, and those interviewed on the subject by  Emmons between 1908 and 1910 also discussed the age of  Gitangasx.  "Kit an gash 'People of the Place that Tastes  Bad' said to have antedated most of the other  villages, once on the divide between the  headwaters of the Nass and the Skeena just this  side of the Groundhog country."  Now that 1050 is an extract from the Marsden  report, but that is a reference, as is many of the  materials in the report are references to other  sources.  That particular reference is from Emmon's  own field notes.  Now, I would like to close with the -- looking at  what you have in the Gitksan socio-political  institutions that are demonstrated in this era.  You  have feasting, which is demonstrated through the  adaawk.  You have Ksiisxw, that should be "ts",  Tsiisxwq or peace settlements which are demonstrated  through the adaawk as a result of the wars that have  occurred in this early time.  You have the Limx'ooy.  You have pole raisings, which are described, and you  have crests.  The northern Gitksan at this time had active and  peaceful relations with their neighbours.  "In summary,"  And this is Ms. Marsden's summary. 2359?  Submissions by Mr. Grant  1  2 "There were two large groups north of the  3 Gitksan and Temlaxam era, the Tahltan and the  4 Lax'wiiyip.  These two groups were probably  5 loosely allied at this time.  They were both  6 dominated by the Raven clan, who were then  7 paired with the Wolf (Eagles) .  Only one, the  8 Lax'wiiyip, shared their boundary with the  9 Gitksan, primarily with their relatives of  10 origin, the Blackwater and Bowser Lake Frog  11 clan, and possibly at this time with their  12 other relatives or origin, the Wolf(Eagle)/  13 Fireweed people."  14  15 I was going to move into -- well, I can just deal  16 with Temlaxam.  The Temlaxam area, my lord, is an area  17 that there are a number of village names appearing in  18 the adaawk.  Descriptions of Temlaxam emphasize the  19 density of population and frequently refer to annual  20 harvest of fish, hunting of goat.  21 In the Temlaxam area the Fireweed and the Wolf  22 were paired with the Frog/Raven, which combined for  23 the first time the northern Frog/Raven with an eastern  24 group said to be from Babine Lake and to identify  25 themselves by the Loon.  And that's reflected on the  26 inset on Exhibit 358-1, the atlas, and you can see the  27 inset -- I'm sorry, it's on the larger map.  It is the  28 green arrows coming in of the inland peoples moving in  2 9 towards Temlaxam.  30 So socio-political and cultural characteristics at  31 Temlaxam in addition to those already discussed  32 included the first salmon ceremony demonstrating the  33 fundamental law of respect, the relationship and  34 respect for the salmon, and the large houses with  35 painted house fronts depicting the crests, the dock or  36 excavated houses, and the increasing importance of the  37 feasts.  The whole mountain goat adaawk of course  38 refers to it in terms of the feast.  The  39 socio-political institution of the Gitksan at  40 Temlaxham were influenced by their neighbours, the  41 Wet'suwet'en as were their spiritual beliefs and  42 practises.  43 And of course, without going through that quote,  44 is that the evidence of Dizkle and the adaawk  45 demonstrate a proximity and a connection between the  46 Wet'suwet'en and the Gitksan at this time.  47 My lord, I am now moving into an area of 23599  Submissions by Mr. Grant  1 population shifts and dispersal starting at page 97.  2 THE COURT:  Want to adjourn now.  All right.  Thank you.  3 THE REGISTRAR:  Order in court.  4 THE COURT  5 MR. GRANT  6 THE COURT  Want to start at ten o'clock?  That's fine.  Thank you.  7 THE REGISTRAR:  Order in court.  This Court stands adjourned  8 until ten o'clock tomorrow.  9  10  11 I HEREBY CERTIFY THE FOREGOING TO BE  12 A TRUE AND ACCURATE  TRANSCRIPT OF  13 THE PROCEEDINGS HEREIN TO THE BEST OF  14 MY SKILL AND ABILITY.  15  16  17 LORI OXLEY  18 OFFICIAL REPORTER  19 UNITED REPORTING SERVICE LTD.  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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